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Testimony of John Ratigan
Immigration Consultant
Baker & McKenzie
Washington, D.C.
H.R. 5005: The Border Security Act of 2002
House Subcommittee On Immigration, Border Security And Claims
June 27, 2002

Good afternoon, Mr. Chairman and members of the Subcommittee. Thank you for the opportunity to testify today. My experience in immigration covers 30 years, including 25 years as a State Department Foreign Service Officer, specializing in immigration and visa matters. During that time, I served as the Consul General or supervisory consular and visa officer in Singapore, Republic of Singapore; Cairo, Egypt; Toronto, Canada; and Seoul, Korea. I also served two and a half years on detail from the State Department as Counsel to the Senate Immigration Subcommittee. Since my retirement from the State Department in 1997, I have worked as an immigration consultant; I am currently with Baker & McKenzie here in Washington. The views I will express today are entirely my own and do not reflect the views of the firm I work for nor any of its clients.

I will focus my testimony on Title IV of the draft legislation, and particularly on the visa function -- the overseas portion of the immigration process -- on who should direct and be responsible for the visa function and how it should be staffed.

A. The Visa Function should be directed by the Department of Homeland Security.

The visa function should be transferred from the Department of State (“State”) to the Department of Homeland Security (“DHS”). Once at DHS, it should be incorporated into the Immigration and Naturalization Service, to form a single, unified government entity responsible for the formulation and implementation of U.S. immigration policy.

This proposal may seem radical or dramatic to some. I believe it is, in fact, a rational and sensible change that would finally -- 50 years after the passage of the Immigration and Nationality Act -- give the United States a single policy-making and implementing body in the field of immigration.

The reasons for making this change are several.

  1. It Provides a More Rational Structure.

    Unifying U.S. immigration policy formulation and implementation under one roof will put an end to the awkward and ungainly structure which has been in place for the past 50 years, since the passage of the Immigration and Nationality Act in 1952. Under the current structure, there are now two administrative organizations - State and the Immigration and Naturalization Service (“INS”) - each of which maintains control over its own turf, and neither of which regards itself as being fully responsible for immigration successes or failures.

    By uniting the overseas (State) and the domestic (INS) elements of the immigration process under DHS, the United States will follow the model set by Australia and Canada, both of whom have unitary immigration services, well respected for efficiency and professionalism.

    Under the current system, as I say, while responsibility is shared, leadership is not sought. The culture at State has been, for at least 30 years, that State is not an immigration organization, it is a foreign policy organization. Therefore State does not take the initiative to suggest legislative changes in the immigration field. The view is, as best as I can determine, that the State Department’s political capital on the Hill should be saved for foreign policy and budgetary matters.

    The culture at INS, as I have been able to observe it, has been to regard itself primarily as an implementing agency, rather than as a formulator of policy. Most legislative changes of the past 20 years have originated in the Congress, not with either State or INS. Congress, to an unusual degree, continues to set the direction of immigration policy.

    I believe that the joining of the domestic and overseas functions under a single authority carries potentially more significant benefits to the organization than does, for example, the separation of the enforcement and benefits functions. This move establishes a structure that at least gives us the possibility of developing an Immigration Service of the caliber of the Australians’ and the Canadians’.

  2. It Will Improve Internal Communication.

    Uniting all immigration functions in a single organization cannot help but improve communication and coordination among the offices and individuals performing that work. As a State Department visa officer, you were at the end of a long thread reaching back to a Washington office (State) that got its instructions from another Washington office (INS) which in turn passes those instructions on to you. In some cases, one Washington office didn’t feel the need to coordinate with the other Washington office at all.

    Having all visa/immigration personnel on the same e-mail system, reading the same internal memos and directions, can not help but dramatically improve communication and coordination.

    A single organization should also improve communication with other agencies, who will now have a clearer view of the risks of sharing or not sharing their information with the Immigration Service.

  3. It Should Improve Case Handling for Applicants.

    Visa applicants often suffer the inefficiencies of the currently divided system when they must change from one processing organization to the other. When they are the beneficiary of an approved immigrant petition, for example, and want to pick up their visa at an Embassy or Consulate overseas, the service provided by the State Department is efficient once the work is begun, but the delay in moving from INS to State jurisdiction can take several months.

    Similarly, a visa applicant at an Embassy who must obtain a waiver of ineligibility from INS can suffer waits of many months as paper moves between the two bureaucracies.

    The paper-processing itself must be improved, but a unitary system should break down the jurisdictional walls.

  4. It will make the Immigration Service more attractive as a Profession.

    The INS at present is not a highly appealing organization to work for. Recruiting can be difficult and current officers are reported to be leaving for better-paying or more attractive jobs in other agencies or departments. Adding several hundred overseas positions - and perhaps more than that - to the INS, and thus making it a truly international rather than national organization, will certainly make it more attractive as an employer. It will also increase the variety available to immigration officers, and should increase its appeal to federal job-seekers.

    Again, the model is the Canadian and Australian immigration services, which are able to attract skilled professionals who take pride in their association with their employer.

  5. The Department of State has in the past accorded a lower priority to Fraud and Security Matters.

    The State Department’s concern with the impact of the visa process on bilateral relations with the host country has caused it to stress the public relations aspects of the visa process. For a decade or more, the principal message from Washington to consular officers abroad has been that the role of the consular officer was to “facilitate and promote international travel and the free movement of people of all nationalities to the United States.” (Volume 9 (Visas) of the Foreign Affairs Manual, at section 41.31 Note 1.)

    It was not difficult for officers to translate that language into an encouragement to issue visas, and not to be overly concerned about enforcement-related issues such as fraud, except where an applicant’s prior conduct led to clear visa ineligibilities under the Act.

    That message was underscored four to five years ago, when the Office of Fraud Prevention Programs in the Consular Affairs Bureau was abolished and its officers were disbursed among other Offices within Consular Affairs. It was widely believed at that time that the “reorganization” was designed to marginalize Fraud Prevention and diminish its role in policy formulation, especially in regard to instructions for the issuance or denial of visas.

    The State Department’s interest in “facilitating travel” would seem to be at odds with the current sense that we must now regard the visa function as playing a central role in our national security.

B. The Visa Function should Continue to be Staffed Principally by State Department Officers.

I recommend that each U.S. visa operation abroad would have one or two supervisors from DHS. Small posts such as those in Africa might have no supervisors, but rather a “circuit-riding” DHS supervisor based in the region.

The majority of visa officers would continue to be, as they are now, junior officers from the State Department. This arrangement might be only transitional, until DHS can recruit and train its own officers. DHS could find that this arrangement works well, however. These junior officers, in their first or second tour, are highly capable, highly motivated, and highly productive. While their visa adjudications can be inconsistent from one officer to another, they often possess strong language skills and have a deep interest in foreign cultures that drew them to join the State Department in the first place.

The Foreign Service Officers might be supplemented by U.S.-based or locally-based American personnel hired by DHS.

It is often said that junior State officers are demoralized by adjudicating visas and eager to move on to other more mainstream State Department work. The work in high volume posts is difficult and often unrelenting, but the young officers perform their work with a positive outlook, to their credit, and do it better than anyone else I can imagine. Visa interviewing also provides these officers with useful training for their future careers in the Foreign Service, as visa interviewing affords valuable insights into the operations of foreign cultures and economies.

The junior officers’ professional development within and ties to the State Department could be maintained by Homeland Security and State Department officers sharing in the performance evaluation of them.

C. Responding to the Concerns of the Department of State.

The press has reported that the State Department would like to have its consular officers continue to handle the interview and issuance/refusal functions. There is a traditional view within State that importing INS officers to conduct visa interviews would create public relations problems, as there could be a lack of sensitivity to local cultures as well as difficulty in maintaining control of officers responding to a Department other than State.

The arrangement of having junior Foreign Service Officers administer the visa functions under the direction of DHS supervisors should meet many of these concerns. There might well be moments of tension between senior Embassy managers and DHS supervisors, but I am optimistic that, after some adjustment period, the DHS personnel would come to appreciate local sensitivities and Mission needs. Other government Departments, including Defense and Justice, have shown their ability to adapt when assigned to Embassies and Consulates overseas.

It should be noted that the State Department has a financial interest in the visa function as well. The Machine Readable Visa (“MRV”) fee of formerly $45, now $65, per visa application is a significant source of non-appropriated funds. With State issuing roughly six to seven million visas per year, it could represent future revenues of as much as $400 million annually to the State Department.. State might well contend that if its officers are to continue to administer the visa function, it should continue to receive some or all of those MRV fees. In any case, it will be concerned at the possible loss of such a significant source of funding.

D. The New, Unified Immigration Service Should Take Steps to Avoid Becoming an Unresponsive, Enforcement-Minded Monolith.

Immigration advocates and other observers are likely to express the justifiable fear that moving the State Department’s visa function into DHS will create a vast, enforcement-minded monolith, devoted to the refusal of visas and reflecting a paranoid, “siege mentality.” What steps can be taken to avoid both the mindset and the reality?

The new entity will constantly have to bear in mind, and should be regularly reminded, that 99-plus percent of travelers to the United States are not terrorists, and have not the slightest interest in bringing harm to the United States. Some may desire to work here without authorization, but very few intend to harm us or our institutions. Business, tourism and education, to name only three, depend on the smooth functioning of our immigration and border control systems. DHS can not afford to lose their confidence.

The new entity must therefore make it a high priority to resolve cases of possible terrorists, criminals or other malefactors not only accurately but quickly. Many of these cases turn out to be simply cases of mistaken identity, when someone has the same or similar name as someone else, perhaps coupled with some similarity in nationality or date of birth. To resolve those cases quickly and accurately, DHS should establish an operations center which would have access to the best information available to the Federal government. The critical failure in the issuance of visas to persons who turn out to be terrorists has been the inability to match up current applicants with the information available about them.

Increasing the profile of national security issues in visa adjudications also threatens to add “national security” to the list of justifications for unresponsiveness or delays in adjudication. The rationale for including immigration in DHS is of course to enable INS to get these adjudication decisions right in cases where probable cause exists. But DHS must avoid reaching for the “national security” justification when it is not really merited. Maintaining its responsiveness will be a major challenge for the new organization, one that it will have to work on. One possible approach to achieve this objective would be to require periodic consultations on the visa-issuance function between DHS and an inter-agency task force that would include the Department of State and perhaps the Department of Commerce.

E. Comments on Title IV As Drafted.

The provisions of Title IV of the draft legislation are confusing and ambiguous in key areas. Some brief comments:

  1. Section 403(a)(1) gives the Secretary of DHS “exclusive authority, through the Secretary of State, to issue regulations,” etc. The ambiguity of giving power to one Cabinet secretary to act through another Cabinet secretary is self-evident. Questions of veto power and dispute resolution immediately come to mind. It is not clear to me why the regulations should be issued through the Secretary of State at all. If Congress wishes State to have a role in the formulation of visa regulations - which I would see no need for - then, I would suggest wording such as “exclusive authority, in consultation with the Secretary of State where appropriate, to issue regulations, etc.”

  2. While Section 403(a)(1) gives the Secretary of DHS “exclusive authority . . . to issue regulations . . ., administer, and enforce the [Immigration and Nationality Act],” it fails to transfer any personnel or assets of the State Department for that purpose. The State Department’s Visa Office contains all the expertise required to carry out that mandate, however, as it applies to the visa function. If DHS is not to start from scratch, some or all of the personnel supervised by the Deputy Assistant Secretary of State for Visa Services should be transferred to DHS.

  3. If the language of section 403(a)(1) is intended to mean that DHS personnel can supervise or direct the activities of diplomatic and consular officers only “through the Secretary of State,” then I would suggest that such a relationship will prove very difficult if not impossible to sustain. If the State Department’s junior officers are to administer the visa function, DHS officers must be free to supervise them directly. The Embassy’s senior executives should in turn make their policy concerns known directly to the Homeland Security supervisors. If that relationship ultimately proves unsatisfactory, the Ambassador can demand the removal of the uncooperative officer. I believe that State can ensure that its junior officers remain responsive to State concerns by giving senior State officers a role in the performance evaluations of the junior officers.

  4. Section 403(b) can be read at first glance to give the Secretary of State broad authority to refuse visas: its exact meaning as currently drafted is ambiguous. The accompanying analysis indicates that the intention was to “preserv[e] the Secretary of State’s traditional authority to deny visas to aliens based upon the foreign policy interests of the United States.” Assuming that is indeed the intent, I would suggest that the language be amended to specify that established authority, such as, “The Secretary of State will have exclusive authority to refuse a visa to an alien under section 212(a)(3)(C) of the Immigration and Nationality Act.”

  5. Finally, in section 401(3), regarding the responsibilities of the Under Secretary for Border and Transportation Security, just to remove any doubt on the point, I would include authority over the refusal of visas as well as the granting of them. I would also suggest the removal of the words, “or lawful permanent residents,” as the Immigration and Nationality Act contains some provisions regarding the entry of lawful permanent residents.
In summary, I would recommend that Title IV of the draft legislation be amended to:
  • Reflect a unitary immigration structure, in which domestic and foreign immigration functions are handled by a single entity, the Department of Homeland Security;

  • Authorize the direct issuance by DHS, without passage through the State Department, of regulations regarding the visa function, with such participation by the State Department in the regulation-writing process as Congress deems appropriate;

  • Transfer relevant personnel and assets from the State Department to DHS to enable it to carry out the responsibilities described above;

  • Authorize, if necessary, junior State Department officers to be directly supervised by DHS personnel in the implementation of the visa function abroad.