Chairman Weldon, members of the committee, thank you for inviting me to testify here today on the Administration's proposed legislation which gives the new Department of Homeland Security exclusive authority over the visa function. Before, I begin let me state that the opinion I state here today is entirely my own, and should not be construed as representing any official stance of The Heritage Foundation.
Although I am Research Fellow for China Policy at The Heritage Foundation in Washington, D.C., I have considerable experience in visa and immigration issues. I served for 23 years in the Department of State, including two years as Supervisory Consular Officer at the U.S.
Embassy in Beijing, China, and three years as Chief of the Visa Section at the American Consulate General in Hong Kong, which, at the time was the third largest visa issuance post in the world. I also spent several years as Chief of China Analysis in the State Department's Bureau of Intelligence and Research and from 1986 to 1988 I was the chief of Junior Officer Training (A-100) at the Foreign Service Institute.
First, let me say that there appears to be universal agreement in the administration that the U.S. consuls abroad who adjudicate visa applications by foreign visitors and hopeful immigrants are within the first line of America's defenses against global terror networks.
In recognition of this, the Administration's proposed legislation creating the Department of Homeland Security (DHS) removes the visa function from the State Department and places it in DHS. I note that the wording of the Administration's proposed legislation says that "the [DHS] Secretary shall have exclusive authority, through the Secretary of State," to issue visas and administer and enforce visa laws. This seems inconsistent but there are logical ways to work this out. The logical answer is to move the State Department's Office of Visa Services, known as the Visa Office (VO), into the new DHS.
The State Department understandably wants its own consuls overseas to continue performing visa functions. But for years, local sensibilities and US ambassadors' concerns for unsightly visa lines and strict enforcement of visa denials have encouraged the visa function overseas to be managed as a "service", not a "screen." While visa consuls should continue to be foreign service officers within the State Department, at the very least, the US Government's preeminent office controlling visa policy and operations, State's Visa Office, must reside where Congress has placed the authority for those functions.
And, if DHS is to be accountable for its authority, then it should have its own officers overseas to monitor and supervise visa operations -- as is called for in the administration's bill. Otherwise, the "reorganization" of the DHS will just be "business as usual" and only the names on the doors will change. Foreign service officers could continue to man the visa offices under the guidance and oversight of the DHS.
THE DHS MUST ASSUME TOTAL CONTROL OVER VISA POLICIES AND SUPPORT SERVICES
An important provision of the Bush Administration's proposed "Homeland Security Act of 2002" is the placement of the country's border and transportation security responsibilities within the new DHS (including the transfer of the Immigration and Naturalization Service to the new department). Section 403 of the proposed HSA also transfers "control" over the issuance and denial of visas to enter the United States to the DHS, "while preserving the Secretary of State's traditional authority to deny visas to aliens based upon the foreign policy interests of the United States." Section 403 would expressly authorize the Secretary of Homeland Security to "delegate his authority" under this section to the Department of State, and provides that the Secretary of Homeland Security will exercise his authority through the Secretary of State. However, the Act would not alter the employment status of diplomatic or consular officers processing visas abroad, who will remain employees of the Department of State. Apparently, this means that nothing is supposed to change.
But if the DHS is to be effective in strengthening the nation's control over who does and does not get visas to enter the United States, the DHS certainly must assume total control over visa policies and support services. For this to be consistent with the Administration's proposed legislation, this need only preserve the existing separate statutory authority of the Secretary of State to deny visas to applicants based on foreign policy considerations under section 212(a)(3)(c) of the Immigration and Nationality Act. Preserving this "traditional authority", in itself, hardly justifies keeping any part of the visa function, much less all of it, within State. Clearly, the Secretary of Homeland Security will not exercise any control -- much less full control -- over the visa function unless the State Department's Visa Office is moved into DHS. Even with this transfer, the Secretary of State may still preserve his/her "traditional authority to deny visas to aliens based upon the foreign policy interests of the United States", an authority that, in any case, affects only a small handful -- if any -- of the millions of visa cases each year.
BACKGROUND: HOW THE PRESENT SYSTEM CAME INTO BEING
After the Second World War, the State Department's visa function was under the Administrator of the Bureau of Security and Consular Affairs (SCA) which comprised both the Department's security and consular functions. During the 1950s-1960s, SCA managed its visa functions with a high degree of security consciousness particularly as it related to identifying potential espionage agents as well as foreign visa applicants who had been members of a communist party or its affiliates. Also in the 1960s and early 70s, visa fraud was rampant, and the State Department devoted new resources to investigations and fraud detection and prevention.
Into the 1970s and 80s, however, "security" was formally separated from the consular bureau, and the mission of visa officers at embassies overseas shifted away from security concerns and toward facilitating travel. While visa officers continued to enforce provisions of immigration law which excluded certain classes of aliens, far more attention was devoted to "managing" the visa process which processed over eight million tourist visa applications and nearly a million immigrant visas annually. This meant that a high priority was placed on ensuring the smooth flow of interviews, handling of visa application forms, systematizing name-checks, issuing visas while attempting to maintain the integrity of the physical visa impressions and/or serial-numbered paper visas.
In some cases, strict scrutiny of visa applications was a low priority, while streamlining the workflow was paramount. Similarly, in the State Department's Visa Office, the stress was on management skills, computerization, service-oriented processing. There are disturbing indications, for example, that for many years at the American Embassy in Riyadh, Saudi Arabia, political rather than consular or security concerns dictated that Saudi nationals be presumed eligible for nonimmigrant visas. Moreover, U.S. visa policy toward Saudi Arabia is not strictly reciprocal. For example, Saudi nationals can obtain multiple entry U.S. tourist visas valid for 12 months while Saudi Arabia does not issue "tourist" visas to anyone for any validity. For example, American businessmen cannot travel to Saudi Arabia without an individual invitation from a registered Saudi firm and a specific approval notification from the Saudi Foreign Ministry. Given the political concerns that encumber U.S. ties with Saudi Arabia, the imposition of strict visa reciprocity would be politically difficult for the embassy in Riyadh to implement, while a visa regime "controlled" by the DHS would be under less pressure.
This is not to say that the Visa Office or foreign service officers are unsuited to a homeland defense mission. Since the early 1970s, the State Department has devoted considerable resources to visa fraud detection, investigation and prevention. In this regard, it is useful to note that State Department visa fraud investigators are notably less constrained than U.S. domestic law enforcement investigators in that there is no "rights" issue. That is, the obtention of a visa is not a "right" but a privilege and U.S. federal courts have consistently sustained a doctrine of consular nonreviewability in nonimmigrant visa cases . When a consular officer denies a visa application, there is no judicial review. As such, State Department visa fraud investigators abroad function more as intelligence collectors who may seek and use whatever information they gather in making their decisions, rather than as law enforcement officers who need to pay painstaking attention to rules of evidence.
WHAT IS THE VISA OFFICE?
The Office of Visa Services within the State Department's Bureau of Consular Affairs is known as the "Visa Office." In addition to making all visa policy and guidance for consular officers overseas, Department of State regulations list as its second most important function
. . . b. The administration, in time of war or national emergency, in conjunction with the Immigration and Naturalization Service (INS), such additional restrictions and prohibitions as may be required to control the entry and departure of aliens.
The Visa Office (VO) also provides all legal guidance ("advisory opinions"), which are binding on consuls in both individual cases as well as broad applications of immigration law. VO's "Coordination Division" also provides equally binding "security advisory opinions" which relate to individual foreign visa applicants whose potential entry into the United States could adversely affect national security. The Coordination Division's task is to ensure that visa cases of national security significance are fully coordinated among U.S. diplomatic missions abroad and the appropriate Washington, D.C. agencies, including the intelligence community, the Immigration and Naturalization Service (INS), as well as other offices in the State Department and the White House.
The most important tool used by the Visa Office to manage its national security function is the Consular Lookout and Support System (CLASS), the Department's name-checking system which alerts visa officers abroad to ineligible applicants. The CLASS system comprises the Automated Visa Lookout System (AVLOS) and the Consolidated Visa Lookout Book (CLOK) through which the names of over two hundred thousand visa applicants are checked each week. These name-check indices apparently do not have a data interface with any other US government lookout system or criminal data base.
The Visa Office also supervises and trains US consuls and foreign national employees in visa fraud investigations and liaises with the Immigration and Naturalization Service on investigations in the United States. In addition, the Visa Office controls the distribution of quota numbers for new immigrants, handles congressional and public inquiries into individual visa cases.
THE VISA OFFICE AT THE DHS IS THE FIRST LINE OF DEFENSE
A Visa Office within the new DHS must be more committed to tightening, improving and more broadly utilizing the visa function to meet the exigencies of homeland security. The visa vetting process, from the initial interview, through computerized name checks, confidential background checks, and the day-to-day sharing of databases with intelligence agencies, must become the new Visa Office's top priority. Customer service and assuaging local sensibilities about long visa lines, while important, cannot be allowed to eclipse the Visa Office's homeland security responsibilities. But such guidance is more likely to come from a Visa Office which is no longer within the State Department.
That said, it does not seem necessary to transfer, lock-stock-and-barrel, the entire overseas visa function or the foreign service officers (FSOs) who now staff it to the Department of Homeland Security. History has shown that the foreign service abroad has been eager, willing and able to embrace new priorities and duties, as witnessed by their effective assumption of visa fraud investigations in earlier decades.
FOREIGN SERVICE OFFICERS SHOULD CONTINUE TO MAN THE VISA LINES
Nor would it necessarily be cost-effective for either DHS or State. The State Department has legitimate concerns that it could lose a pool of junior officers to another agency if the probationary officers who conduct visa interviews abroad are transferred to the Department of Homeland Security. Visa service has been a traditional "first tour" assignment for all junior FSO's regardless of their professional specialization. The Foreign Service is divided into five specialties (called "cones"); consular, economic, administrative, political and public diplomacy. A first tour of duty as a visa officer overseas has been the traditional way all FSOs are trained in a local language, familiarized with foreign political structures and social institutions, and acclimatized to a working environment with local national staff. At present, there are very few probationary-level foreign service assignments outside the visa function where junior FSO's can gain the kind of in-country training that visa work provides. While four-fifths of junior officers then leave the visa line in onward assignments, the one fifth who are to be career "consular cone" remain as the management cadre for the consular function which includes a range of protection and welfare services for U.S. citizens abroad as well as visas.
The loss of the visa function would require the State Department to recruit more officers to maintain a pool for its own long-term senior personnel development needs. Most probably, this would mean far larger staffs at Embassies to accommodate increased numbers of junior FSO's in other sections, in addition to the new DHS consular officers.
THERE MUST BE A DHS ATTACHE AT THE EMBASSY
State Department officers should, therefore, continue to perform the bulk of the visa function overseas. Nonetheless, there can be no substitute for DHS officers at post overseeing the visa function. Simply put, without formal on-site monitoring of the visa lines by DHS, there is no control or accountability. If DHS is to "control" the issuance and denials of visas, DHS must have a supervisory attaché, commissioned as a U.S. consul or vice consul assigned to all embassies and visa-issuing consulates to provide oversight, continuous monitoring and training and indoctrination on visa issues. The DHS attaché also must have statutory authority to overrule visa officer issuances/ refusals, at least on homeland security grounds.
If the DHS attaché is to provide a "value-added" then, s/he should have full access to all DHS databases (both domestic and foreign, including U.S. national crime indices) at a secure site in the embassy or consulate. In many cases, where the visa section is located at an unsecure venue physically distant from the embassy, it would mean that the DHS officer would have two offices. A DHS section abroad would also involve an increase in the staff of an Embassy -- as few as one but as many as five -- perhaps as many as 300 DHS employees overseas. However, the actual visa issuance at the embassies and consulates abroad could -- and should -- continue to be handled by State Department FSO's.
DHS ASSUMES RESPONSIBILITY FOR CONDUCTING TRAINING AND OVERSIGHT
In the longer-term, the DHS Visa Office will be responsible for developing training programs for junior FSOs as they go out to an embassy as well as specialized software to monitor visa issuance. Ideally, DHS should supervise and fund a program at the State Department's Foreign Service Institute (FSI) that would indoctrinate FSOs in terrorism profiling, organization/ operations, and documentation. The program would be a part of the State Department FSI "Consular Course" and must be developed in conjunction with the Central Intelligence Agency, the Federal Bureau of Investigation, and the Department of State's own Coordinator for Counter-terrorism. (In the transition period as DHS begins to assume control of visa policies, the State Department consular section chiefs at American embassies should be brought back to the US for a period of training on Homeland Security in a program designed to sharpen visa supervision and oversight until DHS attaches can be assigned.)
TAKE ADVANTAFE OF INTELLIGENCE FUSION TO ENSURE RAPID AND COMPLETE CHECKS
Separately, DHS must develop Management Information System (MIS) software to monitor visa issuances overseas. This software would be developed by the Visa Office to interface with the existing automated visa issuance systems.
AVLOS and CLOK indices as well as the automated visa issuance systems and enable a DHS representative at post to review visa officer processing of applications as well as access visa databases for investigation and intelligence purposes. Improvements in computer hardware memory and clock speeds as well as broadband data transmission rates may also permit the retention of all visa applications in a centralized DHS database. Changes in visa application forms would also make them machine-readable and provide broader information than is currently available in the AVLOS / CLOK systems.
Finally, in more advanced countries, the use of "data-mining" software can speed local background checks for visa issuance. With a minimum of intrusiveness, such techniques could quickly identify visa applicants who have not established themselves in their communities and hence fit a threat profile. Nonetheless, speed of visa issuances should not be a top priority in a wartime environment and a reasonable period should be built into the visa process to ensure that reliable name-checks are made.
CONCLUSION
The visa function should go to the new DHS. Section 403 of the Administration's proposed "Homeland Security Act of 2002" recognized that effective "homeland defense" requires that the new Department of Homeland Defense should "control" the visa function, and that the Secretary of Homeland Security shall have "exclusive authority" to issue or refuse visas.
DHS must have a meaningful presence overseas. "Control" and "authority" are empty words unless the Visa Office, now under the Department of State, is transferred to the new DHS, and unless DHS officers overseas have supervisory authority over visa issuances abroad.
Consular offices will continue to perform the visa function. This does not require that all -- or even most -- visa officers abroad must be DHS employees. Both DHS and State benefit if the bulk of the overseas visa function be conducted by State Department Foreign Service Officers.
DHS should also have a direct monitoring authority of overseas visa operations via DHS attaches at all visa-posts (and most embassies), and those attaches must have consular commissions.
The DHS Visa Office must take the responsibility of training, indoctrinating and equipping visa officers abroad, and ensuring that they or their supervisors have access to the relevant intelligence and name-check databases needed to screen alien visa applicants effectively.
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Endnotes
1. See "Text of a Bill to Establish A Department of Homeland Security, and For Other Purposes" issued by the White House Office of the Press Secretary on June 18, 2002, at
http://www.whitehouse.gov/news/releases/2002/06/20020618-9.html
2. See "Analysis for the Homeland Security Act of 2002" issued by the White House Office of the Press Secretary, June 18, 2002 at http://www.whitehouse.gov/deptofhomeland/analysis/title4.html#403
3. No visas were denied under Section 212(a)(3)(C) of the Immigration and Nationality Act (INA) in 1999 according to the U.S. Department of State Bureau of Consular Affairs, Report of the Visa Office 1999, released 2001, p.147. Under INA 212(a)(3)(C), the Secretary of State may exclude, under certain circumstances, any alien whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States. The Department's security advisory opinion is required in all cases of possible ineligibility under INA 212(a)(3)(C) and the Secretary of State must report all visa denials under that section to the appropriate committees of Congress.
4. The Immigration and Nationality Act of 1952 (Jun 27, 1952; P.L. 82-414; 66 Stat. 174) established within the Department of State a Bureau of Security and Consular Affairs (SCA). The Foreign Relations Authorization Act for Fiscal Year 1978 (Aug 17, 1977; P.L. 95-105; 91 Stat. 847) changed the SCA administrator's title to "Assistant Secretary of State for Consular Affairs."
5. Outside several large embassies (Mexico City, Manila, Santo Domingo, Seoul, Hong Kong for example) in the 70s-80s, long lines of visa applicants were local eyesores, and became political embarrassments as U.S. ambassadors were pressured by host governments to either ease visa restrictions or quicken the pace of the lines, or both.
6. See William D. Morgan and Charles Stuart Kennedy, The U.S. Consul at Work (Westport, CT: Greenwood Press, 1991), p.25. Also see Anthony Spaeth , "Wherein Fernando Becomes Fernanda, Moves to California --- Filipinos Try Every Manner Of Ploy to Get U.S. Visas; Fiancee in Purple Pants"; The Wall Street Journal March 26, 1984 . The American consul general in Manila, Vernon D. McAninch, "told his staff, give [the generic visa applicant] a visa good for four or five years and get him out of the waiting room. 'We run this place like a factory,' he says. 'We have to. We have to keep these people moving.'" Also see Diane Brady, "Visa Rejects: As Others Court Tourists, U.S. Turns Many Away ", The Asian Wall Street Journal, February 11, 1997, P1
7. op.cit. Morgan and Kennedy, pp. 102-109
8. Audrey Hudson, "Saudis get easy access to visas", The Washington Times, July 10, 2002, p. A01, also available at http://www.washtimes.com/national/20020710-928325.htm
9. See 9 FAM PART IV Appendix C, SAUDI ARABIA, KINGDOM OF RECIPROCITY (SAUDI ARABIA, KINGDOM OF) and http://www.saudiembassy.net/travel_info/VisaApp.pdf
10. No visas were denied under Section 212(a)(3)(C) of the Immigration and Nationality Act (INA) in 1999 according to the U.S. Department of State Bureau of Consular Affairs, Report of the Visa Office 1999, released 2001, p.147. Under INA 212(a)(3)(C), the Secretary of State may exclude, under certain circumstances, any alien whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States. The Department's security advisory opinion is required in all cases of possible ineligibility under INA 212(a)(3)(C) and the Secretary of State must report all visa denials under that section to the appropriate committees of Congress.
11. op.cit. Morgan and Kennedy, pp. 167-179
12. Angelo A. Paparelli and Mitchell Tilner, "A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases", 65 Interpreter Releases 1027 (Oct. 7, 1988). Examples cited are Kleindienst v. Mandel, 408 U.S. 753 (1972); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986).
13. The functions of the Visa Office are enumerated in five pages of instructions in the State Department's Foreign Affairs Manual (FAM) at 1 FAM 254.
14. See 1 FAM 254.3-3
15. The U.S. Department of State Bureau of Consular Affairs, Report of the Visa Office 1999, released 2001, p.105 and p.145 shows that nearly 6.2 million nonimmigrant visas and 414,000 immigrant visas were issued in 1999. And at least 2.02 million visa applications were denied. All applicants were name checked each time they applied.
16. The Immigration and Nationality Act of 1952 (Jun 27, 1952; P.L. 82-414; 66 Stat. 174) established within the Department of State a Bureau of Security and Consular Affairs (SCA). The Foreign Relations Authorization Act for Fiscal Year 1978 (Aug 17, 1977; P.L. 95-105; 91 Stat. 847) changed the SCA administrator's title to "Assistant Secretary of State for Consular Affairs."
17. Outside several large embassies (Mexico City, Manila, Santo Domingo, Seoul, Hong Kong for example) in the 70s-80s, long lines of visa applicants were local eyesores, and became political embarrassments as U.S. ambassadors were pressured by host governments to either ease visa restrictions or quicken the pace of the lines, or both.
18. See William D. Morgan and Charles Stuart Kennedy, The U.S. Consul at Work (Westport, CT: Greenwood Press, 1991), p.25. Also see Anthony Spaeth , "Wherein Fernando Becomes Fernanda, Moves to California --- Filipinos Try Every Manner Of Ploy to Get U.S. Visas; Fiancee in Purple Pants"; The Wall Street Journal March 26, 1984 . The American consul general in Manila, Vernon D. McAninch, "told his staff, give [the generic visa applicant] a visa good for four or five years and get him out of the waiting room. 'We run this place like a factory,' he says. 'We have to. We have to keep these people moving.'" Also see Diane Brady, "Visa Rejects: As Others Court Tourists, U.S. Turns Many Away ", The Asian Wall Street Journal, February 11, 1997, P1
19. op.cit. Morgan and Kennedy, pp. 102-109
20. Audrey Hudson, "Saudis get easy access to visas", The Washington Times, July 10, 2002, p. A01, also available at http://www.washtimes.com/national/20020710-928325.htm
21. See 9 FAM PART IV Appendix C, SAUDI ARABIA, KINGDOM OF RECIPROCITY (SAUDI ARABIA, KINGDOM OF) and http://www.saudiembassy.net/travel_info/VisaApp.pdf
22. No visas were denied under Section 212(a)(3)(C) of the Immigration and Nationality Act (INA) in 1999 according to the U.S. Department of State Bureau of Consular Affairs, Report of the Visa Office 1999, released 2001, p.147. Under INA 212(a)(3)(C), the Secretary of State may exclude, under certain circumstances, any alien whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States. The Department's security advisory opinion is required in all cases of possible ineligibility under INA 212(a)(3)(C) and the Secretary of State must report all visa denials under that section to the appropriate committees of Congress.
23. op.cit. Morgan and Kennedy, pp. 167-179
24. Angelo A. Paparelli and Mitchell Tilner, "A Proposal for Legislation Establishing a System of Review of Visa Refusals in Selected Cases", 65 Interpreter Releases 1027 (Oct. 7, 1988). Examples cited are Kleindienst v. Mandel, 408 U.S. 753 (1972); Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970 (9th Cir. 1986).
25. Andrew L. Steigman, The Foreign Service of the United States: First Line of Defense (Boulder, CO: Westview Press, 1985). pp. 64-67
26. ibid pp. 68-71
27. NIVCAPS (Nonimmigrant Visa Computer Assisted Processing System) and IVACS (Immigrant Visa Applicant Control System), and software related to the Machine Readable Nonimmigrant Visa.
