Order Code RL31512
Report for Congress
Received through the CRS Web
Visa Issuances: Policy, Issues, and Legislation
Updated May 16, 2003
Ruth Ellen Wasem
Specialist in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

Visa Issuances: Policy, Issues, and Legislation
Summary
Since the September 11 terrorist attacks, considerable concern has been raised
because the 19 terrorists were aliens who apparently entered the United States legally
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 Consular Affairs remains the
agency responsible for issuing visas, DHS’ 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.
The President’s proposal for DHS, H.R. 5005 as introduced, would have
bifurcated visa issuances so that DHS would set the policies, giving the DHS
Secretary exclusive authority through the Secretary of State to issue or refuse to issue
visas and retaining responsibility for implementation in DOS. When the House Select
Committee on Homeland Security marked up H.R. 5005 on July 19, it approved
compromise 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 hearings. An amendment to move the consular
affairs visa function to DHS failed when the House passed H.R. 5005 on July 26.
Similar to H.R. 5005 as passed, S.Amdt. 4471 (Senate Governmental Affairs
Committee language) would not have altered the DOS’s administrative role in
issuing visas but would have established an Under Secretary for Immigration Affairs
in DHS who would have issued regulations on visa issuance in addition to handling
all immigration, naturalization and border functions formerly assigned to INS.
The Homeland Security Act of 2002 (P.L. 107-296) retains the compromise
language stating that DHS through a new Directorate of Border and Transportation
Security issues regulations regarding visa issuances and assigns staff to consular
posts abroad to advise, review, and conduct investigations, and that DOS’s Consular
Affairs will continue to issue visas. In P.L. 107-296, the Bureau of Citizenship and
Immigration Services is also located in DHS.
The 108th Congress is overseeing the implementation of these new policies and
may consider further options, such as tightening up interview requirements for visa
applicants and expanding the grounds for excluding aliens.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview on Visa Issuances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Immigrant Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Nonimmigrant Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Grounds for Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issues and Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
107th Congress: Reassigning Visa Issuance Functions . . . . . . . . . . . . . . . . . 8
Option: Locating all Functions in DHS . . . . . . . . . . . . . . . . . . . . . . . . 8
Option: Locating Functions in Different Agencies . . . . . . . . . . . . . . . . 9
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
108th Congress: Revising Visa Issuance Policy . . . . . . . . . . . . . . . . . . . . . 12
Sharing Data and Screening Aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Defining Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Other Security Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
List of Figures
Figure 1. Immigrant Arriving or Adjusting Status, FY1990-FY2001 . . . . . . . . . . 4
Figure 2. Nonimmigrant Visas Issued, FY1990-FY2002 . . . . . . . . . . . . . . . . . . . 6
List of Tables
Table 1. Aliens DOS Excluded in FY2000 by Grounds of Inadmissibility . . . . . 7
Table 2. Visa Issuance Policy Roles and Tasks: Comparison of Major
Homeland Security Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Visa Issuances:
Policy, Issues, and Legislation
Introduction
In the months following the September 1, 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 legally 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 who administers immigration law.1
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 key
roles in administering the law and policies on the admission of aliens.3 DOS’s
Bureau of Consular Affairs (Consular Affairs) is the agency responsible for issuing
visas, DHS’s Bureau of Citizenship and Immigration Services (BCIS) is charged with
approving immigrant petitions, and DHS’s Bureau of Customs and Border Protection
(BCBP) 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 its 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
prior to passage of the Homeland Security Act of 2002 (P.L. 107-296), and other
1 For an analysis of the possible 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
, by Lisa M.
Seghetti and Ruth Ellen Wasem; and CRS Report RL31584, A Comparative Analysis of the
Immigration Functions in the Major Homeland Security Bills
, by Lisa M. Seghetti and 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 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.

CRS-2
policies options that may arise in the 108th Congress.4 It opens with an overview of
visa issuances, with sections on procedures for aliens coming to live in the United
States permanently and on procedures for aliens admitted for temporary stays.5 An
analysis of the grounds for excluding aliens follows. The report summarizes the
debate on transferring visa issuance policy functions to homeland security and
concludes with a discussion of the legislative proposals to reassign the visa issuance
activities and to revise visa issuance policies.
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 by the Attorney General, are handled
separately under the Immigration and Nationality Act (INA). Those aliens granted
asylum or refugee status ultimately are eligible to become legal permanent residents
(LPRs).6 Illegal aliens or unauthorized aliens include those noncitizens who either
entered the United States surreptitiously, i.e., entered without INS inspection, or who
violated the terms of their visas.
The documentary requirements for visas are stated in §222 of the INA, with
some discretion for further specifications or exceptions by regulation. Generally, the
application requirements are more extensive for aliens who wish to permanently live
in the United States than those coming for visits. The amount of paperwork required
and the length of adjudication process to obtain a visa to come to the United States
is analogous to that of the Internal Revenue Service’s (IRS) tax forms and review
procedures. Just as persons with uncomplicated earnings and expenses may file an
IRS “short form” while those whose financial circumstances are more complex may
file a series of IRS forms, so too an alien whose situation is straightforward and
whose reason for seeking a visa is easily documented generally has fewer forms and
procedural hurdles than an alien whose circumstances are more complex. There are
over 70 BCIS forms as well as DOS forms that pertain to the visa issuance process.7
The system of processing, adjudication, and issuances of visas is largely a fee-
based, rather than a government service funded by direct appropriations. For
example, the filing fee that a U.S. citizen would pay BCIS to process an immigrant
4 For a fuller account of INS restructuring proposals, see CRS Report RL31388,
Immigration and Naturalization Service: Restructuring Proposals in the 107th Congress,
by Lisa M. Seghetti.
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.
7 INS forms are available at:
[http://www.ins.usdoj.gov/graphics/formsfee/forms/index.htm].

CRS-3
petition for a relative is $130 and for an alien worker is $135. The immigrant
petition fees collected by BCIS are deposited in the examinations fee account along
with fees filed with other BCIS petitions (e.g., naturalization, employment
authorization).8 In FY2001, the former INS deposited more than $1 billion in the
examinations fee account. Consular Affairs also collects fees for visas services. The
Consular Affairs immigrant visa application processing fee is $335, and the
nonimmigrant processing fee is $65.9 DOS has authority to use up to $316.7 million
of these processing fees in FY2002 and requested authority to use $642.7 million in
FY2003.10
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
! qualify under other specialized provisions of law.
The largest number of immigrants is admitted because of family relationship to
U.S. citizens. Of the 1,064,318 people who became LPRs in FY2001, 53.0% were
relatives of U.S. citizens. Following a distant second are employment-based
immigrants (16.8%), most of whom are sponsored by U.S. employers. Comparable
numbers of immigrants were family of other LPRs (10.5%) and refugees and asylees
(10.2%). The remainder were immigrants entering through the diversity lottery
program (3.9%) and other miscellaneous categories (5.5%).
Petitions for immigrant, i.e. LPR, status, are first filed with BCIS by the
sponsoring relative or employer in the United States. If the prospective immigrant
is already residing in the United States, the BCIS handles the entire process, which
is called “adjustment of status.” If the prospective LPR does not have legal residence
in the United States, the petition is forwarded to Consular Affairs in their home
country after BCIS has reviewed it. The Consular Affairs officer (when the alien is
coming from abroad) and BCIS 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
8 §286(m) of INA.
9 DOS lists its fees at: [http://travel.state.gov/2002feechart.html].
10 §231 of P.L. 106-113, the Foreign Relations Authorization Act of 2001. CRS Report
RL31370, State Department and Related Agencies: FY2003 Appropriations, by Susan
Epstein.

CRS-4
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.
A personal interview is required for all prospective LPRs.11 The burden of
proof is on the applicant to establish eligibility for the type of visa for which the
application is made. Consular Affairs officers (when the alien is coming from
abroad) and BCIS adjudicators (when the alien is adjusting status in the United
States) must confirm that the alien is not ineligible for a visa under the so-called
“grounds for inadmissibility” of the INA, which include criminal, terrorist, and
public health grounds for exclusion discussed below.12
Figure 1. Immigrant Arriving or Adjusting Status, FY1990-FY2001
Thousands
2000
Adjustments
Arrivals
1500
1000
500
0
1990
1992
1994
1996
1998
2001
Source: CRS presentation of published BCIS data.
11 22 CFR §42.62.
12 For a recent review of Consular Affairs role in visa processing, see: U.S. General
Accounting Office Report GAO-03-132NI, Border Security: Visa Process Should Be
Strengthened as an Antiterrorism Tool
, October 21, 2002.

CRS-5
Nonimmigrant Visas
Aliens seeking to come to the United States temporarily rather than to live
permanently are known as nonimmigrants.13 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 subsection in §101(a)(15), e.g., B-2 tourists, E-2 treaty investors,
F-1 foreign students, H-1B temporary professional workers, J-1 cultural exchange
participants, or S-4 terrorist informants.
The burden of proof is on the applicant to establish eligibility for nonimmigrant
status and the type of nonimmigrant visa for which the application is made.
Nonimmigrants must demonstrate that they are coming for a limited period and for
a specific purpose. The Consular Affairs officer, at the time of application for a visa,
as well as the BCBP inspectors, at the time of application for admission, must be
satisfied that the alien is entitled to a nonimmigrant status.14 The law exempts only
the H-1 workers, L intracompany transfers, and V family members from the
requirement that they prove that they are not coming to live permanently.15 BCIS and
BCBP play a role determining eligibility for certain nonimmigrant visas, notably H
workers and L intracompany transfers. Also, if a nonimmigrant in the United States
wishes to change from one nonimmigrant category to another, such as from a tourist
visa to a student visa, the alien files a change of status application with the BCIS. If
the alien leaves the United States while the change of status is pending, the alien is
presumed to have relinquished the application.
Personal interviews are generally required for foreign nationals seeking
nonimmigrant visas. Interviews, however, may be waived in certain cases, most
notably B visitor visas.16 This waiver formed the basis for the controversial and
allegedly fraud-prone “Visa Express” in Saudi Arabia (now suspended) where travel
agents pre-screened visa applicants and submitted petitions on behalf of the aliens.
In FY2002, DOS issued 5,769,638 nonimmigrant visas. As Figure 2 illustrates,
the annual number grew over the past few years but has dipped slightly in 2002 to a
level comparable to the early 1990s. The growth has been largely attributable to the
issuances of border crossing cards to residents of Canada and Mexico and the
issuances of temporary worker visas. Combined, visitors for tourism and business
comprised the largest group of nonimmigrants in FY2002, about 4.3 million, down
from 5.7 million in FY2000. Other notable categories were students (4.5%),
exchange visitors (5.0%) and temporary workers (5.1%). Depending on the visa
category and the country the alien is coming from, the nonimmigrant visa may be
13 For a full discussion and analysis of nonimmigrant visas, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions
, by Ruth Ellen Wasem.
14 22 CFR §41.11(a).
15 §214(b) of INA.
16 22 CFR §41.102.

CRS-6
valid for several years and may permit multiple entries. As a result, BCIS reports
over 32.8 million nonimmigrant entries in FY2001.17
Figure 2. Nonimmigrant Visas Issued, FY1990-FY2002
Millions
8
6
4
2
0
1990
1992
1994
1996
1998
2000
2002
Source: CRS presentation of DOS Bureau of Consular Affairs data.
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 28 countries, e.g., Australia, France, Germany, Italy, Japan, New
Zealand, Switzerland, and the United Kingdom. The BCIS reports that 17 million
nonimmigrants entered the United States through VWP in FY2001.18 Since aliens
entering through VWP do not get visas, BCBP inspectors at the port of entry must
perform background checks and make a determination of whether the VWP alien is
eligible to enter the United States.
Grounds for Exclusion
All aliens must undergo reviews performed by DOS consular officers abroad
and BCBP inspectors upon entry to the U.S. These reviews are intended to ensure
17 For additional analysis, see CRS Report RL31381, U.S. Immigration Policy on Temporary
Admissions
, by Ruth Ellen Wasem.
18 For further discussion of VWP, see CRS Report RS21205, Immigration: Visa Waiver
Program
, by Alison Siskin.

CRS-7
that they are not ineligible for visas or admission under the grounds for
inadmissibility spelled out in INA.19 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 are required to check the background of all aliens in the “lookout”
databases. Some other 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.
Table 1. Aliens DOS Excluded in FY2000 by
Grounds of Inadmissibility
Aliens excluded by State Department
Grounds for exclusion
Immigrant
Nonimmigrant
Health
1,288
3.8%
151
0.7%
Criminal
507
1.5%
3,207
15.2%
Terrorism & security
9

181
0.9%
Public charge
16,285
48.5%
763
3.6%
Labor certification
7,849
23.4%
2

Immigration violations
2,878
8.6%
13,969
66.1%
Ineligible for citizenship
3

3

Previously removed or
4,781
14.2%
2,837
13.4%
illegal presence
Miscellaneous
5

6

Total inadmissible
33,605
100%
21,119
100%
Ineligible for visa applied
40,241

2,489,327

for due to other reasons
Source: CRS analysis of DOS Bureau of Consular Affairs data.
19 §212(a) of INA.

CRS-8
As Table 1 presents, DOS excluded 33,605 applicants for immigrant visas and
21,119 applicants for nonimmigrant visas in FY2000 based upon inadmissibility.
Almost half (48.5%) of the immigrant petitioners who were rejected on listed
exclusionary grounds were rejected because the DOS determined that the aliens were
inadmissible as likely public charges. On these grounds, about two-thirds of all
rejected nonimmigrant applicants were inadmissible because of immigration law
violations, most notably misrepresentation. Another 13.4% were inadmissible
because of prior unlawful presence in the United States.
While the grounds of inadmissibility are an important basis for denying foreign
nationals admission to the United States, it should be noted that most aliens who are
rejected by DOS — over 2.5 million — are rejected because they are not eligible for
the visa they are seeking. Comparable data from DHS on aliens deemed ineligible
for immigrant status or inadmissible as a nonimmigrant are not available. As a result,
the DOS data presented in Table 1 understate the number and distribution of aliens
denied admission to the United States.
Issues and Legislation
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.
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
is 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

CRS-9
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. 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 retaining 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 current
structures 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).
Legislation. Representative Dick Armey, Majority Leader and Chair of
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

CRS-10
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
visas 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 current 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 Congressman David Weldon failed, and the House went on
to pass H.R. 5005 on July 26, 2002. Table 2 summarizes what department would be
responsible for visa issuance activities under the various bills.20
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 issuances 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.
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
20 For discussion of the issues and options for transfering immigration functions and
activities to a new DHS, see: CRS Report RL31560, Homeland Security Proposals: Issues
Regarding Transfer of Immigration Agencies and Functions
, by Lisa M. Seghetti and Ruth
Ellen Wasem; and CRS Report RL31584, A Comparative Analysis of the Immigration
Functions in the Major Homeland Security Bills
, by Lisa M. Seghetti and Ruth Ellen
Wasem.

CRS-11
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.
Table 2. Visa Issuance Policy Roles and Tasks:
Comparison of Major Homeland Security Proposals
S.Amdt.
H.R. 5005
H.R. 5005
P.L. 107-
Task/role
INA
S. 2452
4471
introduced
passed
296
Issuing
State
State
Homeland
Homeland
Homeland
Homeland
nonimmigrant
regulates;
sets policy;
regulates;
regulates;
visas abroad
State
State
State issues
State issues
issues
administers
Changing
nonimmigrant
Justice
Justice
Homeland
Homeland
Justice
Homeland
visas
Approving
immigrant
Justice
Justice
Homeland
Homeland
Justice
Homeland
(LPR)
petitions
Issuing
State
State
Homeland
Homeland
Homeland
Homeland
immigrant
regulates;
sets policy;
regulates;
regulates;
visas
State
State
State issues
State issues
issues
administers
Adjusting
immigrant
Justice
Justice
Homeland
Homeland
Justice
Homeland
(LPR) status
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 retains the language clarifying that
— although DOS’s Consular Affairs would continue to issue visas — the Secretary
of DHS would issue regulations regarding visas 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 later 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.

CRS-12
108th Congress: Revising Visa Issuance Policy
Sharing Data and Screening Aliens. Since the September 11 terrorist
attacks, considerable concern has been raised because the 19 terrorists were aliens
who apparently entered the United States legally on temporary visas. Although the
INA bars terrorists, consular officers issuing the visas were not able to bar them
because information identifying them as such was not in the databases to which they
had access. Many assert that the need for all agencies involved in admitting aliens
to share intelligence and coordinate activities is essential for U.S. immigration policy
to be effective in guarding homeland security. Some argue that the reforms Congress
made in the mid-1990s requiring all visa applicants to be checked in the “look out”
databases are inadequate because the databases across the relevant agencies are not
inter-operable.
Those less enthusiastic about inter-operable databases point to the cost and time
required to develop such databases. Instead, they argue the money and resources
might be better spent on other tools to strengthen enforcement of immigration laws.
They also warn that if intelligence data become too accessible across agencies,
national security may actually be breached because sensitive information could fall
into the wrong hands.
On a related matter, critics point to the fact that consular officers do not
personally interview many aliens to whom they issue nonimmigrant visas. By-
passing the personal interview, especially for visitors coming for purportedly short
periods of time, was advocated by some as an efficiency of staffing and resources.
Others assert that this cost savings comes at too high a price in terms of national
security. The critics argue that checking an alien’s name in a database is no
substitute for a face-to-face interview.
The 107th Congress enacted provisions in the USA PATRIOT Act (P.L. 107-56)
that seek to improve the visa issuance process by providing access to relevant
electronic information. These provisions authorize the Attorney General to share
data from domestic criminal record databases with the Secretary of State for the
purpose of adjudicating visa applications. Title III of P.L. 107-173, the Enhanced
Border Security and Visa Reform Act, likewise aims to increase access to electronic
information in the context of visa issuances, while also requiring additional training
for consular officers who issue visas. Whether these provisions have been
successfully implemented remains an important policy question.21
In the 107th Congress, H.R. 5013 would have required that consular officers
conduct a personal interview of all aliens seeking visas to the United States, not just
those who wish to become LPRs. This issue may be raised again in the 108th
Congress.
21 For evaluations, see U.S. General Accounting Office, Information Technology: Terrorist
Watch Lists Should Be Consolidated to Promote Better Integration and Sharing
,
(GAO-03-322) Apr. 15, 2003; and U.S. General Accounting Office, Border Security:
Challenges in Implementing Border Technology
, (GAO-03-546T), Mar. 12, 2003.

CRS-13
Defining Terrorism. In response to concerns that the definition of terrorism
and the designation of terrorist organizations in the INA that is used to determine the
inadmissibility and removal of aliens is too narrow, Congress amended the INA’s
inadmissibility provisions to broaden somewhat the terrorism grounds for excluding
aliens. The INA already barred the admission of any alien who has engaged in or
incited terrorist activity, is reasonably believed to be carrying out a terrorist activity,
or is a representative or member of a designated foreign terrorist organization. To
this list of inadmissible aliens, the USA PATRIOT Act adds representatives of
groups that endorse terrorism, prominent individuals who endorse terrorism, and
spouses and children of aliens who are deportable on terrorism grounds on the basis
of activities occurring within the previous 5 years. Further changes or refinements
to this definition may arise in the 108th Congress.
Other Security Concerns. In the 107th Congress, S. 864, which was
reported by the Senate Judiciary Committee on April 25, 2002, would have further
broadened the security and terrorism grounds of inadmissibility to exclude aliens who
have participated in the commission of acts of torture or extrajudicial killings abroad.
S. 864 also would have made aliens in the United States removable on these same
grounds. H.R. 5013 would have expanded and recodified the grounds for
inadmissibility in the INA as part of its significant revision of immigration policy.
Legislation similar to S. 864 — the Anti-Atrocity Alien Deportation Act of 2003
(H.R. 1440 and S. 710) — has already been introduced in the 108th Congress