[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.

                                
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