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H.Doc.108-133 INTENTION TO REALLOCATE FUNDS PREVIOUSLY TRANSFERRED FROM THE ...


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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)

<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>


   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 

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