Visa Policy: Roles of the Departments of State and Homeland Security

CRS Report for Congress
Visa Policy: Roles of the Departments
of State and Homeland Security
March 4, 2004
Ruth Ellen Wasem
Specialist in Social Legislation
Domestic Social Policy Division


Congressional Research Service ˜ The Library of Congress

Visa Policy: Roles of the Departments
of State and Homeland Security
Summary
Since the September 11, 2001 terrorist attacks, considerable concern has been
raised because the 19 terrorists were aliens who apparently entered the United States
on temporary visas despite provisions in immigration laws that bar the admission of
terrorists. Fears that lax enforcement of immigration laws regulating the admission
of foreign nationals into the United States may continue to make the United States
vulnerable to further terrorist attacks have led many to call for revisions in the policy
as well as changes in who administers immigration law.
Foreign nationals not already legally residing in the United States who wish to
come to the United States generally must obtain a visa to be admitted, with certain
exceptions noted in law. Prior to establishment of the Department of Homeland
Security (DHS), two departments — the Department of State (DOS) Bureau of
Consular Affairs and the Department of Justice (DOJ) Immigration and
Naturalization Service (INS) — each played key roles in administering the law and
policies on the admission of aliens. Although DOS’s Consular Affairs remains
responsible for issuing visas, DHS’s Bureau of Citizenship and Immigrant Services
approves immigrant petitions, and DHS’s Bureau of Customs and Border Protection
inspects all people who enter the United States. In FY2002, DOS issued
approximately 6.2 million visas and rejected over 2.2 million aliens seeking visas.
When the President’s proposal to establish DHS (H.R. 5005, 107th Congress)
was debated, his initial plan to give the DHS Secretary exclusive authority through
the Secretary of State to issue or refuse to issue visas was a thorny point. The House
Select Committee on Homeland Security approved compromise language on visa
issuances in H.R. 5005 that retained DOS’s administrative role in issuing visas, but
added specific language to address many of the policy and national security concerns
raised during hearings. An amendment to move the consular affairs visa function to
DHS failed when the House passed H.R. 5005. The Homeland Security Act of 2002
(P.L. 107-296) retained the compromise language stating that DHS issues regulations
regarding visa issuances and assigns staff to consular posts abroad to advise, review,
and conduct investigations, and that DOS’s Consular Affairs continues to issue visas.
Signing of a 2003 memorandum of understanding (MOU) that implements the
working relationship between DOS and DHS’s three immigration-related bureaus
sparked immediate debate. Some have expressed the view that DOS retains too
much control over visa issuances under the MOU, maintaining that the Homeland
Security Act intended DHS to be the lead department and DOS to merely administer
the visa process. Proponents of DOS playing the principal role in visa issuances
assert that only consular officers in the field have the country-specific knowledge to
make decisions about whether an alien is admissible and that staffing 250 diplomatic
and consular posts around the world would stretch DHS beyond its capacity.
Whether the visa security procedures are adequately funded may also arise as the
FY2005 budget is considered. This report will be updated as significant
developments occur.



Contents
In troduction ......................................................1
Overview on Visa Issuances.........................................2
Immigrant Visas...............................................2
Nonimmigrant Visas...........................................3
Grounds for Exclusion..........................................5
Fees and Funding Levels............................................6
Legislative Issues in 107th Congress...................................7
Reassigning Visa Issuance Functions..............................7
Option: Locating all Functions in DHS........................8
Option: Locating Functions in Different Agencies................8
Homeland Security Act.........................................9
Current Division of Responsibilities..................................11
State’s Continuing Role........................................11
DHS’s New Role.............................................12
Current Issues....................................................14
Competing Concerns..........................................14
FY2005 Funding.............................................14
DHS Office of International Affairs..........................14
DOS Bureau of Consular Affairs.............................14
List of Figures
Figure 1. Immigrants Arriving or Adjusting Status, FY1990-FY2002.........3
Figure 2. Nonimmigrant Visas Issued, FY1990-FY2003...................4
List of Tables
Table 1. Appropriations for Overseas Visa Services, Consular Affairs........6
Table 2. Visa-Related Fee Collections, FY2004-FY2005..................7
Table 3. Visa Issuance Policy Roles and Tasks: Comparison of Major
Homeland Security Proposals...................................10



Visa Policy: Roles of the Departments of
State and Homeland Security
Introduction
Since the September 11, 2001 terrorist attacks, considerable concern has been
raised because the 19 terrorists were aliens (i.e., noncitizens or foreign nationals) who
apparently entered the United States on temporary visas. Fears that lax enforcement
of immigration laws regulating the admission of foreign nationals into the United
States may continue to make the United States vulnerable to further terrorist attacks
have led many to call for revisions in the visa policy and possibly changes in who1
administers immigration law.
Foreign nationals not already legally residing in the United States who wish to
come to the United States generally must obtain a visa to be admitted.2 Under current
law, three departments — the Department of State (DOS), the Department of
Homeland Security (DHS) and the Department of Justice (DOJ) — each play key3
roles in administering the law and policies on the admission of aliens. DOS’s
Bureau of Consular Affairs (Consular Affairs) is responsible for issuing visas, DHS’s
Citizenship and Immigration Services Bureau (USCIS) is charged with approving
immigrant petitions, and DHS’s Customs and Border Protection Bureau (CBP) is
tasked with inspecting all people who enter the United States. DOJ’s Executive
Office for Immigration Review (EOIR) has a significant policy role through its4
adjudicatory decisions on specific immigration cases.
This report addresses policies on immigration visa issuances, options to reassign
this function to the Department of Homeland Security (DHS) that were considered


1 For background and analysis of visa issuance policy and activities, see CRS Report
RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
2 Authorities to except or to waive visa requirements are specified in law, such as the broad
parole authority of the Attorney General under §212(d)(5) of Immigration and Nationality
Act (INA) and the specific authority of the Visa Waiver Program in §217 of INA.
3 Other departments, notably the Department of Labor (DOL), and the Department of
Agriculture (USDA), play roles in the approval process depending on the category or type
of visa sought, and the Department of Health and Human Services (DHHS) sets policy on
the health-related grounds for inadmissibility discussed below.
4 For an analysis of the transfer of immigration functions and activities to a new Department
of Homeland Security, see CRS Report RL31560, Homeland Security Proposals: Issues
Regarding Transfer of Immigration Agencies and Functions; and CRS Report RL31584, A
Comparative Analysis of the Immigration Functions in the Major Homeland Security Bills,
both by Lisa M. Seghetti and Ruth Ellen Wasem.

prior to passage of the Homeland Security Act of 2002 (P.L. 107-296), and current
administration of visa policy. It opens with an overview of visa issuances, with brief
sections on procedures for aliens coming to live in the United States permanently and
on procedures for aliens admitted for temporary stays.5 A summary of the grounds
for excluding aliens follows. The report provides a legislative history of the debate
to transfer visa issuance policy functions to DHS and analyzes legislative proposals
in the 107th Congress to reassign the visa issuance activities. A discussion of the
current division of responsibilities between DHS and DOS and the ongoing issues
in the 108th Congress conclude the report.
Overview on Visa Issuances
There are two broad classes of aliens that are issued visas: immigrants and
nonimmigrants. Humanitarian admissions, such as asylees, refugees, parolees and
other aliens granted relief from deportation, are handled separately under the
Immigration and Nationality Act (INA). Those aliens granted asylum or refugee6
status ultimately are eligible to become legal permanent residents (LPRs). Illegal
aliens or unauthorized aliens include those noncitizens who either entered the United
States surreptitiously (i.e., entered without inspection, or who violated the terms of
their visas).
Immigrant Visas
Aliens who wish to come to live permanently in the United States must meet a
set of criteria specified in the INA. They must qualify as
!a spouse or minor child of a U.S. citizen;
!a parent, adult child or sibling of an adult U.S. citizen;
!a spouse or minor child of a legal permanent resident;
!an employee that a U.S. employer has gotten approval from the
Department of Labor to hire;
!a person of extraordinary or exceptional ability in specified areas;
!a refugee or asylee determined to be fleeing persecution;
!winner of a visa in the diversity lottery; or
!having met other specialized provisions of law.
Petitions for immigrant (i.e., LPR) status are first filed with USCIS by the
sponsoring relative or employer in the United States. If the prospective immigrant
is already residing in the United States, the USCIS handles the entire process, which
is called “adjustment of status.” If the prospective LPR does not have legal residence


5 For a broader discussion, see CRS Report RS20916, Immigration and Naturalization
Fundamentals, by Ruth Ellen Wasem.
6 For background and further discussion of humanitarian cases, see CRS Report RL31269,
Refugee Admissions and Resettlement Policy, by Andorra Bruno and Katherine Bush; and
CRS Report RS20844, Temporary Protected Status: Current Immigration Policy and
Issues, by Ruth Ellen Wasem and Karma Ester.

in the United States, the petition is forwarded to Consular Affairs in their home
country after USCIS has reviewed it. The Consular Affairs officer (when the alien
is coming from abroad) and USCIS adjudicator (when the alien is adjusting status in
the United States) must be satisfied that the alien is entitled to the immigrant status.
As Figure 1 depicts, many LPRs are adjusting status from within the United States
rather than receiving visas issued abroad by Consular Affairs. The spikes in FY1990
and FY1991 are due to the legalization programs of the Immigration Reform and
Control Act of 1986.
Figure 1. Immigrants Arriving or Adjusting Status, FY1990-FY2002
Thousands
2000
Adj u st ment s Arri val s
1500
1000
500
0
1990 1992 1994 1996 1998 2000 2002
Source: CRS presentation of published USCIS data.
Nonimmigrant Visas
Aliens seeking to come to the United States temporarily rather than to live7
permanently are known as nonimmigrants. These aliens are admitted to the United
States for a temporary period of time and an expressed reason. There are 24 major
nonimmigrant visa categories, and 70 specific types of nonimmigrant visas are issued
currently. Most of these nonimmigrant visa categories are defined in §101(a)(15) of
the INA. These visa categories are commonly referred to by the letter and numeral
that denotes their subparagraph in §101(a)(15), e.g., B-2 tourists, F-1 foreign
students, H-1B temporary professional workers, or J-1 cultural exchange participants.


7 For a full discussion and analysis of nonimmigrant visas, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem. (Hereafter cited as
RL31381, Temporary Admissions.)

Figure 2. Nonimmigrant Visas Issued, FY1990-FY2003
Millions
8
6
4.9
million
4
2
0
1990 1992 1994 1996 1998 2000 2002
Source: CRS presentation of DOS Bureau of Consular Affairs data.
Nonimmigrant visas issued abroad dipped to 5.8 million in FY2002 after
peaking at 7.6 million in FY2001. Preliminary FY2003 data indicate a further drop
to 4.9 million nonimmigrant visas issued. Over the past 12 years, as Figure 2
illustrates, DOS has typically issued about 6 million nonimmigrant visas annually.
Depending on reciprocal agreements with foreign governments, nonimmigrant visas
may be valid for several years and may permit multiple entries. USCIS reported 33.78
million nonimmigrant entries in FY2000 and 27.9 million in FY2002.
Most visitors, however, enter the United States without nonimmigrant visas
through the Visa Waiver Program (VWP). This provision of INA allows the
Attorney General to waive the visa documentary requirements for aliens coming as
visitors from 27 countries (e.g., Australia, France, Germany, Italy, Japan, New
Zealand, and Switzerland). The USCIS reported that 17 million nonimmigrants
entered the United States through VWP in FY2001 and that 13 million9
nonimmigrants entered through VWP in FY2002. Since aliens entering through
VWP do not have visas, CBP inspectors at the port of entry perform the background
checks and make the determination of whether the VWP alien is admissible.


8 For additional analysis, see RL31381, Temporary Admissions.
9 See CRS Report RL32221, Visa Waiver Program, by Alison Siskin.

Grounds for Exclusion
All aliens must undergo reviews performed by DOS consular officers abroad
and CBP inspectors upon entry to the U.S. These reviews are intended to ensure that
they are not ineligible for visas or admission under the grounds for inadmissibility
spelled out in INA.10 These criteria are:
!health-related grounds;
!criminal history;
!security and terrorist concerns;
!public charge (e.g., indigence);
!seeking to work without proper labor certification;
!illegal entrants and immigration law violations;
!ineligible for citizenship; and
!aliens previously removed.
Consular officers use the Consular Consolidated Database (CCD) to screen visa
applicants. Over 75 million records of visa applications are now automated in the
CCD, with some records dating back to the mid-1990s. Since February 2001, the
CCD stores photographs of all visa applicants in electronic form, and more recently
the CCD has begun storing finger prints of the right and left index fingers. In
addition to indicating the outcome of any prior visa application of the alien in the
CCD, the system links with other databases to flag problems that may impact on the
issuance of the visa. For some years, consular officers have been required to check
the background of all aliens in the “lookout” databases, specifically the Consular
Lookout and Support System (CLASS) and TIPOFF databases.11
There is also the “Terrorist Exclusion List” (TEL) which lists organizations
designated as terrorist-supporting and includes the names of individuals associated
with these organizations.12 Consular officers also send suspect names to the FBI for
a name check program called Visa Condor that requires a consular officer abroad to
refer selected visa cases, identified by law enforcement and intelligence information,
for greater review by intelligence and law enforcement agencies.13 With procedures
distinct from the terrorist watch lists, consular officers screen visa applicants for


10 §212(a) of INA.
11 The State Department’s CLASS and TIPOFF terrorist databases interface with the
Interagency Border Inspection System (IBIS) used by the DHS immigration inspectors. IBIS
also interfaces with the FBI’s National Crime Information Center (NCIC), the Treasury
Enforcement and Communications System (TECS II), National Automated Immigration
Lookout System (NAILS), and the Non-Immigrant Information System (NIIS).
12 For background and analysis, see CRS Report RL32120, The ‘FTO List’ and Congress:
Sanctioning Designated Foreign Terrorist Organizations, by Audrey Kurth Cronin.
13 U.S. Congress, Senate Committee on Foreign Relations, Subcommittee on International
Operations and Terrorism, The Post 9/11 Visa Reforms and New Technology: Achieving the
Necessary Security Improvements in a Global Environment, hearing, Oct. 23, 2003.
(Hereafter cited as Senate Subcommittee on International Operations and Terrorism, The
Post 9/11 Visa Reforms.)

employment or study that would give the foreign national access to controlled
technologies, known as Visa Mantis.
Some provisions may be waived or are not applicable in the case of
nonimmigrants, refugees (e.g., public charge), and other aliens. All family-based
immigrants and employment-based immigrants who are sponsored by a relative must
have binding affidavits of support signed by U.S. sponsors in order to show that they
will not become public charges.
Fees and Funding Levels
The adjudication and issuance of visas are largely fee-based, rather than a
government service funded by direct appropriations. For the most part, prospective
immigrants and nonimmigrants cover the costs of visa processing. The Consular
Affairs immigrant visa application processing fee is $335, and the nonimmigrant
processing fee is $100.14 Moreover, the 107th Congress permanently authorized the
collection of Machine-Readable Visa (MRV) fees at $65 — or the cost of the
machine-readable visa service if higher — and a $10 surcharge for machine-readable
visas in nonmachine-readable passports. These MRV fees are credited as an
offsetting collection used by DOS to recover costs of providing consular services.15
Table 1. Appropriations for Overseas Visa Services, Consular
Affairs
Fiscal yearsAppropriations
FY2004$0
FY2003$0
FY2002 $12,439,000
FY2001 $12,235,000
FY2000 $11,902,000
FY1999 $9,178,000
FY1998 $20,026,000
Source: DOS Congressional Presentation Documents, FY1999-FY2005.
The largest amount of direct appropriations for overseas visa services was $20
million in FY1998, as Table 1 indicates. According to DOS documents, none of the
FY2003 and FY2004 appropriations went to overseas visa services. Beginning in
FY2003, however, consular operating expenses were shifted from the Diplomatic and


14 DOS lists its fees at [http://travel.state.gov/vofees.html#temp].
15 §103 of the Enhanced Border Security and Visa Reform Act (P.L. 107-173).

Consular Programs appropriation to funding by MRV fees.16 The overall budget
authority line item for “Conduct of Consular Relations” grew from $589 million in
FY2003 to $789 million in FY2004.17
The funding for the visa activities within the Bureau of Consular Affairs comes
from the various fee accounts as presented in Table 2. Not all of the fee monies
listed in Table 2, however, are used for Consular Affairs’ visa activities.
Table 2. Visa-Related Fee Collections, FY2004-FY2005
Total
collectionsCurrent year
Fee accountFiscal yearsavailableallocations
Machine-Readable VisaFY2005 (request)$663,488,000$661,480,000
FY2004 (estimate)$687,467,000$630,891,000
Visa FingerprintFY2005 (request)$7,917,000$1,000,000
FY2004 (estimate)$6,617,000$1,000,000
Affidavit of SupportFY2005 (request)$28,008,000$16,800,000
FY2004 (estimate)$30,008,000$14,000,000
Diversity LotteryFY2005 (request)$8,842,000$5,100,000
FY2004 (estimate)$8,442,000$5,100,000
Border SecurityFY2005 (request)$100,000$100,000
FY2004 (estimate)00
Source: CRS presentation data from the U.S. Department of State, Budget in Brief, FY2005.
Legislative Issues in 107th Congress
Reassigning Visa Issuance Functions
When the 107th Congress weighed the creation of the Department of Homeland
Security, considerable debate surfaced about whether or not any or all visa issuance
functions should be located in the new agency. Enactment of P.L. 107-293 resolved
most of these issues, but similar concerns may arise as the 108th Congress oversees
the implementation of the Act. Varied viewpoints are discussed below.


16 CRS Report RL31370, State Department and Related Agencies: FY2003 Appropriations,
by Susan Epstein.
17 U.S. Department of State, Budget in Brief, Fiscal Year 2005. For more background and
analysis, see CRS Report RL31809, Appropriations for FY2004: Commerce, Justice, State,
the Judiciary, and Related Agencies, coordinated by Susan Epstein.

As announced on June 6, 2002, the Administration’s proposal for a homeland
security department would have included INS among the agencies transferred to a
new homeland security department. The stated goal of the Administration’s proposal
was to consolidate into a single federal department many of the homeland security
functions performed by units within various federal agencies and departments. The
Administration would have placed all functions of INS under the border and
transportation security division of the proposed department. The narrative of the
June 6, 2002 plan did not go into details, however, it appeared that under the plan
Consular Affairs in the Department of State would have retained its visa issuance
responsibilities. This proposal precipitated considerable discussion on where the visa
issuance should be located.
Option: Locating all Functions in DHS. Voices in support of moving
Consular Affairs’s visa issuance responsibilities to the proposed DHS asserted that
consular officers emphasize the promotion of tourism, commerce, and cultural
exchange and are lax in screening foreign nationals who want to come the United
States. Media reports of the “Visa Express” that DOS established in Saudi Arabia
to allow travel agents to pre-screen nonimmigrants raised considerable concern,
especially reports that several of the September 11 terrorists allegedly entered
through “Visa Express.” Critics argued that visa issuance was the real “front line”
of homeland security against terrorists and that the responsibility for this function
should be in a department that did not have competing priorities of diplomatic
relations and reciprocity with foreign governments.
Some argued that keeping the INS adjudications and Consular Affairs visa
issuances in different departments would perpetuate the types of mistakes and
oversights that stem from inadequate coordination and competing chains of
command. Most importantly, they emphasized the need for immigration
adjudications and visa issuances — as well as immigration law enforcement and
inspections activities — to be under one central authority that has border security as
its primary mission.
Option: Locating Functions in Different Agencies. Proponents of
retaining visa issuances in Consular Affairs asserted that only consular officers in the
field would have the country-specific knowledge to make decisions about whether
an alien was admissible and that staffing 250 diplomatic and consular posts around
the world would stretch the proposed homeland security department beyond its
capacity. They also pointed out that under current law, consular decisions are not
appealable and warned that transferring this adjudication to homeland security might
make it subject to judicial appeals or other due process considerations. The MRV
fees, as some point out, have become an important funding stream, contributing
almost 10% of DOS total budget. They maintained that the problems Consular
Affairs evidenced in visa issuances have already been addressed by strengthening
provisions in the USA PATRIOT Act (P.L. 107-56) and the Enhanced Border
Security and Visa Reform Act (P.L. 107-173).
Those who supported retained immigrant adjudications and services in DOJ and
visa issuances in DOS point to the specializations that each department brings to the
functions. They asserted that the “dual check” system in which both INS and
Consular Affairs make their own determinations on whether an alien ultimately



enters the United States provides greater security. Proponents of the joint DOJ-DOS
responsibilities argued that failures in intelligence gathering and analysis, not lax
enforcement of immigration law, were the principal factors that enabled terrorists to
obtain visas. Others opposing the transfer of INS adjudications and Consular Affairs
visa issuances to DHS maintained that DHS would be less likely to balance the more
generous elements of immigration law (e.g., the reunification of families, the
admission of immigrants with needed skills, the protection of refugees, opportunities
for cultural exchange, the facilitation of trade, commerce, and diplomacy) with the
more restrictive elements of the law (e.g., protection of public health and welfare,
national security, public safety, and labor markets).
Homeland Security Act
Representative Dick Armey, Majority Leader and Chair of the Select Committee
on Homeland Security, introduced the President’s proposal as H.R. 5005, the
Homeland Security Act of 2002. H.R. 5005 would have transferred all of the
functions of INS to the newly created department under its Border Security and
Transportation Division. As introduced, H.R. 5005 would have bifurcated visa
issuances so that DHS would set the policies and DOS would retain responsibility for
implementation.
During the week of July 8, 2002, the House Committees on Judiciary,
International Relations, and Government all approved language on visa issuances that
retained DOS’s administrative role in issuing visas, but added specific language to
address many of the policy and national security concerns raised during their
respective hearings. Breaking with the Administration, the House Judiciary
Committee approved language that would have placed much of INS’s adjudication
and service responsibilities — including its role in approving immigrant petitions —
with a new Bureau of Citizenship and Immigration Services headed by an Assistant
Attorney General at DOJ.
When the House Select Committee on Homeland Security marked up H.R. 5005
on July 19, 2002, it approved language on immigrant processing and visa issuances
consistent with the House Judiciary Committee recommendations. As reported, H.R.
5005 clarified that the Secretary of DHS would have issued regulations regarding
visa issuances and would have assigned staff to consular posts abroad to provide
advice and review and to conduct investigations, and that Consular Affairs would
have continued to issue visas. It would have further expanded the exclusion authority
of the Secretary of State by permitting the Secretary to exclude an alien when
necessary or advisable in the foreign policy or security interests of the U.S., giving
the Secretary of State an authority even broader than that in law before the 1990
Immigration Amendments reformed the grounds for exclusion. It also would have
clarified that decisions of the consular officers are not reviewable.
During the floor debate on H.R. 5005, only one immigration-related amendment
was considered, and it would have moved the consular visa function to DHS. The
amendment offered by Representative David Weldon failed, and the House went on



to pass H.R. 5005 on July 26, 2002. Table 3 summarizes what department would be
responsible for visa issuance activities under the various bills.18
The National Homeland Security and Combating Terrorism Act of 2002
reported by the Senate Governmental Affairs Committee (S. 2452) on June 24, 2002,
included the immigration enforcement functions of INS and the Office of
International Affairs but did not transfer any of the other immigration services and
visa issuance functions. Representative Mac Thornberry sponsored H.R. 4660, a bill
similar to S. 2452 as introduced, that would have created a homeland security
department but also did not transfer any of the immigration adjudications and visa
issuances functions.
Table 3. Visa Issuance Policy Roles and Tasks: Comparison of
Major Homeland Security Proposals
H.R.
S.Amdt.H.R. 50055005P.L. 107-
Task/roleINAS. 24524471introducedpassed296
I ssuing State State Ho me land Ho me land Ho me land Ho me land
nonimmigrantregulates; sets policy;regulates; regulates;
visas abroadState issuesStateStateState
administers issue s issue s
Cha ngi ng
no ni mmi gr a nt J ustice J ustice Homeland Homeland J ustice Homeland
vi sa s
Approving
i mmi g r a n t J ustice J ustice Homeland Homeland J ustice Homeland
(LPR) petitions
I ssuing State State Ho me land Ho me land Ho me land Ho me land
immigrant visasregulates; sets policy;regulates;regulates;
State issuesStateStateState
administers issue s issue s
Ad j usting
i mmi g r a n t J ustice J ustice Homeland Homeland J ustice Homeland
(LPR) status
The Senate Government Reform Committee acted on a substitute for S. 2452
on July 24, 2002, and that language became S.Amdt. 4471. S.Amdt. 4471 differed
somewhat on the issues of immigration adjudications and visa issuances from the
Administration’s proposal and H.R. 5005 as passed. The Senate amendment would
have transferred all of INS to a newly created DHS under two new bureaus (the
Bureau of Immigration Services and the Bureau of Enforcement and Border Affairs)
in a Directorate of Immigration Affairs. Similarly to H.R. 5005 as passed, the Senate
amendment would have given the Secretary of DHS authority to issue regulations on


18 For discussion of the issues and options for transfering immigration functions and
activities to DHS, see CRS Report RL31560, Homeland Security Proposals: Issues
Regarding Transfer of Immigration Agencies and Functions; and CRS Report RL31584, A
Comparative Analysis of the Immigration Functions in the Major Homeland Security Bills,
both by Lisa M. Seghetti and Ruth Ellen Wasem.

visa policy; however, it would have permitted the Secretary of the new department
to delegate the authority to the Secretary of State. In contrast to the House-passed
bill and S. 2452 as introduced, S.Amdt. 4471 would have established an Under
Secretary for Immigration Affairs in DHS who would have handled immigration and
naturalization functions as well as immigration enforcement and border functions.
On November 13, 2002, Majority Leader Armey introduced and the House
passed H.R. 5710 as a compromise bill to establish a Department of Homeland
Security. Among its many provisions, H.R. 5710 retained the language clarifying
that — although DOS’s Consular Affairs would continue to issue visas — the
Secretary of DHS would issue regulations regarding visa issuances and would assign
staff to consular posts abroad to advise, review, and conduct investigations. It also
would permit the Secretary of the new department to delegate the authority to the
Secretary of State. H.R. 5710 would transfer all of INS to two new bureaus in DHS:
the Bureau of Citizenship and Immigration Services and the Bureau of Border
Security. The former would report directly to the Deputy Secretary for Homeland
Security, while the latter would report to the Under Secretary for Border and
Transportation Security. Language similar to H.R. 5710 passed the Senate on
November 19, 2002 as S.Amdt. 4901 to H.R. 5005. The House agreed to the Senate
amendment on November 22, and the President signed it as P.L. 107-296 on
November 25, 2002.
Current Division of Responsibilities
As discussed above, the Homeland Security Act contained language stating that
DHS is responsible for formulating regulations on visa issuances and may assign
staff to consular posts abroad to advise, review, and conduct investigations. It also
stated that DOS’s Consular Affairs continues to be responsible for issuing visas. The
Act required DHS and DOS to reach an understanding on how the details of this
division of responsibilities would be implemented.19
On September 28, 2003, Secretary of State Colin Powell and Secretary of
Homeland Security Thomas Ridge signed the memorandum of understanding (MOU)
implementing §428 of the Homeland Security Act.20 The MOU describes each
department’s responsibilities in the area of visa issuances. In spelling out how these
provisions are being implemented between DOS and DHS, the MOU is also raising
a few concerns.
State’s Continuing Role
Among its major elements, the MOU states that DOS may propose and issue
visa regulations subject to DHS consultation and final approval. It further states that


19 For further analysis of visa issuance policies, see CRS Report RL31512, Visa Issuances:
Policy, Issues, and Legislation, by Ruth Ellen Wasem.
20 The text of the MOU can be found at [http://www.travel.state.gov/MOUwithDHS.html].

DHS shall assign personnel to diplomatic posts, but that DOS will determine who,
how many, and the scope of their functions.
At a hearing in September 2003 that focused on the MOU, Assistant Secretary
of State for Consular Affairs Maura Harty described several key responsibilities that
remain with the DOS.
The Secretary of State will have responsibility over certain visa decisions,
including decisions of a foreign policy nature.... He will also be responsible for
establishing visa validity periods and fees based on reciprocity. In the case of
visa validity periods, however, he will consult with Homeland Security before
lengthening them, and Homeland Security will have authority to determine that
certain persons or classes of persons cannot benefit from the maximum validity
period for security reasons. The Secretary of State will also exercise all the
foreign policy-related grounds of visa denial enumerated in Section 428 and the
additional provision, not specifically enumerated, under which we deny visas to
persons who have confiscated the property of American citizens without just21
compensation.
She emphasized that the MOU “recognizes that the Secretary of State must have
control over officers in his chain of command.” She further stated that “DHS officers
assigned visa duties abroad may provide input related to the evaluations of consular
officers doing visa work, but the evaluations themselves will be written by State
Department consular supervisors,” and that “direction to consular officers will come
from their State Department supervisors, and all officers assigned abroad, including22
DHS, come under the authority of the Chief of Mission.”
DHS’s New Role
As a result of the Homeland Security Act, the immigration components of DHS
now have greater responsibilities abroad than did the former INS. To this end,
Secretary Ridge has established an Office of International Enforcement (OIE) in BTS
to oversee DHS’s activities under the MOU with DOS. Under Secretary of
Homeland Security Asa Hutchinson described the creation of OIE in testimony.
The Office of International Enforcement (OIE), an independent office within my
directorate, will oversee management and implementation of the visa MOU and
manage the assignment of DHS personnel to consular posts. This new office
reports directly to me and I have designated Renee J. Harris to be Acting Director
of OIE. OIE will perform a variety of functions, including reviewing and
implementing visa guidance in areas of interest to DHS, and will handle
operational duties related to the section 428 process for BTS. I have also firmly


21 U.S. Congress, Senate Committee on the Judiciary, Subcommittee On Immigration,
Border Security and Citizenship, Visa Issuance: Our First Line of Defense for Homeland
Security, hearing, Sept. 30 , 2003.
22 Ibid.

committed to working with the Bureau of Citizenship and Immigration Services23
in developing visa policy.
Ms. Harris had been head of the Office of Internal Affairs (OIA) in the former INS.
Within USCIS, the OIA remains to handle USCIS’s overseas adjudications, the most
noteworthy being refugee processing. Other DHS international immigration
activities are pre-inspections and investigations (e.g., smuggling, trafficking and
orphan petitions).
In congressional testimony during October 2003, C. Stewart Verdery, Jr. DHS
Assistant Secretary for Border and Transportation Security Policy and Planning,
reported that DHS officers were already in Saudi Arabia reviewing all visa
applications prior to adjudication (as required by P.L. 107-296). He indicated that
officers in Riyadh and Jeddah also provided assistance, expert advice and training to
consular officers on fraudulent documents, fingerprinting techniques and identity
fraud. More specifically, he stated:
As part of the review process, DHS officers at home and abroad have full access
to a variety of law enforcement databases, including the National Crime
Information Center (NCIC); Treasury Enforcement Communication System
(TECS); Interagency Border Inspections System (IBIS); National Security Entry
Exit System (NSEERS); Student Exchange and Visitor Information System
(SEVIS); Biometric 2-print fingerprint system (IDENT); and Advanced
Passenger Information System (APIS). They also have access to selected legacy-24
INS automated adjudications data and certain commercial databases.
DHS’s CBP then inspects aliens who seek to enter the United States. Primary
inspection consists of a brief interview with an immigration inspector, a cursory
check of the traveler’s documents, and a query of the Interagency Border Inspection
System (IBIS).25 At 115 airports and 14 seaports, many nonimmigrants are entered
into the new US-VISIT system that uses biometric identification (finger scans) to
check identity and track presence in the United States.26 Primary inspections are
quick (usually lasting no longer than a minute); however, if the inspector is
suspicious that the traveler may be inadmissible under the INA or in violation of
other U.S. laws, the traveler is referred to a secondary inspection. Those travelers


23 Ibid.
24 U.S. Congress, Senate Committee on Foreign Relations, Subcommittee on International
Operations and Terrorism, The Post 9/11 Visa Reforms and New Technology: Achieving the
Necessary Security Improvements in a Global Environment, hearing, Oct. 23, 2003.
25 IBIS interfaces with the FBI’s National Crime Information Center (NCIC), the Treasury
Enforcement and Communications System (TECS II), National Automated Immigration
Lookout System (NAILS), Non-immigrant Information System (NIIS), CLASS and TIPOFF
terrorist databases. Because of the numerous systems and databases that interface with IBIS,
the system is able to obtain such information as whether an alien is admissible, an alien’s
criminal information, and whether an alien is wanted by law enforcement.
26 For background and discussion of US-VISIT, see CRS Report RL32234, U.S. Visitor and
Immigrant Status Indicator Technology Program (US-VISIT), by Lisa M. Seghetti.

sent to secondary inspections are questioned extensively, travel documents are further
examined, and additional databases are queried.27
Current Issues
Competing Concerns
Some have expressed the view that DOS retains too much power and control
over visa issuances under the MOU. They maintain the Homeland Security Act
intended DHS to be the lead department and that DOS was to merely administer the
visa process. They warn that consular officers are too concerned about facilitating
tourism and trade to scrutinize visa applicants thoroughly. Some argue that visa
issuance is the real “front line” of homeland security against terrorists and that the
principal responsibility should be in DHS, which does not have competing priorities
of diplomatic relations and reciprocity with foreign governments.
Others have indicated satisfaction with the MOU, arguing that it strikes the
proper balance between the two departments and reflects the bifurcation envisioned
in the Act. They maintain that it plays off the strengths of the two departments and
allows for refinement of the implementation in the future.28 Proponents of DOS
playing the lead role in visa issuances assert that only consular officers in the field
have the country-specific knowledge to make decisions about whether an alien is
admissible and that staffing 250 diplomatic and consular posts around the world
would stretch DHS beyond its capacity.
FY2005 Funding
DHS Office of International Affairs. Increased staffing and resources for
DHS’s role in visa issuances are key elements of the FY2005 budget. In the DHS
FY2005 budget request, the Administration is seeking $14 million in appropriations
for the BTS Office of International Affairs and indicates that $10 million of the
request would be for reviewing the visa issuance process. The $14 million for Office
of International Affairs has a corresponding proposal of 90 full-time equivalent
(FTEs) employees in FY2005. Comparable FY2004 funding data are not available.
DOS Bureau of Consular Affairs. The FY2005 Budget requests $909
million, an increase of $120 million over FY2004 for Consular Relations. The
number of FTEs would increase by 123 to 4,106 FTEs. The funding for the visa
activities within the Bureau of Consular Affairs comes from the various fee accounts


27 Lookout databases such as TIPOFF, which is integrated with CLASS contain information
on aliens who are inadmissible for entry into the United States. NSEERS and SEVIS are
also used during secondary inspections. Immigration inspectors may access NAILS II,
which is a text-based system that interfaces with IBIS and CLASS.
28 U.S. Congress, Senate Committee on the Judiciary Subcommittee On Immigration, Border
Security and Citizenship, Visa Issuance: Our First Line of Defense for Homeland Security,
hearing, Sept. 30, 2003.

as presented previously in Table 2. The Department of State FY2005 Budget
documents specify that $185 million of the $909 million FY2005 request for
Consular Relations would come from direct appropriations and the remainder would
come from various fees, as follows: $601,249,000 from Machine-Readable Visa
(MVR) fees; $5,100,000 from Diversity Lottery fees; $1,000,000 from Federal
Bureau of Investigation (FBI) fingerprint fees; $16,800,000 from the Affidavits of
Support fees; and $100,000,000 from fees that would be provided under a proposed
Enhanced Border Security Program. Comparable FY2004 funding data are not
available.
The question of whether DHS and DOS are adequately funded to process visas
expeditiously while maintaining visa security procedures may arise as the FY2005
budget is debated. The modest size of the Office of International Affairs with 90
FTEs has led some to question how many visa security reviews and investigations it
will be able to realistically handle. Some are concerned that visa-related fees, such
as the MRV fees, be dedicated for use only for visa processing and issuance
activities; use of these visa-related fees for other diplomatic and consular functions
has raised concerns. On the other hand, past use of the Immigration Examinations29
Fee for investigations by the Office of International Affairs has been called into
question by those who think it should be solely used for USCIS adjudications and
services


29 §286(m) of the Immigration and Nationality Act. 8 U.S.C. 1356.