[House Document 108-131]
[From the U.S. Government Publishing Office]
108th Congress, 1st Session - - - - - - - - - - - - House Document 108-131
MEMORANDUM OF UNDERSTANDING BETWEEN THE SECRETARIES OF STATE AND
HOMELAND SECURITY CONCERNING IMPLEMENTATION OF THE HOMELAND SECURITY
ACT
__________
MESSAGE
from
THE PRESIDENT OF THE UNITED STATES
transmitting
A MEMORANDUM OF UNDERSTANDING BETWEEN THE SECRETARIES OF STATE AND
HOMELAND SECURITY CONCERNING IMPLEMENTATION OF SECTION 428 OF THE
HOMELAND SECURITY ACT OF 2002, PURSUANT TO PUB. L. 107-296, SEC.
428(e)(8)(A)
October 1, 2003.--Message and accompanying papers referred to the
Committees on the Judiciary and Homeland Security (Select), and ordered
to be printed
To the Congress of the United States:
Consistent with section 428(e)(8)(A) of the Homeland
Security Act of 2002 (Public Law 107-296) (the ``Act''), I am
pleased to report that the Secretary of State and the Secretary
of Homeland Security have completed a Memorandum of
Understanding concerning implementation of section 428 of the
Act. The Memorandum of Understanding will allow the Departments
of State and Homeland Security to work cooperatively to create
and maintain an effective, efficient visa process that secures
America's borders from external threats and ensures that our
borders remain open to legitimate travel to the United States.
George W. Bush.
The White House, September 29, 2003.
Memorandum of Understanding Between the Secretaries of State and
Homeland Security Concerning Implementation of Section 428 of the
Homeland Security Act of 2002
This Memorandum of Understanding (MOU) is the agreement
between the Secretary of State and the Secretary of Homeland
Security that shall govern the implementation of section 428 of
the Homeland Security Act of 2002, P.L. 107-296 (hereafter the
Act), by the Department of State (DOS) and the Department of
Homeland Security (DHS).
1. INTENT OF THE PARTIES
a. The Secretary of State and the Secretary of Homeland
Security will work cooperatively to create and maintain an
effective, efficient visa process that secures America's
borders from external threats and ensures that our borders
remain open to legitimate travel to the United States. Such
travel is important to our international, economic, and
national values and interests.
b. Accordingly, the Secretary of Homeland Security will
establish visa policy, review implementation of that policy,
and provide additional direction as provided by this
memorandum, while respecting the prerogatives of the Secretary
of State to lead and manage the consular corps and its
functions, to manage the visa process, and to execute the
foreign policy of the United States. The Secretary of Homeland
Security will rely upon the expertise of the Department of
State with respect to foreign policy, and the Secretary of
State will respect the expertise of the Department of Homeland
Security concerning threats to American security.
2. VISA GUIDANCE
a. Definition. As used in this MOU, the term ``visa
guidance'' refers to regulations, Foreign Affairs Manual
provisions (including all interpretive and procedural notes)
and ALDACs (DOS cables to all diplomatic and consular posts)
implementing the provisions of the Immigration and Nationality
Act (INA) or other immigration and nationality laws pertaining
to visas.
b. Continuity of existing visa guidance. All existing DOS
visa guidance shall remain effective unless and until
superseded in accordance with this MOU.
c. Issuance of visa guidance. (1) DOS may propose and issue
visa guidance subject to DHS consultation and final approval as
discussed below. DHS will have authority to issue or approve
(hereinafter ``final responsibility over'' visa guidance,
except for those matters that are the specific responsibility
of the Secretary of State as prescribed in section 428 (c)(2)
and (d)(2) of the Act, in existing statutes related to foreign
policy or management of the visa process, in future statutes,
Presidential proclamations and executive orders, and in
paragraphs 3 and 10 of this MOU. DHS will exercise its final
responsibility over visa guidance subject to consultation as
discussed in paragraph 2d.
d. Notice and consultation.
(1) DHS and DOS will provide notice to the other when
either determines that serious consideration should be given to
development of new visa guidance. DHS will also provide notice
to DOS when it begins drafting rules, policies or procedures
affecting the visa process. Each will designate a point of
contact for this purpose who may or may not be a liaison
identified in paragraph 9a below.
(2) DHS and DOS will each offer the other the opportunity
to consult regarding security, legal, operational, resource, or
foreign policy or foreign relations issues associated with such
guidance.
e. Publication of regulations. The Secretary of Homeland
Security may elect to publish any and all visa regulations in 6
C.F.R. in an appropriate form. All visa regulations shall be
published by the Secretary of State in 22 C.F.R. using State
Department procedures for the issuance of visa regulations and
shall become effective on the effective date specified in the
Federal Register when published as interim final or final
regulations. Each notice of rulemaking will indicate whether
the rule is being approved by or being issued on behalf of DHS.
DOS will expeditiously publish notices of rulemaking that are
approved by or directed by DHS in accordance with paragraph 2c,
and will expeditiously implement interim final or final
regulations that are approved by or directed by DHS.
Regulations prepared by DOS and requiring DHS approval will be
expeditiously reviewed and approved by DHS. Wherever possible,
the Secretaries will jointly issue regulations affecting the
visa process.
3. AREAS OF PARTICULAR INTEREST
a. Classification, admissibility and documentation.
(1) Classification. The Secretary of Homeland Security will
have final responsibility over visa guidance to consular
officers concerning eligibility for classification for
nonimmigrant and immigrant visas, except that:
(a) The two Secretaries will have joint responsibility over
visa guidance concerning approval of cultural and training
programs under INA section 101(a)(15)(Q)(ii) and eligibility
for classification under INA section 101(a)(15)(S)(ii); and
(b) The Secretary of State will have final responsibility
over visa guidance concerning eligibility for classification
for nonimmigrant and immigrant visas under INA sections
101(a)(11), 101(a)(15)(A), 101(a)(15)(C) (determine who is
eligible to pass in transit to and from the U.N. headquarters
district), 101(a)(15)(E) (determine what is a qualifying treaty
of commerce and navigation), 101(a)(15)(G), NATO and other
defense or arms control agreements, 101(a)(15)(I) (determine
whether qualifying reciprocity exists), 101(a)(15)(J)
(designate qualifying exchange visitor programs),
101(a)(27)(D), and 101(a)(45)(establish, after consultation
with appropriate agencies, amount of trade or capital that is
``substantial'' for purposes of INA section 101(a)(15)(E)).
(2) The Secretary of Homeland Security will have final
responsibility over visa guidance concerning grounds of
inadmissibility for visa applicants, except that:
(a) The two Secretaries will have joint responsibility over
visa guidance concerning the exception to the material support
provisions established in INA sections 212(a)(3)(B)(iv) and
212(a)(3)(F); and
(b) The Secretary of State will have final responsibility
over visa guidance concerning the suspension or restrictions on
entry pursuant to Presidential proclamations under INA section
212(f) and the grounds of inadmissibility for visa applicants
specified in section 428 (c)(2) of the Act; INA section
212(a)(2)(G) (determine who is a foreign government official
who was responsible for or directly carried out particularly
severe violations of religious freedom); INA 212 section
(a)(3)(B)(i)(determine whether an alien is an officer,
official, representative or spokesman of the PLO); INA section
212(a)(3)(B)(vi)(II); INA section 212(a)(3)(E) (define
participation in Nazi persecution and genocide); INA section
212(d)(8); section 2225 of the Foreign Affairs Reform and
Restructuring Act of 1998 (found in Div. G, Title XXII of P.L.
105-277); and the exception to the retroactive application of
section 411 of the USA PATRIOT Act (P.L. 107-56) established in
section 411(c)(4) of that Act.
(3) DHS will have sole responsibility for determining when
waivers of grounds of inadmissibility are granted, except that:
(a) The two Secretaries will have joint responsibility for
waivers under INA section 212(d)(4)(B); and
(b) The two Secretaries will have joint responsibility,
with the Secretary of Interior, for waivers under INA section
212(1).
(4) Consular officers or the Secretary of State may
recommend waivers to DHS under such guidance as the Secretary
of State may establish.
(5) The Secretary of Homeland Security will have final
responsibility over visa guidance prescribing information,
evidence, or other documentation collected to establish
eligibility for a visa, admissibility to the United States, and
to classify an alien as an immigrant or nonimmigrant, provided,
however, that DHS will not require foreign-source documents
from any country without establishing the reliability and
availability of such documents in close consultation with the
Secretary of State. DHS will otherwise consult with DOS
concerning the reliability and availability of documentation
and DOS will identify resource implications for collecting,
maintaining, and evaluating additional or different documentary
requirements. The Secretary of Homeland Security will prescribe
only documentary requirements that the Secretary determines are
germane to visa adjudication or core homeland security
interests.
b. Place of visa application. The Secretary of Homeland
Security will have final responsibility over visa guidance
prescribing the circumstances in which aliens applying for an
immigrant or nonimmigrant visa, other than aliens applying for
visas for diplomatic or official purposes, may make application
at a place other than a consular post having jurisdiction over
the alien's country of origin or principal, actual dwelling
place, provided that the Secretary of State shall have final
responsibility for specifying, in consultation with the
Secretary of Homeland Security, the place or places of visa
application for nationals of a country in which there is no
visa processing post.
c. Discontinuing granting visas to nationals of country not
accepting aliens. The Secretary of Homeland Security will have
authority to notify the Secretary of State pursuant to INA
section 243(d) when a foreign government denies or delays
accepting an alien who is a citizen, subject, national, or
resident of that country. When so notified, the Secretary of
State shall order consular officers to discontinue granting
nonimmigrant and/or immigrant visas, as the Secretary of State
deems appropriate.
d. Personal appearance. The Secretary of Homeland Security
will have final responsibility over visa guidance prescribing
when a consular officer may waive a visa applicant's personal
appearance, except that the Secretary of State will have final
responsibility over guidance applicable to aliens applying for
visas for diplomatic and official purposes.
e. Visa validity periods and multiple entry visas. The
Secretary of State will continue to prescribe periods of
validity for a category of nonimmigrant visas based on
reciprocity but will consult with the Secretary of Homeland
Security before increasing any period of validity or
establishing a period of validity in the first instance. Once a
validity period is established by the Secretary of State, the
Secretary of Homeland Security, in consultation with the
Secretary of State, may prescribe a shorter period of validity
or place other restrictions upon the validity period for an
individual applicant or class of applicants within a category,
based on security interests.
f. Visa waiver program. In accordance with INA section 217,
the Secretary of Homeland Security, in consultation with the
Secretary of State, will designate countries that may
participate in the visa waiver program, and the two Secretaries
will carry out their other responsibilities as specified in
that section.
g. Notices of visa denials. The Secretary of Homeland
Security will have final responsibility over visa guidance
pursuant to INA section 212(b) prescribing when and under what
conditions a consular officer may waive notice of denial of a
visa, but the Secretary of State will have final responsibility
over guidance applicable to diplomats or other official
government representatives, and may provide for notice in cases
in which advising the applicant of the ground of denial would
advance the foreign policy of the United States.
h. Persons from state sponsors of terrorism.
(1) A country is a ``state sponsor of terrorism'' for
purposes of section 306 of the Enhanced Border Security and
Visa Entry Reform Act of 2002, P.L. 107-173 (8 U.S.C. 1735) if
the Secretary of State determines, under any of the laws
specified in section 306(b)(2), that the country's government
has repeatedly provided support for acts of international
terrorism.
(2) After the Secretary of State has designated a country
as a state sponsor of terrorism, DOS and DHS will jointly, in
consultation with other appropriate agencies, develop standards
and procedures for administering section 306 with respect to
nationals of that country, keeping in mind the Secretary of
State's expertise with respect to foreign policy and the
management of the visa process and the Secretary of Homeland
Security's expertise concerning threats to homeland security.
The standards and procedures for nationals of each country
designated as a state sponsor of terrorism will be specifically
tailored to the nationals of each country, taking into account
the reasons why the Secretary of State designated the
government of the country as a state sponsor of terrorism and
the relevance of those reasons to the individual nationals of
that country. The standards and procedures will not preclude a
national of the country from applying for a visa and providing
information to show that the applicant does not pose a threat
to the safety or national security of the United States. The
Secretary of Homeland Security will have the final
responsibility over the standards and procedures for
administering section 306. Should DOS object to a standard or
procedure and articulate specific U.S. foreign policy
objectives or interests that will be compromised relevant to
the country or nationals concerned, however, the matter will be
referred to the Secretaries of both departments to consult and
reach agreement.
(3) Any determination by the Secretary of State or designee
that an alien from a country that is a state sponsor of
terrorism does not pose a threat to the safety or national
security of the United States will be made in accordance with
the standards and procedures for nationals of that country and
in consultation with the Secretary of Homeland Security or
designee (unless otherwise provided for in procedures), and
shall be without prejudice to the Secretary of Homeland
Security's authority to refuse or revoke a visa in accordance
with law.
4. ADVISORY OPINIONS
a. Continuation of DOS advisory opinion guidance and DHS
review. The Secretary of State will continue to prescribe
guidance concerning advisory opinions that may be sought by
consular officers, but will consult with the Secretary of
Homeland Security concerning changes in that guidance. Except
with respect to security advisory opinions (SAOs) relating to
matters to which paragraph 3a(2)(b) of this MOU refers, the
Secretary of Homeland Security must concur in changes in
policies and procedures involving SAOs, including when an SAO
is requested and when an SAO may be transmitted to a consular
officer, and may direct changes in SAO policies and procedures
when it serves the interest of homeland security.
b. Continuation of DOS issuance of advisory opinions and
DHS review. DOS will continue to provide advisory opinions,
including SAOs, after appropriate interagency coordination. DHS
will be copied on all security advisory opinion requests. DHS
will be copied on all outgoing advisory opinions whether or not
relating to security. Cases in which a third agency to which
such an SAO request is referred believes that denial of a visa
is appropriate and DOS believes the information is legally
insufficient will be referred to the Secretary of Homeland
Security to decide whether the facts support denial of the visa
in accordance with law. DOS advisory opinions are without
prejudice to the authority of the Secretary of Homeland
Security to refuse or revoke a visa. DHS will have access on
site at the Visa Office or remotely, as may be appropriate, to
any advisory opinion and may seek consultation concerning any
opinion that may affect homeland security.
c. Involvement of Overseas DHS employees in advisory
opinions. A DHS employee assigned to an overseas post who
performs section 428 functions will have access to all advisory
opinion requests transmitted by the post of assignment to DOS,
unless the Chief of Mission or Deputy Chief of Mission
determines that the sensitivity of the matter requires that
access be limited in the case of a particular advisory opinion
request under a ground of inadmissibility specified in
paragraph 3a(2)(b) of this MOU. If the COM or DCM limits the
access of a DHS employee assigned to an overseas post who
performs section 428 functions to an advisory opinion request,
the COM or DCM will advise DOS, which will advise DHS
headquarters of the request as appropriate. A DHS employee who
performs section 428 functions may recommend that the post
submit security advisory opinion requests.
5. NOTIFICATION AND COORDINATION OF REFUSALS AND REVOCATION
a. If the Secretary of Homeland Security decides to
exercise the authority of the Secretary of Homeland Security to
refuse a visa in accordance with law, or to revoke a visa, the
Secretary of Homeland Security shall request the Secretary of
State to instruct the relevant consular officer to refuse or
revoke the visa and specify the grounds and factual basis for
refusal or revocation. The refusing consular officer shall note
in the Consolidated Consular Database entry that the refusal or
revocation has been directed by DHS. Notwithstanding paragraph
17, the Secretary of Homeland Security's authority to direct
refusal or revocation of a visa may be delegated only to DHS
headquarters staff.
b. If the Secretary of State directs a consular officer to
refuse a visa on the grounds that refusal is deemed to be
necessary or advisable in the security or foreign policy
interests of the United States, DOS shall notify DHS of the
exercise of such authority by including DHS on the distribution
of the instruction cable and making a notation in the
Consolidated Consular Database entry, and/or by any agreed upon
means of communication.
c. If the Secretary of State decides to revoke a visa
pursuant to his authority under Section 221(i) of the INA, DOS
will notify DHS of the exercise of such authority by including
DHS on the distribution of any cable reporting the visa
revocation decision, by making an entry in the Consolidated
Consular Database, by forwarding to DHS a copy of the
certificate of revocation, and/or by any agreed upon means of
communication.
6. ASSIGNMENT OF DHS PERSONNEL TO DIPLOMATIC POSTS AND THEIR FUNCTIONS
a. Selection of posts to which DHS personnel will be
assigned and assignment of DHS personnel. DHS shall identify
the diplomatic and consular posts where it considers the
assignment of DHS personnel to be necessary to perform section
428(e) functions, including posts where it wishes to have
existing DHS personnel perform section 428(e) functions. DHS
will establish criteria by which posts will be selected and
will consult with DOS concerning the selection of posts. DOS
may recommend posts to which assignment of DHS personnel to
perform section 428(e) functions would be beneficial. DHS may
assign employees pursuant to section 428(e) to perform
functions of regional or worldwide scope or functions related
to a particular post to which they may be assigned. Each
position and assignment shall be justified and described in
accordance with National Security Decision Directive 38, and
communicated to the Secretary of State and relevant chief(s) of
mission. DHS will consult with DOS and relevant chief(s) of
mission before assigning section 428(e) functions to DHS
employees already assigned to diplomatic posts to perform other
functions. Assignment of DHS personnel will be made consistent
with resource availability.
b. Qualifications for overseas DHS personnel.
(1) Any DHS employee selected for assignment overseas after
the effective date of this MOU to perform section 428(e)
functions should have:
(a) broad knowledge of immigration law, including visa law,
(b) experience or training in counter-terrorism,
(c) experience or training in interviewing individuals
during investigations, including fraud, or in similar contexts,
and
(d) experience or training in identifying tampered
documents.
(2) DHS will exercise best efforts to provide training for
personnel who are assigned to perform section 428(e) functions
who are selected for such assignments prior to the effective
date of this MOU or who are already assigned overseas to
perform other functions.
(3) DHS training and assignment policies will emphasize
identification of persons with the following skills, experience
or knowledge, or developing them before or during assignment:
(a) the ability to speak the host country language, and
(b) experience in or knowledge of the host country, and
extensive understanding of terrorism or other homeland security
concerns in the host country.
(4) Prior to being assigned to an overseas post, a DHS
employee must obtain a minimum security clearance of Top
Secret.
(5) The assignment of DHS employees to a particular post to
perform section 428(e) functions, the scope of their functions,
and who and how many DHS employees are assigned will be
determined in accordance with the authority of the relevant
chief(s) of mission and the Secretary of State. The Assistant
Secretary of State for Consular Affairs will use best efforts
to facilitate and assist the assignment of qualified DHS
employees and the Assistant Secretary of State for
Administration will assign a high priority to the expeditious
provision of administrative arrangements to accomplish these
assignments.
c. Temporary duty of DHS personnel.
(1) DHS may also send DHS employees to overseas posts in
temporary duty status to perform functions under section 428(e)
from time to time.
(2) Whether a DHS employee may go to an overseas post on
temporary duty status is subject to the authority of the
relevant chief(s) of mission and country clearance procedures.
d. Support of DHS employees.
(1) In addition to participating in basic mandatory shared
administrative costs overseas, DHS may at its option enter into
reimbursable support agreements under the International
Cooperative Administrative Support Services (ICASS) established
under sections 13 and 23 of the Department of State's Basic
Authorities Act (22 U.S.C. Sec. Sec. 2687 and 2695), which
provides administrative services to agencies performing
functions overseas. DHS may participate in the ICASS system on
the same basis as other participating agencies. DHS may utilize
the ICASS system where appropriate to procure such equipment,
facilities and supplies as are normally purchased by individual
agencies, at its costs.
(2) DHS will be provided with necessary office space and
Embassy housing as available on the same basis as other
agencies represented in the relevant mission overseas. To the
maximum extent practicable, DHS employees performing visa
duties shall be collocated with consular officers. DHS
employees who are properly cleared will have access to secure
equipment and facilities, and be provided work space in such
controlled access areas, that may be available at particular
posts and that is necessary for the performance of their
section 428(e) duties.
(3) DOS will take such steps as may be appropriate and
necessary so that DHS employees performing visa duties pursuant
to section 428 receive from the host country legal privileges
and immunities appropriate to their functions and the post to
which they are assigned.
e. DHS overseas functions. DHS employees assigned to
overseas posts who perform section 428(e) functions will:
(1) Provide expert advice to consular officers regarding
specific security threats relating to the adjudication of
individual visa applications or classes of applications. This
may include but is not limited to:
(a) Gathering and reviewing intelligence reports and
coordinating with other agencies at post to consolidate up-to-
date information with respect to terrorist groups or other
entities or individuals in the host country who pose a threat
to homeland security and their connections with individuals and
groups in other countries and making this information available
to consular officers in a timely and useful manner.
(b) Briefing consular officers and providing training
sessions to consular officers, as appropriate, concerning
terrorist groups or other entities that pose a threat to
homeland security and questions and interview techniques useful
in detecting persons who may be a threat or whose applications
may be fraudulent.
(c) Consulting with consular officers on particular visa
applicants who raise homeland security concerns.
(2) Review any such applications, either on the initiative
of the DHS employee in accordance with procedures prescribed by
DHS under paragraph 6(f)(1) below, or upon request by a
consular officer or other person charged with adjudicating such
applications. This may include but is not limited to providing
input to or recommending security advisory opinion requests
based on their expertise.
(3) Conduct investigations with respect to consular matters
under the jurisdiction of the Secretary of Homeland Security,
in accordance with paragraph 6g of this MOU.
f. Performance of DHS overseas functions.
(1) DHS, in consultation with DOS, will develop policies
and procedures by which DHS employees assigned to posts abroad
who perform section 428(e) functions will perform the functions
listed in paragraph 6e of this MOU. DHS may conduct the
functions listed in paragraph 6e of this MOU with regard to
some or all nonimmigrant visas and, at its option, some or all
immigrant visas. DHS, in consultation with DOS, will develop
standards by which it may direct DHS employees at post to
review classes or quantities of visa applications based upon
worldwide threat assessments, or by which DHS employees at post
may initiate, in consultation with the Deputy Chief of Mission
or senior consular officer, review of classes or quantities of
visa applications based on local threat assessments. In
accordance with section 428(i), DHS employees assigned to Saudi
Arabia to perform section 428 functions shall review all
nonimmigrant and immigrant visa applications.
(2) A DHS employee assigned to an overseas post and
performing section 428(e) functions may recommend to the chief
of the consular section or the most senior supervisory consular
officer present that a visa be refused or revoked. If the chief
of section or supervisory consular officer does not agree that
the visa should be refused or revoked, the post will initiate a
request for a security or other advisory opinion and the DHS
employee will be consulted in its preparation. No visa will be
issued in the interim. No advisory opinion will be issued
thereafter without the full consultation of DOS and DHS.
Nothing in this subparagraph prejudices the authority of the
Secretary of Homeland Security to direct refusal of the visa at
any time in accordance with the procedures specified in
paragraph 5 of this MOU.
(3) DHS employees assigned to overseas posts and performing
section 428(e) functions may communicate directly with consular
officers and other DOS employees assigned to overseas posts and
other DHS officials in carrying out their functions, provided
that their interactions are consistent with the authority of
the senior consular official at post over the consulate or
consular section. DHS employees will not serve under the
supervision of consular personnel, and DHS employees will not
supervise consular personnel, or otherwise give binding
instructions or directions to consular officers.
(4) DHS employees assigned to overseas posts and performing
section 428(e) functions are subject to the authority of the
chief of mission and the Secretary of State in the same manner
as all other executive branch employees serving abroad. They
must also comply with the Interagency Security Policy Board's
security guidelines.
g. Investigations by DOS and DHS.
(1) DHS employees assigned to overseas posts and performing
section 428(e) functions may in accordance with policies and
procedures established by DHS under paragraph 6f(1), recommend
investigations, participate in investigations conducted by
consular officers (with their consent), or conduct
investigations involving visa matters, such as the eligibility
of any visa applicant. Consular officers will, in any event,
make available their investigative reports or conclusions.
However, such DHS employees shall not conduct law enforcement
investigations or activities, investigations concerning matters
that are within the jurisdiction of the Bureau of Diplomatic
Security or the Inspector General of the Department of State,
or take action in relation to allegations of misconduct by an
employee of the United States Government, other than to report
such allegations. This does not affect DHS investigative
functions performed under other authorities. DHS employees
performing investigative functions under section 428(e)
authority will consult and cooperate with consular officers and
Regional Security Officers with respect to any investigative
activity. DHS employees performing investigative functions
under other authority will ensure appropriate coordination with
other law enforcement elements. DHS employees will ensure that
the COM or the COM's designated representative is fully and
continually informed regarding such activity.
(2) If the DOS becomes aware of an allegation of visa fraud
or other misconduct in relation to the issuance of visas, any
allegation of misconduct by such DHS employees, contractors or
grantees or by DOS consular employees in relation to the visa
function, any other matter in relation to the visa function
that creates a potential security vulnerability, or any
allegation of fraud, waste or abuse of DHS funds or involving
DHS programs or operations, the DOS shall promptly notify the
DHS IG of such allegation. If the DHS becomes aware of an
allegation of visa fraud or other misconduct in relation to the
issuance of visas, any allegation of misconduct by such DHS
employees in relation to the visa function or by DOS employees,
contractors or grantees, any other matter that affects the
security of the mission or that creates a potential security
vulnerability, or any allegation of fraud waste or abuse of DOS
funds or involving DOS programs, the DHS shall promptly notify
the DOS and, unless determined to be inappropriate, the COM.
(3) When allegations concern matters over which the DHS IG
and the DOS both have investigative jurisdiction, they shall
consult regarding how best to pursue the investigation. Unless
otherwise decided in a given case, DOS shall investigate
allegations concerning DOS employees, contractors, grantees and
funds and DHS IG shall investigate allegations concerning DHS
employees, contractors or grantees. DHS IG and DOS may, as
agreed, also develop more detailed guidelines and procedures
with respect to the conduct of such investigations.
(4) Any DHS investigation conducted abroad must be
conducted in compliance with local law (unless it is an
activity routinely authorized by senior host country officials
and ground rules established by the host country), unless
otherwise authorized by the Secretary of Homeland Security, or
his designee, and by the Secretary of State, or his designee,
and the Chief of Mission.
h. Participation in Lookout Committees. DHS employees
assigned to overseas posts and performing section 428(e)
functions shall participate in the terrorist lookout committee
established under Section 304 of the Enhanced Border Security
and Visa Entry Reform Act of 2002 (8 U.S.C. Sec. 1733), and
other relevant groups.
7. PERFORMANCE STANDARDS AND EVALUATIONS FOR CONSULAR OFFICERS AND FOR
DHS EMPLOYEES ASSIGNED ABROAD TO PERFORM SECTION 428 FUNCTIONS
a. Performance standards for consular officers. The
Secretary of Homeland Security may develop performance
standards for evaluating the performance of consular officers
with respect to the processing and adjudication of applications
for visas. If the Secretary of Homeland Security wishes to
develop such performance standards, the Secretary will consult
with the Secretary of State in their development. The Secretary
of State will also consult with the Secretary of Homeland
Security in developing or revising other performance standards
relating to the issuance of visas by consular officers. Once
any such standards are developed, the Secretary of State will
take the necessary measures to incorporate the standards into
the DOS evaluation process in a manner consistent with the
Foreign Service Act of 1980 and applicable labor-management
consultation or negotiation requirements.
b. DHS input to consular officer evaluations. DHS employees
assigned abroad and performing section 428(e) functions may, as
deemed appropriate by the Secretary of Homeland Security,
provide the rating and/or reviewing officer with input relevant
to the evaluation of a consular officer in light of any
performance standards developed by the Secretary of Homeland
Security pursuant to this paragraph. The rating or review
officer will take such input into consideration in preparing
the annual employee evaluation report.
c. Performance standards for DHS employees. The Secretary
of Homeland Security will develop performance standards for DHS
employees who are assigned to posts abroad pursuant to section
428, and will consult with the Secretary of State concerning
them prior to issuance.
d. DOS input to DHS employee evaluations. The chief of
mission or deputy chief of mission may provide the rating and/
or reviewing officer of a DHS employee assigned abroad pursuant
to section 428(e) with input relevant to evaluation of the
employee. The rating or reviewing officer will take such input
into consideration in preparing the annual employee evaluation
report. The senior DHS employee at post shall be subject to
evaluation by the COM and/or DCM in the same manner as other
agency senior representatives.
8. TRAINING
a. Availability of DOS training to DHS employees and
families.
(1) At the request of DHS, DOS shall, on a reimbursable and
space-available basis, make available to DHS employees
identified for assignment to overseas posts to perform
functions under section 428(e) training relevant to such
functions, including training in foreign languages, interview
techniques, fraud techniques, conditions in the country of
assignment and other appropriate areas of study, and shall give
priority to these employees after DOS employees, and ahead of
other personnel of other agencies. DHS employees may train with
consular officers and undergo the same consular function
training on a reimbursable and space-available basis.
(2) DOS shall afford the families of DHS employees assigned
to overseas posts access to language and culture training on
the same basis as the families of employees of other agencies,
i.e., on a reimbursable, space-available basis.
(3) All DHS employees assigned to overseas posts must
attend the DOS Security Overseas Seminar, or such training as
may be required in the future of persons assigned overseas, on
a reimbursable, space-available basis. Eligible family members
of DHS personnel are also encouraged to attend the Security
Overseas Seminar, on a reimbursable, space-available basis. In
addition, DHS employees assigned to overseas posts are strongly
encouraged to attend the Introduction to Working at an Embassy
seminar prior to departure, on a reimbursable, space-available
basis.
b. DHS training development.
(1) DHS may develop other training, as appropriate, to
enable DHS employees to carry out their functions. Such
training will be made available to consular officers on a
reimbursable basis and equal basis with DHS employees.
(2) DOS will consult with DHS, as appropriate, to ensure
that DOS consular officer training incorporates homeland
security concerns, and DHS may propose changes in DOS curricula
to better prepare consular officers to perform their functions
in connection with the granting or refusal of visas. DHS may
also develop programs of homeland security training for
consular officers in addition to other DOS training programs.
Such programs may be conducted by or under the auspices of DHS
and facilitated by DOS, or DOS may conduct such programs under
the guidance of DHS, as DHS and DOS may agree. DHS shall bear
the costs of developing and delivering such training and
cooperate with DOS to schedule such training in conjunction
with other DOS training DOS personnel are required to take or
give under DOS auspices. DOS will use best efforts to make
available DOS facilities for such training that may include
Foreign Service Institute space, subject to DOS resources and
other commitments. DOS shall otherwise bear the costs of travel
and per diem of its personnel who participate in training
either as instructors or students for the purpose of improving
the skills or knowledge of consular officers. DOS shall
determine in consultation with DHS the appropriate timing for
participation in such training, either as instructors or
students, based on staffing requirements of the DOS employee's
post of assignment, so as not to impede the ability of the post
to carry out essential functions assigned to the employee. DOS
will ensure attendance of DOS personnel in a manner consistent
with effective and efficient training management and to ensure
training is received in a timely fashion.
(3) DHS employees assigned overseas to perform section 428
functions may develop local training programs in whose
development post consular personnel will cooperate. The chief
of the consular section or the most senior supervisory consular
officer present will facilitate the attendance of consular
personnel at such training, provided that the nature and timing
of such training shall not impede the ability of the post to
carry out essential consular functions.
c. Joint training development. DHS and DOS agree to
cooperate in the joint development of training that will be
useful to the employees of both agencies, that may be conducted
at DOS facilities, or in other institutions.
d. Resource availability. Training activities under this
paragraph are subject to resource availability.
9. INTERAGENCY COOPERATION
a. Establishment of liaisons. The Secretary of Homeland
Security, or designee, and the Secretary of State, or designee,
may designate persons to serve as liaisons between the
headquarters of both departments, who may or may not be
stationed in the other's headquarters. Any DHS liaison assigned
to work in the Visa Office will have access to any advisory
opinion that may be issued.
b. Management reports. DHS will have access to standard
workload reports generated by the automated visa systems of the
Bureau for Consular Affairs. DHS will also have access to such
systems to determine the status of specific visa cases and
accompanying notes. The Bureau will respond to requests from
DHS for periodic reports on how DHS or other visa policies are
being implemented and will cooperate with DHS in generating
special queries when necessary and practicable.
c. On-Site Monitoring of field operations. DHS employees
may participate in Consular Management Assistance Teams and
travel with regional consular officers as may be practicable.
DHS shall bear the cost of travel of its employees.
d. Cooperation in interagency and international matters.
DOS and DHS agree to cooperate and coordinate as appropriate in
interagency and international matters that may affect the
function of consular officers in connection with the granting
or refusal of visas.
10. SYSTEMS AND RECORDS
a. Maintenance of DOS systems; DHS systems authority. The
Secretary of State has the authority to create, maintain and
operate all information systems used by consular officer and
other DOS employees in visa adjudication and issuance
processes. These systems are DOS systems.
b. Maintenance of visa applications and visa issuance
records. DOS has the authority to create and maintain all
records pertaining to the issuance or refusal of visas or
permits to enter the United States. DOS is the originating
agency and retains custody and control over such records for
purposes of the requirements of the Federal Records Act, the
Freedom of Information Act, the Privacy Act, Executive Order
12958 and section 222(f) of the Immigration and Nationality
Act, as well as for purposes of all document production and
information requests. To the extent that the DHS obtains copies
of such records in connection with its duties, DHS shall refer
questions concerning the above requirements to DOS, in
accordance with normal third agency referral procedures. DHS
shall be responsible for such records as it may create and
maintain and that are not made a part of DOS records.
c. Systems compatibility and biometric requirements.
(1) The Secretary of Homeland Security and the Secretary of
State recognize that each has statutory authorities related to
the maintenance of electronic databases and use of biometrics
for border security purposes and that they must exercise these
joint and separate authorities in full coordination to ensure
interoperability and effectiveness. Each agrees to coordinate
closely with the other and to work together toward the maximum
possible compatibility of the DHS and DOS information
technology systems and data related to the issuance of visas to
and the entry to and exit from the U.S. of aliens.
(2) In particular, each Secretary agrees to keep the other
fully informed in a timely fashion about decisions and actions
that his Department is contemplating with respect to such
database systems related to the issuance of visas to, and the
entry to and exit from the U.S. of, aliens, including the use
of biometrics, legal interpretations and policy implementation
decisions and datasharing (the sharing of information
electronically). Toward this end, each Secretary will designate
an employee of his Department to serve as a liaison on such
systems development, interoperability and datasharing with the
other Department. These systems liaison persons shall keep each
other fully informed of applicable systems initiatives being
taken within each home agency and will serve as the point of
contact for reception and transmission of such information
between the two Departments.
d. Coordination with DHS concerning systems. DOS will
consult with DHS concerning what visa data will be contained
and maintained within DOS systems. DOS will give serious
consideration to implementing DHS recommendations concerning
collection and maintenance of visa data, as well as DHS
recommendations concerning management controls in automated
systems that audit or support visa adjudication, consistent
with resource availability. DHS and DOS will increase and
expand data share between agencies. DHS will be consulted and,
where possible, participate in modification of existing systems
and development of new systems that remain under DOS control.
e. Access of DHS personnel to DOS systems and records. DOS
will provide appropriate DHS personnel with access to DOS
information systems used in visa adjudication and visa issuance
processes as well as to DOS records pertaining to the issuance
or refusal of visas or permits to enter the United States, as
necessary and appropriate for implementation of DHS functions
under section 428. In the case of classified information, such
access will require both an appropriate security clearance and
a need to know the information. DHS personnel who are provided
such access will abide by applicable restrictions on the use of
such systems and records and the disclosure of the information
contained therein. In particular, such DHS employees will not
disclose the information in such systems or records to anyone
not authorized to receive it. DHS will make available to
consular officials and other DOS officials involved in the visa
issuance process all data maintained by DHS that is pertinent
to the security and integrity of the visa issuance process, but
DOS will respect restrictions on dissemination of sensitive law
enforcement information.
11. RESOURCES
DHS and DOS shall bear their own costs in the performance
of responsibilities under section 428 except as otherwise
provided in this MOU, or other written agreement. Activities
included in this MOU are subject to resource availability.
12. LITIGATION
The Legal Adviser to the Secretary of State and the General
Counsel for DHS shall cooperate as appropriate in support of
litigation conducted by the Department of Justice for or
against the United States on account of actions taken or not
taken by consular officers related to the issuance or refusal
of visas or by DHS personnel performing functions under section
428.
13. STUDIES AND REPORTS
a. DOS will assist DHS as appropriate in the preparation of
the study of the role of foreign nationals in the granting or
refusal of visas and other documents authorizing applications
for entry of aliens into the United States that is required by
section 428(g)(1) and in the report containing the findings of
the study conducted under section 428(g)(1) that is required by
section 428(g)(2). DHS and DOS will jointly draft and submit to
Congress, as required by section 428(e)(7), the report on the
implementation of section 428 and any legislative proposals
necessary to further the objectives of section 428.
b. In any case in which the Secretary of Homeland Security
directs refusal of a visa on the basis of INA section
212(a)(3)(B), DHS will provide DOS with sufficient information
(including the factual basis for the refusal) for the Secretary
of State to fulfill his reporting requirements under section 51
of the State Department Basic Authorities Act (22 U.S.C.
Sec. 2723).
14. DISPUTE RESOLUTION
Disagreements concerning the interpretation or
implementation of this MOU will be resolved at the lowest level
possible. Failing that, matters will be referred successively
to higher authorities.
15. MODIFICATION AND TERMINATION
This MOU may be modified or terminated upon the mutual
agreement of the parties in writing. The parties shall review
this MOU not later than 24 months after it becomes effective.
Any amendments to it shall be by mutual agreement.
16. EFFECTIVE DATE
This MOU becomes effective on the date on which the
President publishes notice in the Federal Register that he has
submitted a report to Congress setting forth the MOU.
17. DELEGATIONS OF AUTHORITY
a. Except for paragraph 5, references in this MOU to the
Secretary of Homeland Security or the Secretary of State or
specific subordinate officers or components thereof shall not
be construed to limit the authority of the Secretaries of
Homeland Security or State to direct and control the activities
of their departments and delegate or re-delegate authority as
may be appropriate.
b. The Secretary of Homeland Security and the Secretary of
State shall keep each other informed on a timely basis of the
persons to whom they have delegated their authority under this
MOU.
c. Each Secretary hereby delegates to the other such
authority as may be necessary to implement the provisions of
this MOU.
18. ENFORCEABILITY
Nothing in this MOU is intended, or should be construed, to
create any right or benefit, substantive or procedural,
enforceable at law by any person against the United States, or
any of its agencies, officers, or employees.