[Congressional Record Volume 149, Number 136 (Tuesday, September 30, 2003)]
[House]
[Pages H9020-H9025]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 MEMORANDUM OF UNDERSTANDING BETWEEN SECRETARIES OF STATE AND HOMELAND 
   SECURITY CONCERNING IMPLEMENTATION OF SECTION 428 OF THE HOMELAND 
 SECURITY ACT OF 2002--MESSAGE FROM THE PRESIDENT OF THE UNITED STATES 
                           (H. DOC. NO. 131)

  The SPEAKER pro tempore laid before the House the following message 
from the President of the United States; which was read and, together 
with the accompanying papers, referred to the Committee on the 
Judiciary and the Select Committee on Homeland Security and ordered to 
be printed.
Message 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

[[Page H9021]]

     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

[[Page H9022]]

     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

[[Page H9023]]

     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

[[Page H9024]]

     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.

[[Page H9025]]

       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.

                          ____________________