Quoted in The Times of India on Secretary Rubio’s March 14, 2025 Memo Declaring Immigration a ‘Foreign Affairs’ Exception under APA
I was quoted in The Times of India regarding Secretary of State Marco Rubio’s controversial March 14, 2025 memo, in which he broadly declares that immigration and cross-border commerce regulations are exempt from the Administrative Procedure Act (APA) because they involve “foreign affairs” matters. This exemption effectively removes the public’s longstanding right to notice and comment on proposed regulations, a critical procedural safeguard ensuring transparency, fairness, and accountability. Under the APA, advocacy groups have previously succeeded in challenging actions by both Republican and Democratic administrations when procedural rules were ignored (including several immigration rules during Trump 1.0). Rubio’s memo now significantly restricts these judicial avenues, granting the executive branch substantial power to implement regulations affecting millions without public input and with greatly reduced judicial oversight.
This memo aligns with other moves and Executive Orders issued by this administration that collectively suggest an effort by by Trump 2.0 to expand presidential authority under the “unitary executive theory,” a controversial doctrine asserting that the President has broad, nearly unchecked control over the entire executive branch, an approach which would greatly impact congressional oversight, public accountability, and traditional democratic processes.
Article: http://timesofindia.indiatimes.com/articleshow/119491450.cms
Updated Again: For October 2020 Visa Bulletin USCIS Previously Indicated that it would accept EB AOS Applications based on “Final Action Dates” but now the same website indicates it will accept “Dates for Filing”
DOS has posted the October 2020 visa bulletin. In addition to final action dates and dates for filing for family and employment-based petitions, it contains notes on the DV category, the DV category rank cut-offs which will apply in November, movement of the October final action and application filing dates, visa availability in the coming months, and the scheduled expiration of two employment categories, including the employment fourth preference certain religious workers (SR) and employment fifth preference categories (I5 and R5). The FY2021 annual limit for employment-based visas is approximately 261,500.
For EB India in particular, the October 2020 visa bulletin notes the following advancements:
Final Action Dates:
EB1 India: June 1, 2018
EB2 India: September 1, 2009
EB3 India: January 15, 2010
Filing Dates:
EB1 India: September 1, 2020
EB2 India: May 15, 2011
EB3 India: January 1, 2015
At present, this material change remains unexplained and is generating significant confusion. It goes without saying that the delivery of accurate and consistent information by USCIS is extremely critical, particularly in this case, where “Dates for Filing” = 5+ years less wait time for EB3 India.
Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
October 2018 Visa Bulletin Updates – Employment-Based Preference Categories
VIA AILA.org
EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.
EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.
EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected.
EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Only minimal movements expected during the first quarter of the fiscal year.
EB-4. EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.
EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China. Demand remains high, not much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
More than 300,000 Central American and Haitian Immigrants to Lose TPS: May Soon Face Deportation
New York Magazine reports that US Dept. of State has advised US Dept. of Homeland Security officials this week that the 300,000+ Central Americans and Haitians who are currently in the United States in a Temporary Protected Status will no longer be protected from deportation. This announcement arrives days prior to a highly anticipated DHS announcement on a decision to renew said TPS program.
“Per a letter from Secretary of State Rex Tillerson to DHS secretary Elaine Duke this week, the State Department believes that conditions in Central America and Haiti have now improved to the point that TPS designation is no longer necessary. The legally required assessment came as the DHS prepares to announce by Monday whether it will renew TPS protection for more than 60,000 Honduran and Nicaraguan immigrants in early January. Tillerson’s letter doesn’t bode well for them or for two other large groups of American residents: nearly 60,000 Haitian immigrants with TPS whose protection expires in late January, and almost 200,000 Salvadorans whose protection expires next March.
Some of these immigrants have been in the U.S. for as long as two decades, and many own homes and businesses. One study has estimated that TPS holders have almost 275,000 U.S.-born children in their families. Should the designations not be renewed, these immigrants would have at least six months to get their affairs in order and leave the country. If they chose to stay, they could face arrest and deportation.”
Reuters Exclusive: US Gov’t orders Embassies to identify Certain Population Groups for Extreme Vetting including Mandatory Social Media checks
Reuters recently reported on an exclusive story regarding four diplomatic cables (links below) transmitted by U.S. Secretary of State Rex Tillerson in the last two weeks that call for heightened screening and vetting of visa applicants, including asking applicants detailed questions about their backgrounds and making social media checks mandatory for those who have ever been present in territory controlled by the Islamic State.
Read the Diplomatic Cables (Via Reuters)
1) CABLE 23338 – Guidance to Visa-Issuing Posts; March 10, 2017
US Dept of State Alert on Provisionally Revoked/Expired/Cancelled Visas
DOS alert that visas that were provisional revoked are now valid for travel to the U.S., if the holder is otherwise eligible. Individuals whose visas are expired, or were physically cancelled, must apply for a new visa, absent a CBP grant parole or waive the visa requirement at the port of entry.
Federal Court Suspends President Trump’s Executive Order banning Muslims and Refugees, CBP & DOS to Resume Business as Usual
On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.
Customs and Border Protection: The American Immigration Lawyers Association has been advised that all CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.
Department of State: DOS has confirmed that assuming there were no other issues in the case, provisionally revoked visas have been reversed and are valid again.
The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”
What to Do If a Legal Permanent Resident (Green Card Holder) is Asked to Relinquish his/her Green Card and Sign a Form I-407, Abandonment of LPR Status by Customs and Border Protection (CBP)
In a word: Don’t.
Upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Form I-407 must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign Form I-407 must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.
Significant Change to Employment Based Green Card Cases – As of today, two separate categories for EB Visa Bulletins, for the filing (Acceptance) of Adjustment of Status cases and one for final Approval of cases
The Obama Administration’s attempts to “streamline” the U.S. employment based green card process appeared to have paid off when the U.S. Department of State recently acknowledged that it was reworking its visa availability system. Today, however, we received a wonderful surprise: as per the U.S. Dept. of State’s Visa Bulletin for October 2015, a significant change in the EB process is apparent: the Visa Bulletin includes two separate employment based categories, each with a different cut off date (see below).
The first category represents the “Approval” category which notes the priority date as to when an Applicant’s Adjustment of Status or IV case would be ultimately approved. The second category represents the “Acceptance” category which control when an Applicant could file for Adjustment of Status, assuming an Applicant’s Priority Date is current at that time.
This is a remarkable and welcome update that conveys significant benefits to EB preference applicants, particularly for Indian and Chinese nationals who were most prejudiced by the long delays arising from retrogressed priority dates.
USCIS should prepare for an avalanche of AOS applications.
A. APPLICATION FINAL ACTION DATES FOR
EMPLOYMENT-BASED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date isearlier than the cut-off date listed below.)
| Employment- Based | All Chargeability Areas Except Those Listed | CHINA – mainland born | INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 01JAN12 | 01MAY05 | C | C |
| 3rd | 15AUG15 | 15OCT11 | 08MAR04 | 15AUG15 | 01JAN07 |
| Other Workers | 15AUG15 | 01JAN06 | 08MAR04 | 15AUG15 | 01JAN07 |
| 4th | C | C | C | C | C |
| Certain Religious Workers | U | U | U | U | U |
| 5th Targeted EmploymentAreas/ Regional Centers |
C | 08OCT13 | C | C | C |
| 5th Pilot Programs |
U | U | U | U | U |
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B. DATES FOR FILING OF EMPLOYMENT-BASED
VISA APPLICATIONS
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.
USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. Applicants for adjustment of status may visitwww.USCIS.gov/visabulletininfo for additional information.
| Employment- Based |
All Chargeability Areas Except Those Listed |
CHINA- mainland born |
INDIA | MEXICO | PHILIPPINES |
| 1st | C | C | C | C | C |
| 2nd | C | 01MAY14 | 01JUL11 | C | C |
| 3rd | 01SEP15 | 01OCT13 | 01JUL05 | 01SEP15 | 01JAN15 |
| Other Workers | 01SEP15 | 01JAN07 | 01JUL05 | 01SEP15 | 01JAN15 |
| 4th | C | C | C | C | C |
| Certain Religious Workers |
C | C | C | C | C |
| 5th Targeted Employment Areas/ Regional Centers and Pilot Programs |
C | 01MAY15 | C | C | C |
6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
The U.S. Immigration Law Blog by Ashwin Sharma 
Immigration Update: H-1B & H-4 Visa Processing Delays and New Social Media Vetting Standards
We are monitoring significant scheduling changes for H-1B and H-4 visa appointments, with interviews originally set for mid-December 2025 now being cancelled and moved as far out as April 2026.
These disruptions appear tied to the Department of State’s new mandatory online presence review, effective December 15, 2025, which requires H-1B and H-4 visa applicants at consular posts to set their social media accounts to a public setting.
By way of background, in June 2025, the State Department rolled out a similar framework for F, M, and J students and exchange visitors, and the inclusion of H-1B and H-4 applicants marks the first expansion of that policy. The Department has indicated that this online presence review covers:
The recent announcement does not describe the exact standard Consular Officers will use when reviewing H-1B and H-4 online presence. However, H categories are being folded into the policy already in place for F, M, and J applicants, and several details about that policy were described in media reporting in the spring regarding a June 2025 State Department cable to consular posts.
According to the State Department’s previous cable, Consular Officers are instructed as follows:
If Consular Officers identify information they view as derogatory, they can refuse the application outright or require the applicant to appear for a follow-up interview. Discovery of such content can also trigger additional review to determine whether the foreign national will respect U.S. laws and engage only in activities consistent with their nonimmigrant status.
Media outlets that reportedly reviewed the State Department cable addressing the online presence policy as applied to H-1B and H-4 applicants indicate that the key focus for these categories is whether the applicant has been responsible for, or complicit in, the “censorship or attempted censorship” of U.S. citizens at any point in their employment or personal history.
Employers and affected foreign nationals should expect that H-1B and H-4 visa appointment availability will tighten as consular posts absorb the additional work associated with the online presence review.
The new vetting standards increase the likelihood that some applicants will be flagged for lengthy background checks and additional security review. In practice, this can mean:
H-1B visa applicants facing possible delays should stay in close contact with their employer and immigration counsel. Any foreign national planning international travel, whether they already hold a valid visa or will need to apply for a new one, should review these online presence issues and timing risks carefully before finalizing plans to travel abroad.