August 3, 2006 | Executive Memorandum on National Security and Defense
Despite several efforts to improve the visa process since September 11, 2001, it is still cumbersome, expensive, and inconvenient for many visitors. Even worse, inefficiencies in the visa process and its management detract from efforts to screen out terrorists and criminals who seek to exploit visas to facilitate their transnational travel.
Much needs to be done to improve the visa process, both to enhance security and to ease travel. Specifically, Congress should create an ombudsman to review contentious visa denials and overall rejection rates. Congress should also allow the Department of Homeland Security (DHS) greater flexibility in deciding how best to employ its Visa Security Units (VSU) to address security needs.
Creating a Visa Process Ombudsman Authority. Visa issuance decisions are ultimately at the discretion of the U.S. consular officer. While new security checks against intelligence databases have been instituted since 9/11, an applicant who clears all of the electronic processes can still be denied a U.S. visa if the issuing officer deems it necessary. For example, if a consular officer believes that the applicant has not proven strong enough ties to his or her home country and thus is an overstay risk, the consular officer should deny the visa under Section 214(b) of the Immigration and Nationality Act. While applicants can reapply, there is no alternate review process for visa rejections. Even at the departmental level, the Department of State can only review a consular decision based on the underlying interpretation of the law, not on the facts of the individual case.
The current visa process provides no easy means of redressing the potentially subjective decisions made at the consular level. On a larger scale, visa refusal rates directly affect a country's eligibility for Visa Waiver status, which many countries seek because it opens the door for increased exchanges with the United States.
Congress should create an ombudsman authority for the visa process within the DHS Citizenship and Immigration Services Ombudsman. This authority would involve reviewing contentious visa application cases and assessing consular posts with unusually high rejection rates. This review authority should not be viewed as duplicating the work of consular officers, but as providing additional oversight for what is currently a one-person decision. This oversight could help to rectify erroneous visa denials, allow for more transparency, and strengthen visa management.
Redefining Visa Security Units. Visa Security Units were formed within the DHS Bureau of Immigration and Customs Enforcement (ICE) to fulfill Section 428 of the Homeland Security Act of 2002. In addition to training consular officers, reviewing visa applications, and conducting investigations on consular matters, these security personnel are specifically mandated by Congress to review all visa applications in Saudi Arabia. The DHS, in consultation with the Department of State, has also conducted risk assessments to determine which countries pose a great enough threat to necessitate a VSU.
VSUs screen visa applicants, check the information against law enforcement databases, and review all applications after they have been checked by consular officers. As currently employed, they largely duplicate the work of consular officers. VSU personnel offer additional law enforcement expertise and access to law enforcement databases, but consular officers could easily be trained to assume some of these responsibilities, freeing VSUs for broader security responsibilities. ICE should be directed to create a module focusing on these skills as a major part of the consular training course. The module should include training on using the law enforcement databases that VSUs currently employ at consular posts.
Rather than have VSUs continue to duplicate the work of consular officers, Congress should authorize the DHS to redefine the role of VSUs to make better use of their expertise and the scarce resources in these units. The State Department's consular structure already has the organization and human resources in place to review visa applications. Instead of being used to conduct secondary reviews of all visa applications, VSU officers could better strengthen U.S. security by acting as regional operators. They could be tasked with identifying crosscutting criminal trends and regional threat patterns from information collected from consular posts. They could further strengthen these efforts by building law enforcement relationships with local and regional organizations. In other words, VSUs would act as international fusion centers for law enforcement purposes, information sharing, and visa security. This function is not currently being fulfilled, and it would be a better use of scarce financial and expert human resources.
In creating these international fusion centers, the DHS should strategically locate VSUs where they can best address national security concerns and build relationships with foreign intelligence and operations agencies. The DHS should specifically consider trade flows, travel flows, and "hot spots" of criminal and terrorist activity when locating VSUs. If deployed wisely, VSUs could provide an important layer in the U.S. security strategy and add value to the current visa management process.
What Congress and the DHS Should Do. Congress should:
The Department of Homeland Security should:
Conclusion. Creating a visa ombudsman authority and redefining the role of the VSUs are two crucial elements in reforming visa management. These changes would allow for greater transparency and more efficient use of resources, strengthening the security of the visa process and facilitating travel flows.
James Jay Carafano, Ph.D., is Senior Research Fellow for National Security and Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.