Cite as "AILA InfoNet Doc. No. 02120240 (posted Dec. 2, 2002)"
THE HOMELAND SECURITY ACT OF 2002
Pub. L. No. 107-296, 116 Stat. 2135
Section-by-Section Summary of Immigration Provisions
TITLE I- Department of Homeland Security
Section 101 - Executive Department; Mission
The primary mission of the Department is to—
- Prevent terrorist attacks within the United States;
- Reduce the vulnerability of the United States to terrorism;
- Minimize the damage, and assist in the recovery, from terrorist attacks that
do occur within the United States;
- Carry out all functions of entities transferred to the Department, including
by acting as a focal point regarding natural and manmade crises and emergency
- Ensure that the functions of the agencies and subdivisions within the
Department that are not related directly to securing the homeland are not
diminished or neglected except by a specific explicit Act of Congress;
- Ensure that the overall economic security of the United States is not
diminished by efforts, activities, and programs aimed at securing the homeland;
- Monitor connections between illegal drug trafficking and terrorism,
coordinate efforts to sever such connections, and otherwise contribute to
efforts to interdict illegal drug trafficking.
Section 102 - Secretary; Functions
- Establishes the position of Secretary of Homeland Security as the head of
the Department of Homeland Security and sets forth the functions of that
- Establishes the position of Special Assistant to the Secretary who will be
responsible for advising the Secretary on the impact of the Department’s
policies, regulations and actions on the private sector; and creating private
sector advisory councils to advise the Secretary on homeland security policies
that affect industry and associations.
TITLE II- Information Analysis and Infrastructure Protection
SUBTITLE B- Critical Infrastructure Information
- Protection of voluntarily shared critical infrastructure information
- Protects critical infrastructure information accompanied by an express
statement protecting its disclosure and voluntarily submitted to a covered
Federal agency for use by that agency from FOIA requests. The name of the person
submitting the information is also FOIA exempt. Section 212 defines the term,
“covered Federal agency” as the Department of Homeland Security, and the term
“critical infrastructure information” as information that is not customarily in
the public domain and related to critical infrastructure systems or protected
systems, which includes physical systems, , computer based virtual systems and
information that affect national security.
- Protects information from rules regarding ex parte communications with a
decision making official; from use in any civil action unless there is written
consent; disclosure for purposes other than specific sanctioned uses; prohibits
disclosure of information provided to State or local governments or government
agencies; but does not create a waiver of any applicable privilege or protection
provided under law.
- Exempts critical infrastructure information that is not accompanied by an
express statement protecting its disclosure and voluntarily submitted to a
covered Federal agency for use by that agency from the disclosure
- Makes it a criminal act for an employee of the United States to knowingly
publish, divulge or disclose any protected information.
TITLE IV- Directorate of Border and Transportation Security
SUBTITLE A- Under Secretary for Border and Transportation
Section 401 - Under Secretary for Border and
- Establishes the position of Under Secretary for Border and Transportation
Security to head the Directorate of Border and transportation
Section 402 - Responsibilities
Establishes that the Secretary, acting through the Under Secretary, will be
responsible for the following:
- Preventing the entry of terrorists and the instruments of terrorism into the
- Securing the borders, territorial waters, ports, terminals, waterways, and
air, land, and sea transportation systems of the United States, including
managing and coordinating those functions transferred to the Department at ports
- Carrying out the immigration enforcement functions vested by statute in, or
performed by, the Commissioner of Immigration and Naturalization (or any
officer, employee, or component of the Immigration and Naturalization Service)
immediately before the date on which the transfer of the immigration functions,
as set forth under § 441, takes effect;
- Establishing and administering rules governing the granting of visas or
other forms of permission, including parole, to enter the United States to
individuals who are not a citizen or an alien lawfully admitted for permanent
residence in the United States;
- Establishing national immigration enforcement policies and priorities;
- Except as otherwise provided, administering the customs laws of the United
- Conducting the inspection and related administrative functions of the
Department of Agriculture transferred to the Secretary of Homeland
- In carrying out the foregoing responsibilities, ensuring the speedy,
orderly, and efficient flow of lawful traffic and commerce.
SUBTITLE C- Miscellaneous Provisions
Section 428 - Visa
- The Secretary of Homeland Security, acting through the Secretary of State,
is vested exclusively with all authorities to administer and enforce all laws,
and to issue regulations relating to the functions of consular officers in the
granting or refusal of visas, and shall have the authority to develop programs
of homeland security training for consular officers. The Secretary of Homeland
Security shall not have authority to alter of reverse the decision of a consular
officer to refuse a visa.
- The Secretary of State is authorized to 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. The
Secretary of State shall continue to retain authority under specific areas of
the INA. [101(a)(15)(A); 204(d)(2); 212(a)(3)(B)(i)(IV)(bb);
212(a)(3)(B)(i)(VI); 212(a)(3)(B)(vi)(II); 212(a)(3)(C); 212(a)(10)(C); 212(f);
- The Secretary of Homeland Security is authorized to assign employees of the
Department of Homeland Security to each diplomatic and consular post at which
visas are issued, unless the Secretary determines that such an assignment would
not promote homeland security.
- Employees of the Department who are assigned to diplomatic or consular
posts shall perform the following functions:
- Provide expert advice and training to consular officers regarding specific
security threats relating to the adjudication of individual visa applications or
classes of applications;
- 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 application;
- Conduct investigations with respect to consular matters under the
jurisdiction of the Secretary of Homeland Security.
- The Secretary shall develop performance standards for the Secretary of State
to evaluate, in consultation with the Secretary and as deemed appropriate by the
Secretary, the performance of consular officers in the processing and
adjudication of applications for visas.
- When appropriate, employees of the Department may be permanently assigned to
diplomatic or consular posts. If the Secretary so directs, such employees shall
participate in the terrorist lookout committee established under section 304 of
the Enhanced Border Security and Visa Entry Reform Act of 2002.
- The Secretary shall ensure that any employee of the Department assigned to
these posts shall be provided the necessary training, including training in
foreign languages, interview techniques, and fraud detection techniques, and
other appropriate areas of study.
- This section shall take effect on the earlier of the date on which the
President publishes notice in the Federal Register that Congress has received
the memorandum of understanding between the Secretary and the Secretary of State
governing implementation of this section, or one year after the enactment of
Section 429 - Information on Visa Denial Required to Be Entered Into
Electronic Data System
- Whenever a consular officer denies a visa to an applicant, the fact of the
denial, the basis for such denial, and the name of the applicant shall be
entered into the interoperable electronic data system implemented under section
202 of the Enhanced Border Security and Visa Entry Reform Act of
- For any person who has been denied a visa, no subsequent visa may be issued
to the person unless the consular officer considering it has reviewed the
information concerning the person placed in the interoperable data system, has
indicated on the person’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. The person may not be
admitted to the United States without a visa issued in accordance with these
SUBTITLE D- Immigration Enforcement Functions
Section 441 - Transfer of Functions to Under Secretary for Border and
- Transfers the following five programs from the Commissioner of the INS to
the Under Secretary for Border and Transportation Security: Border Patrol;
detention and removal; intelligence; investigations; inspections. Included in
the transfer are all the functions performed by these programs immediately prior
to the transfer, along with all personnel, assets and liabilities.
Section 442 - Establishment of the Bureau of Border Security
- Establishes the Bureau of Border Security within the Department of Homeland
- Establishes the position of Assistant Secretary of the Bureau of Border
Security. The position will head the Bureau and will report directly to the
Under Secretary for Border and Transportation Security:
- Qualifications for the position: at least five years of experience in both
law enforcement and management experience;
- Duties: advise the Under Secretary of any policy or operation that may
affect the Bureau of Citizenship and Immigration; establish policies and oversee
the administration of the immigration functions that were transferred to the
Under Secretary of Border and Transportation under Section 441 and then
delegated to the Assistant Secretary, or the functions that were vested in the
Assistant Secretary by law (Note: This provision seems to indicate that the
Under Secretary does not have to transfer the immigration provisions into this
- Responsible for administering SEVIS and other programs established under
§641 of IIRAIRA to collect information relating to foreign students and other
exchange program participants and use that information to carry out the
enforcement functions of the Bureau;
- Design and implement a managerial rotation program where managerial and
supervisory staff will gain experience in all the major functions of the Bureau
and work in at least one local office. Two years after the transfer of the
immigration functions, the Secretary will submit a report to Congress on this
- Establishes the position of Chief of Policy and Strategy for the Bureau of
Border Security. Responsibilities include: consulting with personnel in local
offices; researching policy issues; analyzing and making policy recommendations
on immigration enforcement issues; and coordinating immigration policy with
Chief of Policy and Strategy for the Bureau of Citizenship and
- Establishes the position of Legal Advisor to the Assistant Secretary of the
Bureau of Border Security. This position will provide legal advice to the
Assistant Secretary and will represent the Bureau in all exclusion, deportation,
and removal proceedings before the EOIR.
Section 443 - Professional Responsibility and Quality Review
- Provides that the Under Secretary for Border and Transportation Security is
responsible for the following: investigations of misconduct, corruption and
fraud involving Bureau personnel, not including those subject to the Inspector
General’s investigations; inspections of operations and assessment of the
quality of the Bureau’s operations and the operations of each of its components;
analysis of the management of the Bureau.
Section 444 - Employee Discipline
- Establishes that the Under Secretary for Border and Transportation Security
may discipline and terminate Bureau employees, who willfully deceive Congress or
agency leadership, pursuant to the policies and procedures of the FBI.
Section 445 - Report on Improving Enforcement Functions
- Mandates a report by the Secretary detailing how the Bureau will enforce the
enforcement provisions of the INA. The report is due to the House and Senate
Committees on Appropriations and Judiciary one year after the Secretary is sworn
in to office.
- Provides that the Secretary shall consult with the following to determine
the most effective way to conduct enforcement operations: Attorney General;
Secretary of State; Director of the FBI; Secretary of Labor; Secretary of the
Treasury; Commissioner of Social Security; Director of EOIR; heads of States and
local law enforcement agencies.
Section 446 - Sense of Congress Regarding Construction of Fencing Near San
- Completing the 14-mile border fence project set forth in §102(b) of IIRAIRA
should be a priority.
SUBTITLE E- Citizenship and Immigration Services
Section 451 - Establishment of Bureau of Citizenship and Immigration
- Establishes the “Bureau of Citizenship and Immigration Services” to be
headed by a Director. The Director will report directly to the Deputy Secretary
for Homeland Security, have 5 years management experience, and be paid at the
same level as the Assistant Secretary of the Bureau of Border
- The Director is required to meet regularly with an Ombudsman described in
§452 of this Act.
- Within one year of the effective date, the Director shall design and
implement a managerial rotation program where supervisors and managers gain
experience in all major functions of the bureau and work in at least one field
office and one service center.
- Authorizes the Director to institute a pilot program to eliminate backlogs
in the processing of immigrant benefit applications.
- Transfers the following functions from the INS commissioner to the
- Adjudications of immigrant visa petitions;
- Adjudications of naturalization petitions;
- Adjudications of asylum and refugee applications;
- Adjudications performed at service centers;
- All other adjudications performed by the Immigration and Naturalization
Service immediately before the effective date specified in §455 of this
- Establishes a position of Chief of Policy and Strategy for the Bureau who
will make policy recommendations on service issues and coordinate with the
Policy Chief of the Bureau of Border Security.
- Establishes a position of Legal Advisor to the Director who will give legal
advice and represent the Bureau in visa petition appeal proceedings before the
Section 452 - Citizenship and Immigration Services Ombudsman
- Establishes a position of Ombudsman who will report directly to the Deputy
Secretary and who shall identify service problem areas, report these problems,
propose changes and monitor the local offices of the Ombudsman.
- Requires the Ombudsman to have a background in customer service and
Section 459 - Report on Improving Immigration Services
- Requires the Secretary to submit a plan to the House and Senate, no later
than one year after enactment, on how the Bureau will complete adjudications
efficiently and fairly.
Section 460 - Report on Responding to Fluctuating Needs
- Requires the Attorney General to submit to Congress a report on any changes
in law needed to ensure a prompt response to changes in immigration service
Section 461 - Application of Internet-Based Technologies
- Requires the Secretary to establish an Internet-based system that will allow
persons access to online immigration services information.
Section 462 - Children’s Affairs
- Authorizes the Director of the Office of Refugee Resettlement (ORR) of the
Department of Health and Human Services to take over the functions of the
immigrations laws formerly vested in statute, and performed by the commissioner,
with respect to unaccompanied alien children.
- Provides that the ORR Director is responsible for, among others, the
- Developing a plan to be submitted to Congress on how to ensure that
qualified and independent legal counsel is timely appointed to represent the
interests of each such child, “consistent with the law regarding appointment of
counsel that is in effect on the date of the enactment of this Act”;
- Compiling, updating, and publishing at least annually a state-by-state list
of professionals or other entities qualified to provide guardian and attorney
representation services for unaccompanied alien children.
- Requires the ORR Director to coordinate with other agencies to ensure that
unaccompanied children are likely to appear for their hearings and are protected
from dangerous elements. The section also states that the Director shall not
release such children upon their own recognizance.
- Encourages the Director of ORR to use the refugee children foster care
- Transfers the Department of Justice personnel and funding currently
allocated to the functions of caring for unaccompanied alien children to the
Director of ORR.
SUBTITLE F- General Immigration Provisions
Section 471 - Abolishment of INS
- Abolishes the INS.
- Prohibits the Secretary from using the reorganization authority given to him
under §1502 of this Act to recombine the two immigration Bureaus into a single
agency, or otherwise combine, join or consolidate functions or units of the two
bureaus with each other.
- Permits the reorganization of the functions within a single
Section 472 - Voluntary Separation Incentive Payments
- Establishes the authority and procedures by which the Attorney General and
Secretary may make voluntary separation incentive payments to employees to the
extent necessary to carry out their restructuring plan.
Section 473 - Authority to Conduct a Demonstration Project Relating to
- Establishes the authority and procedures by which the Attorney General and
Secretary may conduct demonstration projects within the first 5 years after the
date of enactment of this Act to determine whether changes in the employee
disciplining policies would result in improved personnel management.
Section 475 - Director of Shared Services
- Creates the position of Director of Shared Services within the Office of
- Makes the position responsible for the coordination of resources for the two
immigration Bureaus, including: information resources management; records and
file management; and forms management.
Section 476 - Separation of Funding
- Establishes separate accounts in the U.S. Treasury for the two immigration
- Separates the budget requests for each Bureau.
- Establishes that fees for services, applications or benefits shall be
deposited into the account of the Bureau that has jurisdiction over the function
to which the fee relates.
- States that fees are not transferable for purposes that are not set forth in
§286 of the INA.
Section 477 - Reports and Implementation Plans
- Mandates report by the Secretary on the proposed division and transfer of
funds between the two immigration Bureaus. Report shall be submitted 120 days
after effective date of this Act to the House and Senate Committees on
Appropriations and Judiciary.
- Mandates report by the Secretary on the proposed division of personnel
between the two immigration Bureaus. Report shall be submitted 120 days after
effective date of this Act to the House and Senate Committees on Appropriations
- Mandates an implementation plan by the Secretary on the proposed division
and transfer of funds between the two immigration Bureaus. Report shall be
submitted 120 days after effective date of this Act and every 6 months
thereafter until the end of FY2005 to the House and Senate Committees on
Appropriations and Judiciary.
- Establishes that the implementation plan should include details regarding
the separation of the two immigration Bureaus, including the following:
organizational and field structure; chain of command; procedures for interaction
between the bureaus; fraud detection and investigation; processing and handling
of removal proceedings, including expedited removal and applications for relief
from removal; recommendations for comforting amendments to the INA;
establishment of a transition team; and methods to phase in costs of dividing
the administrative support systems.
- Mandates a status report on transition by Comptroller General. The report
shall be submitted 18 months after the transfer of the immigration functions to
Under Secretary for Border and Transportation Security, as set forth in §441 of
this Act, and every 6 months thereafter until the full implementation of Title
IV. The report will be submitted to the House and Senate Committees on
Appropriations and Judiciary. The report shall contain the following: status of
the transfer of immigration functions have been completed; issues that arose as
a result of the completed transfers; and identification of any issues that may
arise due to any future transfers.
- Mandates a study and a report on management by the Comptroller General. The
report shall be submitted 4 years after the transfer of the immigration
functions to Under Secretary for Border and Transportation Security, as set
forth in §441 of this Act. The report will be submitted to the House and Senate
Committees on Appropriations and Judiciary and shall contain the following:
whether the transfer of functions from the INS to the two Bureaus has improved
operations, management, financial administration, and record keeping; and
recommendations for further improvements to the two Bureaus.
- Mandates a report by the Comptroller General on whether the Bureau on
Citizenship and Immigration is likely to derive sufficient funds from fees to
carry out its functions without appropriated funds. The report shall be
submitted 1 year after enactment of this Act to the House and Senate Committees
on Appropriations and Judiciary.
Section 478 - Immigration Functions
- Mandates a report by the Secretary on the impact the transfers made by this
subtitle have had on immigration functions. Report shall be submitted 1 year
after the enactment of this Act and every year thereafter to the President, the
House Committees on the Judiciary and Government Reform, and the Senate
Committees on the Judiciary and Government Affairs.
- Requires the report to include the following: aggregate number of
immigration applications and petitions received and processed; region-by–region
statistics on the aggregate number of petitions filed by an alien and denied,
disaggregated by category of denial and application of petition type; quantity
of backlogged applications that have been processed; the number awaiting
processing and a plan for eliminating the backlog; average processing period for
immigration applications and petitions, disaggregated by application or petition
type; number and type of immigration related grievances filed with the DOJ and
the resolution, if any; plans to address grievances and improve services;
whether immigration–related fees were used consistent with legal requirements;
and whether immigration-related questions were answered effectively and
- Stating that the sense of Congress regarding immigration services is that
the transfer should improve the quality and efficiency of immigration services
and that the Secretary should undertake efforts to guarantee that concerns over
the quality and efficiency of immigration services are addressed after the
Section 705 - Establishment of Officer for Civil Rights and Civil
- Requires the Secretary to appoint an Officer for Civil Rights and Civil
- Requires of the new Officer the following:
- Review and assess information alleging abuses of civil rights, civil
liberties, and racial and ethnic profiling by employees and officials of the
- Make the Officer responsibilities and contact information known to the
public through the use of the Internet, radio, television, or newspaper
- Requires the Secretary to submit an annual report to Congress detailing the
implementation of this Officer, the funds appropriated to the Officer, any
allegations of abuses under this section, and any actions taken in response to
TITLE XI- Department of Justice Divisions
SUBTITLE A- Executive Office for Immigration Review
Section 1101 - Legal Status of EOIR
- Establishes in the Department of Justice, the Executive Office for
Immigration Review. The EOIR shall be subject to the direction and regulation of
the Attorney General under §203(g) of the INA, as added by §1102 of this
Section 1102 - Authorities of the Attorney General
- Amends §103 of the INA, as amended by this Act, by including a reference to
the Attorney General in subsection (a) and by adding a new subsection (g). Under
the new subsection (g):
- The Attorney General is granted such authorities and functions under the INA
and all other laws relating to the immigration and naturalization of aliens as
were exercised by the EOIR, or by the Attorney General with respect to the EOIR,
“on the day before the effective date of the Immigration Reform, Accountability
and Security Enhancement Act of 2002.” [The reference to this act appears to
be a drafting error, since it refers to the title of a previous homeland
security proposal that has not been passed.]
- The Attorney General is authorized “to establish such regulations, prescribe
such forms of bond, reports, entries, and other papers, issue such instructions,
review such administrative determinations in immigration proceedings, delegate
such authority, and perform such other acts as the Attorney General determines
to be necessary to carry out this section.”
Section 1103 - Statutory Construction
- Nothing in this Act shall be construed to limit judicial deference to any
actions of the Secretary of Homeland Security or the Attorney General.
TITLE XV- Transition
SUBTITLE A- Reorganization Plan
Section 1503 - Review of Congressional Committee Structures
- Directs each House of Congress to review its committee structure in light of
the creation of the new Department of Homeland Security.
TITLE XVI- Corrections to Existing Law Relating to Airline Transportation
Section 1603 - Allowing United States Citizens and United States Nationals
- Amends §44935(e)(2)(A)(ii) of title 49 of the United State Code to allow
nationals of the United States to work as airport screeners. The term “national
of the United States” is defined by §101(a)(22) of the INA [Note: the text of
the Act reads §1101(a)(22) and is a typo that will have to be corrected] as
a citizen of the U.S. or a person who is not a citizen but owes permanent
allegiance to the United States.