July 12, 2002 | Backgrounder on Department of Homeland Security
There is universal agreement in the Administration that the U.S. consuls abroad who adjudicate visa applications for foreigners and hopeful immigrants are among those on the first line of defense against global terrorism.1 The visa system in place on September 11 failed in this responsibility, allowing many of the terrorists to enter the United States unnoticed and bearing genuine visas.2
For years, local sensibilities and U.S. ambassadors' concerns about long visa lines and strict enforcement of visa denials placed political pressures on visa officers, and these pressures encouraged the visa function abroad to be managed more as a service than as a screen. Because of the national security aspects of visa approvals, proposed legislation before Congress seeks to ease these political influences on visa officers by moving the visa function from the State Department's Consular Affairs Bureau and placing it in the new Department of Homeland Security (DHS).3
While there is universal agreement in the Administration that the visa system must be improved, there is not agreement on how it should be done. The Administration's proposal, the Homeland Security Act of 2002, states that "the [DHS] Secretary shall have exclusive authority, through the Secretary of State," to issue visas and administer and enforce visa laws.4
This seemingly inconsistent approach can be implemented without removing all of the important consular functions from the Department of State.5 Visa consuls could continue to be foreign service officers (FSOs) within the State Department. To monitor and supervise visa operations abroad, however, the new DHS should have its own officers in consular offices overseas. At the same time, to prevent the proposed reorganization from becoming "business as usual" in the troubled visa approval system, the State Department's Office of Visa Service within the Bureau of Consular Affairs (CA), which currently makes all visa policy and legal guidance for consular officers overseas, should be moved into DHS.
Moving the Visa Office also makes sense because it has a specific mandate during time of war or national emergency to work closely with the Immigration and Naturalization Service (INS) to implement "such additional restrictions and prohibitions as may be required to control the entry and departure of aliens."6
An important provision of the Administration's proposed Homeland Security Act of 2002 is the placement of the government's border and transportation security responsibilities in the new Department of Homeland Security. This includes the transfer of INS to DHS. Section 403 of the proposed act also would transfer to DHS "control" over the issuance of visas to enter the United States "while preserving the Secretary of State's traditional authority to deny visas to aliens based upon the foreign policy interests of the United States."7
Section 403 expressly authorizes the Secretary of DHS to "delegate his authority" to the State Department and exercise that authority through the Secretary of State. The proposed bill does not alter the employment status of diplomatic or consular officers who process visas abroad, who would remain employees of the State Department. Thus, on the surface, it appears that nothing is supposed to change.
If the new department is to be effective in strengthening the nation's security by exercising control over who enters the country by legal visa, the Secretary of DHS must assume total control over visa policies and support services. This approach need only preserve the existing separate statutory authority of the Secretary of State to deny visas to applicants based on "foreign policy considerations" under Section 212(A)(3)(C) of the Immigration and Nationality Act of 1952 as amended.8
This separate authority, in itself, hardly justifies keeping any part of the visa function within the State Department. Even with the removal of the Visa Office to the DHS, the law still preserves the Secretary of State's "traditional authority to deny visas to aliens based upon the foreign policy interests of the United States," an authority that affects only a small handful, if any, of the millions of visa cases each year.9
After World War II, the State Department's visa function was placed under the Administrator of the Bureau of Security and Consular Affairs, which comprised both security and consular functions.10 During the 1950s and 1960s, SCA managed its visa functions with a high degree of security consciousness, particularly as it related to identifying potential espionage agents and foreign visa applicants who were members of a communist party or its affiliates. In the 1960s and early 1970s, visa fraud was rampant, and the State Department devoted new resources to investigations and fraud detection and prevention.
In the 1970s and 1980s, however, the security function was formally separated from the consular bureau, and the mission of visa officers at embassies overseas shifted away from security concerns and toward facilitating travel.11 While visa officers continued to enforce provisions of immigration law that excluded certain classes of aliens, far more attention was devoted to managing the process that handled over 10.1 million tourist visa applications and nearly 1 million immigrant visas annually. This meant placing a high priority on ensuring the smooth flow of interviews, the handling of visa application forms, systematizing name-checks, and issuing visas while maintaining the integrity of the physical visa impressions and/or serial-numbered paper visas.
In some cases, strict scrutiny of visa applications was a low priority while streamlining the workflow was paramount.12 Similarly, in the State Department's Visa Office, the stress was on management skills, computerization, and service-oriented processing.13 There are disturbing indications, for example, that for many years at the American embassy in Riyadh, Saudi Arabia, political rather than consular or security concerns dictated that Saudi nationals be presumed eligible for nonimmigrant visas.14
It should be noted that U.S. visa policy toward Saudi Arabia is not strictly reciprocal. Saudi nationals, for example, can obtain multiple entry U.S. tourist visas valid for 12 months, but Saudi Arabia does not issue tourist visas to anyone for any "validity" (duration of the visa's validity).15 Moreover, American businessmen cannot travel to Saudi Arabia without an individual invitation from a registered Saudi firm and a specific approval notification from the Saudi Foreign Ministry. Today, given the political concerns that encumber U.S. ties with Saudi Arabia, the imposition of strict visa reciprocity would be difficult politically for the U.S. embassy in Riyadh to implement, while a visa regime controlled by the DHS would be under less pressure.
This is not to say that the Visa Office personnel or foreign service officers are temperamentally unsuited to a homeland defense mission. Since the early 1970s, the State Department has devoted considerable resources to the detection, investigation, and prevention of visa fraud.16 In this regard, it is useful to note that State Department visa fraud investigators are notably less constrained than U.S. domestic law enforcement investigators in that there is no question of "rights." That is, obtaining a visa is not a right, but a privilege. U.S. federal courts have consistently sustained a doctrine of consular non-reviewability.17 When a consular officer denies a nonimmigrant visa application, there is no judicial review.
State Department visa fraud investigators abroad thus function more as intelligence collectors, who may seek and use whatever information they gather in making their decisions, than as law enforcement officers who need to pay painstaking attention to rules of evidence. In staffing new homeland security-related visa positions, therefore, DHS would be well-advised to recruit State Department visa fraud officers into its ranks.
As mentioned above, the State Department's Office of Visa Services not only makes all visa policy and guidance for consular officers overseas, but also has a substantive security mission. As Department of State regulations also state, its second most important function is
The administration, in time of war or national emergency, in conjunction with the Immigration and Naturalization Service (INS), [of] such additional restrictions and prohibitions as may be required to control the entry and departure of aliens.18
The Visa Office also provides all legal guidance ("advisory opinions"), which are binding on consuls in individual cases as well as broad applications of immigration law. Its Coordination Division provides equally binding "security advisory opinions" that relate to individual foreign visa applicants whose potential entry into the United States could adversely affect national security. The Coordination Division's task is to ensure that visa cases of national security significance are fully coordinated among U.S. diplomatic missions abroad and the appropriate Washington agencies including the intelligence community, the INS, and other offices in the State Department and the White House.19
The most important tool used by the Visa Office to manage its national security function is the Consular Lookout and Support System (CLASS), the State Department's name-checking system that alerts visa officers abroad to ineligible applicants. The CLASS system comprises the Automated Visa Lookout System (AVLOS) and the Consolidated Visa Lookout Book (CLOK), through which the names of over 200,000 visa applicants are checked each week.20 These name-check indices apparently still do not have a direct data interface with any other U.S. government lookout system or criminal database.
The Visa Office also supervises and trains U.S. consuls and foreign national employees in visa fraud investigations and liaises with INS on investigations in the United States. In addition, it controls the distribution of quota numbers for new immigrants and handles congressional and public inquiries into individual visa cases.
Moving the Visa Office to DHS would enable it to be more focused on tightening, improving, and more broadly utilizing the visa function to meet the exigencies of homeland security. Once it is moved to DHS, the visa vetting process--from the initial interview through computerized name checks, confidential background checks, and the day-to-day sharing of databases with intelligence agencies--must become its top priority. Customer service and assuaging local sensibilities about long visa lines, while important, cannot be allowed to eclipse the Visa Office's homeland security responsibilities. That guidance to the field is more likely to come from a Visa Office within the new DHS than one remaining in the Department of State.
That said, it does not seem necessary to transfer the entire overseas visa function or the foreign service officers who now staff it to the Department of Homeland Security. History has shown that foreign service officers have been eager, willing, and able to embrace new priorities and duties, as witnessed by their effective assumption of visa fraud investigations in earlier decades. Nor would it necessarily be cost-effective for either DHS or the State Department, which has legitimate concerns that it could lose an important pool of junior foreign service officers if the probationary officers who conduct the visa interviews abroad are transferred to DHS.
Visa service has been a traditional first-tour assignment for all junior FSOs.21 The Foreign Service is divided into five specialties (or "cones"): consular, economic, administrative, political, and public diplomacy services.22 Serving a first tour of duty as a visa officer overseas has been the traditional way an FSO is trained in a local language, familiarized with foreign political structures and social institutions, and acclimatized to a working environment with local national staff. At present, there are very few probationary-level foreign service assignments outside the visa function where junior FSOs can gain the kind of in-country training that visa work provides. While 80 percent of junior officers then leave the visa line in onward assignments, the 20 percent who are to be career "consular cone" remain as the management cadre for the consular function, which includes a range of protection and welfare services for U.S. citizens abroad as well as visas.
The loss of the visa function would require the State Department to recruit more officers to maintain a pool for its own long-term senior personnel development needs. Most probably, this would mean far larger staffs at U.S. embassies to accommodate increased numbers of junior FSOs in other sections, in addition to the new DHS consular officers that would be needed to provide oversight.
While State Department officers should continue to perform most of the visa function overseas, there can be no substitute for DHS officers at post overseeing the visa function. Simply put, without formal on-site monitoring of the visa lines by DHS, there will be no control or accountability.
If DHS is to control the issuance and denials of visas, it must have a supervisory attaché, commissioned as a U.S. consul or vice consul, assigned to all embassies and visa-issuing consulates to provide that oversight, as well as continuous monitoring and training and indoctrination on visa issues. The DHS attaché also must have statutory authority to overrule visa officer approvals and refusals, at least on homeland security grounds. In addition, consideration should be given to moving the visa fraud investigation function to the DHS attaché.
If the DHS attaché is to provide added value, he or she must have full access to all DHS databases (both domestic and foreign, including U.S. national crime indices) at a secure site within the embassy or consulate. In many cases, where the visa section is located at an unsecure venue physically distant from the embassy, the DHS officer would have two offices. A DHS section abroad also would involve an increase in the staff of an embassy, as few as one but as many as five, which would mean as many as 300 DHS employees overseas. However, the actual visa issuance at the embassies and consulates abroad could--and should--continue to be handled by the State Department FSOs.
In the longer term, the DHS Visa Office would be responsible for developing training programs for junior FSOs as they go out to an embassy as well as specialized software to monitor visa issuance. Ideally, DHS should supervise and fund a program at the State Department's Foreign Service Institute (FSI) that would indoctrinate FSOs in terrorism profiling, organization/operations, and documentation. The program would be a part of the State Department FSI Consular Course and must be developed in conjunction with the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the State Department's own Coordinator for Counter-terrorism. In the transition period before DHS attachés can be assigned and DHS assumes control of all visa policies, the State Department consular section chiefs at U.S. embassies should be brought stateside for a period of training on homeland security in a program designed to sharpen visa supervision and oversight.
Separately, DHS must develop Management Information System (MIS) software to monitor visa issuances overseas. This software would be developed by the Visa Office to interface with the existing automated visa issuance systems.
In addition, fusing AVLOS and CLOK indices as well as the automated visa issuance systems with DHS monitoring software would enable a DHS representative at post to review visa officer processing of applications as well as access visa databases for investigation and intelligence purposes. Improvements in computer hardware memory, clock speeds, and broadband data transmission rates also permit the retention of all visa applications in a centralized DHS database. Changes in visa application forms would make them machine-readable and provide broader information than is currently available in the AVLOS/CLOK systems.
Finally, in more advanced countries, the use of data-mining software would speed local background checks for visa issuance. With a minimum of intrusiveness, such techniques could quickly identify visa applicants who have not established themselves in their communities and hence fit a threat profile. However, the speed of visa issuances should not be a top priority in a wartime environment, and a reasonable period should be built into the visa process to ensure that reliable name-checks can be made.
The threat to America from global terrorism is clear and present. To ensure that the visa function provides a sound first line of defense and prevents terrorists such as those who attacked Americans on September 11 from entering the country is vital.
Section 403 of the Administration's proposed Homeland Security Act recognizes that effective homeland defense requires the new Department of Homeland Security to control visa policies and functions, and that the Secretary of Homeland Security have exclusive authority over the process. Moreover, the DHS must have a meaningful presence overseas. Giving DHS control and authority is meaningless unless the Visa Office in the Department of State, which controls visa policy, is transferred to DHS.
This does not require that all or even most visa officers abroad must be DHS employees. Both DHS and the State Department would benefit if State Department foreign service officers conducted most of the overseas visa function. DHS should, however, be given a direct monitoring authority of overseas visa operations via DHS attachés at all visa posts (and most embassies), and those attachés must have consular commissions.
The new DHS Visa Office should take responsibility for training, indoctrinating, and equipping the visa officers stationed abroad and for ensuring that they or their supervisors have access to the relevant intelligence and name-check databases needed to screen visa applicants effectively.
John J. Tkacik, Jr., is Research Fellow for China, Taiwan, and Mongolia in the Asian Studies Center at The Heritage Foundation.