Informed statisticians inside the government and out calculate that, at a minimum, about 40 percent of those living in our country without permission initially entered legally through land, sea and air ports of entry and then simply overstayed their periods of authorized admission, melting into the interior and working illegally, often by assuming the identities and using the critical data (such as Social Security numbers) of citizens and lawful residents. In other words, nearly half of the illegal-alien population consists of individuals who abused our visa and visa-waiver systems. The phenomenon has risen to a crisis level.
This is why I find it odd — anachronistic in the extreme — that the tipping point for the Senate, in its embarrassing rush to pass an immigration reform bill, any immigration reform bill no matter how flawed, was a last-minute amendment providing for a "surge" of Border Patrol agents on the southern land border.
Visa security was given short shrift. In fact, the only provision in the amendment that appeared to acknowledge the makeup of today's illegal-alien population was sadly laughable: Section 1201 ("Removal of Nonimmigrants Who Overstay Their Visas") directed the Homeland Security Secretary within 180 days to "initiate removal proceedings [or] confirm that immigration relief or protection has been granted or is pending, or otherwise close 90 percent of the cases of aliens who were admitted to the United States and then overstayed their visas in the 12 months following enactment" (emphasis added).
Well. There you have it. The Senate's solution is foolproof: Can't find all those pesky overstayed aliens, who may or may not be criminals or national security threats, and arrest them so you can initiate proceedings? Easy-peasy. Close their cases! Lotsa cases, lotsa problems; a few cases, a few problems; no cases, no problems.
In stark but pleasing contrast to puerile solutions, the House of Representatives has pending before it an immigration bill, H.R.2278, the "Strengthen and Fortify Enforcement (SAFE) Act", which recognizes the dimensions of the problem and provides real solutions that truly will "strengthen and fortify" the integrity of the current visa-issuing process and in so doing, help to keep our country safe. In fact, Title IV of the bill is entirely about Visa Security.
Here are a few highlights:
- Section 401: When a nonimmigrant visa is cancelled by the U.S. government, this section provides for a cascading effect that cancels all nonimmigrant visas held by the alien. Imagine this scenario: A foreign student violates his status and is allowed to leave voluntarily in lieu of being expelled. His student visa is cancelled. The student departs, but turns right around and attempts to enter using a multiple entry tourist visa valid for several years, which was issued prior to the student visa. Nothing stops him from doing so because there has been no authority to cancel the tourist visa concurrent with the student visa. This provision seals that loophole.
- Section 402: Expands the bases under which the Secretary of State may share otherwise-confidential information contained in visa application files, including for additional criminal or civil offenses committed by the applicant as well as to foreign governments when it is in the U.S. national interest.
- Section 403: Requires the Secretary of State to consult with the Secretary of the Department Homeland Secretary (DHS) before deciding to waive personal interviews of visa applicants; prohibits waivers of personal interviews for individuals or categories of visas where doing so is deemed by DHS to "create a high risk of degradation of visa program integrity"; and requires a finding that waivers be in the national interest — but precludes "in the national interest" from being decided on the basis of visa backlogs or limited consular resources.
- Section 404: Permits consular officers to waive personal interviews when applicants are clearly ineligible and will be denied whether or not the interview is conducted, and requires the Secretary of State to develop regulations to that effect.
- Section 405: Grants the DHS Secretary plenary authority to issue regulations and policies on the grant or denial of visas that are binding on American consular officers serving abroad; additionally grants the DHS Secretary authority, concurrent with the authority of the Secretary of State, to refuse or revoke visas to any alien or class of aliens, with the exception of diplomats and members of international organizations; and prohibits the Secretary of State from overriding a decision by the DHS Secretary to deny, refuse, or revoke a visa.
- Section 406: Places the DHS Visa Security Program on a sound fiscal footing by providing that a portion of the visa fees collected by the State Department be used to fund DHS Visa Security Officers at American embassies and consulates abroad.
- Section 407: Requires the Secretaries of State and DHS to jointly establish a list of the top 30 high-risk posts abroad for expansion of the DHS Visa Security Program, and requires review of visa applications at those posts by visa security officers (VSOs) before they may be adjudicated by consular officers.
- Section 408: Clarifies that chiefs of mission (usually ambassadors) of the 30 designated high-risk posts are required to cooperate and participate in ensuring that the DHS VSOs are cleared and in place on a priority basis, not to exceed one year after enactment into law. (In the past, chiefs of mission reluctant to accept VSOs have invoked NSDD-38, a presidential decision directive, as their authority to decline, or to slow down to a crawl, assignment of VSOs to their posts. This provision specifically cites NSDD-38 as inappropriate to attempt such a maneuver.)
- Section 409: Enhances the criminal penalties for violation of Title 18 U.S. Code Section 1546 (visa fraud) when committed by officials of schools authorized to accept foreign students and exchange visitors.
- Sections 410 and 413: Plug two massive loopholes in the foreign student program by requiring that participating schools and institutions demonstrate that they have been accredited by an agency recognized by the U.S. Department of Education (Sec. 410), or if engaged in flight training, certified by the Federal Aviation Administration (Sec. 413).
- Section 411: Provides that if the DHS Secretary suspects that fraud, or attempted fraud, has been committed by an authorized school or institution, he or she may suspend its access to the Student and Exchange Visitor's Information System (SEVIS), which effectively precludes the school or institution from issuing documentation required to grant a visa to enter the United States. It also provides that if an official of a school or institution is convicted of visa fraud, he or she is permanently disqualified from participation in any activities related to foreign students or exchange visitors.
- Section 412: Requires national security and criminal history background checks of school and institution officials before they may be permitted to act as "designated officials" for purposes of issuing documents to prospective foreign students or exchange visitors.
- Section 414: Requires notification to DHS when accreditation of a school or institution is revoked, at which time access to SEVIS must be suspended.
- Sections 415 and 416: Provide for required reports to Congress by the DHS Secretary (Sec. 415), and the Government Accountability Office (Sec. 416), on strategic planning and execution of those plans, in defining and mitigating risks in the student and exchange visitor program.
- Section 417: Requires the DHS Secretary, within two years of enactment, to have in place the successor SEVIS II system, which has been in development for several years without having been successfully concluded and fully deployed.
As can be seen by this brief outline, the various sections of this title:
- Reflect common sense;
- Have been carefully thought out; and
- Are well-crafted because they exhibit a detailed knowledge of the strengths and weaknesses of U.S. visa processes, as well as their susceptibility to political decisions that are not always in the national interest.
What could be better than that?
