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H.R.5005
Homeland Security Act of 2002 (Enrolled as Agreed to or Passed by
Both House and Senate)
SEC. 428. VISA ISSUANCE.
(a) DEFINITION- In this subsection, the term `consular office' 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, 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).
(c) AUTHORITY OF THE SECRETARY OF STATE-
(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. 6034; Public Law 104-114).
(L) Section 613 of the Departments of Commerce, Justice, and State,
the Judiciary and Related Agencies Appropriations Act, 1999 (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 (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,
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).
(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 the date of enactment of this
Act, 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 the date of enactment of this
Act.
(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 the date of the enactment of
this Act, 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 Affairs of
the Senate.
(h) REPORT- Not later than 120 days after the date of the enactment of
this Act, 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 the date
of the enactment of this Act 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.
SEC. 429. INFORMATION ON VISA
DENIALS REQUIRED TO BE ENTERED INTO ELECTRONIC DATA SYSTEM.
(a) IN GENERAL- Whenever a consular officer of the United States denies a
visa to an applicant, the
consular officer shall enter the fact and the basis of the denial and the name
of the applicant into the interoperable electronic data system implemented
under section 202(a) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8
U.S.C. 1722(a)).
(b) PROHIBITION- In the case of any alien with respect to whom a visa has been denied under subsection
(a)--
(1) no subsequent visa may
be issued to the alien unless the consular officer considering the alien's
visa application has reviewed
the information concerning the alien placed in the interoperable electronic
data system, has indicated on the alien's application that the information
has been reviewed, and has stated for the record why the visa is being issued or a waiver of
visa ineligibility recommended
in spite of that information; and
(2) the alien may not be admitted to the United States without a visa issued in accordance with the
procedures described in paragraph (1).
SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.
(a) IN GENERAL- The Office for Domestic Preparedness shall be within the
Directorate of Border and Transportation Security.
(b) DIRECTOR- There shall be a Director of the Office for Domestic
Preparedness, who shall be appointed by the President, by and with the advice
and consent of the Senate. The Director of the Office for Domestic
Preparedness shall report directly to the Under Secretary for Border and
Transportation Security.
(c) RESPONSIBILITIES- The Office for Domestic Preparedness shall have the
primary responsibility within the executive branch of Government for the
preparedness of the United States for acts of terrorism , including--
(1) coordinating preparedness efforts at the Federal level, and working
with all State, local, tribal, parish, and private sector emergency response
providers on all matters pertaining to combating terrorism , including training,
exercises, and equipment support;
(2) coordinating or, as appropriate, consolidating communications and
systems of communications relating to homeland security at all levels of
government;
(3) directing and supervising terrorism preparedness grant
programs of the Federal Government (other than those programs administered
by the Department of Health and Human Services) for all emergency response
providers;
(4) incorporating the Strategy priorities into planning guidance on an
agency level for the preparedness efforts of the Office for Domestic
Preparedness;
(5) providing agency-specific training for agents and analysts within
the Department, other agencies, and State and local agencies and
international entities;
(6) as the lead executive branch agency for preparedness of the United
States for acts of terrorism ,
cooperating closely with the Federal Emergency Management Agency, which
shall have the primary responsibility within the executive branch to prepare
for and mitigate the effects of nonterrorist-related disasters in the United
States;
(7) assisting and supporting the Secretary, in coordination with other
Directorates and entities outside the Department, in conducting appropriate
risk analysis and risk management activities of State, local, and tribal
governments consistent with the mission and functions of the Directorate;
and
(8) those elements of the Office of National Preparedness of the Federal
Emergency Management Agency which relate to terrorism , which shall be
consolidated within the Department in the Office for Domestic Preparedness
established under this section.
(d) FISCAL YEARS 2003 and 2004- During fiscal year 2003 and fiscal year
2004, the Director of the Office for Domestic Preparedness established under
this section shall manage and carry out those functions of the Office for
Domestic Preparedness of the Department of Justice (transferred under this
section) before September 11, 2001, under the same terms, conditions,
policies, and authorities, and with the required level of personnel, assets,
and budget before September 11, 2001.
Subtitle D--Immigration Enforcement Functions
SEC. 441. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR BORDER AND
TRANSPORTATION SECURITY.
In accordance with title XV (relating to transition provisions), there
shall be transferred from the Commissioner of Immigration and Naturalization
to the Under Secretary for Border and Transportation Security all functions
performed under the following programs, and all personnel, assets, and
liabilities pertaining to such programs, immediately before such transfer
occurs:
(1) The Border Patrol program.
(2) The detention and removal program.
(3) The intelligence program.
(4) The investigations program.
(5) The inspections program.
SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY.
(a) ESTABLISHMENT OF BUREAU-
(1) IN GENERAL- There shall be in the Department of Homeland Security a
bureau to be known as the `Bureau of Border Security'.
(2) ASSISTANT SECRETARY- The head of the Bureau of Border Security shall
be the Assistant Secretary of the Bureau of Border Security, who--
(A) shall report directly to the Under Secretary for Border and
Transportation Security; and
(B) shall have a minimum of 5 years professional experience in law
enforcement, and a minimum of 5 years of management experience.
(3) FUNCTIONS- The Assistant Secretary of the Bureau of Border
Security--
(A) shall establish the policies for performing such functions as
are--
(i) transferred to the Under Secretary for Border and Transportation
Security by section 441 and delegated to the Assistant Secretary by the
Under Secretary for Border and Transportation Security; or
(ii) otherwise vested in the Assistant Secretary by law;
(B) shall oversee the administration of such policies; and
(C) shall advise the Under Secretary for Border and Transportation
Security with respect to any policy or operation of the Bureau of Border
Security that may affect the Bureau of Citizenship and Immigration
Services established under subtitle E, including potentially conflicting
policies or operations.
(4) PROGRAM TO COLLECT INFORMATION RELATING TO FOREIGN STUDENTS- The
Assistant Secretary of the Bureau of Border Security shall be responsible
for administering the program to collect information relating to
nonimmigrant foreign students and other exchange program participants
described in section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372), including the Student and Exchange Visitor
Information System established under that section, and shall use such
information to carry out the enforcement functions of the Bureau.
(5) MANAGERIAL ROTATION PROGRAM-
(A) IN GENERAL- Not later than 1 year after the date on which the
transfer of functions specified under section 441 takes effect, the
Assistant Secretary of the Bureau of Border Security shall design and
implement a managerial rotation program under which employees of such
bureau holding positions involving supervisory or managerial
responsibility and classified, in accordance with chapter 51 of title 5,
United States Code, as a GS-14 or above, shall--
(i) gain some experience in all the major functions performed by
such bureau; and
(ii) work in at least one local office of such bureau.
(B) REPORT- Not later than 2 years after the date on which the
transfer of functions specified under section 441 takes effect, the
Secretary shall submit a report to the Congress on the implementation of
such program.
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