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

Publication Date: March 2004

Publisher: Library of Congress. Congressional Research Service

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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 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.