On February 21, 2025, the U.S. Department of State, under Secretary Marco Rubio, published a significant notice in the Federal Register titled “Determination: Foreign Affairs Functions of the United States.” The notice asserts that the Department of State maintains “primacy among federal agencies in the conduct of our foreign policy,” and broadens the understanding of what constitutes a foreign affairs function.
Most notably, the determination states that “all efforts conducted by any agency of the federal government to control the status, entry, and exit of people, and the transfer of goods, services, data, technology, and other items across the borders of the United States” are deemed foreign affairs functions under the Administrative Procedure Act (APA).
This pronouncement is of considerable consequence. Historically, the Department of State has claimed exemption from APA procedures—such as public notice and comment—for its visa operations and foreign policy matters. However, this new determination effectively attempts to extend that exemption to all federal agencies engaged in activities even loosely related to U.S. borders, including USCIS, DHS, CBP, and potentially even the Department of Commerce or DOL.
Legal Implications for Visa Holders and Immigrant Applicants
If this position is adopted broadly, it could:
- Eliminate the requirement for agencies to undergo public notice and comment when changing rules that affect immigration, customs, or cross-border data exchange.
- Limit the ability of individuals and businesses to challenge delays or denials in immigration processes through mandamus actions, which are permitted under the APA for unreasonable agency delay.
- Weaken judicial oversight, placing more discretionary power in the hands of executive agencies under the guise of foreign affairs.
For visa applicants, lawful permanent residents, and cross-border investors, this could mean reduced transparency and fewer avenues for legal recourse when facing delays or abrupt regulatory changes.
What You Should Know
At Ahluwalia Law Offices, we believe that any interpretation that expands government powers at the expense of public accountability and legal checks must be carefully scrutinized. While the State Department’s foreign policy functions are undisputed, this broadened claim of APA exemption could lead to less predictability and more arbitrary actions in visa processing and regulatory enforcement.
We will continue monitoring developments on this determination and how federal agencies interpret and implement Secretary Rubio’s declaration. If you are currently navigating a consular processing delay or administrative backlog, it is crucial to seek legal guidance on how this change may impact your case.
Need legal advice on delays, consular processing, or administrative actions?
Contact Ahluwalia Law Offices for tailored support rooted in experience, strategy, and legal integrity.
