6 U.S.C. § 236 — Visa issuance

submitted 24 years ago by Pub. L. 107-296 to r/title-6-DOMESTIC-SECURITY · 1,603 words · no verdicts yet

in plain englishAI-generated · not legal advice

The Secretary of Homeland Security controls the rules for how consular officers issue or refuse visas, but can't override an officer's decision to deny one. The Secretary of State can still order a visa refused for foreign-policy or security reasons, and this law creates no right to sue over a visa decision.

(a) Definition: "Consular office" here means what the Immigration and Nationality Act says it means. (b) In general: Despite other laws, and except as described in (c), the Secretary of Homeland Security has exclusive power to write regulations for, administer, and enforce immigration and nationality laws relating to how consular officers grant or refuse visas. The Secretary can refuse visas and can create homeland-security training for consular officers, on top of the training the State Department already gives. These powers are carried out through the Secretary of State. But the Secretary cannot reverse a consular officer's decision to deny a visa. The Secretary can also give these powers to other federal officers or employees, with their agency head's consent. (c) Authority of the Secretary of State: The Secretary of State can still order a consular officer to refuse a visa if the Secretary of State thinks that is necessary or advisable for U.S. foreign policy or security. Nothing in this section changes the Secretary of State's existing authority under a long list of other immigration and security laws - covering things like exchange-visitor and adoption-treaty rules, terrorism-related inadmissibility grounds, presidential entry-bar proclamations, and several other named statutes and appropriations acts. (d) Consular officers and chiefs of missions: Nothing here changes consular officers' status as State Department employees, or a chief of mission's authority under the Foreign Service Act. It also does not change any delegation of presidential authority to the Secretary of State to bar entry under section 212(f) of the Immigration and Nationality Act. (e) Assignment of Homeland Security employees to diplomatic and consular posts: The Secretary can assign Department employees to any visa-issuing post, unless doing so would not help homeland security. Those employees must advise and train consular officers on security threats in visa cases, review applications on their own initiative or on request, and investigate consular security matters. The Secretary of State must evaluate consular officers' visa-processing performance, working with the Secretary. The Secretary must report yearly to Congress explaining any post where an employee was not assigned. Employees can be permanently assigned overseas and must join the terrorist lookout committee when directed. The Secretary must ensure these employees and consular officers get proper training - in languages, interviewing, and fraud detection - and can use the National Foreign Affairs Training Center on a reimbursable basis. Within one year of November 25, 2002, the Secretary and Secretary of State had to report to Congress on how this subsection was being carried out. This subsection took effect either when the President told Congress about an implementing agreement between the two Secretaries, or one year after November 25, 2002, whichever came first. (f) No creation of private right of action: This section does not let anyone sue to challenge a visa grant or denial. (g) Study regarding use of foreign nationals: The Secretary had to study what role, if any, foreign nationals should play in deciding visa applications, including security concerns and whether cheaper alternatives exist, and report the findings to Congress within one year of November 25, 2002. (h) Report: Within 120 days of November 25, 2002, the Director of the Office of Science and Technology Policy had to report to Congress on how this section would affect student-visa procedures. (i) Visa issuance program for Saudi Arabia: After November 25, 2002, all third-party visa-screening programs in Saudi Arabia had to end. Department of Homeland Security staff on-site must review every visa application there before it is decided.

the actual law source: uscode.house.gov ↗public domain

(a) Definition

In this subsection,1 the term “consular office” 2 has the meaning given that term under section 101(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(9)).

(b) In general

Notwithstanding section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) of this section, the Secretary—

(1)

shall be vested exclusively with all authorities to issue regulations with respect to, administer, and enforce the provisions of such Act [8 U.S.C. 1101 et seq.], and of all other immigration and nationality laws, relating to the functions of consular officers of the United States in connection with the granting or refusal of visas, and shall have the authority to refuse visas in accordance with law and to develop programs of homeland security training for consular officers (in addition to consular training provided by the Secretary of State), which authorities shall be exercised through the Secretary of State, except that the Secretary shall not have authority to alter or reverse the decision of a consular officer to refuse a visa to an alien; and

(2)

shall have authority to confer or impose upon any officer or employee of the United States, with the consent of the head of the executive agency under whose jurisdiction such officer or employee is serving, any of the functions specified in paragraph (1).

(1) In general

Notwithstanding subsection (b), the Secretary of State may direct a consular officer to refuse a visa to an alien if the Secretary of State deems such refusal necessary or advisable in the foreign policy or security interests of the United States.

(2) Construction regarding authority

Nothing in this section, consistent with the Secretary of Homeland Security’s authority to refuse visas in accordance with law, shall be construed as affecting the authorities of the Secretary of State under the following provisions of law:

(A)

Section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)).

(B)

Section 204(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1154) (as it will take effect upon the entry into force of the Convention on Protection of Children and Cooperation in Respect to Inter-Country adoption).

(C)

Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).

(D)

Section 212(a)(3)(B)(i)(VI) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)).

(E)

Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).

(F)

Section 212(a)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(C)).

(G)

Section 212(a)(10)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(10)(C)).

(H)

Section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)).

(I)

Section 219(a) of the Immigration and Nationality Act (8 U.S.C. 1189(a)).

(J)

Section 237(a)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(C)).

(K)

Section 401 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 [22 U.S.C. 6091].

(L)

Section 613 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1999 3 (as contained in section 101(b) of division A of Public Law 105–277) (Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999); 112 Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended by section 617 of Public Law 106–553.

(M)

Section 103(f) of the Chemical Weapon Convention Implementation Act of 1998 [22 U.S.C. 6713(f)] (112 Stat. 2681–865).

(N)

Section 801 of H.R. 3427, the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 [8 U.S.C. 1182e], as enacted by reference in Public Law 106–113.

(O)

Section 568 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2002 (Public Law 107–115).

(P)

Section 51 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2723).

(d) Consular officers and chiefs of missions

(1) In general

Nothing in this section may be construed to alter or affect—

(A)

the employment status of consular officers as employees of the Department of State; or

(B)

the authority of a chief of mission under section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927).

(2) Construction regarding delegation of authority

Nothing in this section shall be construed to affect any delegation of authority to the Secretary of State by the President pursuant to any proclamation issued under section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)), consistent with the Secretary of Homeland Security’s authority to refuse visas in accordance with law.

(e) Assignment of Homeland Security employees to diplomatic and consular posts

(1) In general

The Secretary is authorized to assign employees of the Department to each diplomatic and consular post at which visas are issued, unless the Secretary determines that such an assignment at a particular post would not promote homeland security.

(2) Functions

Employees assigned under paragraph (1) shall perform the following functions:

(A)

Provide expert advice and training to consular officers regarding specific security threats relating to the adjudication of individual visa applications or classes of applications.

(B)

Review any such applications, either on the initiative of the employee of the Department or upon request by a consular officer or other person charged with adjudicating such applications.

(C)

Conduct investigations with respect to consular matters under the jurisdiction of the Secretary.

(3) Evaluation of consular officers

The Secretary of State shall evaluate, in consultation with the Secretary, as deemed appropriate by the Secretary, the performance of consular officers with respect to the processing and adjudication of applications for visas in accordance with performance standards developed by the Secretary for these procedures.

(4) Report

The Secretary shall, on an annual basis, submit a report to Congress that describes the basis for each determination under paragraph (1) that the assignment of an employee of the Department at a particular diplomatic post would not promote homeland security.

(5) Permanent assignment; participation in terrorist lookout committee

When appropriate, employees of the Department assigned to perform functions described in paragraph (2) may be assigned permanently to overseas diplomatic or consular posts with country-specific or regional responsibility. If the Secretary so directs, any such employee, when present at an overseas post, 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. 1733).

(6) Training and hiring

(A) In general

The Secretary shall ensure, to the extent possible, that any employees of the Department assigned to perform functions under paragraph (2) and, as appropriate, consular officers, shall be provided the necessary training to enable them to carry out such functions, including training in foreign languages, interview techniques, and fraud detection techniques, in conditions in the particular country where each employee is assigned, and in other appropriate areas of study.

(B) Use of Center

The Secretary is authorized to use the National Foreign Affairs Training Center, on a reimbursable basis, to obtain the training described in subparagraph (A).

(7) Report

Not later than 1 year after November 25, 2002, the Secretary and the Secretary of State shall submit to Congress—

(A)

a report on the implementation of this subsection; and

(B)

any legislative proposals necessary to further the objectives of this subsection.

(8) Effective date

This subsection shall take effect on the earlier of—

(A)

the date on which the President publishes notice in the Federal Register that the President has submitted a report to Congress setting forth a memorandum of understanding between the Secretary and the Secretary of State governing the implementation of this section; or

(B)

the date occurring 1 year after November 25, 2002.

(f) No creation of private right of action

Nothing in this section shall be construed to create or authorize a private right of action to challenge a decision of a consular officer or other United States official or employee to grant or deny a visa.

(g) Study regarding use of foreign nationals

(1) In general

The Secretary of Homeland Security shall conduct a study of the role of foreign nationals in the granting or refusal of visas and other documents authorizing entry of aliens into the United States. The study shall address the following:

(A)

The proper role, if any, of foreign nationals in the process of rendering decisions on such grants and refusals.

(B)

Any security concerns involving the employment of foreign nationals.

(C)

Whether there are cost-effective alternatives to the use of foreign nationals.

(2) Report

Not later than 1 year after November 25, 2002, the Secretary shall submit a report containing the findings of the study conducted under paragraph (1) to the Committee on the Judiciary, the Committee on International Relations, and the Committee on Government Reform of the House of Representatives, and the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Government 4 Affairs of the Senate.

(h) Report

Not later than 120 days after November 25, 2002, the Director of the Office of Science and Technology Policy shall submit to Congress a report on how the provisions of this section will affect procedures for the issuance of student visas.

(i) Visa issuance program for Saudi Arabia

Notwithstanding any other provision of law, after November 25, 2002, all third party screening programs in Saudi Arabia shall be terminated. On-site personnel of the Department of Homeland Security shall review all visa applications prior to adjudication.

Source credit: (Pub. L. 107–296, title IV, § 428, Nov. 25, 2002, 116 Stat. 2187.)

history & why it existsrecord from the source credit

2002Enacted · Pub. L. 107-296 · 116 Stat. 2187

A history note hasn’t been published yet. The record shows enactment by Pub. L. 107-296 on 2002-11-25.

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