Homeland Security Legislation on Fast Track
Posted Nov 22, 2002

The Homeland Security bill (H.R. 5710), which contains significant immigration provisions, passed the U.S. House of Representatives on November 13, 2002. This bill, which is supported by the White House, passed the U.S. Senate one week later, on November 19, and all indications are that the President will sign it very soon. The legislation abolishes the INS and moves its functions to the Department of Homeland Security. The MurthyBulletin previously covered Homeland Security legislation in our June 14, 2002 article, President Proposes Department of Homeland Security and in Congressional Action on Homeland Security Bills, August 19, 2002.

Under the new framework in this legislation, the immigration "benefits" functions will be separate from immigration enforcement functions. Immigration benefits, including immigrant visa petitions, naturalization applications, asylee and refugee applications, as well as any other adjudications now being performed by INS, will be the responsibility of the new "Bureau of Citizenship and Immigration Services." INS enforcement functions, including Border Patrol, detention and removal, intelligence, investigations and inspections, will all be transferred to the Under Secretary for Border and Transportation Security.

The Executive Office of Immigration Review (EOIR) will remain within the U.S. Department of Justice (DOJ), where it currently resides. EOIR contains the Immigration Courts and the Board of Immigration Appeals.

The responsibility for visa issuance will fall under the control of Homeland Security, acting through the U.S. Department of State (DOS). At present, visa issuance is exclusively a DOS function. The Department of Homeland Security would have the authority to issue regulations regarding the functions of Consular Officers in making decisions on visa approvals or denials. The Secretary of State would retain authority to refuse visas on security or foreign policy grounds, as well as under certain other, specified provisions of existing law. Employees of the Department of Homeland Defense would be assigned to visa-issuing consular posts. Their role within the consulates would be to provide advice and training to Consular Officers regarding security threats pertaining to individual visa applications or classes of applications. They will review any applications that appear to pose security risks and will conduct investigations relating to Homeland Security.

The legislation gives rise to a number of concerns. In particular, the benefits side of immigration is given less importance than enforcement. Also, the proposed structure does not allow for necessary coordination between the benefits and enforcement agencies. These two immigration roles are interconnected and should work closely together to ensure the efficient administration of justice. Whenever one applies for an immigration benefit, an essential part of the decision process is whether there is any reason to disqualify that person based on enforcement concerns. When one travels abroad and goes through Inspections at the Port of Entry, the Inspector there is the official, acting in an enforcement capacity, who reviews approval notices and other paperwork issued by the benefits side of INS. In doing so, that Inspector will determine whether the person should be admitted to the U.S. We expect that this legislation will be enacted and that it will have enormous impact on every aspect of the immigration process. Stay tuned to MurthyBulletin and MurthyDotCom for more on this important legislation as it develops.