49–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–673 

PROTECTING THE HOMELAND ACT 

DECEMBER 12, 2014.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. GOODLATTE, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany H.R. 5401] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5401) to impose limitations on the immigration status and 

immigration benefits for Libyan and third country nationals acting 

on behalf of Libyan entities, having considered the same, reports 

favorably thereon without amendment and recommends that the 

bill do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 15 

Committee Consideration ........................................................................................ 15 

Committee Votes ...................................................................................................... 15 

Committee Oversight Findings ............................................................................... 18 

New Budget Authority and Tax Expenditures ...................................................... 18 

Congressional Budget Office Cost Estimate .......................................................... 18 

Duplication of Federal Programs ............................................................................ 18 

Disclosure of Directed Rule Makings ..................................................................... 19 

Performance Goals and Objectives ......................................................................... 19 

Advisory on Earmarks ............................................................................................. 19 

Section-by-Section Analysis .................................................................................... 19 

Minority Views ......................................................................................................... 19 


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1See Libyan and Third Country Nationals Acting on Behalf of Libyan Entities, 8 CFR § 214.5. 2Proposed Draft Rule, Rescinding Suspension of Enrollment for F and M Non-Immigrant Students from Libya and Third Country Nationals Acting on Behalf of Libyan Entities, Billing Code, 

9111–28, DHS Docket. No. ICEB–2013–0003, RIN 1653, AA69. 

Purpose and Summary 

The Protecting the Homeland Act prohibits the lifting of a longstanding prohibition on Libyans coming to the U.S. to attend flight 

school, to work in aviation maintenance or flight operations, or to 

study or seek training in nuclear science. This bill simply codifies 

the existing regulation at 8 C.F.R § 214.5 that bars Libyan nationals from coming to the U.S. to study or work in the aforementioned 

fields. 

Background and Need for the Legislation 

I. OVERVIEW

On November 25, 2013, Judiciary Committee Chairman Goodlatte and Representative Chaffetz wrote a letter to the Department 

of Homeland Security (DHS) regarding an internal draft final regulation (Billing Code 9111–28) to lift the longstanding prohibition on 

Libyans entering the United States to work in aviation maintenance, flight operations, or to study or train in nuclear-related 

fields. Under the terms of this draft final regulation, removal of the 

prohibition will go into effect without prior notice and comment. 

The prohibition 1 was put into place in 1983 after a series of terrorist incidents involving Libyan nationals. The Administration’s 

draft regulation rescinding this prohibition justifies lifting this ban 

by claiming the United States’ relationship with Libya has been 

‘‘normalized.’’ 2

Clearly, the U.S. relationship with Libya is anything but normal, 

as evidenced by the September 11, 2012 assault on the U.S. compound in Benghazi, Libya that resulted in the murder of our ambassador to that country. Not only did four Americans die on that 

date, but numerous other terror threats have continued from Libya 

in recent months. 

According to the draft final regulation, the rule would allow Libyans to come to the United States to study or obtain training in 

aviation maintenance, flight operations, or nuclear-related fields. 

The draft rule also indicates, ‘‘DHS is of the opinion that the removal of 8 CFR 214.5 is exempt from § 553 (Rulemaking) of the 

APA [Administrative Procedure Act] because it involves a foreign 

affairs function of the United States to the extent that it will impact relations with a foreign government.’’ Hence, it appears that 

the rule is planned to be published as a final rule without any prior 

public notice and comment. The regulation at 8 CFR 214.5 reads: 

§ 214.5 Libyan and third country nationals acting on behalf of Libyan entities. 

(a) Notwithstanding any other provision of this title, the 

nonimmigrant status of any Libyan national, or of any 

other foreign national acting on behalf of a Libyan entity, 

who is engaging in aviation maintenance, flight operations, 

or nuclear-related studies or training is terminated. 


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3See Rescinding Suspension of Enrollment for Certain F and M Nonimmigrant Students from 

Libya and Third Country Nationals Acting on Behalf of Libyan Entities, available at http:// 

www.reginfo.gov/public/do/eAgendaViewRule?pubId=201310&RIN=1653-AA69, last visited 

March 28, 2014. 

(b) Notwithstanding any other provision of this chapter, the following benefits will not be available to any Libyan national or any 

other foreign national acting on behalf of a Libyan entity where the 

purpose is to engage in, or seek to obtain aviation maintenance, 

flight operations or nuclear-related studies or training: 

(1) Application for school transfer. 

(2) Application for extension of stay. 

(3) Employment authorization or practical training. 

(4) Request for reinstatement of student status. 

(5) Application for change of nonimmigrant status. 

The November 25, 2013 letter addressed the proposed rescission 

of this regulation and posed numerous questions to DHS regarding 

the regulation. 

As DHS never responded to the letter, a follow up letter was sent 

on March 19, 2014 to DHS signed by Judiciary Committee Chairman Goodlatte, Oversight and Government Reform Committee 

Chairman Issa, Judiciary Subcommittee on Immigration and Border Security Chairman Gowdy, and Oversight and Government Reform Committee Subcommittee on National Security Chairman 

Chaffetz. The March 19th letter indicated that since the time of the 

initial November 25th letter, DHS had already moved forward with 

the draft regulation and had sent it to the Office of Management 

and Budget (OMB) for review. DHS moved forward with the rule 

after Members of Congress requested and did not receive information from DHS. A cursory review of the publicly available information on OMB’s website demonstrates that DHS sent the regulation 

to OMB on January 1, 2014.3 While it had time to send the regulation out of DHS and to OMB for review, DHS seemingly did not 

have time to respond to legitimate congressional oversight. 

On March 21, 2014, 2 days after the House Judiciary Committee 

and House Committee on Oversight and Government Reform sent 

the follow up letter to DHS, DHS sent an incomplete response answering some of the questions asked. The draft response confirmed 

information that was already publicly available and of which the 

Committees were already aware. Specifically, ‘‘the draft regulation 

has been under review, pursuant to Executive Order 12866 Regulatory Planning and Review, at the Office of Management and 

Budget’s Office of Information and Regulatory Affairs since January 1, 2014. In the fall 2013 edition of the Unified Agenda of Federal Regulatory and Deregulatory Actions, DHS included an entry 

for this regulation.’’ DHS did not answer the substantive questions 

posed in the letter nor provide any update whatsoever on the regulation and when it may become final. 

II. LIBYA AND CONCERNS REGARDING THE DRAFT REGULATION

A. Longstanding Ban on Libyans 

The prohibition at 8 CFR § 214.5, entitled, ‘‘Libyan and Third 

Country Nationals Acting On Behalf Of Libyan Entities,’’ was put 


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4See Qaddafi leads coup in Libya, available at http://www.history.com/this-day-in-history/ 

qaddafi-leads-coup-in-libya, last visited March 28, 2014. 5See id. 6See Arms Control Association, Chronology of Libya’s Disarmament and Relations with the 

United States, available at http://www.armscontrol.org/factsheets/LibyaChronology (Feb. 2014). 7See A Guide to the United States’ History of Recognition, Diplomatic, and Consular Relations, 

by Country, since 1776: Libya, available at http://www.state.gov/outofdate/bgn/libya/120759.htm, 

last visited March 28th, 2014. 8See id. 

9See 48 Fed. Reg. 10, 296, 8 C.F.R. § 214.5. 10 Id. 11Supra note 7. 

into place in the early 1980’s after a series of terrorist incidents involving Libyan nationals. Specifically, in 1969, Muammar al-Qadhafi led an army coup and overthrew the King of Libya.4 In 1970, 

he removed U.S. and British military bases and expelled Italian 

and Jewish Libyans. In 1973, he took control of foreign-owned oil 

fields. He reinstated traditional Islamic laws, such as prohibition 

of alcoholic beverages and gambling.5 On December 2, 1979, a mob 

attacked and burned the U.S. Embassy in Tripoli, and on December 29, 1979, the United States designated Libya as a state sponsor 

of terrorism.6 On May 2, 1980, after the Government of Libya announced a campaign to assassinate dissidents abroad, the United 

States suspended diplomatic relations with Libya, expelled four 

Libyan diplomats from Washington, recalled its last two diplomats 

from Tripoli, and closed the Embassy there.7 Qadhafi’s government 

financed a wide variety of terrorist groups across the globe ranging, 

from Palestinian guerrillas, Philippine Muslim rebels to even the 

Irish Republican Army.8

In order to protect Americans, on March 11, 1983, the Immigration and Naturalization Service (INS) published a final rule prohibiting Libyan nationals, or other foreign nationals acting on behalf 

of a Libyan entity, from obtaining certain immigration benefits for 

the purpose of engaging in or seeking to obtain aviation maintenance, flight operations, or nuclear-related studies or training.9

The explanatory material to the rule states that: 

These prohibitions are based upon a determination by the 

Secretary of State that aviation and nuclear-related training by foreign nationals in the United States, whose skills 

could be used by the Government of Libya, are detrimental 

to the security of the United States.10

At the time that the prohibition was put in place and thereafter: 

Qadhafi’s confrontational foreign policies and use of terrorism, as well as Libya’s growing friendship with the 

U.S.S.R., led to increased tensions with the West in the 

1980’s. Following a terrorist bombing at a discotheque in 

West Berlin frequented by American military personnel, in 

1986 the U.S. retaliated militarily against targets in 

Libya, and imposed broad unilateral economic sanctions. 

After Libya was implicated in the 1988 bombing of Pan 

Am flight 103 over Lockerbie, Scotland, UN sanctions were 

imposed in 1992. UN Security Council resolutions 

(UNSCRs) passed in 1992 and 1993 obliged Libya to fulfill 

requirements related to the Pan Am 103 bombing before 

sanctions could be lifted. Qadhafi initially refused to comply with these requirements, leading to Libya’s political 

and economic isolation for most of the 1990’s.11


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12Supra note 2 (emphasis added). 13See February 1, 2010 letter from then-Assistant Secretary of State for the Bureau for Near 

Eastern Affairs, Jeffrey Feltman to then Assistant Secretary Heyman of DHS Policy. 14See Letter to DHS Assistant Secretary Heyman from Jeffrey Feltman of the Department 

of State and Joseph McMillan of the Departmant of Defense (May 31, 2012). 15 Radio Free Europe Radio Liberty, U.S. Ambassador, Staff Killed In Attack On Benghazi 

Consulate, available at http://www.rferl.org/content/american-staffer-killed-in-attack-againstbenghazi-consulate/24705590.html, last visited October 29, 2014 (September12, 2012). 

B. The Draft Regulation 

The draft final regulation contemplated by the Administration 

would allow Libyans to come to the United States to study or obtain training in aviation maintenance, flight operations, or nuclearrelated fields. Specifically, the draft rule states: 

[DHS] is amending its regulations by rescinding the regulatory provisions promulgated in 1983 that terminated the 

nonimmigrant status and barred the granting of certain 

immigration benefits to Libyan nationals acting on behalf 

of Libyan entities who are engaging in or seeking to obtain 

studies or training in aviation maintenance, flight operations, or nuclear-related fields. The United States and the 

Government of Libya have normalized their relationship 

and most of the restrictions and sanctions imposed by the 

United States and United Nations towards Libya have 

been lifted. Therefore, DHS, after consultation with the 

Department of State and the Department of Defense, is rescinding the restrictions that deny nonimmigrant status 

and benefits to a specific group of Libyan Nationals.12

Should the regulation be rescinded, any Libyan could seek to enter 

the U.S. in order to work in aviation maintenance, flight operations, or study or train in nuclear related fields. 

On February 1, 2010, DHS received a letter from then-Assistant 

Secretary of State for the Bureau for Near Eastern Affairs, Jeffrey 

Feltman, requesting the rescission or revision of 8 C.F.R. § 214.5.13

Shortly thereafter, widespread unrest in Libya precluded the U.S. 

government from engagement with Libya. The post-Arab Spring 

civil war in Libya led to the fall of the Qadhafi regime in August 

2011, and Qadhafi was captured and then killed by rebel forces in 

October 2011. Following the revolution, the Obama Administration 

once again began the process of ‘‘normalizing’’ relations with that 

country. 

On May 31, 2012, DHS received a second letter from then-Assistant Secretary Jeffrey Feltman, with a joint signature from Joseph 

McMillan, Acting Assistant Secretary of Defense for International 

Security Affairs, stating the ‘‘outdated regulation does not reflect 

current U.S. government policy towards Libya.’’ 14

Immediately after this request was made, on September 11, 

2012, US Ambassador John Christopher Stevens and three other 

State Department officials were killed when terrorists stormed the 

U.S. Consulate in Benghazi, Libya. ‘‘Armed men attacked the consulate building in Benghazi late on September 11, setting it ablaze 

and burning it down. Witnesses said the diplomatic building was 

ransacked and looted before being set on fire. They say it had also 

been badly damaged by homemade bombs and rocket-propelled grenades.’’ 15 Furthermore, a statement by U.S. State Department 

spokeswoman Victoria Nuland said the United States condemned 


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16 Id. 17 Id. 18See OMB Website, available at http://www.reginfo.gov/public/do/eoReviewSearch. 

the attack ‘‘in the strongest terms’’ and was working with Libyan 

security forces to secure the compound. Obama called the attack in 

Benghazi ‘‘outrageous and shocking,’’ and vowed its perpetrators 

will face justice. ‘‘I’ve also directed my administration to increase 

our security at diplomatic posts around the world.’’ 16 President 

Obama said, ‘‘And make no mistake—we will work with the Libyan 

government to bring to justice the killers who attacked our people.’’ 17

Despite the attacks, the Obama Administration continues to 

argue that the long-standing prohibition that was put in place by 

then-President Reagan’s Administration in order to protect the 

homeland against serious threats from terrorists from a particularly unstable and dangerous country is no longer needed today. 

However, many of the characteristics that caused the regulation to 

go into place regarding Libya persist today—regardless of any 

progress that may have been made following the removal of Muammar Qadhafi from power and attempts to improve relations with 

the fragile Libyan government in Tripoli. Unfortunately, the terror 

threat continues and numerous news reports document recent terror-related activity involving Libyans. 

Further, the draft regulation goes on at length to discuss the 

manner in which relations with Libya have improved and are now 

‘‘normalized,’’ but fails to make any mention whatsoever of the terrorist attack in Libya on September 11, 2012. Ignoring this event 

in a draft regulation that deals squarely with the threat of terror 

from Libyan nationals is unacceptable and will not obscure the fact 

that it occurred, nor will it do anything to address the safety of 

Americans. The U.S. consulate attack on September 11, 2012 that 

resulted in the death of Ambassador Christopher Stevens and three 

other Americans, as a minimum, highlighted the considerable instability in Libya. 

Finally, DHS is moving forward on the regulation without apprising Congress. The Committee learned via web publication that 

the final regulation was approved by OMB and is now back at DHS 

awaiting Secretary Johnson’s signature. OMB completed its review 

on July 18, 2014. 18 At any point in time now, DHS Secretary Johnson can sign the rule so that it can be published in the Federal 

Register and henceforth ‘‘flight students’’ and nuclear science students from Libya will be free to come to the United States. All of 

this despite the fact that Libya has descended into utter chaos 

since the Committee’s hearing on April 3, 2014. 

C. Continued Terror Threat from Libya 

The National Transitional Council (NTC) has struggled to govern 

Libya effectively since the fall of Qadhafi: 

The majority of territory outside Tripoli has fallen under 

the control of armed militias that have refused to disarm. 

Violent campaigns along tribal and ideological lines have 

been waged by Libyans determined to settle old scores and 

influence the ongoing political transition. Libya’s armed 

Islamists are well positioned to shape the course of events. 


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19Daniel Wagner & Giorgio Cafiero, Rise of Radical Muslim Groups in Libya (January 23, 

2013), available at http://www.realclearworld.com/articles/2013/01/23/rise_of_radical_muslim_ groups_in_libya_100499.html, last visited October 29, 2014. 20See A Report Prepared by the Federal Research Division, Library of Congress, Al-Qaeda in 

Libya: A Profile, available at https://www.fas.org/irp/world/para/aq-libya-loc.pdf (August 2012). 21See id. 22See id. 23Salafism is a militant group of extremist Sunnis. 24See Details and analysis of the Benghazi attack available at http://www.wdrep.com/_wp/war/ 

details-and-analysis-on-the-benghazi-attack, last visited October 31, 2014. 

This year the NTC will be challenged to integrate the 

Islamists into the national political system, yet failure to 

do so will likely result in marginalized militants playing 

the spoiler. If current events in Algeria and Mali are an 

indication of what the future holds for Libya, Islamists 

may be expected to wage armed attacks against their opponents and western targets.19

Reports have indicated that al-Qaeda Senior Leadership (AQSL) 

is seeking to create an al-Qaeda clandestine network in Libya that 

could be activated in the future to destabilize the government and/ 

or to offer logistical support to al-Qaeda’s activities in North Africa 

and the Sahel.20 Al-Qaeda in the Islamic Maghreb (AQIM) has reportedly formed sleeper cells that are probably connected to an AlQaeda underground network in Libya, likely as a way to secure the 

supply of arms for its ongoing jihadist operations in Algeria and 

the Sahel. Al-Qaeda and its North African affiliate have clearly 

taken advantage of the still-evolving, post-revolutionary, political 

and social dynamics in Libya.21

Even before the deadly attack on the U.S. consulate in Benghazi 

on September 11, 2012, there were clear signs that the security situation in eastern Libya was deteriorating.22 The pattern of violent 

incidents attributed to Salafist groups 23 from March 2012 to September 2012 clearly demonstrated a worsening security environment. One important inflection point was a large demonstration 

that was held in Benghazi on June 7, 2012, in which heavily armed 

Salafist groups from across the country gathered and called for the 

establishment of Sharia law in Libya.24 Between June and September 2012, numerous security incidents occurred in and around 

Benghazi: 

• June 6, 2012—Improvised Explosive Device (IED) attack on 

the Special Mission Compound. The IED detonates with no 

injuries but blows a large hole in the compound’s exterior 

wall. A terrorist group makes an unsubstantiated claim of 

responsibility. 

• June 8, 2012—Two hand grenades target a parked U.K. diplomatic vehicle in Sabha (800 km south of Benghazi). 

• June 11, 2012—While in Benghazi, the British Ambassador’s 

convoy is attacked with an Rocket Propelled Grenade (RPG) 

and possible AK–47s. Two U.K. security officers are injured; 

the U.K. closes its mission in Benghazi the following day. 

• June 12, 2012—An RPG attack is made on the International 

Committee of the Red Cross (ICRC) compound in Misrata 

(400 km west of Benghazi). 


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25See U.S. Senate Select Committee on Intelligence, Review Of The Terrorist Attacks On U.S. 

Facilities In Benghazi, Libya, September 11–12, 2012 at 12–14, available at: http:// 

www.intelligence.senate.gov/benghazi2014/benghazi.pdf. (January 15, 2014). 26 Aaron Y. Zelin, Andrew Lebovich, Assessing Al-Qa‘ida’s Presence in the New Libya, available 

at https://www.ctc.usma.edu/posts/assessing-al-qaidas-presence-in-the-new-libya last visited October 31, 2014. 

• June 18, 2012—Protestors storm the Tunisian consulate in 

Benghazi. 

• July 29, 2012—An IED is found on grounds of the Tibesti 

Hotel. 

• July 30, 2012—A Sudanese consul in Benghazi is carjacked 

and the driver is beaten. 

• July 31, 2012—Seven Iranian-citizen ICRC workers are abducted in Benghazi. 

• August 5, 2012—ICRC Misrata office is attacked with RPGs. 

ICRC withdraws its representatives from Misrata and 

Benghazi. 

• August 9, 2012—A Spanish-American dual national NGO 

worker is abducted from the Islamic Cultural Center in 

Benghazi and released the same day. 

• August 20, 2012—A small bomb is thrown at an Egyptian 

diplomat’s vehicle parked outside of the Egyptian consulate 

in Benghazi.25

In addition, during the 6 months prior to September 11, militant 

Salafists targeted U.S and other Western diplomatic and humanitarian entities, such as the U.N. and U.K. missions in Libya and 

the offices of the ICRC. They attacked physical structures and mobile targets including diplomatic vehicles. Attackers employed 

weapons ranging from RPGs to IEDs. 

More Recent Terror Attacks 

The draft regulation also turns a blind eye to more recent terrorist activity. For example, the regulation makes no mention that 

on September 10, 2013, a group calling itself the Islamic Emirate 

of Libya posted a notice online listing the U.S. Embassy in Tripoli 

as a possible target of a terror attack coinciding with the anniversary that week of the September 11th terrorist attacks. The group 

stated in an Arabic-language online posting that it was asking supporters to select a target for a bombing to be carried out that week 

to commemorate the September 11 attacks by al-Qaeda: 

The first indications that jihadists might be benefiting 

from the unrest in Libya came not long after violence 

broke out, as regional leaders and press reports suggested 

that AQIM had gained weapons from abandoned Libyan 

stocks, including surface-to-air missiles. Others suggested 

that the group had forged connections with Libya’s rebels, 

and that AQIM or al-Qaeda central might seek to implant 

itself in Libya.26

In July and August 2013, U.S. military equipment used by U.S. 

Special Forces in Libya was stolen by terrorist groups from a miliVerDate Sep 11 2014 05:18 Dec 19, 2014 Jkt 049006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6601 E:\HR\OC\HR673.XXX HR673

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27See Adam Housley, Sources: US weapons stolen in Libya raids, fueling Special Forces pullout, available at http://www.foxnews.com/politics/2013/09/11/us-military-weapons-equipmentstolen-in-libya-raids/(September 11, 2013). 28See id. 29See id. 30 Id. 31 Id. 32 Id. 33See Reuters, US forces detain Abu Anas Al Libi Al Qaeda leader accused of 1998 embassy 

bombings http://www.emirates247.com/news/region/us-forces-detain-abu-anas-al-libi-2013-10-06- 

1.523483, (October 6, 2013). 34See id. 35See Carlotta Gall and David D. Kirkpatrick, Libya Condemns U.S. for Seizing Terror Suspect, available at http://www.nytimes.com/2013/10/07/world/africa/american-raids-in-africa. 

html?_r=0 (October 6, 2013). 36See Bill Gertz, Terrorists Threaten to Strike Back, Terrorists threaten Americans, journalists 

in Libya following U.S. capture of al Qaeda leader, available at http://freebeacon.com/terrorthreats-up-in-libya/(October 11, 2013). 37See Tracey Shelton, US citizens threatened with attack, kidnap in Libya after terror raid, 

available at http://www.nbcnews.com/news/world/us-citizens-threatened-attack-kidnap-libyaafter-terror-raid-v20870872 (October 8, 2013). 38See Ulf Laessing, Libyan PM flees country after tanker escapes rebel-held port, available at 

http://www.reuters.com/article/2014/03/12/us-libya-oil-idUSBREA2B0N920140312 (March 12, 

2013). 

tary training camp run by U.S. Special Forces outside Tripoli.27

Specifically, highly sensitive U.S. military equipment stored in 

Libya was stolen over the summer by groups likely aligned and 

working with terrorist organizations.28 These raids contributed to 

the decision to pull Special Forces personnel from the country.29

‘‘Dozens of M4 rifles, night-vision technology and lasers used as 

aiming devices that are mounted on guns and can only be seen 

with night-vision equipment were lost in the raids.’’ 30 One source 

indicated, ‘‘The loss of this military equipment is what pulled the 

plug on the U.S. operation.’’ 31 The source went on to say ‘‘No one 

at the State Department wanted to deal with the situation if any 

more went wrong, so State pulled its support for the training program and then began to try and get the team moved out of the 

country.’’ 32

To make matters worse, on October 5, 2013, U.S. special operations forces captured Abu Anas al-Liby in Tripoli.33 He was a senior al-Qaeda operative responsible for the 1998 bombings of the 

U.S. embassies in Tanzania and Kenya, killing 224 people.34 On 

October 6, 2013, after Abu Anas al-Liby was captured, Libya’s interim government condemned the United States for what it alleged 

to be the ‘‘kidnapping of a Libyan citizen’’ and Libyan lawmakers 

threatened to remove the prime minister if the government was involved.35 The General National Congress, Libya’s most senior national authority, also called the capture of al Liby ‘‘flagrant aggression’’ against sovereignty and demanded that he be turned over immediately.36 On October 8, 2013, Islamic militants called for the 

kidnapping of U.S. citizens in Libya and targeted attacks on American property following the raid by U.S. Special Forces to seize Abu 

Anas al-Liby.37 On October 10, 2013, Libyan Prime Minister Ali 

Zeidan was kidnapped and held for a short period of time before 

being released unharmed by a group angry at the leader for alleged 

support for the U.S. operation against al Liby.38

These incidents demonstrate the violent backlash in Libya created by any U.S. anti-terror activity in that country, but, per the 

Obama administration’s draft regulation, such actions are the benign fruit of a ‘‘normal’’ international relationship. 


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39See Three years after Qadhafi, Libya is imploding into chaos and violence. World View: Its 

government has no real power; militias are ever more entrenched, and now the state itself is 

under threat, available at http://www.independent.co.uk/voices/commentators/three-years-afterQadhafi-libya-is-imploding-into-chaos-and-violence-9194697.html, (March 16, 2014). 40 Id. 41 Id. 42 Ali Al-Gattani, Libya Seeks Help to Combat Terrorism, available at http://allafrica.com/ 

stories/201403211519.html, (March 21 2014). 43See Voice of America, Libya: Govt Seeks World’s Help to Fight Terrorism, available at http:// 

allafrica.com/stories/201403200678.html (March 20, 2014). 

There have been numerous concerns regarding the political situation in Libya more recently. For example, on March 12, 2014, the 

Libyan prime minister Ali Zeidan ‘‘fled after parliament voted him 

out of office,’’ a North Korean oil tanker ‘‘illegally picked up a cargo 

of crude from rebels in the east of the country’’ and then manage 

to sail away with no problems even though government officials 

said that the vessel would be ‘‘turned into a pile of metal’’ if it left 

the country.39 ‘‘Militias based in Misrata, western Libya, notorious 

for their violence and independence, have launched an offensive 

against the eastern rebels in what could be the opening shots in 

a civil war between western and eastern Libya. Without a central 

government with any real power, Libya may be falling apart.’’ 40 To 

make matters worse: 

Libya’s oil exports have fallen from 1.4 million barrels a 

day in 2011 to 235,000 barrels a day. Militias hold 8,000 

people in prisons, many of whom say they have been tortured. Some 40,000 people from the town of Tawergha 

south of Misrata were driven from their homes which have 

been destroyed. ‘‘The longer Libyan authorities tolerate the 

militias acting with impunity, the more entrenched they 

become, and the less willing to step down’’ said Sarah 

Leah Whitson, Middle East and North Africa director at 

Human Rights Watch. ‘‘Putting off repeated deadlines to 

disarm and disband militias only prolongs the havoc they 

are creating throughout the country.’’ 41

On March 19, Libya acknowledged for the first time that ‘‘terrorist groups’’ were behind dozens of attacks against security services. The government indicated that ‘‘Benghazi, Derna, Sirte and 

other cities are facing a terrorist war waged by Libyan and foreign 

elements who have hostile, evil agendas.’’ 42

On March 20, 2014, Libya’s government requested assistance 

from the international community to help it fight the terrorism 

that is causing instability in the country.43 On the same day, a 

missile was launched at the Tripoli runway shutting down the airport. Then: 

On July 13, 2014, heavy fighting broke out between rival 

militias vying for control of Libya’s main airport, killing at 

least seven people and forcing a halt of all flights in the 

worst fighting in the capital in 6 months. An election in 

June had been aimed at rebuilding state institutions in an 

attempt to quell 3 years of spreading violence since the 

ouster of long-time ruler Muammar Qadhafi. The recent 

fighting is part of growing turmoil in the North African oil 

producer, where the government is unable to control batVerDate Sep 11 2014 05:18 Dec 19, 2014 Jkt 049006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR673.XXX HR673

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44Louis Charbonneau, Libya warns United Nations of possible slide into civil war, available 

at http://www.reuters.com/article/2014/08/27/us-libya-security-un-idUSKBN0GR1TT20140827, 

last visited October 30, 2014. 45 US evacuates embassy in Libya amid clashes in Tripoli. Fox News, available at http:// 

www.foxnews.com/world/2014/07/26/us-evacuates-embassy-in-libya-amid-clashes-in-tripoli/ (July 

26, 2014). 46 Id. 47 Id. 48 Id. 49See Aziz El Yaakoubi, Libya militia clashes spread beyond Tripoli towards Zawiya oil port, 

available at http://news.yahoo.com/libya-militia-clashes-spread-beyond-tripoli-towards-zawiya181224987.html (August 7, 2014). 50 Id. 51 Id. 52Supra note 44. 53 Id. 54See Chris Stephen, Libyan parliament takes refuge in Greek car ferry: Elyros liner is deployed as floating hotel for legislature that has fled war-torn capital for eastern town of Tobruk, 

available at http://www.theguardian.com/world/2014/sep/09/libyan-parliament-refuge-greek-carferrym, last visited October 31, 2014 (September 9, 2014). 55See id. 

tle-hardened militias that helped to overthrow Qadhafi in 

2011 but continue to defy state authority.44

On July 26, 2014, ‘‘the United States suspended operations at its 

embassy in Libya and evacuated its diplomats to neighboring Tunisia under U.S. military escort amid a significant deterioration in 

security in Tripoli as fighting intensified between rival militias.’’ 45

The State Department indicated that ‘‘Due to the ongoing violence 

resulting from clashes between Libyan militias in the immediate 

vicinity of the U.S. Embassy in Tripoli, we have temporarily relocated all of our personnel out of Libya,’’ 46 The withdrawal demonstrated the continued threat in Libya and the need to protect 

diplomats abroad, ‘‘particularly in Libya after the deadly 2012 attack on the U.S. mission in the eastern city of Benghazi.’’ 47 Approximately ‘‘70 embassy staffers were driven out of the city in a 

caravan by 80 Marines.’’ 48

On August 4, 2014, militia clashes in Libya spread from Tripoli 

to the town of Zawiya close to the Tunisian border, resulting in the 

death of four people.49 Most foreign governments have closed their 

embassies and evacuated staff after weeks of clashes that ‘‘turned 

Libya’s two main cities—Tripoli and Benghazi—into warzones in 

the worst fighting since the NATO-backed war against Qadhafi.’’ 50

Unfortunately, ‘‘three years after Qadhafi’s fall, Libya’s government 

has been unable to tame rival brigades of former rebel fighters who 

have allied themselves with competing political factions in a struggle over post-war spoils.’’ 51

On August 27, 2014, Libya warned the U.N. Security Council 

that the country could ‘‘descend into full-scale civil war if heavily 

armed warring factions are not disarmed.’’ 52 The council met to 

discuss Libya days after its parliament, ‘‘which was replaced in an 

election in June, reconvened and chose an Islamist-backed deputy 

as the new prime minister. That left the country with two rival 

leaders and assemblies, each backed by armed factions.’’ 53

In August, Libya’s elected government was forced to flee the capital, Tripoli, and take shelter in Tobruk, a port city near the border 

with Egypt.54 And as of September 9, 2014, Libya’s parliament-inexile was under siege, and compelled to find accommodation in a 

Greek car ferry moored at Tobruk’s docks.55 The 17,000-ton boat, 

typically used to convey vehicles between Italy and Greece, is the 


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56See id. 57Supra note 26. 58Testimony of Janice Kephart, Joint Hearing before the House Judiciary Committee Subcommittee on Immigration and Border Security and the House Oversight and Government Reform Committee Subcommittee on National Security, Overturning 30 Years of Precedent: Is the 

Administration Ignoring the Dangers of Training Libyan Pilots and Nuclear Scientists, April 3, 

2014. 

temporary residence for dozens of lawmakers in need of sanctuary.56

Overall: 

Since the uprising against Qadhafi began in February 

2011, Libya has become a source of attention for jihadists 

and a grave concern for regional and Western leaders. 

There are clear signs of jihadist efforts to infiltrate Libya, 

and even signs of some possible success for al-Qaeda in establishing a small but significant presence in Libya. Security officials must be vigilant for signs of support for alQaeda among Libyan militias and further expansion of the 

group’s reach, especially evidence of training and indoctrination of Libyans by al-Qaeda-linked figures. 

It appears that AQIM in particular has chosen to profit 

from the Libyan unrest by seizing weapons, but has remained ensconced in safe havens in northern Mali and Algeria. The same cannot be definitively said for other alQaeda-linked figures, who are accustomed to operating 

clandestinely when setting up funding and operational networks and may be doing the same in Libya. Given alQaeda’s expressed interest in the country and the key role 

Libyan militants have historically played in the organization, this concern cannot be easily dismissed.57

All of these issues show that the time now is not ripe to lift the 

longstanding regulation put into place to protect U.S. interest. 

Given the instability of the government, it is highly possible that 

even if we assist with training Libyans for whom the government 

has vouched, should the government fall apart, our training, resources, and tools could be used against us, or our allies. As Janice 

Kephart elaborated in her testimony before this Committee: 

Concerns about aviation education are widely understood, 

mostly due to the facts and circumstances of the four 9/11 

hijacker pilots who obtained their expertise in aviation primarily at U.S. flight schools. Perhaps a little less well 

known is that the Pentagon pilot, Hani Hanjour, was likely picked for the 9/11 operation due to his attendance to 

flight school in the U.S. in the mid-1990’s. The 9/11 Final 

Report supplement, 9/11 and Terrorist Travel, provides an 

in-depth explanation of how the two lead 9/11 pilots 

abused the immigration process to enter the United States 

without vocational ‘‘M’’ visas, but attended flight school 

anyway.58

D. Country Specific Bans 

Libya is not the only country that is subject to a country specific 

bar, hence it is not accurate to say that there are no other similar 

bars. There are numerous statutes that bar nationals from specific 


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59See section 501 of Pub. L. No. 112–158 (The Iran Threat Reduction and Syria Human 

Rights Act of 2012). 60See 22 CFR § 41.3(e). 61See INA § 214(c)(4)(F)(i). 62Supra note 58. 63See id. 64The Technology Alert List is used by consular officials during the interview process in determining the issuance of non-immigrant visas. The list is used in cases that may fall under the 

Immigration Nationality Act § 212(a)(3)(a), which renders inadmissible aliens who there is reason to believe are seeking to enter the U.S. to violate U.S. laws prohibiting the export of goods, 

technology or sensitive information. 

countries from certain immigration benefits, signifying that Congress has seen fit to block nationals from certain countries from obtaining certain benefits under the Immigration and Nationality 

Act. 

For example, in 2012 President Obama signed into law legislation banning Iranian nationals from engaging in nuclear studies.59

Military visitors from certain listed countries may not obtain a visa 

waiver to travel to the U.S. available to military members of other 

countries. Countries ineligible for the waiver include Cuba, Mongolia, North Korea, Vietnam, and the People’s Republic of China.60

Further, nationals of state sponsors of terrorism cannot receive P 

visas, and all visa applications in Saudi Arabia need to be reviewed 

by U.S. Immigration and Customs Enforcement prior to adjudication.61 In short, many other countries have special restrictions or 

limitations placed upon them. 

E. Integrity of the Immigration System and Visa Applicant 

Screening 

Ultimately, we must determine whether national security has 

been adequately considered in the making of this rule and whether 

the immigration system has sufficient integrity to withstand potential uncertainties about applicants’ long term interests in obtaining 

sensitive security information and education from the United 

States.62

Mohammad Atta and the 9–11 hijackers got around the screening in place in 2001 and Umar Farouk Abdulmutallab (the ‘‘Underwear Bomber’’) got past the supposedly hi-tech screening in place 

in 2009. Any database is only as good as the intelligence we possess. Given Libya’s current state of disarray, our ability to make 

adequate findings of fact regarding the intentions of Libyan visa 

applicants is questionable at best. Hence, it is important to remember that these systems are not foolproof and it is imprudent to do 

away with a sensible restriction while Libya remains in chaos and 

appears to be descending into civil war, 2 years since our Ambassador to that country was murdered by an armed terrorist force. 

Further, core 9/11 Final Report recommendations and 9/11 and 

Terrorist Travel staff report findings of fact show that vigilance is 

essential when assuring immigration integrity against entry of foreign nationals who may threaten national security.63

The integrity of our immigration system ‘‘is grounded in confidence that nations actively engaged in sending their foreign nationals to the United States for training or study programs that are 

listed on the Technology Alert List 64 such as nuclear science, or 

technical training in aviation, will not support proliferation of 

weapons of mass destruction; restrain from developing destabilizing 

conventional military capabilities in unstable regions of the world; 


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65Supra note 58. 66 Id. 67 Alan Bersin, Recommendation to take Regulatory Action to Rescind 8. C.F.R. § 214.5, Memorandum to the Secretary Napolitano, (February 12, 2013). 68Supra note 2. 69Supra note 83; citing 9 FAM 41.102 N3.2(b). 70Supra note 83; citing 9 FAM 1.102 N3.5. 

and prevent the transfer of arms and sensitive dual-use items to 

terrorist states.’’ 65 Indeed, ‘‘while U.S. policy states that Libya is 

no longer a state sponsor of terror per se, by Libya’s own assertion 

as recently as August 27, 2014, the country suffers from terrorist 

threat from within.’’ 66

DHS claims that even in the absence of 8 C.F.R. § 214.5, Libyan 

visa applicants whose planned travel raises security concerns 

would continue to be subject to requirements of interagency review 

and clearance under the ‘‘Visas Mantis’’ vetting procedure.67

However, in regard to adjudication of nuclear or aviation-related 

student visas, the proposed DHS Final Rule states that Visas 

Mantis will apply only to ‘‘Libyan visa applicants whose planned 

travel raises security concerns.’’ 68

Furthermore, new 2012 State Department consular guidance 

states: ‘‘The Deputy Assistant Secretary for Visa Services may 

waive personal appearance requirement for an individual [visa] applicant after determining that such waiver is . . . in the national 

interest of the United States.’’ 69 In addition, [State Department 

consular guidance] gives authority to the Deputy Assistant Secretary for Visa Services to waive the in-person interview requirements if ‘‘national security concerns do not require an interview.’’ 70

As Janice Kephart stated in her testimony: 

Reversing a 30-year Libyan ban on highly sensitive visas 

such as aviation operation and training and nuclear-related studies in a highly unstable political environment requires active review by the American people. If such a decision is determined to be warranted, all precautions must 

be in place. This is especially the case in instances where 

the United States is deciding to actively engage with a 

former designated state sponsor of terror such as Libya, a 

country whose nationals continue to conduct deadly terrorist activities against Americans and their own government.

When granting access to highly sensitive U.S. immigration 

benefits such as aviation and nuclear studies that have a 

strong and proven impact on national security, best-inclass immigration vetting is essential. Robust visa processing, including mandated interviews, Kingfisher and immigration security reviews are essential prior to visa 

issuance. Improvements and tracking through SEVIS is essential. Immigration enforcement should apply when necessary. All of these elements should be placed prior to any 

214.5 rule rescission. 

Without a robust plan in place that assures security vetting for both nuclear and aviation visa applicants’ eligibility, it is of concern that the terrorist organizations that 

currently plague the Libyan government could attempt to 

infiltrate the program, the Libyan government could fall to 


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71Supra note 58. 

an unfriendly regime, or the Libyan government itself 

could have an unstated agenda.71

However, it is quite uncertain that U.S. security could be preserved even with these security measures in place with regard to 

Libyans seeking to work in aviation maintenance, flight operations 

or to study or train in nuclear related fields. 

Hearings 

The Subcommittee on Immigration and Border Security held a 

joint hearing on April 3, 2014 with the Committee on Oversight 

and Government Reform’s Subcommittee on National Security. 

Committee Consideration 

On September 10, 2014, the House Judiciary Committee met in 

open session and ordered the bill H.R. 5401 favorably reported, 

without amendment, by a rollcall vote of 21 to 11, a quorum being 

present. 

Committee Votes 

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

5401. 

1) An amendment was offered by Ms. Lofgren that created an 

exemption for Libyans to come to the U.S. for the purposes of 

studying or working in aviation or studying nuclear science so long 

as they participating in a DHS approved program in consultation 

with DOD. Defeated 13–20. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) .............................................................

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Mr. Collins (GA) ........................................................ X 

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) .........................................................

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 13 20 

2) An amendment was offered by Ms. Jackson Lee that required 

the Administration to submit reports on the need for the bill and 

provided for a sunset of the bill within 3 years. Defeated 14–19. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 


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ROLLCALL NO. 2—Continued 

Ayes Nays Present 

Mr. Collins (GA) ........................................................

Mr. DeSantis (FL) ..................................................... X 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) ......................................................... X 

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) ....................................................... X 

Total ............................................................. 14 19 

3. Motion to report H.R. 5401 favorably. Passed 21–11. 

ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Goodlatte (VA), Chairman ................................. X 

Mr. Sensenbrenner, Jr. (WI) ....................................

Mr. Coble (NC) .......................................................... X 

Mr. Smith (TX) .......................................................... X 

Mr. Chabot (OH) ........................................................ X 

Mr. Bachus (AL) ........................................................ X 

Mr. Issa (CA) ............................................................. X 

Mr. Forbes (VA) ......................................................... X 

Mr. King (IA) ............................................................. X 

Mr. Franks (AZ) ......................................................... X 

Mr. Gohmert (TX) ...................................................... X 

Mr. Jordan (OH) ........................................................ X 

Mr. Poe (TX) .............................................................. X 

Mr. Chaffetz (UT) ...................................................... X 

Mr. Marino (PA) ........................................................ X 

Mr. Gowdy (SC) ......................................................... X 

Mr. Labrador (ID) ...................................................... X 

Ms. Farenthold (TX) .................................................. X 

Mr. Holding (NC) ....................................................... X 

Mr. Collins (GA) ........................................................

Mr. DeSantis (FL) ..................................................... X 


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ROLLCALL NO. 3—Continued 

Ayes Nays Present 

Mr. Smith (MO) ......................................................... X 

[Vacant] ......................................................................

Mr. Conyers, Jr. (MI), Ranking Member ................. X 

Mr. Nadler (NY) ........................................................ X 

Mr. Scott (VA) ............................................................ X 

Ms. Lofgren (CA) ....................................................... X 

Ms. Jackson Lee (TX) ................................................ X 

Mr. Cohen (TN) ......................................................... X 

Mr. Johnson (GA) ...................................................... X 

Mr. Pierluisi (PR) ...................................................... X 

Ms. Chu (CA) ............................................................. X 

Mr. Deutch (FL) .........................................................

Mr. Gutierrez (IL) .....................................................

Ms. Bass (CA) ............................................................

Mr. Richmond (LA) .................................................... X 

Ms. DelBene (WA) ..................................................... X 

Mr. Garcia (FL) .........................................................

Mr. Jeffries (NY) ....................................................... X 

Mr. Cicilline (RI) .......................................................

Total ............................................................. 21 11 

Committee Oversight Findings 

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

New Budget Authority and Tax Expenditures 

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

Congressional Budget Office Cost Estimate 

With respect to clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, an estimate and comparison prepared by 

the Director of the Congressional Budget Office under section 402 

of the Congressional Budget Act of 1974 was not submitted to the 

Committee before the filing of the report. 

Duplication of Federal Programs 

No provision of H.R. 5401 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 


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21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

Disclosure of Directed Rule Makings 

The Committee estimates that H.R. 5401 specifically directs to be 

completed no specific rule makings within the meaning of 5 U.S.C. 

551. 

Performance Goals and Objectives 

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 5401 codifies a 

longstanding prohibition at 8 C.F.R § 214.5 on Libyans to come to 

the U.S. to attend flight school, to work in aviation maintenance 

or flight operations, or to study or seek training in nuclear science. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 5401 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(e), 9(f), or 9(g) of Rule XXI. 

Section-by-Section Analysis 

Sec. 1. Short Title. Section 1 sets forth the short title of the bill 

as the ‘‘Protecting the Homeland Act.’’ 

Sec. 2. Libyan and Third Country Nationals Acting on behalf of 

Libyan Entities. Section 2 terminates the non-immigrant status of 

any Libyan national, or any other foreign national acting on behalf 

of a Libyan entity, who is engaging in aviation maintenance, flight 

operations, or nuclear-related studies. It also bars any such person 

from receiving certain similar enumerated benefits under our immigration laws. 

Minority Views 

H.R. 5401, the ‘‘Protecting the Homeland Act,’’ codifies and 

makes permanent a regulation that currently bans all Libyan nationals from coming to the United States to study or train in aviation maintenance, flight operations, or nuclear science. Since the 

regulation was first issued in 1983, much has changed with respect 

to America’s immigration system. Under our current system, all 

visa applicants now must go through extensive background and security checks, including interviews and biometric screenings. Applicants who pose security concerns are subject to additional vetting 

by the intelligence and law enforcement communities. Much has 

also changed over the last 31 years with respect to the relationship 

between the United States and Libya. Beginning in the late 1990’s, 

Libya took steps to denounce terrorism and abandon its nuclear 

and chemical weapons programs. During the George W. Bush Administration, the United States lifted economic sanctions against 

Libya, removed the country from the list of state sponsors of terrorism, and entered into a Science and Technology Cooperation 

Agreement with the country to educate and train Libyan scientists 

and technical experts. 


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1 8 C.F.R. § 214.5 (1983). 

Over the past several years, the Department of Defense (DOD) 

and the Department of State have several times requested that the 

Department of Homeland Security (DHS) take steps to rescind the 

existing regulatory ban. These departments—not one of which is 

generally considered soft on terror—have argued that lifting the 

ban would advance America’s security interests and better enable 

the U.S. government to support the new, democratically-elected 

Libyan government in its battle against extremist elements that 

are our common enemy. They also have argued that the background and security checks that are performed on all visa applicants and the enhanced law enforcement and intelligence checks 

that certain applicants undergo sufficiently protect our national security interests. At the time that H.R. 5401 was considered in Committee, a proposed final rule to rescind the regulatory ban was before the Secretary of Homeland Security. On September 17, 2014, 

Homeland Security Secretary Jeh Johnson testified before the 

Committee on Homeland Security that he decided not to rescind 

the regulatory ban. 

Whether or not the existing regulation should remain in place is 

not the issue presented by H.R. 5401. That question resides with 

DHS, which decided to keep the regulation in place after consulting 

with DOD, the Department of State, and the intelligence community. Rather, the issue presented by H.R. 5401 is whether Congress 

should ignore the recommendations presented by the DOD, the 

State Department, and DHS and permanently tie the hands of the 

executive. It is our belief that codifying the existing regulation and 

making it permanent locks us into an unnecessary and unwise position. To the extent that some congressional action may be needed 

at this time, we believe that a more tailored approach that acknowledges the legitimate interests of our defense and national security experts would be preferable to the blanket and permanent 

ban imposed by H.R. 5401. 

DESCRIPTION AND BACKGROUND

H.R. 5401 codifies and makes permanent a regulation that currently bans all Libyan nationals from coming to the United States 

to study or train in aviation maintenance, flight operations, or nuclear science. On September 10, 2014, the Committee voted to report the bill to the full House by a vote of 21–11. 

The bill replicates the exact text of the Libyan and Third Country Nationals Acting on Behalf of Libyan Entities regulation.1 Section 2(a) terminates the nonimmigrant status of any Libyan national, or of any other foreign national acting on behalf of a Libyan 

entity, who is engaging in aviation maintenance, flight operations, 

or nuclear-related studies or training. 

Subsection (b) prohibits such persons from applying for school 

transfer, extension of stay, employment authorization or practical 

training, reinstatement of student status, or change of nonimmigrant status. 


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2 INA § 212(a)(3)(A); 8 U.S.C. § 1182(a)(3)(A). 

3 INA § 212(a)(3)(C); 8 U.S.C. § 1182(a)(3)(C). 

4 INA § 214(b); 8 U.S.C. § 1184(b). 

5Overturning 30 Years of Precedent: Is the Administration Ignoring the Dangers of Training 

Libyan Pilots and Nuclear Scientists?: J. Hearing Before the H. Subcomm. on Immigration and 

Border Security and the H. Subcomm. on National Security, 113th Cong. 47 (2014) [hereinafter 

‘‘Libya Hearing’’] (statement of Alan D. Bersin, Assistant Secretary for International Affairs and 

Chief Diplomatic Officer, Office of International Affairs, U.S. Department of Homeland Security). 

CONCERNS WITH H.R. 5401

I. EXISTING LEGAL AUTHORITIES AND BACKGROUND AND SECURITY

CHECKS MAKE A BLANKET VISA BAN ON LIBYAN NATIONALS UNNECESSARY

A statutory ban on immigration benefits to Libyan nationals is 

not needed to protect the United States or its interests abroad. For 

example, there are currently no similar statutory or regulatory restrictions banning immigration benefits for nationals of countries 

such as Cuba, Sudan, and Syria, each of which remains a designated state sponsor of terrorism. Such restrictions are unnecessary because DHS and the State Department have broad authority 

under section 212(a)(3) of the Immigration and Nationality Act 

(INA) to deny visas and admission to any person suspected of being 

a terrorist, providing material support to terrorists, associating 

with terrorists, or otherwise posing a danger to national security 

or other U.S. interests.2 DHS and the State Department also have 

wide discretion to deny entry to a person whose entry poses potentially serious adverse foreign policy concerns,3 or a person who is 

suspected of being likely to violate U.S. immigration law or the 

terms of admission to the country.4

In other words, rather than issuing blanket policies affecting all 

nationals of particular countries, DHS and the State Department 

primarily use a more targeted approach that weighs each individual’s background, the reason for travel to the country, any U.S. interests that might be affected, and other critical factors. This enables DHS and the State Department to allow admission to persons 

who may benefit the U.S. while denying admission to persons who 

may pose a danger to our Nation. Such an approach is far superior 

to the approach that would be permanently codified into law by 

H.R. 5401, which denies visas to friends and foes alike. 

Moreover, since the Libyan-specific regulation was promulgated 

in 1983, the U.S. government has significantly improved and expanded its procedures for vetting visa applicants, and today’s vetting process considers a far broader range of information than it 

did in past years. Before the State Department issues a visa, applicants are interviewed and their fingerprints are checked against 

two law enforcement databases. The DHS Automated Biometric 

Identification System, or IDENT, screens against available fingerprints of known and suspected terrorists, wanted persons, and immigration law violators. IDENT currently contains approximately 

160 million entries. More than 10,000 matches of visa applicants 

with records on the IDENT watchlist are returned to consular 

posts every month. The second database is the FBI’s Integrated 

Automated Fingerprint Identification System, which contains more 

than 76 million criminal history records.5


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6 Id. at 47–48. 7 Id. at 48–49. 8 Id. at 48. 9See 49 U.S.C. § 44939; see also 49 C.F.R. § 1552. 10Libya Hearing at 48. 11Worldwide Threats to the Homeland: Hearing Before the H. Comm. on Homeland Security, 

113th Cong. (Sept. 17, 2014). 12Press Release, H. Committee on the Judiciary, Gowdy, Goodlatte, Chaffetz Praise Secretary’s Decision to Keep Ban on Libyans Training as Pilots and Nuclear Scientists in U.S. 

(Sept. 17, 2014), at http://judiciary.house.gov/index.cfm/2014/9/gowdy-goodlatte-chaffetz-praisesecretary-johnson-s-decision-to-keep-ban-on-libyans-training-as-pilots-and-nuclear-scientists-in-us. 

Visa applicants also are checked against the automated Consular 

Lookout and Support System (CLASS), which contains 27 million 

records of persons found ineligible for visas or against whom potentially derogatory information exists. CLASS identifies matches between the names of visa applicants and any derogatory information 

contained in the database. CLASS has grown more than 400 percent since 2001—largely the result of improved interagency information sharing. Consular officers also run all visa applicants’ 

names against the Consular Consolidated Database in order to detect and respond to derogatory information regarding visa applicants and visa holders. The Consular Consolidated Database contains more than 143 million immigrant and nonimmigrant visa 

records.6

Finally, the National Counterterrorism Center introduced in 

2013 the Kingfisher Expansion program, which now subjects all immigrant and nonimmigrant visa applications to counterterrorism 

reviews based upon a sophisticated, automated comparison of visa 

application data against U.S. government classified terrorist identity holdings.7

Those are the standard checks that are applied to all visa applicants. Additional layers of security exist in the Security Advisory 

Opinion (SAO) process, which involves additional vetting by intelligence and law enforcement communities.8 Foreign nationals coming to the U.S. to engage in flight training, which could now include nationals of such states as Iran, North Korea, Yemen, and 

Saudi Arabia, are subject to additional security threat assessments 

and restrictions imposed by statute and regulation.9 And persons 

whose planned travel raises concerns regarding the transfer of sensitive technology or knowledge or the proliferation of weapons of 

mass destruction undergo still more checks through the Visas 

Mantis vetting process.10

II. A BLANKET STATUTORY RESTRICTION ON LIBYAN VISAS COULD

HINDER U.S.-LIBYA MILITARY COOPERATION, NONPROLIFERATION, AND OTHER EFFORTS TO STRENGTHEN OUR BILATERAL RELATIONSHIP

During the markup, the Majority argued that the current regulation should not be rescinded in light of the security situation in 

Libya. Indeed, Secretary Johnson came to the same conclusion 1 

month later, telling the Committee on Homeland Security that he 

was not prepared to rescind the regulation at this time.11 Although 

the sponsors of H.R. 5401 praised the decision, they nevertheless 

announced plans to ‘‘move forward with legislation to prevent future Administrations from changing this policy.’’ 12 In effect, they 

repeated their argument that because certain extremist elements 


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13Libya Hearing at 20 (letter from Jeffrey Feltman, Assistant Secretary of State for Near 

Eastern Affairs, and Joseph McMillan, Acting Assistant Secretary of Defense for International 

Security Affairs, to David Heyman, Assistant Secretary of Homeland Security for Policy (May 

31, 2012)). 14 Id. at 21. 15 Id. at 26 (letter from Amanda Dory, Deputy Assistant Secretary of Defense for Africa Policy 

to Alan D. Bersin, Assistant Secretary for International Affairs and Chief Diplomatic Officer, 

Office of International Affairs, U.S. Department of Homeland Security (Apr. 1, 2014)). 16Tom Wescott, Libya ‘‘very important’’ to the US—Senator McCain, LIBYA HERALD, Dec. 4, 

2013. 

in Libya are now dangerous and would do us harm, we must retain 

the regulation at all costs and permanently codify it into law. 

Nevertheless, the presence of dangerous factions within Libya actually may be a primary reason to rescind the regulation at some 

point, according to military and national security experts within 

the administration. The reason for this, they explain, is that the 

current ban impedes various U.S. efforts to support the new, democratically elected Libyan government in its battle against those extremist elements. 

In 2012, the DOD and the State Department wrote to the DHS 

to explain that it is in America’s interests that Libyan Air Force 

personnel receive necessary flight training in the U.S. to rebuild 

their fleet and that the current ban ‘‘will have serious implications 

for U.S.-Libya military cooperation and the overall bilateral relationship.’’ 13 It is worth remembering that the Libyan government 

used one of its Lockheed C–130 aircraft to rescue and evacuate the 

surviving U.S. diplomatic personnel in Benghazi on the night of 

September 11, 2012. The letter further explained that banning all 

Libyan students and scientists from pursuing studies and receiving 

training in nuclear-related fields in the U.S. actually interferes 

with the efforts of the Department of Energy and the State Department to provide such people with skills and training that can be 

used for ‘‘peaceful and economically viable pursuits.’’ 14

Although the security situation in Libya remained tenuous and 

the Libyan government continued to face serious challenges from 

extremists in the region, the DOD renewed its support for rescission of the regulation in April 2014. The Deputy Assistant Secretary of Defense for Africa Policy wrote to ‘‘now more than ever 

the Libyan government needs capable, centrally controlled Armed 

Forces.’’ 15 In order to do that, the Libyan Air Force must have the 

ability to maintain and upgrade its aging and increasingly obsolete 

fleet of U.S.-made aircraft and helicopters. That simply cannot happen if we enact a law that institutes a permanent visa ban on an 

entire class of Libyan nationals. 

Late last year, Senator John McCain (R-AZ) went to Libya and 

explained the critical importance of training the Libyan Armed 

Forces. He said, ‘‘I have met with the military here and we are confident that we have plans now for training and equipment for the 

Libyan military.’’ 16 Senator McCain noted that this support was 

essential for helping the Libyan Armed Forces carry out their security and border management tasks—tasks critical to beating the 

extremist forces in the region. But the current visa restriction that 

H.R. 5401 would codify into law and make permanent prevents us 

from providing much of this training and equipment. 

While the present security situation in Libya may now counsel 

against lifting the regulatory ban on certain travel to the United 

States, codifying that ban and making it permanent will only make 


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it more difficult in the future to respond to the legitimate security 

and foreign policy needs of the U.S. government. 

III. DEMOCRATIC AMENDMENTS WOULD HAVE RESPONDED TO THE

NEEDS OF THE DEFENSE DEPARTMENT AND PREVENTED CALCIFICATION OF U.S. IMMIGRATION POLICY WITH RESPECT TO LIBYAN NATIONALS

In an effort to improve the bill, Democratic Members on the 

Committee offered two amendments. The first amendment, offered 

by Rep. Zoe Lofgren (D-CA), would have created a single exception 

to the visa ban for persons who have been accepted into a program 

that has been approved by the Secretary of Homeland Security, in 

consultation with the Secretary of Defense. The amendment was 

designed to strike the right balance by advancing America’s interests in helping to support the Libyan government in its effort to 

combat extremists in the region while also providing an additional 

level of scrutiny to the visa issuance process. The amendment was 

defeated on a party-line vote of 13–20. 

The second amendment, offered by Rep. Sheila Jackson Lee (DTX), would have required the President, in consultation with the 

Secretaries of Defense, Energy, Homeland Security, and State, to 

submit a report to Congress within 2 years describing the effect of 

the statutory ban on domestic and foreign interests of the United 

States, including any effects related the national security. The 

amendment also would have sunset the statutory ban 3 years from 

the date of enactment. The amendment was offered in response to 

the Majority’s argument that the tenuous security situation in 

Libya at the present time justifies a statutory ban of the sort contained in H.R. 5401. By requiring the President to produce a report 

to Congress within 2 years from the date of enactment and 

sunsetting the bill 1 year later, the amendment would have ensured that a future Congress could make an informed decision 

about whether to further extend the visa ban. The amendment was 

defeated on a party-line vote of 14–19. 

CONCLUSION

The debate around H.R. 5401 is not about whether Libyan nationals should be granted certain visas or allowed to remain in the 

United States in nonimmigrant status to pursue certain studies or 

training. There is already a regulation in place that prevents that 

from taking place. In fact, the Department of Homeland Security— 

after consulting with the Department of Defense, Department of 

State, and intelligence communities—determined that now is not 

the time to rescind that regulation. In making that decision, Secretary Johnson considered whether the current regulatory ban 

serves America’s strategic interests at home and abroad. 

In the event that the Secretary of Homeland Security in the future decides to rescind the regulation, our immigration system 

would still contain multiple layers of security that would subject 

visa applicants to numerous routine and enhanced background and 

security checks. This may mean that no Libyan national is granted 

a visa to come to the United States to study or train in aviation 

maintenance, flight operations, or nuclear science for a very long 

time. We do not object to such an outcome. 


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Nevertheless, we do object to a permanent blanket ban on such 

visas for Libyans where our career defense and intelligence professionals believe such visas would serve our national interest. These 

are the officials who know the situation on the ground in Libya, 

understand our security threats, and appreciate our diplomatic priorities. We should not be enacting laws that would permanently 

override these judgments simply because it is politically expedient 

to do so. 

JOHN CONYERS, JR. 

ZOE LOFGREN. 

SHEILA JACKSON LEE. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

PEDRO R. PIERLUISI. 

JUDY CHU. 

KAREN BASS. 

CEDRIC RICHMOND. 

DAVID N. CICILLINE. 

Æ 


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