T5 B59 Dos Docs- Niv 1 Of 5 Fdr- Undated Harty Memo Re Dos-dhs Memo Re Visa Function 177

ACTION MEMORANDUM S/ES SENSITIVE BUT UNCLASSIFIED TO:

The Secretary

FROM:

CA - Maura Harty L - William H. Taft, IV

SUBJECT:

State-Homeland Security Memorandum of Understanding Relating to the Visa Function

ISSUE FOR DECISION Whether to approve the concept paper at Tab 1 as the basis for initial discussions with the Department of Homeland Security on a Memorandum of Understanding concerning visa operations. BACKGROUND Section 428 of the Homeland Security Act (HSA) gives authority over visa adjudications by consular officers to the Secretary of Homeland Security (SecHS) while leaving other visa-related authorities to you. The SecHS may direct a consular officer to refuse a visa, but may not direct a consular officer to issue a visa. The Act also authorizes the SecHS to delegate his responsibilities for the visa function to you, in whole or in part, and requires that directions from the Department of Homeland Security (DHS) to consular officers go "through" you. Section 428 contemplates that there will be a Memorandum of Understanding (MOU) between the DHS and State addressing how the responsibilities of each agency will be exercised. The MOU should be the vehicle for any delegations of DHS authority back to State. We believe the effective date of Section 428 is either the date on which a notice that the MOU has been completed and submitted to Congress is published in the Federal Register, or November 25, 2003, whichever is earlier. Our

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SENSITIVE BUT UNCLASSIFIED -2initial contacts with the DHS transition team, however, indicate they believe the effective date is January 24, and Asa Hutchinson, DHS Under Secretary for Border and Transportation Security-designate, has asked that we agree to a "framework MOU" by that date. We want to complete the MOU as soon as possible, but think that a more reasonable target would be March 1, when INS will be folded into DHS. We will seek to resolve this issue with U/S-designate Hutchinson in the next few days. In any event, we need to agree with the DHS transition team on general principles before we can begin drafting an MOU productively. We would like to provide the DHS transition team with the concept paper at Tab 1. It has the following key elements: •

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It recognizes that the primary purpose of Section 428 is to promote a unified policy concerning the admission of aliens to the United States by ensuring that the Secretary of Homeland Security, who will control the domestic immigration function, also has authority over consular visa decisions. It recognizes that SecHS may exercise full authority over visa decisions committed by law to consular officers (except that the SecHS does not have the right to direct a consular officer to issue a visa), but proposes that the exercise of such authority generally be delegated back to State where homeland security issues are not involved. It proposes that DHS delegate to State responsibility for all case-specific visa advice, in both security and nonsecurity cases, on the understanding that security cases which an agency recommends visa denial but State believes the evidence of ineligibility is legally insufficient will be referred to DHS for decision. (You should note that this approach will give State responsibility for authorizing issuance in cases where there is no other agency objection. An alternative would be to have DHS authorize all security cases, but this would make visa operations significantly less efficient.) It proposes that all existing State regulations and other guidance concerning consular visa decisions remain in effect until changed by or in consultation with DHS. It assumes that the Visa Office will remain intact to support both DHS and State visa functions.

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It assumes that DHS overseas staffing to monitor visa operations will be assessed within the framework of Chief of Mission authority; that DHS will bear all costs of such staffing and of any DHS training of consular officers; and that DHS input into the evaluation of consular officers will occur in accordance with existing procedures for non-supervisory input into Foreign Service evaluations. • It does not attempt to address the potential overlap between DHS's new responsibilities for investigating visa operations and the role of DS in investigating visa fraud. We have raised this matter with DHS and will need to take care of it soon, most probably via a separate MOU. The HSA as enacted differs substantially from the President's proposal and leaves many questions unanswered, including the delineation of responsibility between you and the SecHS. We intend to use as a defining principle the specific language of the HSA which gives the SecHS authority "to issue regulations with respect to, administer, and enforce the provisions of ... all . . . immigration and nationality laws, relating to the functions of consular officers . . . in connection with the granting or refusal of visas." Thus, where a specific statutory authority is vested in consular officers we will assume that DHS assumes responsibility for its supervision but can delegate such responsibility back to State. We will generally also assume, however, that any visa-related authority vested specifically in you by statute is retained by you. We are not certain whether the DHS transition team will agree with this analysis. It is, however, an approach that we can readily defend and ground in the statutory language. Any other approach would involve making judgment calls without a clear guiding principle about whether you or the Secretary of Homeland Security should exercise functions now vested in you by statute, rather than in consular officers. RECOMMENDATION That you approve our initiating discussions on the MOU along the lines outlined above and in the concept paper attached at Tab 1.

Approve:

Disapprove:

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Attachment: Concept Paper for MOU

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Drafted: L/CA: Catherine W. Brown 647-0688 Mary McLeod, 808-529-6577 1/5/03 clear: D/HS: T McNamara OK M: E Rooney OK L: J Thessin OK L/LM: J Borek OK L/EMP: J Kim OK CA/VO: J Jacobs OK CA/VO: C Barry OK CA/VO/L: S Fischel OK DGP: R Whiteside OK FSI: K Peterson OK DS:F Taylor OK H:J Kelly ok

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