Order Code RL31512
Visa Issuances:
Policy, Issues, and Legislation
Updated January 24, 2007
Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division

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Visa Issuances: Policy, Issues, and Legislation
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
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.
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.
As these more stringent visa policies have gone into force, however, new
concerns have arisen about visa processing delays. Visa applicants often face
extensive wait times for interviews. From September 2005 through February 2006,
GAO found that 97 of DOS’s 211 visa-issuing posts reported maximum wait times
of 30 or more days in at least one month. Whether these delays are having a
deleterious effect on travel and commerce has become an issue. Some now question
whether sufficient resources and staff are in place to manage visa issuances in the
post-September 11 world.
Meanwhile, nonimmigrant (i.e., temporary) visas issued abroad dipped to 4.9
million in FY2003 after peaking at 7.6 million in FY2001. The FY2005 data
indicated an upturn, as 5.4 million nonimmigrant visas were issued. Combined,
visitors for tourism and business comprised the largest group of nonimmigrants visas
issued in FY2005, about 3.7 million down from 5.7 million in FY2000. Other
notable categories were temporary workers (17%) and students or cultural exchange
(9.4%). The number of legal permanent resident visas issued each year by consular
officers abroad has held steady at about 0.4 million over the past decade.
DOS excluded 38,434 potential immigrants in FY2005 and refused 270,615
potential immigrants in FY2005 because their visa application did not comply with
provisions in the INA. In terms of temporary visas, DOS excluded 25,212 potential
nonimmigrants in FY2005 and refused almost 2 million potential nonimmigrants in
FY2005 because the alien was not qualified for the visa.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Overview on Visa Issuances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Permanent Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Temporary Admissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Visa Waiver Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Waiving the Documentary Requirements . . . . . . . . . . . . . . . . . . . . . . . 7
Grounds for Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Databases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Aliens Refused Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Biometric Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Revoking Visas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Recent Legislative Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Legislation in the 107th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
USA PATRIOT Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Enhanced Border Security and Visa Entry Reform Act . . . . . . . . . . . . 15
Homeland Security Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9/11 Commission Findings and Recommendations . . . . . . . . . . . . . . . 16
Intelligence Reform and Terrorism Prevention Act . . . . . . . . . . . . . . . 17
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
REAL ID Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Denying Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Grounds of Inadmissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Issues in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Implementing New Technologies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Document Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Impact on Tourism and Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
List of Figures
Figure 1. Immigrant Arrivals and Adjustments of Status, FY1996-FY2006 . . . . . 4
Figure 2. Visas Issued to Immigrants and Nonimmigrants, FY1996-FY2005 . . . 6
List of Tables
Table 1. Immigrants Refused Visa by Grounds of Inadmissibility . . . . . . . . . . . 10
Table 2. Nonimmigrants Refused Visa by Grounds of Inadmissibility . . . . . . . 11

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Visa Issuances:
Policy, Issues, and Legislation
Introduction
Following the September 11, 2001 terrorist attacks, considerable concern was
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 makes the United States vulnerable to further terrorist attacks led many to call
for revisions in the visa policy and changes in who administers immigration law. The
report of the National Commission on Terrorist Attacks Upon the United States (also
known as 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 made several recommendations that underscored the
urgency of implementing legislative provisions on visa policy and immigration
control that Congress enacted several years ago.
As these more stringent visa policies have gone into force, however, new
concerns have arisen about visa processing delays. Visa applicants often face
extensive wait times for interviews. Whether these delays are having a deleterious
effect on travel and commerce has become an issue. Some now question whether
sufficient resources and staff are in place to manage visa issuances in the post-
September 11 world.
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.1 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.2 DOS’s
Bureau of Consular Affairs (Consular Affairs) is the agency responsible for issuing
visas, DHS’s Citizenship and Immigration Services (USCIS) is charged with
approving immigrant petitions, and DHS’s Bureau of Customs and Border Protection
1 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 the Immigration and
Nationality Act (INA) and the specific authority of the Visa Waiver Program in §217 of the
INA.
2 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.

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(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 its adjudicatory decisions on specific immigration cases.
This report 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.3 It includes a discussion of visa
screening policies, including inadmissibility, databases, an analysis of visa refusals,
biometric visas and other major visa policy procedures. Summaries of key laws
revising visa policy enacted in the 107th-109th Congresses follows. The final section
analyzes selected issues in the 110th Congress, notably new technologies, impact on
travel and commerce, and security concerns.
Overview on Visa Issuances
There are two broad classes of aliens that are issued visas: immigrants and
nonimmigrants.4 Those for whom visas are not required, including 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 refugee status ultimately are eligible to become legal
permanent residents (LPRs).5 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.
The documentary requirements for visas are stated in §222 of the INA, with
some discretion for further specifications or exceptions by regulation as discussed
below. 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 U.S. Citizenship and
Immigration Services (USCIS) forms as well as DOS forms that pertain to the visa
issuance process.
3 For a broader discussion, see CRS Report RS20916, Immigration and Naturalization
Fundamentals, by Ruth Ellen Wasem.
4 For background and analysis of visa issuance policy and activities, see CRS Report
RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem.
5 For background and further discussion of humanitarian cases, see CRS Report RL31269,
Refugee Admissions and Resettlement Policy, by Andorra Bruno; and CRS Report RS20844,
Temporary Protected Status: Current Immigration Policy and Issues, by Ruth Ellen Wasem
and Karma Ester.

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Permanent Admissions
Aliens who wish to come to live permanently in the United States must meet a
set of criteria specified in the INA.6 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;
! a winner of a visa in the diversity lottery; or
! a person eligible under 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
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.
Many LPRs are adjusting status from within the United States rather than receiving
visas issued abroad by Consular Affairs, as Figure 1 indicates. Although over 1
million aliens became LPRs in FY2005, less than 400,000 immigrant visas were
issued abroad that year.
6 For a full discussion of these policies, see CRS Report RL32235, U.S. Immigration Policy
on Permanent Admissions, by Ruth Ellen Wasem.

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Figure 1. Immigrant Arrivals and Adjustments of Status,
FY1996-FY2006
Thousands
1000
Arrivals
Adjustments
800
738
679
653
584
600
495
442
421
418
402
407
411
381
384
384
400
357
358
362
347
303
245
200
0
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
Source: Statistical Yearbook of Immigration, U.S. Department of Homeland Security,
Office of Immigration Statistics, (multiple years).
A personal interview is required for all prospective LPRs.7 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
USCIS 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.8
7 22 C.F.R. §42.62.
8 For a recent review of the Bureau of Consular Affair’s role in visa processing, see U.S.
General Accounting Office, Border Security: Visa Process Should Be Strengthened as an
Antiterrorism Tool, GAO-03-132NI, Oct. 21, 2002.

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Temporary Admissions
Aliens seeking to come to the United States temporarily rather than to live
permanently are known as nonimmigrants.9 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.
As with immigrant visas, 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. Specifically §214(b) of the INA presumes
that all aliens seeking admission to the United States are coming to live permanently;
as a result, nonimmigrants must demonstrate that they are not coming to reside
permanently. The Consular Affairs officer, at the time of application for a visa, as
well as the Customs and Border Protection Bureau (CBP) inspectors, at the time of
application for admission, must be satisfied that the alien is entitled to a
nonimmigrant status.10 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.11 USCIS and CBP 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 USCIS. 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; prior to
the September 11, 2001, terrorist attacks, personal interviews for applicants for B
visitor visas reportedly were often waived.12 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.13 After September 11, 2001, the number of personal
interviews rose significantly as part of broader efforts to meet national security goals.
9 For a full discussion and analysis of nonimmigrant visas, see CRS Report RL31381, U.S.
Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem and Chad C. Haddal.
(Hereafter cited as CRS Report RL31381, Temporary Admissions.)
10 22 C.F.R. §41.11(a).
11 §214(b) of the INA; 8 U.S.C. §1184(b).
12 22 C.F.R. §41.102.
13 U.S. Department of State, Myths and Facts about U.S. Immigration Standards for Saudi
Arabian Immigrants, Fact Sheet issued July 8, 2002.

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DOS issued interim regulations on July 7, 2003, that officially tightened up the
requirements for personal interviews and substantially narrowed the class of
nonimmigrants eligible for the waiver of a personal interview. Prior to
implementation of P.L. 108-458, personal interview waivers might have been granted
only to children under age 16, persons 60 years or older, diplomats and
representatives of international organizations, aliens who were renewing a visa they
obtained within the prior 12 months, and individual cases for whom a waiver was
warranted for national security or unusual circumstances.14
Nonimmigrant visas issued abroad dipped to 4.9 million in FY2003 after
peaking at 7.6 million in FY2001. The FY2005 data indicated 5.4 million
nonimmigrant visas were issued. Earlier in the decade, as Figure 2 illustrates, DOS
typically issued about 6 million nonimmigrant visas annually. The number of
immigrant visas issued each year by consular officers abroad has held steady at about
0.4 million over the past decade. The growth in nonimmigrant visas issued in the late
1990s was largely attributable to the issuances of border crossing cards to residents
of Canada and Mexico and periodic lifting of the ceilings on temporary worker visas.
Figure 2. Visas Issued to Immigrants and Nonimmigrants,
FY1996-FY2005
Millions
8
6
5.4
4
Immigrant
Nonimmigrant
2
0.4
0
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
Source: CRS presentation of DOS Bureau of Consular Affairs data.
Combined, visitors for tourism and business comprised the largest group of
nonimmigrants visas issued in FY2005, about 3.7 million down from 5.7 million in
14 Federal Register, vol. 68, no. 129, July 7, 2003, pp. 40127-40129.

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FY2000. Other notable categories were temporary workers (17%) and students or
cultural exchange (9.4%).15 Depending on the visa category and the country the alien
is coming from, the nonimmigrant visa may be valid for several years and may permit
multiple entries. USCIS reported 33.7 million nonimmigrant entries in FY2000, 27.9
million in FY2002, and 32.0 million in FY2005.16
Visa Waiver Program. Not all aliens are required to have a visa to visit the
United States. Indeed, most visitors enter the United States without nonimmigrant
visas through the Visa Waiver Program (VWP). This provision of INA allows the
visa documentary requirements to be waived for aliens coming as visitors from 27
countries (e.g., Australia, France, Germany, Italy, Japan, New Zealand, and
Switzerland). Thus, visitors from these countries are not required to obtain a visa
from a U.S. consulate abroad. Since aliens entering through VWP do not have visas,
CBP inspectors at the port of entry are responsible for performing the background
checks and making the determination of whether the alien is admissible.17
Waiving the Documentary Requirements. In addition to the Visa Waiver
Program, there are a number of exceptions to documentary requirements for a visa
that have been established by law, treaty, or regulation.18 The INA also authorizes
the Attorney General and the Secretary of State acting jointly to waive the
documentary requirements of INA §212(a)(7)(B)(i), including the passport
requirement, on the basis of unforeseen emergency in individual cases.19 In 2003, the
Administration scaled back the circumstances in which the visa and passport
requirements are waived.20
Grounds for Exclusion
All aliens must undergo reviews performed by DOS consular officers abroad
and CBP inspectors upon entry to the United States. These reviews are intended to
15 For additional analysis, see CRS Report RL31381, Temporary Admissions.
16 These nonimmigrant admissions data are based on aliens entering with I-94 petitions for
nonimmigrants. The DHS Office of Immigration Statistics estimates that the total number
of nonimmigrants who actually entered legally were 247.5 million in FY2000, 193.2 million
in FY2002, and 175.4 million in FY2005. U.S. Department of Homeland Security, Office
of Immigration Statistics, 2005 Yearbook of Immigration Statistics, (2006).
17 See CRS Report RL32221, Visa Waiver Program, by Alison Siskin.
18 See CRS Congressional Distribution Memorandum, Waiving the Documentary
Requirements for Visas and Passports to Enter the United States, by Ruth Ellen Wasem and
Andorra Bruno, Oct. 27, 2003.
19 INA §212(d)(4)(A). The Homeland Security Act (P.L. 107-296) transferred most
immigration-related functions from DOJ to DHS. It is uncertain as of this writing whether
this waiver authority remains, in whole or in part, with DOJ and the Attorney General or
with the Secretary of DHS.
20 For additional information about these exceptions, see 8 C.F.R. §212.1; 22 C.F.R. §41.1;
and 22 C.F.R. §41.2.

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CRS-8
ensure that they are not ineligible for visas or admission under the grounds for
inadmissibility spelled out in the INA.21 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.22
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.
Databases. Consular officers use the Consular Consolidated Database (CCD)
to screen visa applicants. Records of all 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. 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.23
Consular officers also send suspect names to the FBI for a name check program
called Visa Condor. Visa Condor is part of the broader Security Advisory Opinion
21 §212(a) of the INA.
22 For a fuller analysis, see CRS Report RL32480, Immigration Consequences of Criminal
Activity, by Michael John Garcia; and CRS Report RL32564, Immigration: Terrorist
Grounds for Exclusion of liens, by Michael John Garcia and Ruth Ellen Wasem.
23 For background and analysis, see CRS Report RL32120, The ‘FTO List’ and Congress:
Sanctioning Designated Foreign Terrorist Organizations, by Audrey Kurth Cronin.

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(SAO) system 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.24
With procedures distinct from the terrorist watch lists, consular officers screen
visa applicants for employment or study that would give the foreign national access
to controlled technologies (i.e., those that could be used to upgrade military
capabilities), and refers foreign nationals from countries of concern (e.g., China,
India, Iran, Iraq, North Korea, Pakistan, Sudan, and Syria).25 This screening is part
of a name-check procedure known as Visa Mantis, which has the following stated
objectives: stem the proliferation of weapons of mass destruction and missile
delivery systems; restrain the development of destabilizing conventional military
capabilities in certain regions of the world; prevent the transfer of arms and sensitive
dual-use items to terrorist states; and maintain U.S. advantages in certain militarily
critical technologies. Mantis checks are performed by DOS’s Bureau of
Nonproliferation in coordination with the FBI, and other federal agencies.
Janice Jacobs, Deputy Assistant Secretary of State for Consular Affairs, reported
during a congressional hearing in October 2003, that the once paper-based process
of checking suspect names with other federal agencies and departments had moved
toward the interoperable system mandated by the Enhanced Border Security and Visa
Reform Act.
We are also piloting a one million dollar project to allow for seamless electronic
transmission of visa data among Foreign Service posts, the Department of State
and other Washington agencies. The other agencies will no longer receive a
telegram but a reliable data transmission through an interoperable network that
begins with the Consular Consolidated Database. Using the Consular
Consolidated Database as an electronic linchpin will improve data integrity,
accountability of responses in specific cases, and statistical reporting.26
Aliens Refused Visas. As Table 1 presents, the immigrant petitioners DOS
refused on the basis of the §212(a) grounds for exclusion totaled 67,269 in FY2000,
40,606 in FY2002, and 38,434 in FY2005. In FY2000 and FY2002, most immigrant
petitioners who were rejected on INA exclusionary grounds were rejected because
the DOS determined that the aliens were inadmissible as likely public charges. In
FY2005, the lack of proper labor certification was the leading ground for refusal. The
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.
(Hereafter cited as Senate Subcommittee on International Operations and Terrorism, The
Post 9/11 Visa Reforms.)
25 U.S. General Accounting Office, Export Controls: Department of Commerce Controls
Over Transfers of Technology to Foreign Nationals Needs Improvement, GAO-02-972, Sept.
2002.
26 Senate Subcommittee on International Operations and Terrorism, The Post 9/11 Visa
Reforms.

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other notable category encompassed prior violations of immigration law and previous
orders of removal from the United States, which was at 23.9% in FY2005.27
Table 1. Immigrants Refused Visa by Grounds of Inadmissibility
Potential immigrants refused by State Department
Grounds for exclusion
FY2000
FY2002
FY2005
Health
1,528
2.3%
1,176
2.9%
1,968
5.1%
Criminal
736
1.1%
885
2.2%
1,401
3.6%
Terrorism and security
32
0.1%
27
0.1%
63
0.2%
Public charge
46,450
69.1%
17,848
44.0%
9,559
24.9%
Labor certification
8,194
12.2%
10,046
27.7%
11,721
30.5%
Immigration violations
3,414
5.1%
6,698
16.5%
4,504
11.7%
Ineligible for citizenship
4
—
4
—
2
—
Previously removed or illegal
6,900
10.3%
3,909
9.6%
9,195
23.9%
presence
Miscellaneous
7
—
13
—
21
0.1%
Total §212(a) inadmissible
67,269
—
40,606
—
38,434
—
Ineligible for visa applied for
205,742
—
194,255
—
270,615
—
due to other reasons
Source: CRS analysis of DOS Bureau of Consular Affairs data.
While the grounds of inadmissibility are an important basis for denying foreign
nationals admission to the United States, it should be noted that more immigrant
petitions who are rejected by DOS — 270,615 in FY2005 — were rejected because
their visa application did not comply with provisions in the INA (most of these being
§221(g) noncompliance) included in the last category listed in Table 1.
Refusals of nonimmigrant petitions presented in Table 2, have a somewhat
different pattern as previous immigration law violations has been the leading
category. Violation of criminal law emerged as a more common ground for refusal
among nonimmigrant petitioners than it was for immigrant petitioners. Prior orders
of removal from the United States was also among the leading grounds for refusals.
The overwhelming basis for denying nonimmigrant visas, however, was that the alien
was not qualified for the visa, largely due to the §214(b) presumption discussed
earlier in this report.

27 Although consular decisions are not appealable or reviewable, some aliens are able to
bring additional information that may be used to overcome an initial refusal.

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CRS-11
Table 2. Nonimmigrants Refused Visa by
Grounds of Inadmissibility
Potential nonimmigrants refused by State Department
Grounds for exclusion
FY2000
FY2002
FY2005
Health
177
0.7%
390
1.2%
238
0.9%
Criminal
4,370
18.2%
6,554
20.6%
7,454
29.6%
Terrorism and security
224
1.0%
133
0.4%
333
1.3%
Public charge
825
3.4%
2,069
6.5%
1,341
5.3%
Immigration violations
14,263
60.0%
17,070
53.7%
1
—
Documentation problems
1,143
4.8%
1,123
3.5%
8,822
35.0%
Previously removed or
2,930
12.2%
4,428
13.9%
6,977
27.7%
illegal presence
Miscellaneous
9
—
15
0.1%
4
—
Total §212(a)
23,953
100%
31,793
100%
25,212
100%
inadmissible
Ineligible for visa applied
2,428,248
—
2,560,526
—
1,941,374
—
for due to other reasons
Source: CRS analysis of DOS Bureau of Consular Affairs data.
Comparable data from DHS on aliens deemed ineligible for immigrant status
or inadmissible as a nonimmigrant based upon §212(a) are not available. As a result,
the DOS data presented above understate the number and distribution of aliens
denied admission to the United States.
Biometric Visas
Aliens who are successful in their request for a visa are then issued the actual
travel document. As of October 2004, all visas issued by the United States use
biometric identifiers (e.g., finger scans) in addition to the photograph that has been
collected for some time. As required by law, the biometric visa is an integral part of
the entry-exit system (known as US-VISIT) maintained by DHS’s immigration
inspectors. The biometric visas are then to be matched against the fingerprint image
scanned during the US-VISIT system when the alien arrives in the United States.28
Revoking Visas
After a visa has been issued, the consular officer as well as the Secretary of State
has the discretionary authority to revoke a visa at any time.29 A consular officer must
revoke a visa if
28 CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology
(US-VISIT) Program, by Lisa M. Seghetti and Stephen R. Viña.
29 §221(i) of the INA; 8 U.S.C. §1201(i).

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CRS-12
! the alien is ineligible under INA §212(a) as described above to
receive such a visa, or was issued a visa and overstayed the time
limits of the visa;
! the alien is not entitled to the nonimmigrant visa classification under
INA §101(a)(15) definitions specified in such visa;
! the visa has been physically removed from the passport in which it
was issued; or
! the alien has been issued an immigrant visa.30
The Foreign Affairs Manual (FAM) instructs: “in making any new
determination of ineligibility as a result of information which may come to light after
issuance of a visa, the consular officer must seek and obtain any required advisory
opinion.” This applies, for example, to findings of ineligibility under
“misrepresentation,” “terrorist activity” or “foreign policy.” FAM further instructs:
“pending receipt of the Department’s advisory opinion, the consular officer must
enter the alien’s name in the CLASS under a quasi-refusal code, if warranted.”31
According to DOS officials, they sometimes prudentially revoke visas, i.e., they
revoke a visa as a safety precaution. A “prudential revocation” is undertaken with
a relatively low threshold of national security information to ensure that all relevant
or potentially relevant facts about an alien are thoroughly explored before admitting
that alien to the United States.32
Following September 11, 2001, the U.S. General Accounting Office (GAO,
subsequently renamed the Government Accountability Office) reviewed 240 cases
of visa revocations and identified several problems. It found that the appropriate
units within the Federal Bureau of Investigation (FBI) and the former INS were not
always notified, that “lookouts” were not consistently posted on the watch lists of
suspected terrorists; that 30 foreign nationals whose visas had been revoked entered
the United States and may still remain; and that the FBI and the former INS were not
routinely taking action to investigate, locate the individuals, or resolve the cases.33
DOS responded to the GAO study by arguing that it was not fair or accurate to
suggest that all persons whose visas were revoked were terrorists or suspected
terrorists. In many such instances, DOS reports that it finds that the national security
information does not pertain to the alien whose visa was revoked (a mistaken identity
due to incomplete identifying data), or that the information can be explained in a way
that clarifies the question at hand and eliminates the potential threat. In these cases,
the consular officers re-issue the visa and purge the alien’s name from the lookout
system. DOS maintains that the problem has been fixed in the creation last year of
30 22 C.F.R. §41.122 Notes N1.
31 22 C.F.R. §41.122 Notes PN3.
32 Testimony of Janice L. Jacobs, Deputy Assistant Secretary of State for Visa Services, in
U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Immigration, Border
Security and Citizenship, Visa Issuance, Information Sharing and Enforcement in a Post-
9/11 Environment: Are We Ready Yet? hearing, July 15, 2003.
33 U.S. General Accounting Office, New Policies and Procedures Are Needed to Fill Gaps
in the Visa Revocation Process, GAO 03-798, June 18, 2003.

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CRS-13
a revocation code that is shared with the relevant agencies via IBIS when a visa is
prudentially revoked. It reportedly was put into place in December 2002, and DOS
asserts that it has verified that each and every revocation for calendar year 2003 was
properly coded and entered into CLASS and IBIS, and was available almost
simultaneously to law enforcement and border inspection colleagues.34
A spokesperson for DHS’s Immigration and Customs Enforcement Bureau
(ICE) disputed GAO’s findings. He stated that its records indicate that the National
Security Unit (NSU) in ICE received information on 10 leads involving visa
revocations and that the NSU conducted follow-up investigations in all 10 cases. He
reported that NSU concluded that there was insufficient evidence under current civil
and criminal immigration law to allow ICE to take action against the visa holders.35
A subsequent GAO report, issued in July 2004, concluded that additional
actions were needed to address weakness in the visa revocation process. In this
report, GAO stated: “our analysis of visas revoked based on terrorism concerns from
October through December 2003 revealed that weaknesses remained in the
implementation of the visa revocation process, especially relating to the timely
transmission of information among federal agencies.” GAO also pointed out that
“(w)ith respect to an alien already present in the United States, the Department of
State’s current visa revocation certificate makes the revocation effective only upon
the alien’s departure.” DHS officials maintain that they would be unable to place the
alien in removal proceedings based solely on a visa revocation that had not yet taken
place.36
34 Jacobs, testimony on Visa Issuance, Information Sharing and Enforcement.
35 Testimony of Michael T. Dougherty, Director of Operations, Bureau of Immigration and
Customs Enforcement, Department of Homeland Security, in U.S. Congress, Senate
Committee on the Judiciary Subcommittee on Immigration, Border Security and Citizenship,
Visa Issuance, Information Sharing and Enforcement in a Post-9/11Environment: Are We
Ready Yet? hearing, July 15, 2003.
36 U.S. General Accounting Office, Border Security: Additional Actions Needed to Eliminate
Weaknesses in the Visa Revocation Process, GAO-04-795, July 13, 2004.

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Recent Legislative Actions
Legislation in the 107th Congress
Congress’s plenary authority over immigration policy derives from Article 1, §8
of the U.S. Constitution, and the legislative branch has long taken the lead in
immigration policy. The 107th Congress enacted several major laws that included
significant revisions to visa policy administration and issuances. The key visa
provisions in these major laws are summarized below.37
USA PATRIOT Act. The USA PATRIOT Act (P.L. 107-56) was a broad anti-
terrorism measure that included several important changes to immigration law,
including specific visa policy matters. Foremost, it expanded the definition of
terrorism and the designation of terrorist organizations used to determine the
inadmissibility and removal of aliens. The act further sought to improve the visa
issuance process by mandating data sharing so that consular officers have access to
relevant electronic information. These provisions authorized the Attorney General
to share data from domestic criminal record databases with the Secretary of State for
the purpose of adjudicating visa applications.38
The USA PATRIOT Act additionally mandated that by October 1, 2003, all
aliens applying for admission under the VWP must have machine-readable passports.
However, the act allows the Secretary of State to waive the requirement until
September 30, 2007 if he finds that the country is making progress towards
instituting machine-readable passports and preventing passport fraud.39 Amendments
to these provisions and progress in implementation are discussed elsewhere.40
37 For a detailed analysis of key immigration provisions in recent laws, see CRS
Congressional Distribution Memorandum, Selected Provisions in the USA PATRIOT Act
(P.L. 107-56); the Enhanced Border Security and Visa Entry Reform Act of 2002 (P.L. 107-
173); the FY2002 Supplemental Appropriations Act (P.L. 107-206); and the Consolidated
Appropriations Resolution, FY2003 (P.L. 108-7), by Lisa M. Seghetti, Ruth Ellen Wasem,
Alison Siskin, and Karma Ester, Oct. 17, 2003.
38 The USA PATRIOT Act included provisions to expand the foreign student tracking
system and authorized appropriations for the foreign student monitoring system. It also
required that the foreign student tracking system be fully operational by Jan. 1, 2003. For
a more detailed discussion, see CRS Report RL32188, Monitoring Foreign Students in the
United States: The Student and Exchange Visitor Information System (SEVIS), by Alison
Siskin.
39 On Sept. 24, 2003, the Secretary of State postponed the machine-readable passport
requirement for 21 countries until Oct. 26, 2004. These 21 countries requested the extension
and certified that they were making progress towards issuing fraud resistant, machine-
readable passports. Five countries (Andorra, Brunei, Liechtenstein, Luxembourg, and
Slovenia) did not request extensions, and Belgium was ineligible to receive an extension.
40 The Visa Waiver Permanent Program Act (P.L. 106-396) gave permanent authority to the
Visa Waiver Program (VWP), which was established as a temporary program by the
Immigration Reform and Control Act of 1986 (P.L. 99-603). P.L. 106-396 included
provisions designed to strengthen documentary and reporting requirements, including the
(continued...)

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Enhanced Border Security and Visa Entry Reform Act. The Enhanced
Border Security and Visa Entry Reform Act of 2002 (P.L. 107-173, hereafter referred
to as the Border Security and Visa Reform Act) expressly targeted the improvement
of visa issuance procedures. Among its provisions, it required the development of
an interoperable electronic data system to be used to share information relevant to
alien admissibility and removability and the implementation of an integrated entry-
exit data system. It also requires that all visas issued by October 2004 have biometric
identifiers. In addition to increasing consular officers’ access to electronic
information needed for visa issuances, it expanded the training requirements for
consular officers who issue visas.41
The Border Security and Visa Reform Act placed new requirements on the
VWP, specifically mandating that the government of each VWP country certify by
October 26, 2004 that it has established a program to issue tamper-resistant, machine-
readable passports with a biometric identifier. The act also requires all VWP
countries to certify that they report in a timely manner the theft of blank passports,
allowing the Secretary of DHS to remove a country from the program if it is
determined that the country is not reporting thefts of blank passports.
Homeland Security Act. Prior to establishment of the DHS, two
departments — the DOS through Consular Affairs and the DOJ through INS — each
played key roles in administering the law and policies on the admission of aliens. At
that time, the INA gave DOS responsibility for issuing visas abroad, and specifically
assigned such decisions to consular officers.42 The Homeland Security Act of 2002
(P.L. 107-296) states that DHS through the 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.43 The memorandum of understanding that
40 (...continued)
mandates that all entrants under the VWP have machine-readable passports by October 1,
2007, that all VWP entrants be checked against lookout systems, and that arrival/departure
data for all VWP entrants be collected at air and sea ports of entry. See CRS Report
RL32221, Visa Waiver Program, by Alison Siskin.
41 To close perceived loopholes in the admission of foreign students and to expand on the
provisions in IIRIRA, the Border Security and Visa Reform Act required the establishment
of electronic means to monitor and verify the status of the students and exchange visitors.
See CRS Report RL32188, Monitoring Foreign Students in the United States: The Student
and Exchange Visitor Information System (SEVIS), by Alison Siskin.
42 Under current law, consular decisions are not appealable, and critics of transferring the
visa function to DHS warned that this adjudication might become subject to judicial appeals
or other due process considerations if DHS assumed responsibility.
43 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, 2002, it approved compromise language on visa issuances
that retained DOS’s administrative role in issuing visas, but added specific language to
(continued...)

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CRS-16
implements the working relationship between DOS and DHS’s three immigration-
related bureaus was signed September 29, 2003.
Legislation in the 108th Congress
9/11 Commission Findings and Recommendations. The report of the
National Commission on Terrorist Attacks Upon the United States (also known as
the 9/11 Commission) offered its assessment of how visa and immigration inspection
failures contributed to the terrorist attacks. The 9/11 Commission contended that
“(t)here were opportunities for intelligence and law enforcement to exploit al Qaeda’s
travel vulnerabilities.” The report went on to state: “Considered collectively, the
9/11 hijackers
! included known al Qaeda operatives who could have been
watchlisted;
! presented fraudulent passports;
! presented passports with suspicious indicators of extremism;
! made detectable false statements on visa applications;
! made false statements to border officials to gain entry into the
United States; and
! violated immigration laws while in the United States.”44
The report maintained that border security was not considered to be a national
security matter prior to 9/11, and as a result neither the State Department’s consular
officers nor the former INS’s inspectors and officers were considered full partners in
national counterterrorism efforts.45
The 9/11 Commission made several recommendations that underscore the
urgency of implementing legislative provisions on visa policy and immigration
control that Congress enacted several years ago. They also suggest areas in which
Congress may wish to take further action. The specific recommendations are:
! Targeting travel is at least as powerful a weapon against terrorists as
targeting their money. The United States should combine terrorist
travel intelligence, operations, and law enforcement in a strategy to
intercept terrorists, find terrorist travel facilitators, and constrain
terrorist mobility.
! The U.S. border security system should be integrated into a larger
network of screening points that includes our transportation system
and access to vital facilities, such as nuclear reactors.
43 (...continued)
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.
44 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report, Executive Summary, pp. 13-14, July 2004.
45 The 9/11 Commission Report, Executive Summary, p. 14, July 2004.

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CRS-17
! The Department of Homeland Security, properly supported by the
Congress, should complete, as quickly as possible, a biometric entry-
exit screening system, including a single system for speeding
qualified travelers.
! The U.S. government cannot meet its own obligations to the
American people to prevent the entry of terrorists without a major
effort to collaborate with other governments.46
Other 9/11 Commission recommendations, notably those related to intelligence
policy and structures, have been the focus thus far of congressional consideration and
media attention. The 9/11 Commission prepared a subsequent report that deals
expressly with immigration issues.47
Intelligence Reform and Terrorism Prevention Act. Legislation
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. The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.108-
458), a compromise version of these bills that included some — but not all — of the
immigration provisions under consideration, was signed on December 17, 2004.
Most notably, House-passed S. 2845 would have expanded the terror-related
grounds for inadmissibility and deportability to include additional activities, such as
receiving military-type training by or on behalf of a terrorist organization.48 P.L. 108-
458 would make deportable any alien who has received military training from or on
behalf of an organization that, at the time of training, was a designated terrorist
organization.
Among the other provisions in the 9/11 Commission implementation bills were:
acquire and 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. H.R. 10 (as
reported by the House Judiciary Committee on September 27 and passed by the
House as S. 2845 on October 8, 2004) included provisions to establish an Office of
Visa and Passport Security in the Bureau of Diplomatic Security of the Department
of State to target and disrupt individuals and organizations at home and in foreign
countries that are involved in the fraudulent production, distribution, or use of visas,
passports and other documents used to gain entry to the United States. It also would
have clarified that all nonimmigrant visa applications are reviewed and adjudicated
by a consular officer, and would assign anti-fraud specialists to the top 100 posts that
experience the greatest frequency of fraudulent documents. P.L. 108-458 establishes
a Visa and Passport Security Program within the Bureau of Diplomatic Security at
the Department of State.
46 For a discussion of these recommendations, see The 9/11 Commission Report, Chapter
12.4, pp. 383-389, July 2004.
47 U.S. National Commission on Terrorist Attacks Upon the United States, Monograph on
9/11 and Terrorist Travel, Aug. 2004.
48 CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens, by
Michael John Garcia and Ruth Ellen Wasem.

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CRS-18
As passed by the Senate on October 8, 2004, S. 2845 — as well as House-
passed H.R. 10 — would increase the number of consular officers by 150 over the
preceding year, annually FY2006 through FY2009. Both bills also had provisions
aimed at improving the security of the visa issuance process by providing consular
officers and immigration inspectors greater training in detecting terrorist indicators,
terrorist travel patterns and fraudulent documents.49 These provision were retained
by the conferees in P.L. 108-458.
Personal Interviews. On a related matter, concerns have been raised that
consular officers did 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. Critics assert that this cost savings comes at too high a
price in terms of national security. While some argue that checking an alien’s name
in a database is no substitute for a face-to-face interview, others assert that the value
of a brief personal interview is overrated as a security precaution and that time is
better spent doing more thorough background checks. DOS’s interim final
regulations that increase the type and number of aliens required to have a personal
interview have sparked concern that the waiting times to obtain a visa will increase
dramatically. H.R. 3452 and H.R. 3522 would have, among other provisions,
required all visa applicants to be interviewed.
Senate-passed S. 2845 had provisions to narrow the authority to waive the
personal interview for nonimmigrant visas to children under age 12, persons 65 years
or older, diplomats and representatives of international organizations, aliens who are
renewing a visa they obtained within the prior 12 months, and individual cases for
whom a waiver is warranted for national interest or unusual circumstances (as
determined by the Secretary of State). S. 2845, as passed by the House, had
provisions to clarify that all nonimmigrant visa applications are reviewed and
adjudicated by a consular officer. P.L. 108-458 requires an in-person consular
interview of most applicants for nonimmigrant visas between the ages of 14 and 79;
requires an alien applying for a nonimmigrant visa to completely and accurately
respond to any request for information contained in the application; and clarifies that
all nonimmigrant visa applications are reviewed and adjudicated by a consular
officer. It also places at least one full-time anti-fraud specialist at diplomatic and
consular posts deemed high-fraud unless there is a full-time employee of the DHS
trained to do such tasks.
Visa Revocation and Removal. An ongoing issue has been the legal
process for removing aliens whose visas have been revoked. Under current law the
grounds for removal are similar — but not identical — to the grounds for
inadmissibly discussed above, and include national security and related grounds as
well as document fraud. Some have maintained that a foreign national should be
immediately removed if the visa that enabled his or her entry has been revoked. They
have recommended that grounds for removal in INA §212(a) should be amended to
expressly state visa revocation as a basis for deportation. Some further argue that
49 CRS Report RL32616, 9/11 Commission: Current Legislative Proposals for U.S.
Immigration Law and Policy, by Michael John Garcia and Ruth Ellen Wasem.

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CRS-19
aliens whose visas are revoked should not be entitled to a hearing before an
immigration judge to determine if the alien should be deported. Others have asserted
that current law balances the broader discretion given to the consular officers abroad
with the explicit standards of the grounds for inadmissibility and the legal process for
removing aliens from the United States. They further have maintained that consular
officers often make “prudential revocations” of visas that they subsequently re-issue
and that anecdotal cases of mistaken identities suggest that the alien screening
databases are not sufficiently precise to be the basis for removal without a hearing.
On July 15, 2004, legislation (S. 2661) was introduced to amend the INA to
make the revocation of visas and of other documentation authorizing admission
administratively and judicially unreviewable. It also would have added revocation
of visas to those grounds of inadmissibility supporting deportation (thus making
aliens subject to such revocation immediately removable). A similar provision was
included in S. 2845 (§3008) as passed by the House. The conferees retained the
provision on visa revocation as a ground of inadmissibility, but P.L.108-458 permits
limited judicial review of removal if visa revocation is the sole basis of the removal.
Other Security Concerns. The Anti-Atrocity Alien Deportation Act of
2003 (H.R. 1440/S. 710) would have, among other things, 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. In
addition to denying visas to such aliens, these bills also would have made aliens
already in the United States removable on the same grounds. The Senate Judiciary
Committee reported S. 710, filing a written report on November 24, 2003 (S.Rept.
108-209). An amendment with similar language to S. 710 was approved when the
House considered and passed S. 2845 on October 8, 2004. These provisions were
included in P.L. 108-458.
Citing problems implementing the technology, the Bush Administration sought
extensions in installing the biometric readers/scanners required by the Enhanced
Border Security and Visa Entry Reform Act of 2002.50 The 108th Congress enacted
P.L. 108-299 (H.R. 4417), which amended the law to extend by one year (to October
26, 2005) the deadline for installing at all U.S. ports of entry equipment and software
capable of processing machine-readable, tamper-resistant entry and exit documents
and passports that contain biometric identifiers. It also extended by one year the
deadline for VWP countries to certify that they are issuing machine-readable,
tamper-resistant passports that contain biometric and document authentication
identifiers comporting with specified standards, and VWP participants who are
issued passports on or after the new deadline to present passports that comply with
such requirements.
50 Letter to Representative James Sensenbrenner from the Secretary of Homeland Security,
Thomas Ridge, and the Secretary of State, Colin Powell, dated Mar. 17, 2004. The letter
is available at [http://www.house.gov/judiciary/ridge031704.pdf]; see also U.S. Congress,
House Committee on the Judiciary, Subcommittee on Immigration, Border Security and
Claims, Should Congress Extend the October 2004 Statutory Deadline for Requiring
Foreign Visitors to Present Biometric Passports? hearing, Apr. 21, 2004.

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CRS-20
Legislation in the 109th Congress

At the time Congress passed the Intelligence Reform and Terrorism Prevention
Act of 2004 (P.L. 108-458), some congressional leaders reportedly agreed to revisit
certain immigration and document-security issues in the 109th Congress that had
been dropped from the final version of the legislation. Many of these dropped
provisions were introduced as H.R. 418, the REAL ID Act of 2005 and ultimately
folded into the Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror, and Tsunami Relief, 2005 (H.R. 1268, P.L. 109-13).
The Border Protection, Antiterrorism, and Illegal Immigration Control Act of
2005 (H.R. 4437), as passed by the House in December 2005, had a few provisions
that would have revised visa policies. The Comprehensive Immigration Reform Act
of 2006 (S. 2611), as passed by the Senate in May 2006, also contained provisions
aimed at revising visa policies. When the 109th Congress closed, these major
immigration reform proposals were left pending.
REAL ID Act. The REAL ID Act (P.L. 109-13, Division B) expands the
terrorism-related grounds for alien inadmissibility and deportation, as well as the
meaning of certain terms used in the INA to describe terrorist activities or entities,
to cast a wider net over groups and persons who provide more discrete forms of
assistance to terrorist organizations, particularly with respect to fund-raising and
soliciting membership in those organizations. The REAL ID Act makes activities
such as espousal of terrorist activity and receipt of military-type training from, or on
behalf of, a terrorist organization grounds for exclusion. At the same time, the REAL
ID Act provides the Secretary of State and the Secretary of Homeland Security with
authority to waive certain terrorism-related INA provisions that would otherwise
make a particular alien inadmissible or cause a group to be designated as a terrorist
organization.51

Denying Entry. Under current law (INA §243(d)), the Secretary of State is
required to deny visas to nationals of countries, when informed by the Attorney
General that the country has denied or delayed accepting its citizens, nationals, or
residents whom the United States ordered removed. H.R. 4437 would have rewritten
this provision to authorize the Secretary of DHS, after consultation with the Secretary
of State, to deny the admission of nationals of countries that deny or delay accepting
their citizens, nationals, or residents whom the United States ordered removed. In
other words, it would have shifted implementation from visa issuances at consulates
abroad — where reportedly the Attorney General has never invoked §243(d) — to
alien admissions at U.S. ports of entry. If enacted, foreign nationals who have visas
but are from uncooperative countries would be denied admission when they arrive
at ports of entry if the Secretary of DHS so deemed.
In comparison, S. 2611 would have authorized the Secretary of DHS to instruct
the Secretary of State to deny a visa to any citizen, subject, national, or resident of a
country that has denied or delayed accepting its citizens whom the United States
ordered removed, until the country accepts its citizens.
51 For additional information, see CRS Report RL32564, Immigration: Terrorist Grounds
for Exclusion of Aliens, by Michael John Garcia and Ruth Ellen Wasem.

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CRS-21
Grounds of Inadmissibility. H.R. 4437 would have expanded the criminal
grounds for inadmissibility and deportation (including for alien gang members).52
Likewise, S. 2611 contained comparable provisions that would have revised the
grounds for inadmissibility. In addition, S. 2611 would have expanded the
terrorism-related grounds for inadmissibility to cover any incitement or advocacy of
terrorist activity (current law only expressly covers incitement in certain
circumstances).53
Issues in the 110th Congress
Implementing New Technologies
As noted earlier, the legislation implementing the 9/11 Commission
recommendations has specific provisions on the acquisition and deployment of
technologies to facilitate document authentication and detection of potential terrorist
indicators on travel documents (including biometrics) to all consulates, ports of entry,
and immigration benefits offices. P.L. 108-458 requires improvements in technology
and training to assist consular and immigration officers in detecting and combating
terrorist travel. DHS is required to fully integrate all databases and data systems that
process or contain information on aliens that are maintained by DHS, DOS, and
DOJ, and these data are to be fully integrated as an interoperable component of the
entry and exit data system (US-VISIT).
Since the September 11, 2001 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 and immigration inspectors working at the borders did not have
access to all the law enforcement and intelligence databases that might identify
potential terrorists. As discussed above, Congress has enacted several major laws
requiring information sharing and interoperable databases. Whether these provisions
are being successfully implemented remains an important policy question.54
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 maintain that the reforms Congress
52 For background on the present immigration consequences of criminal activity, as well as
the changes that H.R. 4437 would have made to such consequences, see CRS Report
RL32480, Immigration Consequences of Criminal Activity, by Michael John Garcia.
53 For background on the current terrorism-related grounds for inadmissibility and
deportation, along with a more detailed discussion of how H.R. 4437 would have altered the
terrorism-related provisions of the INA, see CRS Report RL32564, Immigration: Terrorist
Grounds for Exclusion and Removal of Aliens, by Michael John Garcia and Ruth Ellen
Wasem.
54 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.

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made in the mid-1990s requiring all visa applicants to be checked in the “look out”
databases were inadequate because the databases across the relevant agencies were
not interoperable and the various agencies were territorial with their data. They
maintain that, in the long run, the most efficient and effective guard against the entry
of aliens who would do us harm is an interagency and inter-departmental database
that is accessible in “real time” to consular officers, immigration inspectors, and key
law enforcement and intelligence officials.
Others point to the cost, time, and complexity of developing interoperable
databases. They cite the difficulty thus far in determining what biometric identifiers
are most appropriate for screening aliens.55 They point out competing technologies
of the existing databases in which various key agencies have already heavily
invested. Some maintain that success of the interoperable database technology
depends on 100% inclusion of aliens applying for visas and seeking admission, but
that the sheer scope of such a system poses “real time” implementation issues. They
also warn that if intelligence data become too accessible across agencies, national
security may actually be breached because sensitive information may be more likely
to fall into the wrong hands.
Document Security and Visa Malfeasance
In response to the 9/11 Commission recommendation that the United States
combine terrorist travel intelligence, operations, and law enforcement in a strategy
to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility,
the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
established a Visa and Passport Security Program. The role of this Department of
State program is to target and disrupt individuals and organizations at home and in
foreign countries that are involved in the fraudulent production, distribution, or use
of visas, passports, and other documents used to gain entry to the United States.
Oversight of this program and its integration with other federal agencies monitoring
terrorist travel remains an issue.
On a related matter, a 2005 GAO report found DOS’s consular processes
vulnerable to visa malfeasance and concluded that DOS had not developed
automated software to sort and analyze abnormalities in visa issuances that could
indicate potential malfeasance. The Bureau of Diplomatic Security substantiated 28
visa malfeasance cases between 2001 and 2004 involving U.S. employees. DOS
reportedly agreed with the conclusions of the GAO report and has been taking steps
to implement the recommendations.56
Impact on Tourism and Commerce
A perceived slowdown in visa issuances has sparked concern among the travel
and business communities. A 2004 study conducted for a group of international trade
55 U.S. Congress, Senate Committee on the Judiciary Subcommittee on Technology,
Terrorism and Government Information, Border Technology: Keeping Terrorists Out of the
United States — 2003, hearing, Mar. 12, 2003.
56 U.S. Government Accountability Office, GAO-06-115, Border Security: More Emphasis
on State’s Consular Safeguards Could Mitigate Visa Malfeasance Risks, October 6, 2005.

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associations estimated that problems with visas have cost U.S. exporters $30.7 billion
in revenue and indirect costs since July 2002.57 Some have expressed concern about
the dependence of their operational success on “the timeliness, predictability and
efficiency of our visa and immigration system.”58 These business representatives
have claimed that security checks such as the Visa Mantis and Visa Condor programs
have caused delays in the issuance of visas that could strain international business
relationships.59
The critics maintain that the scope of the alleged problem is multifaceted and
not limited to initially bringing people from abroad to work in the United States.
Companies that employ nonimmigrants who must renew their visas are affected as
well. In addition, foreign customers of U.S. firms typically travel here for plant visits
and design meetings, to inspect products prior to their shipment abroad, and for
training on the equipment being produced by the U.S. company. Similarly, some
U.S. companies hold conferences annually for foreign distributors of their products,
and there have been accounts of visitors from abroad being unable to secure visas in
time to attend the events.60 For the same reason, conference and trade show planners
reportedly are reconsidering whether to hold meetings in the United States.61
Others argue that the impact of the more stringent visa policies on business has
been exaggerated, sparked by problems because the new screening procedures and
databases were not fully operational. These observers maintain that the visa reforms
are essential for national security and that business-related travel will normalize once
everyone is familiar with the new procedures. Some speculate that generalized travel
concerns after the September 11 terrorist attacks and the slow down in the U.S.
economy were key factors in the reduction in nonimmigrant visas issued in FY2002
and FY2003. They maintain that the upturn in visas issued over FY2004 and
FY2005 is evidence that the trend is reversing.
Deputy Assistant Secretary for Visas Services Tony Edson addressed these
competing concerns during a 2006 hearing before the U.S. House of Representatives
Committee on Governmental Reform.

The Department of State and our partners at the Department of Homeland
Security have a fundamental commitment to meeting our security needs while
maintaining the openness of the United States. The Department is cognizant of
the economic benefits to the United States generated by international visitors.
57 The Santiago Group, Do Visa Delays Hurt U.S. Business? June 2, 2004.
58 Testimony of Randel K. Johnson, Vice President of Labor, Immigration and Employee
Benefits of the U.S. Chamber of Commerce, in U.S. Congress, House Committee on
Government Reform, Impact of the Visa Process on Foreign Travel to the U.S., hearing,
July 10, 2003. (Hereafter cited as Johnson, testimony on Impact of the Visa Process on
Foreign Travel.)
59 U.S. General Accounting Office, Border Security: Improvements Needed to Reduce Time
Taken to Adjudicate Visas for Science Students and Scholars, GAO-04-371, Feb. 2004.
60 Dan Haar, “Feeling Pinch of Visa Rules; Firms Say Delays Costing Millions,” Hartford
Courant, Sept. 30, 2003.
61 Evelyn Iritani, “U.S. Firms Feel the Pinch of Tighter Border Security,” Los Angeles
Times, Feb. 18, 2003.

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Travel and tourism contributed $104.8 billion to the U.S. economy in 2005.
International students contributed $13 billion in revenues to our nation’s
economy. Beyond the economic benefits, the Department of State understands
that the United States is preeminent in business, academia and scientific research
because we attract talented people from the far reaches of the globe.62
During that same 2006 hearing, however, GAO reported on significant delays
in visa processing. From September 2005 through February 2006, GAO found that
97 of DOS’s 211 visa-issuing posts reported maximum wait times of 30 or more days
in at least one month. More specifically, GAO disclosed “at 20 posts, the reported
wait times were in excess of 30 days for this entire 6-month period. Further, in
February 2006, 9 posts reported wait times in excess of 90 days.”63 Deputy Assistant
Secretary Edson acknowledged before Congress in 2006: “As we address these trends
with post-9/11 visa security requirements, we have witnessed skyrocketing consular
workloads.” Deputy Assistant Secretary Edson addressed these concerns by reporting
on progress being made in the particular cases of India and China. “The Department
is responding to the dramatic increase in visa demand with a combination of more
efficient management practices and increases in staffing and physical space in
consular sections.”64 Oversight of these matter continue to be an of ongoing interest
to Congress.
62 U.S. House of Representatives, Committee on Government Reform, Testimony of Deputy
Assistant Secretary for Visa Services Tony Edson, April 4, 2006.
63 U.S. General Accounting Office, Border Security: Reassessment of Consular Resource
Requirements Could Help Address Visa Delays. GAO-06-542T April 4, 2006.
64 U.S. House of Representatives, Committee on Government Reform, Testimony of Deputy
Assistant Secretary for Visa Services Tony Edson, April 4, 2006.

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