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.

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 INS 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.

Table 1. Aliens DOS Excluded in FY2000 by Grounds of

Issues and Legislation

Reassigning Visa Issuance Functions

With the expected creation of a department of homeland security imminent, considerable debate has surfaced about whether or not any or all visa issuance functions should be located in the new agency. Varied viewpoints are discussed below.

As announced on June 6, 2002, the Administration's proposal for a homeland security department would include 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 place 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 retain its visa issuance responsibilities.

Option: Locating all Functions in DHS. Voices in support of moving Consular Affairs's visa issuance responsibilities to the proposed DHS assert 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 should be in a department that did not have competing priorities of diplomatic relations and reciprocity with foreign governments.

Some argue 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 emphasize 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 assert 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 point 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 maintain 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 support retaining immigrant adjudications and services in DOJ and visa issuances in DOS point to the specializations that each department brings to the functions. They assert 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 argue 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 maintain 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 transfer all of the functions of INS to the newly created department under its Border Security and Transportation Division. As introduced, H.R. 5005 would bifurcate 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 respective hearings. Breaking with the Administration, the House Judiciary Committee approved language that would place 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 clarifies that the Secretary of DHS would issue regulations regarding visas issuances and would assign staff to consular posts abroad to provide advice and review and to conduct investigations, and that Consular Affairs would continue to issue visas. It would further expand 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 clarify 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.19

The National Homeland Security and Combating Terrorism Act of 2002 reported by the Senate Governmental Affairs Committee (S. 2452) on June 24, 2002, includes the immigration enforcement functions of INS and the Office of International Affairs but does 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 creates a homeland security department but also does not transfer any of the immigration adjudications and visa issuances functions.

Table 2. Visa Issuance Policy Roles and Tasks:
Comparison of Major Homeland Security Proposals

Recently released substitute language for S. 2452 differs somewhat on the issues of immigration adjudications and visa issuances from the Administration's proposal and H.R. 5005 as reported. The Senate substitute would not alter the State Department's consular role in issuing visas, with language comparable to H.R. 5005, and it would give DHS the authority to issue regulations on visa issuances. It would, however, give DHS the permission to delegate authority to issue regulations to DOS. In contrast to the House-passed bill and S. 2452 as introduced, the Senate substitute

"For a detailed comparison, see CRS Report RL31513, Homeland Security: Side by Side Comparison of H.R. 5005 and S. 2453, 107th Congress, coordinated by Sharon Gressle.

would establish an Under Secretary for Immigration Affairs in DHS who would handle immigration and naturalization functions as well as immigration enforcement and border functions. The Senate Government Reform Committee acted on the substitute for S. 2452 on July 24, 2002.

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 have asserted 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 argued that the reforms Congress 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 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. Bypassing 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. H.R. 5013, introduced on June 26, 2002, would require that consular officers conduct a personal interview of all aliens seeking visas to the United States, not just those who wish to become LPRs.

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