8 U.S.C. § 1153a — Transparency

(a) In general. Employees of the Department of Homeland Security, including the Secretary of Homeland Security, the Secretary’s counselors, the Assistant Secretary for the Private Sector, the Director of U.S. Citizenship and Immigration Services, counselors to that Director, and the Chief of the Immigrant Investor Programs Office—or any successor office—at U.S. Citizenship and Immigration Services, must act impartially. They may not give preferential treatment to any entity, organization, or individual in connection with any part of the immigrant visa program described in section 1153(b)(5) of this title. (b) Improper activities. Preferential treatment includes— (1) working on, or trying in any way to influence, the standard processing of an application, petition, or benefit for— (A) a regional center; (B) a new commercial enterprise; (C) a job-creating entity; or (D) any person or entity associated with such a regional center, new commercial enterprise, or job-creating entity, in a manner not available to or given to all other petitioners, applicants, and seekers of benefits under the immigrant visa program referred to in subsection (a); and (2) meeting or communicating with people associated with the entities listed in paragraph (1), at those people’s request, in a manner not available to or given to all other petitioners, applicants, and seekers of benefits under that immigrant visa program. (c) Reporting of communications. (1) Written communication. Department of Homeland Security employees, including the officials listed in subsection (a), must include in the record of proceeding for a case under section 1153(b)(5) of this title actual or electronic copies of all case-specific written communications, including emails from government and private accounts, with people or entities outside the Department who advocate for regional center applications or individual petitions under that section that are pending on or after March 15, 2022. This does not include routine communications with other Federal Government agencies about the case, including communications involving background checks and litigation defense. (2) Oral communication. If substantive oral communication—including a telephone call, virtual communication, or in-person meeting—takes place between Department of Homeland Security officials and people or entities outside the Department who advocate for regional center applications or individual petitions under section 1153(b)(5) of this title that are pending on or after March 15, 2022, the conversation must either be recorded or have detailed minutes taken and included in the record of proceeding. This does not apply to communications exempted under paragraph (1). (3) Notification. (A) In general. If the Secretary, during written or oral communication described in this subsection, receives evidence about a specific case from anyone other than an affected party or that party’s representative, excluding Federal Government or law-enforcement sources, the evidence may not be placed in the record of proceeding or considered in an adjudicative proceeding unless— (i) the affected party has been given notice of the evidence; and (ii) if the evidence is derogatory, the affected party has been given an opportunity to respond to it. (B) Information from law-enforcement, intelligence agencies, or confidential sources. (i) Law-enforcement or intelligence agencies. Evidence received from law-enforcement or intelligence agencies may not be placed in the record of proceeding without the consent of the relevant agency or law-enforcement entity. (ii) Whistleblowers, confidential sources, or intelligence agencies. Evidence received from whistleblowers, other confidential sources, or the intelligence community that is included in the record of proceeding and considered in an adjudicative proceeding must be handled so that it does not reveal the identity of the whistleblower or confidential source or reveal classified information. (d) Consideration of evidence. (1) In general. Case-specific communication with people or entities that are not part of the Department of Homeland Security may not be considered when adjudicating an application or petition under section 1153(b)(5) of this title unless the communication is included in the record of proceeding for the case. (2) Waiver. The Secretary of Homeland Security may waive the requirement in paragraph (1) only in the interests of national security or for investigative or law-enforcement purposes. (e) Channels of communication. (1) Email address or equivalent. The Director of U.S. Citizenship and Immigration Services must maintain an email account, or an equivalent means of communication, for people or entities— (A) asking about specific petitions or applications under the immigrant visa program described in section 1153(b)(5) of this title; or (B) seeking information that is not case-specific about the immigrant visa program described in that section. (2) Communication only through appropriate channels or offices. (A) Announcement of appropriate channels of communication. Not later than 40 days after March 15, 2022, the Director of U.S. Citizenship and Immigration Services must announce that the only channels or offices through which industry stakeholders, petitioners, applicants, and seekers of benefits under the immigrant visa program described in section 1153(b)(5) of this title may communicate with the Department of Homeland Security about specific cases under that section—except for communication by applicants and petitioners under regular adjudicatory procedures—or about information that is not case-specific concerning the visa program applicable to certain cases under that section are— (i) the email address or equivalent channel described in paragraph (1); (ii) the National Customer Service Center, or any successor to that Center; or (iii) the Office of Public Engagement, Immigrant Investor Program Office, including the Stakeholder Engagement Branch, or any successor to those Offices or that Branch. (B) Direction of incoming communications. (i) In general. Department of Homeland Security employees must direct communications described in subparagraph (A) to the channels or offices listed in clauses (i) through (iii) of subparagraph (A). (ii) Rule of construction. This subparagraph does not prevent— (I) any person from communicating with the Ombudsman of U.S. Citizenship and Immigration Services about the immigrant investor program under section 1153(b)(5) of this title; or (II) the Ombudsman from resolving problems about that immigrant investor program under the authority granted by section 272 of title 6. (C) Log. (i) In general. The Director of U.S. Citizenship and Immigration Services must maintain a written or electronic log of— (I) all communications described in subparagraph (A) and communications from Members of Congress. The log must state the date, time, and subject of the communication and the identity of the Department official, if any, to whom the inquiry was forwarded; (II) for written communications described in subsection (c)(1), the date the communication was received, the identities of the sender and addressee, and the subject of the communication; and (III) for oral communications described in subsection (c)(2), the date the communication occurred, the participants in the conversation or meeting, and the subject of the communication. (ii) Transparency. The log of communications described in clause (i) must be made publicly available under section 552 of title 5, commonly known as the “Freedom of Information Act.” (3) Publication of information. Not later than 30 days after a person or entity asking about a specific case or generally about the immigrant visa program described in section 1153(b)(5) of this title receives, because of a communication with a Department of Homeland Security official, generally applicable information that is not case-specific about program requirements or administration and that the Department has not made publicly available, the Director of U.S. Citizenship and Immigration Services must publish that information on the U.S. Citizenship and Immigration Services website as an update to the relevant Frequently Asked Questions page or through another comparable method. (f) Penalty. (1) In general. A person who intentionally violates the prohibition on preferential treatment under this section or intentionally violates the reporting requirements under subsection (c) must be disciplined under paragraph (2). (2) Sanctions. Not later than 90 days after March 15, 2022, the Secretary of Homeland Security must establish a graduated set of sanctions based on how serious the violation described in paragraph (1) is. The sanctions may include, in addition to any criminal or civil penalties that may be imposed, a written reprimand, suspension, demotion, or removal. (g) Rule of construction regarding classified information. Nothing in this section may be construed to change any law, regulation, or policy concerning the handling or disclosure of classified information. (h) Rule of construction regarding private right of action. Nothing in this section may be construed to create or authorize a private right of action to challenge a decision of a Department of Homeland Security employee. (i) Effective date. This section and the amendments made by this section take effect on March 15, 2022.