T5 B59 DOS Docs- NIV 1 of 5 Fdr- Undated Harty Memo Re DOS-DHS Memo Re Visa Function 177

8/14/2019 T5 B59 DOS Docs- NIV 1 of 5 Fdr- Undated Harty Memo Re DOS-DHS Memo Re Visa Function 177

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ACTION MEMORANDUMS/ES

SENSITIVE BUT UNCLASSIFIEDTO: The SecretaryFROM: CA - Maura Harty

L - William H. Taft, IVSUBJECT: State-Homeland Security Memorandum of

Understanding Relating to the Visa FunctionISSUE FOR DECISION

Whether to approve the concept paper at Tab 1 as thebasis for initial discussions with the Department ofHomeland Security on a Memorandum of Understandingconcerning visa operations.BACKGROUND

Section 428 of the Homeland Security Act (HSA) givesauthority over visa adjudications by consular officers tothe Secretary of Homeland Security (SecHS) while leavingother visa-related authorities to you. The SecHS maydirect a consular officer to refuse a visa, but may notdirect a consular officer to issue a visa. The Act alsoauthorizes the SecHS to delegate his responsibilities forthe visa function to you, in whole or in part, and requiresthat directions from the Department of Homeland Security(DHS) to consular officers go "through" you.

Section 428 contemplates that there will be aMemorandum of Understanding (MOU) between the DHS and Stateaddressing how the responsibilities of each agency will beexercised. The MOU should be the vehicle for anydelegations of DHS authority back to State.

We believe the effective date of Section 428 is eitherthe date on which a notice that the MOU has been completedand submitted to Congress is published in the FederalRegister, or November 25, 2003, whichever is earlier. Our

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initial contacts with the DHS transition team, however,indicate they believe the effective date is January 24, andAsa Hutchinson, DHS Under Secretary for Border andTransportation Security-designate, has asked that we agreeto a "framework MOU" by that date. We want to complete theMOU as soon as possible, but think that a more reasonabletarget would be March 1, when INS will be folded into DHS.We will seek to resolve this issue with U/S-designateHutchinson in the next few days.

In any event, we need to agree with the DHS transitionteam on general principles before we can begin drafting anMOU productively. We would like to provide the DHStransition team with the concept paper at Tab 1. It hasthe following key elements: It recognizes that the primary purpose of Section 428 is

to promote a unified policy concerning the admission ofaliens to the United States by ensuring that theSecretary of Homeland Security, who will control thedomestic immigration function, also has authority overconsular visa decisions.

It recognizes that SecHS may exercise full authority overvisa decisions committed by law to consular officers(except that the SecHS does not have the right to directa consular officer to issue a visa), but proposes thatthe exercise of such authority generally be delegatedback to State where homeland security issues are notinvolved.

It proposes that DHS delegate to State responsibility forall case-specific visa advice, in both security and non-security cases, on the understanding that security caseswhich an agency recommends visa denial but State believesthe evidence of ineligibility is legally insufficientwill be referred to DHS for decision. (You should notethat this approach will give State responsibility forauthorizing issuance in cases where there is no otheragency objection. An alternative would be to have DHSauthorize all security cases, but this would make visaoperations significantly less efficient.)

It proposes that all existing State regulations and otherguidance concerning consular visa decisions remain ineffect until changed by or in consultation with DHS.

It assumes that the Visa Office will remain intact tosupport both DHS and State visa functions.



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It assumes that DHS overseas staffing to monitor visaoperations will be assessed within the framework of Chiefof Mission authority; that DHS will bear all costs ofsuch staffing and of any DHS training of consularofficers; and that DHS input into the evaluation ofconsular officers will occur in accordance with existingprocedures for non-supervisory input into Foreign Serviceevaluations. It does not attempt to address the potential overlapbetween DHS's new responsibilities for investigating visaoperations and the role of DS in investigating visafraud. We have raised this matter with DHS and will needto take care of it soon, most probably via a separateMOU.

The HSA as enacted differs substantially from thePresident's proposal and leaves many questions unanswered,including the delineation of responsibility between you andthe SecHS. We intend to use as a defining principle thespecific language of the HSA which gives the SecHSauthority "to issue regulations with respect to,administer, and enforce the provisions of ... all . . .immigration and nationality laws, relating to the functionsof consular officers . . . in connection with the grantingor refusal of visas." Thus, where a specific statutoryauthority is vested in consular officers we will assumethat DHS assumes responsibility for its supervision but candelegate such responsibility back to State. We willgenerally also assume, however, that any visa-relatedauthority vested specifically in you by statute is retainedby you. We are not certain whether the DHS transition teamwill agree with this analysis. It is, however, an approachthat we can readily defend and ground in the statutorylanguage. Any other approach would involve making judgmentcalls without a clear guiding principle about whether youor the Secretary of Homeland Security should exercisefunctions now vested in you by statute, rather than inconsular officers.RECOMMENDATION

That you approve our initiating discussions on the MOUalong the lines outlined above and in the concept paperattached at Tab 1.

Approve: Disapprove:



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Attachment:Concept Paper for MOU



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Drafted:L/CA:Catherine W. Brown 647-0688Mary McLeod, 808-529-65771/5/03clear:D/HS: T McNamara OKM: E Rooney OKL: J Thessin OKL/LM: J Borek OKL/EMP: J Kim OKCA/VO: J Jacobs OKCA/VO: C Barry OKCA/VO/L: S Fischel OKDGP: R Whiteside OKFSI: K Peterson OKDS:F Taylor OKH:J Kelly ok


T5 B59 DOS Docs- NIV 1 of 5 Fdr- Undated Harty Memo Re DOS-DHS Memo Re Visa Function 177

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