Visa Issuances: Policy, Issues, and Legislation

Publication Date: January 2008

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

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Abstract:

Since the September 11, 2001 terrorist attacks, considerable concern has been raised because the 19 terrorists were aliens who apparently entered the United States with temporary visas despite provisions in immigration laws that bar the admission of terrorists. 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. The report of the 9/11 Commission maintained that border security was not considered a national security matter prior to September 11, and as a result the State Department's consular officers were not treated as full partners in counterterrorism efforts. The 9/11 Commission has made several recommendations that underscore the urgency of implementing legislative provisions on visa policy and immigration control that Congress enacted several years ago.

Bills implementing the 9/11 Commission recommendations (S. 2845, H.R. 10, S. 2774/H.R. 5040, and H.R. 5024) had various provisions that would affect visa issuances. As enacted, the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) further broadens the security and terrorism grounds of inadmissibility to exclude aliens who have participated in the commission of acts of torture or extrajudicial killings abroad or who are members of political, social, or other groups that endorse or espouse terrorist activity. It also includes provions to deploy technologies (e.g., biometrics) to detect potential terrorist indicators on travel documents; establish an Office of Visa and Passport Security; and train consular officers in the detection of terrorist travel patterns. The conferees retained the provision on visa revocation as a ground of inadmissibility but permit limited judicial review of removal if visa revocation is the sole basis of the removal.

The 107th Congress expanded the definition of terrorism and the designation of terrorist organizations used to determine the inadmissibility in the USA Patriot Act (P.L. 107-56). Another law, the Enhanced Border Security and Visa Entry Reform Act (P.L. 107-173), mandated data sharing so that consular officers have access to relevant electronic information, required the development of an interoperable electronic data system to be used to share information relevant to alien admissibility, and required that all visas issued by October 2004 have biometric identifiers. The Homeland Security Act (P.L. 107-296) transferred to the new Department of Homeland Security the authority to issue regulations regarding visa issuances and assigns staff to consular posts abroad. The Department of State's Bureau of Consular Affairs remains the agency responsible for issuing visas.

Meanwhile, nonimmigrant (i.e., temporary) visas issued abroad dipped to 4.9 million in FY2003 after peaking at 7.6 million in FY2001. Preliminary FY2004 data indicated 5.0 million nonimmigrant visas were issued. This slowdown in visa issuances has sparked concern among the business community, some of whom argue they are adversely affected by the new visa policies. Others are expressing scepticism about the cost, time, and complexity of developing interoperable databases, a feature many others see as essential to enhanced border security.