REVIEW OF IMMIGRATION PROBLEMS

4- JAN

r... •, 4^c * HEARINGS

rK i ^ v*1 < , C> r y -p BEFORE THE

A SUBCOMMITTEE ON IMMGKATION, CITIZENSHIP,

AND INTEENATIONAL LAW.

OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

NINETY-FOURTH CONGRESS

FIRST AND SECOND SESSIONS

ON

IMMIGRATION AND NATIONALITY ACT WAIVERS, FOREIGN STUDENTS,

CONSULAR FUNCTIONS ABROAD, AND IMMIGRATION BENEFITS TO

ILLEGITIMATE CHILDREN

JUNE 11, 12; DECEMBER 10, 1975; AND JULY 28, 1976

Serial No. 62

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

7»-208 WASHINGTON : 197«
«

j %'. i It *-'. * ;

I \\{'l QGfijOttTTEE ON THE JUDICIAHT

*• PKTEB W. RODINO, JR• New Jersey. CUtrmsm

JACK BROOKS, Teal EDWARD HUTCHINSON, Michigan

ROBERT W. KASTENMEIER, Wisconsin ROBERT McCLORY, Illinois

DON EDWARDS, California TOM RAILSBACK. Illinois

WILLIAM L. HUNQATE, Missouri CHARLES E. WIQOLN3, California

JOHN CONYERS, JR., Michigan HAMILTON FISH, JR.. New York

JOSHUA EILBERO, Pennsylvania M CALDWELL BUTLER. Virginia

WALTER FLOWERS, Alabama WILLIAM 8. COHEN, Maine

JAMES R. MANN. Sooth Carolina CARLOS J. MOORHEAD. California

PAUL S. 8ARBANES, Maryland JOHN M. ASHBROOK. Ohio

JOHN F. SEIBERLINU. Ohio HENRY J. HYDE, Illinois

OEOROE E. DANIELSON, California THOMAS N. KINDNESS, Ohio

ROBERT F. DRINAN. Massachusetts

BARBARA JORDAN. Teias

RAY THORNTON, Ananaas

ELIZABETH HOLTZMAN. New York

EDWARD MEZVINSKY, Iowa

HERMAN BADILLO. New York

ROMANO L. MAZZOLI, Kentucky

EDWARD W. PATTWON, New York

CHRISTOPHER J. DODD, Connecticut

WILLIAM J. HUGHES. New Jersey

MARTIN A. RUSSO, Illinois

EARL C. DUDLEY, Jr.. Central Counsel

GARNER J. ("LINE, Staff Director

HERBERT FI/CH;. Counsel

WILLIAM P. SHATTUCK, Counsel

ALAN A. PARKER, Coutuel

MAURICE A. BARBOZA. Coutuel

ARTHUR P. ENDRES, Jr., Coutuel

THOMAS W. HUTCHISON, Counsel

DANIEL L. COHEN, Counsel

FKANKI.IN O. TOLK, Counsel

THOMAS E. MOONEY, Counsel

ALEXANDER B. COOK, Couruel

ALAN F. COFTEY, Jr., Coumel

KENNETH N. KLEE, Coutuel

RAYMOND V. SMIETANKA. Coumel

THOMASM. BOYD, Coumel

SUBCOMMITTEE OK IMMIGRATION, CITIZENSHIP, AND INTERNATIONAL LAW

JOSHUA EILBERO, Pennsylvania, Chairman

PAUL 8. SARBANES, Maryland HAMILTON FISH, JR.. Now York

ELIZABETH HOLTZMAN, New York WILLIAM 8. COHEN, Maine

CHRISTOPHER J. DODD, Connecticut

MARTIN A. RU8SO, Illinois

GARNER J. CIJNE, Coumel

ARTHUR P. ENDRES, Jr., Countel

JANICE A. ZARRO, Assistant Coutuel

ALEXANDER B. COOK, Associate Coumel

(II)
\!M

V

v CONTENTS

IMMIGRATION AND NATIONALITY ACT WAIVERS

Pan

Hearing held on June 11, 1975 1

Witnesses•

Arias, Julio. Visa Office, Department of State 2

Bernsen, Sam, General Counsel, Immigration and Naturalization

Service 2

Chapman, Hon. Leonard F., Jr., Commissioner, Immigration and Naturalization Service 2

Greene, James F., Deputy Commissioner, Immigration and Naturalization Service 2

Walentynowicz, Hon. Leonard F., Administrator, Bureau of Security

and Consular Affairs, Department of State 2

FOREIGN STUDENTS

Hearing held on June 12, 1975^ 9

Witnesses•

Bernsen, Sam, General Counsel, Immigration and Naturalization

Service 20

Brown, Hon. George E.. a Representative in Congress from the State

of California 10

Prepared statement

Chapman, Hon. Leonard F., Jr., Commissioner. Immigration and Naturalization Service

Prepared statement

Greene, James, Deputy Commissioner, Immigration and Naturalization Service

Additional material•

Certificate of eligibility for nonimmigrant "F-l" student status 30

Congressional Research Study, American-British Law Division,

Library of Congress, April 1974

Railsback, Hon. Tom, a Representative in Congress from the State

of Illinois, prepared statement

Students admitted as nonimmigrants, 1964-74 28

CONSULAR FUNCTIONS ABROAD

Hearing held on December 10, 1975

Witnesses••

Eagleburger. Lawrence S., Deputy Under Secretary for Management,

Department of State

Prepared statement

Lawrence, Lorcn E., Deputy Administrator, Bureau of Security and

Consular Affairs, Department of State

Somerville, Ronald K., Executive Director, Bureau of Security and

Consular Affairs, Department of State 54

Walentynowicz, Hon. Leonard F., Administrator, Bureau of Security

and Consular Affairs, Department of State 54

Additional material•

Eilberg. Hon. Joshua, chairman, subcommittee on Immigration, Citizenship, and International Law. letter dated December 2. 1975. to

Lawrence S. Eagleburger, Deputy Undersecretary of State for Management, Department of State with responses to submitted questions

mi)
IV

McCloskey, Robert J., Assistant Secretary for Congressional Relations, Department of State, letters to Hon. Joshua Ellberg• **••

November 6, 1975, re consular functions 93

December 8, 1975, re exit visa representation list 86

Procedures Followed by Visa Officers In Identifying Fraudulent Visa

IMMIGRATION BENEFITS TO ILLEGITIMATE CHILDREN

Hearing held on July 28, 1976 131

Text of H.R. 10993

Witnesses•

Arias, Julio J., Director, Visa Office, Department of State 133

Bernsen, Sam, General Counsel, Immigration and Naturalization

Service 148

Prepared statement . 157

Hennemeyer, Robert T., Deputy Administrator, Bureau of Security

and Consular Affairs, Department of State 183

Schmidt, Paul, Staff Attorney, Office of the General Counsel, Immigration and Naturalization 148

Walentynowlcz, Hon. Leonard F., Administrator, Bureau of Security

and Consular Affairs, Department of State 133

Prepared Statement _ 146

Additional material•

Chapman, Hon. Leonard L. F., Jr., Commissioner, Immigration and

Naturalization Service, Department of Justice, letter dated October

1,1976, to Hon. Joshua Eilberg; draft regulations 152

Walentynowlcz, Hon. Leonard F., Administrator, Bureau of Security

and Consular Affairs, Department of State, letter dated September

21, 1976, to Hon. Joshua Ellberg; draft regulations 150
REVIEW OF IMMIGRATION PROBLEMS

Immigration and Nationality Act Waivers

WEDNESDAY, JUNE 11, 1975

HOUSE OF REPBESENTATIVES,

SUBCOMMITTEE ON IMMIOBATION,

CITIZENSHIP, AND INTEBNATIONAL LAW

OF THE COMMITTEE ON THE JTJDICIABT,

Washington, D.C.

The subcommittee met, pursuant to notice, at 11 a.m., in room 2141,

Rayburn House Office Building, the Honorable Joshua Eilberg

[chairman of the subcommittee] presiding.

Present: Representatives Eilberg, Holtzman, Russo, and Fish.

Also present: Garner J. Cline and Arthur P. Endres, Jr., counsel;

Janice A. Zarro, assistant counsel; and Alexander B. Cook, associate

counsel.

Mr. EILBEBG. The subcommittee will now come to order. The Chair

would like to make a brief statement.

Mr. Chapman, Mr. Walentynowicz, and others, would you kindly

move forward to a place to which you have grown quite familiar.

The second half of this morning's hearing will be concerned with

the operation of section 212(d) (3) of the Immigration and Nationality

Act. As such, this portion of the hearing represents a continuation

of oversight hearings which have been held to review the general

administration of various provisions of the Immigration Act by the

Department of State and the Department of Justice, and we will

continue to hold such hearings throughout this Congress.

212(d)(3) provides a broad grant of discretionary authority to the

Attorney General to waive most of the grounds of excludability set

forth in section 212 for aliens who are applying for temporary admission to the United States. The waiver authority extends to every

ground for exclusion except those set forth in section 212(a) (27) and

section 29 relating to national welfare, safety, or security. In conferring this authority on the Attorney General, Congress clearly

recognized that certain circumstances could justify the temporary

admission of an inadmissible alien for the purpose of promoting international trade, furthering the national interest, or for example, to

enable an alien to obtain medical care in the United States which was

not available in his native country.

At the same time, Congress expressed its intent to closely monitor

the implementation of tliis section of law under section 212(d)(6)

which requires the Attorney General to submit detailed reports to the

Congress on waivers which are granted for criminals and members of

the Communist Party.

Over the past year, several issues have come to my attention

involving the exercise of the Attorney General's discretionary au-

(1)
thority under this section of law, and I am aware of various suggestions

which have been made to revise that waiver procedure and reporting

requirement. I am hopeful that during today's hearings we will be able

to closely review all of these, matters, and I wish to assure the gentlemen present that we have received considerable correspondence and

contact from our constituents and that is the reason for calling this

oversight hearing.

Gentlemen, are there any prepared statements that vou have to

offer at this time?

TESTIMONY OF HON. LEONARD F. CHAPMAN, JR., COMMISSIONER,

IMMIGRATION AND NATURALIZATION SERVICE, ACCOMPANIED

BY HON. LEONARD P. WALENTYNOWICZ, ADMINISTRATOR,

BUREAU OF SECURITY AND CONSULAR AFFAIRS, DEPARTMENT

OF STATE; JAMES F. GREENE, DEPUTY COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; SAM BERNSEN, GENERAL

COUNSEL, IMMIGRATION AND NATURALIZATION SERVICE; AND

JULIO ARIAS, VISA OFFICE, DEPARTMENT OF STATE

Mr. WALENTYNOWICZ. Mr. Chairman, because of the fact that we

did not know what specific areas you wanted to address with respect

to this particular section, we have prepared no formal statement. We

are'readv of course, to respond to any and all inquiries you may have.

I would like to suggest that as you may want to discuss in detail

particular cases and particular sources of information it may be

preferable and in the public interests that we discuss these matters in

executive session.

Mr. EILBERG. I would like to recognize Mr. Cline at this time.

Mr. CLINE. Mr. Chairman, your staff advised both witnesses that

|)repared statements were necessary. In addition, the staff also outined the thrust of today's hearing.

Mr. WALENTYNOWICZ. May I briefly respond to that? I had discussions with your staff and I was told that we would receive a

written request either Monday or Tuesday of this week. We received nothing like that. I would have been more than happy to have

a prepared statement, had I some idea as to what to specifically respond. There were some oral discussions, which included a request for

certain statistics•whatever statistics we had. I also indicated certain

areas of possible interest, for example, your inquiry in reference to the

denial of waiver requirements for certain individuals. I believe you

sent a letter on March 26, 1975, and we are prepared to respond.

However, I think it would be helpful from the standpoint of orderly

procedure if we were provided something in writing from the committee that instructed us to respond or to appear or both. I want to

make it very clear to you, Mr. Chairman, and to the committee, that

we are always pleased to prepare a formal written statement, when

asked to do so.

Mr. EILBERG. Mr. Walentynowicz, I do not want to get into a

debate with you.

Frankly, I am somewhat disappointed that you have not prepared

a statement. We always do it that way, you know; we are concerned

with the oversight of this section involved. I might also say that there
has been much correspondence inquiring as to why certain visas have

been denied. And answers provided under your direction and, I believe, by the Immigration Service have been extremely vague and

have provided absolutely no factual information.

And if your concern is over our being in executive session, it seems to

me that initiative might have been displayed by you in a telephone call

by you to me, and we would have been glad to do that but that is hardly

a reason for not abiding by the request of our counsel. And I just

wonder about what your position in this matter is. Our relations have

been so good and why you just take it upon yourself to ignore a request which presumably comes from the committee.

Mr. WALENTYNOWICZ. I did not intend to ignore any such committee request, sir. With respect to executive session, I do not suggest

it as an alternative to my response; I am only pointing out that there

may be sensitive subject areas that would be better developed in

executive session. When we are discussing broad standards, and broad

policy; youtmay not want an executive session. I am simply suggesting

that there may be times during an inquiry that it would be preferable

to go into executive session, and I will try to alert you as to what

areas the Department may regard as sensitive. I am certainly not

using this as an excuse not to respond. And with respect to

Mr. EILBEBG. May I just interrupt. Our contacts are so substantial

that it strikes me as supercilious that you would insist upon a written

letter from counsel when the expressed desire for such a statement

has been made.

The subcommittee will now recess to answer the quorum call and

we will be back immediately. Will you gentlemen kindly wait for us?

[A brief recess was taken.]

Mr. EILBERG. The subcommittee will come to order, and the Chair

expresses again his disappointment over our apparent failure to communicate, which does not seem to be the fault of the staff of the

subcommittee. I would say with respect to the Immigration Service

Commissioner, it has been made quite clear to me that there was a

2-hour conference yesterday as to the subjects to be covered and the

nature of the statement expected, and I just wonder whether you

would care to comment on that waste of time that took place yesterday.

General CHAPMAN. I am prepared to make an informal statement.

Mr. EILBERG. I said are you prepared to make a formal statement?

General CHAPMAN. NO, sir. I would like to but it is a practical

impossibility for us to prepare a formal statement and work it through

the Justice Department and OMB in a matter of hours, which was all

the time allowed.

Mr. EILBERG. Commissioner, yesterday afternoon Mr. Greene and

Mr. Leary met with our staff and raised a number of questions and

gave an outline of the statement expected. Did j

r

ou talk with your

staff subsequent to that meeting?

General CHAPMAN. Yes, sir.

Mr. EILBERG. And evidently you decided that no statement was

necessary. Is that correct, sir?

General CHAPMAN. We just decided that it was impractical to prepare and clear tlirough the administration a formal statement m a

matter of a few hours. I am fully prepared to talk to all of the subjects
that were expected and to make an informal statement. But Mr. Chairman, you must realize that a formal statement requires clearance by

the Justice Department, by OMB, and by the White House, and that

just cannot be done within a matter of hours, I regret to say.

Mr. EILBERG. Commissioner, does that apply in nonfegislative

matters as well as legislative matters, nonlegislative matters when we

are exercising our oversight? When you appear before us and you are

required to make a statement, this has to be cleared all the way?

General CHAPMAN. All the way, sir. And on previous occasions we

have made formal statements and they have been cleared in the way I

described.

Mr. EILBEHG. Well, perhaps you are right. But it would have been

much simpler to save our staff's time and Mr. Greene's and Mr.

Leary's time, if this objection had been raised before this morning.

And we would not have taken as much time as we havo this morning

on it.

General CHAPMAN. I believe we can cover all of the desired grounds

here on the basis I have described. ] am ready to deal with all of the

subjects that I believe you expect to touch on, and to begin an informal statement, which I can assuie you would not be very much

different from a formal one if we had had time to prepare it and clear it.

Mr. EILBERG. IS it your desire now, Mr. Walentynowicz or General

Chapman, to go into executive session? Did I understand that you

wanted that, or you requested that?

General CHAPMAN. Not on my part, sir.

Mr. WALENTYNOWICZ. I merely suggested Mr. Chairman, that there

may be times when it would be appropriate, but I did not indicate

that it was necessary right now.

Mr. EILBERG. Well, let's get specific. I will ask a question, and we

will see where we are.

This member, as well as others in the Congress, in the House of

Representatives, has written to the Department of State concerning

the cancellation of nonimmigrant visas for certain Irish nationals who

were desirous of visiting the United States. In most of these cases, they

were determined to be excludable under section 212(a) (28) (F) and

this information was conveyed to me in a letter from Assistant Secretary for Congressional Relations, Robert J. McCloskey, April 24.

I might say that I wrote first and did not get a detailed, factual

reply. I wrote again and the second time did not get a factual reply.

And so, I am very much concerned about what your position is on

these matters. I wonder if you could cite the special provision of the

section 212(a) (28) (F) that applied to the following individuals,

Ruairi O'Bradaigh•forgive my pronounciation•Maire Drumm, Joe

Cahill, Sean Keenan, and Seamus Loughan. What was the basis of

making that determination ?

Was it based on their past activities in Northern Ireland? What

was the nature of these activities? The subcommittee would like to

know about these things, Mr. Walentynowicz.

Mr. WALENTYNOWICZ. I would be more than happy to respond, sir.

However, may I suggest that if we start talking about cases in detail,

it may be appropriate to go into executive session. If, as the inquiry

proceeds, you ask us for specific factual data which formed the basis

of our conclusion, we may very well reflect unfavorably upon the

applicant and touch upon sources of information which I think, in
5

the interests of the United States, would be better to be kept in executive session.

Mr. EILBERG. Well, my reaction would be that I have written to

the Department of State twice on this subject and have not received

satisfactory answers as far as details are concerned. I know nothing

about the factual backgrounds of these cases, so there is no basis for

me to believe that an executive session is necessary at this point.

Mr. WALENTYNOWICZ. Well, sir, I am privy with the letter that

was sent to you by Ambassador McCloskey, on approximately

April 25, 1975, in response to your letter of March 26, 1975. If there

is another letter

Mr. EILBERG. Well, we will take that letter. And I call to your

attention and the members of the subcommittee who have not perhaps had a chance to read this letter, that we asked about all of these

cases that are referred to. And in the reply of Mr. McCloskey, in not

a single case does he give any factual background, and I find that

insulting.

Mr. WALENTYNOWICZ. Let me assure you, sir, that it was not intended to be insulting. Ambassador McCloskey was attempting to

do his job. If the letter was, in your mind, insufficient or inadequate,

we will be pleased to respond again and provide whatever additional

detail you wish. However, I would like to point out that there was a

specific finding in the cases you mention. For example, Mr. Peter R.

Brady, also known as Ruairi O'Bradaigh•and I apologize for any

mispronunciation•was found ineligible to receive a visa due to the

operation of 212(a) (28) (F). That I think is a particular fact. Perhaps

you are looking for more facts, or for the reasoning?

Mr. EILBERG. I would like to know the factual situation in that

case and in each of the other cases, Mr. Walentynowicz, and what

led you to arrive at the decision that you did not grant a waiver. I do

not want the authority at this point•you have given us the authority,

but you have not told us one blessed thing about why you exercised

your discretion.

Mr. WALENTYNOWICZ. I would like to respond. If you will bear

with me for a moment, sir, before I address myself to those questions,

I would like to briefly consult Mr. Arias, with respect to my previous

comment about executive session.

Mr. EILBERG. Please do.

Mr. WALENTYNOWICZ. May I make a prefatory comment, sir?

Mr. EILBERG. Mr. Walentynowicz, it has been the custom, as I

have observed your testimony, that your preliminary comments tend

to run into 15 to 20 minutes or half an hour, and so they will not on

this occasion.

Mr. WALENTYNOWICZ. Sir, you are the chairman and you may

limit me in any fashion.

I only ask that you bear with me.

Mr. EILBERG. I will bear with you for a reasonable time, but not

for your customary speeches, which say absolutely nothing.

Mr. WALENTYNOWICZ. Well, sir, I would think that at least if you

invite me to come here and testify you would at least give me an

opportunity to finish my presentation.

Mr. EILBERG. Well, you have no presentation and you have made

that very clear.
6

Mr. WALENTYNOWICZ. I would like to address myself to the inquiry,

sir, and not to any side issues.

Section 212(d) (3) of the Immigration and Nationality Act provides

that the Attorney General may by waiver and after recommendation

of the Secretary of State or by a consular officer, admit into the United

States as a nonimmigrant an otherwise inadmissible alien. This is the

discretion that is given to the Attorney General by the Immigration

and Nationality Act. As I understand the law, there is no specific

standard which guides that discretion. In other words, when I say

specific standard, I am sure that reasonableness is an element of that

discretion; however, there is no other objective set of criteria that

refers to the discretion of the Attorney General.

However, a working set of criteria has been carefully developed

over time. I would like to point out that the waiver is not, in fact,

granted by the Secretary of State, butis the result of a working process

wherein a recommendation by the Secretary of State or the consular

officer is an essential precondition to the Attorney General's final

decision. I make these remarks simply to give you a framework with

respect to your specific inquiry.

One of the criteria that has been developed with respect to whether

admission is advisable and in the best interests of the United States

is an individual's involvement in certain terrorist activities. If you

want to discuss the specific facts of those five cases, I urge that we go

into executive session.

Mr. EILBERG. Well, I would call to your attention that if the subcommittee decides to go into executive session, we may then decide

that that material that you are presenting is not in the national

security.

Mr. WALENTYNOWICZ. We understand that but I also hope that

you will give us the opportunity to make appropriate comments.

Mr. EILBERG. I do not think there is anything in the House rules

that requires appropriate comment.

Mr. WALENTYNOWICZ. I do not say there is anything in the rules,

sir.

Mr. EILBERG. YOU have shown us very little courtesy and I do not

think you are entitled to any particular courtesy from us, so let us

just keep this on a formal basis. As far as I am concerned, if that is

the way you want to do business at this time we will not go into

executive session, and again I ask the question.

Mr. WALENTYNOWICZ. With respect to Mr. O'Brady, sir, we have

developed information from confidential sources to the effect that

Mr. O'Brady is involved in the Provisional IRA activity. As a matter

of fact, we also have developed information that he is a leader of the

Provisional Sinn Fein, and that the purpose of his visit to the United

States would be to raise funds which would in some fashion ultimately

support those activities. Because it has been clearly demonstrated

these organizations have involved violence and terrorism, the Department concluded that it would not be provident for us to seek a waiver,

or ask the Immigration and Naturalization Service to seek of waiver

of the provisions of section 212(a).

We felt that the information we developed was such that could

properly lead us to the conclusion that Mr. O'Brady was in fact an

individual of the type contemplated in 212(a)(28)(F). As a result of

that determination, it was concluded that it would not be in the

public interest of the United States to seek a waiver; andffor that
reason we did not approach the Immigration and Naturalization

Service in this matter.

Mr. EILBERG. Mr. Walentynowicz, what you refer to, 2l2(a)(28)(F),

I woidd like to know what subsection of (F) or subsections you are

referring to.

Mr. WALENTYNOWICZ. That section discusses, and I am not trying

to read it for you because I know j'ou can read, but I am just trving

to explain the thinking processes, sir. The section talks about aliens

who advocate or teach, or who arc members of organizations which

advocate or teach certain proscribed acts. There is a dual test: The person may teach or advocate, but does not necessarily have to be a

member. Conversely, if he is a member of a group that advocates or

teaches, although he may not necessarily advocate or teach himself,

he is nevertheless disqualified. The other specific aspect of the

standard is the fact that the teachings or advocacy is directed to:

(i) The overthrow by force, violence, or other unconstitutional means of the

Government of the United States or of all forms of law, or (ii) the duty, necessity,

or propriety of the unlawful assaulting or killing of any "officers of the Government of the United States or any other organized government, because of his or

their official character; or (iii) the unlawful damage, injury, or destruction of

property; or (iv) sabotage.

Mr. EILBERG. Mr. Walentynowicz, let me interrupt you there. I

think the essence of what you are saying so far is that he would have

come over here to raise funds and that that is why he was denied the

visa, because he belongs to this organization that would come over

here and raise funds.

Now how does that tend to overthrow the Government of the

United States?

Mr. WALENTYNOWICZ. It does not overthrow the Government of

the United States, sir, but let us not forget the four separate catef;ories. We are talking about sabotage. We are talking about the unlawul damage, injury or destruction of property. We are talking about the

overthrow of other organized governments. We read that section to

mean•and this is somewhat of an oversimplification, sir, but I am

trying not to be extended in my comments•that people who advocate,

teach, or support terrorism should not be admitted into the United

States.

Mr. EILBERG. I yield to Ms. Holtzman.

Ms. HOLTZMAN. Mr. Chairman, I am very confused by the testimony of the witness. Item No. 2 of paragraph (F) talks about the

duty, necessity, propriety of the unlawful assaulting or killing of

officers of any other organized government. Terrorism is not necessarily directed against officers of an organized government.

Are you making the claim here that this gentleman or the organization with which he was connected advocated, taught, the duty,

necessity, propriety of unlawfully assaulting or killing officers of

another government? Is that the statement you are making?

Mr. WALENTYNOWICZ. From newspaper comments alone Ms.

Holtzman, it is pretty clear that the situation in Ireland•particularly

in Northern Ireland•is such that many governmental officers have

been assaulted and killed. Police officers, civil officers, and so forth.

Ms. HOLTZMAN. I do not think you have answered my question.

My question is, does this gentleman, or the organization he belongs to

specifically advocate or teach the duty, necessity, propriety of unlawfully assaulting or killing of any officer or officers of any other
8

organized government because of his or their official character. That

is the question. Thatis what the statute provides.

Mr. WALENTYNOWICZ. Yes, that is what I have tried to say. Their

actions and their declarations indicate that this is what they do.

Ms. HOLTZMAN. So what you are saying is that this organization

Mr. WALENTYNOWICZ. In our judgment.

Ms. HOLTZMAN. In your judgment, that that organization specifically advocates the unlawful assaulting or killing of officers of other

organized governments, and you learned this from reading the

newspapers?

Mr. WALENTYNOWICZ. No, sir. I said at least one indication was

from the newspapers. We have learned it from other sources also.

Mr. EILBERG. Go on.

Mr. WALENTYNOWICZ. I am saying that their activity is of such

notoriety that it appears in the press. Of course, I am not suggesting

that the only place we look is newspapers. On the other hand, we do

not disregard newspaper reports either.

Ms. HOLTZMAN. I must say, Mr. Walentynowicz, I am very

intrigued that you keep saying "no, sir," but in any case

Mr. WALENTYNOWICZ. All right. No, madam.

Mr. EILBERG. GO on, Mr. Walentynowicz.

Mr. WALENTYNOWICZ. The point very simply, sir, is that we have

standards, and we keep these standards in mind as we evaluate what

kind of activity this man is going to be involved in when he comes to

the United States; what kind of activity he has been involved in

while in his own country; what are his public declarations, and, what

are the groups to which he belongs or professes to belong. Keeping

all of these things in mind and looking to the circumstances and using

the public interest criteria which I previously discussed, we feel that

we were quite proper in not recommending that a waiver be issued

for this man. In this instance, much of the information available to

us is secret and confidential cable traffic obtained from other governments and individuals with the understanding that the sources would

be protected.

Mr. EILBERG. Mr. Walentynowicz, my reaction to all that you have

said is that it is all very general in nature, and that you have not

answered our questions specifically.

In view of what you have said, if we go into executive session,

are you prepared to give us the details of the case?

Mr. WALENTYNOWICZ. Yes, sir. We will give you whatever information we have.

Mr. EILBERG. All the facts in that case?

Mr. WALENTYNOWICZ. All the facts.

Mr. EILBERG. Unless there is objection, the subcommittee will go

into executive session, and there has to be a rollcall vote on this, and

I hope members of the subcommittee will agree under the circumstances.

Mr. FISH. Aye.

Mr. EILBERG. Aye.

Ms. HOLTZMAN. Aye.

Mr. EILBERG. The subcommittee will go into executive session.

[Whereupon, at 12 noon, the subcommittee recessed to go immediately into executive session, and that material has been retained in the

committee files.]
REVIEW OF IMMIGRATION PROBLEMS

Foreign Students

THURSDAY, JUNE 12, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION,

CITIZENSHIP, AND INTERNATIONAL LAW

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D'.Cl

The subcommittee met, pursuant to notice, at 10:30 a.m., in room

2237, Rayburn House Office Building, the Honorable Joshua Eilberg

[chairman of the subcommittee] presiding.

Present: Representatives Eilberg, Sarbanes, Dodd, Russo, Fish,

and Cohen.

Also present: Garner J. Cline and Arthur P. Endres, Jr., counsel;

Janice A. Zarro, assistant counsel; and Alexander B. Cook, associate

counsel.

Mr. EILBERG. The subcommittee will come to order.

[The opening statement of the Honorable Joshua Eilberg follows:]

OPENING STATEMENT OT THE HONORABLE JOSHUA EILBERO

The purpose of this hearing by the Subcommittee on Immigration, Citizenship,

and International Law is to exercise its responsibility for legislative oversight

regarding the administration of the immigration law as it,pertains to those

provisions concerning foreign students.

Most alien students are admitted to the United States under the nonimmigrant

student F visa classification of the Immigration and Nationality Act, on a temporary basis, to pursue a full course of study at a school approved by the Attorney

General. Other foreign students are admitted with a J visa which is a nonimmigrant

exchange visitors visa which allows the alien to come to the United States under

an Exchange Program for the purpose of acquiring knowledge and skills, and who

are required to return to the native country to fulfill a two year returning residency

commitment. The schools that the alien students attend include colleges and

universities, trade and vocational, and private and public elementary and secondary schools. Many of the students who obtain visas remain in the United States

more than one year.

There are a number of domestic socio-economic factors; namely the sharp rise

in the cost of tuition and the rising unemployment rate which has affected the

foreign student program as well as United States students seeking a college

education.

In addition, the United States foreign policy goal of international educational

exchange may conflict in some respect with domestic programs and priorities.

A controversial situation arose last summer when the Immigration and Naturalization Service revised its procedures for granting summer work permission

to foreign students by requiring applicants to obtain permission from the INS

rather than the learning institution. In the past, it had been the practice of the

INS to authorize the foreign student advisers in the educational institutions to

grant summer work permission to the foreign students. In a press release issued by

the Department of Justice, which explained the revised procedure, Commissioner

Leonard F. Chapman, Jr., our witness today, indicated the decision to withhold

authority from the school officials was based on the desire to protect jobs for

American youth including Vietnam veterans and minority groups. Based upon this

(9)
10

change in procedure I received a great deal of correspondence from universities

and other interested groups concerned not only about this change, but the numerous issues related to foreign students at all educational levels in the United

States.

While it is not within the jurisdiction of this Subcommittee to choose between

foreign policy considerations and domestic educational policy, it is within our

jurisdiction to question whether student visas are being issued to intending immigrants. We must also prevent foreign students from being brought here with

false expectations and sent home unable to complete their proposed course of

study. We must examine the duty and ability of consular officers to determine the

financial ability, scholastic qualifications and English proficiency of prospective

students who must meet this criteria before being issued a student visa.

I reiterate that the Subcommittee has been concerned with all of the problems

related to foreign students including, I might add, foreign medical school graduates. The Subcommittee is not only concerned about the implementation of the

foreign student provision of the Immigration and Nationality Act by the Departments of State, Justice, and Health, Education and Welfare, but compliance with

the law and regulations by the various educational institutions.

Quite understandably many of my colleagues have contacted me and have

expressed a concern for the difficulties encountered by foreign students, educational

institutions and American students regarding the current administration of the

immigration laws affecting foreign students. The Honorable George E. Brown,

Jr., ofCalifornia has introduced H.R. 1787 with numerous cosponsors which would

permit nonimmigrant foreign students to be employed during school vacations

with the permission of their educational institutions. Congressman Brown will

testify this morning on this legislation.

Mr. EILBERG. Congressman Brown, please go ahead. I have not

had the opportunity to read your statement. If you have any comments

on the GAO report they will be welcome as well. I realize that you

may not have that much time. You may want to submit a further

reaction later on; that will probably be all right with^the subcommittee

also.

TESTIMONY OP HON. GEORGE E. BROWN, A REPRESENTATIVE IN

CONGRESS PROM THE 36TH CONGRESSIONAL DISTRICT OP THE

STATE OF CALIFORNIA

Mr. BROWN. Thank you ver\r much, Mr. Chairman.

I first want to commend the subcommittee and the chairman for

holding these hearings which recognize the critical nature of the problems facing the foreign student community as a result of recent

administrative changes made and which, of course, also recognize the

fact there has been to some degree a breakdown in the proper handling

of the total problem of foreign students in this country.

I have been very much interested in this question. I have submitted

the legislation that you refer to. I have solicited the help of the subcommittee and oversight on this matter, and I am deeply grateful that

the subcommittee has moved ahead with these hearings.

I have a rather brief statement which, if the chairman will permit

me, I will go ahead and read. And then I would like to make some additional comments with regard to the GAO report. I appreciate this

opportunity to testify. I will direct the main part of my testimony to

trie effect of Commissioner Chapman's 1974 decision which changed

foreign student work permit application procedures so that they had to

apply directly to the Immigration Service instead of to their individual schools for work permits. The resulting effects of this decision

fall into two categories, the short term and the long term.

The short-term effects are, as always, more easily demonstrated and

clarified. When Mr. Chapman made his April announcement that for-
11

eign students must apply directly to the Immigration Service for work

permits, few of us were prepared for the resulting confusion and cases

of hardship. Of the approximately 157,000 foreign students that attend

our schools each year, about 20,000 apply for summer work permits.

For these students, a source of additional income has often given them

that slight financial edge necessary to continue an expensive university education. Their understanding of our work permit regulations

was that a foreign student who was able to show changing economic

circumstances after the commencement of study in the United States,

resulting in economic need, can apply for a work permit.

Precedence had also shown that these permits were available for

those in need. As stated in Immigration Law and Procedures, by

Charles Gordon and Harry Rosenfield, "the Service, INS, has usually

authorized approved schools to permit foreign students in need of

funds to accept employment during the summer vacations." And so,

in April of 1974, some 20,000 students were preparing to apply for

summer work permits, when Mr. Chapman changed the regulations

with the intention of stringently decreasing work permit allocations,

no warning had been given, and many students were left with no means

of earning that extra $1,000 or $2,000 required to help them through

the rest of their education period.

Mr. EILBKRG. May I interrupt just a minute, Mr. Brown. I

would like to be certain that everyone is able to hear the comments

being made.

Mr. BROWN. We have extra copies of the statement. I would be

more than happy to provide the Commissioner with them.

Mr. EILBERG. Sorry to interrupt.

Mr. BROWN. Certain students were deported when a lack of funds

was discovered, some students turned to dlegal work, and a few came

close to starvation from fear of disclosing their financial difficulties.

It is difficult for anyone to return home to relatives and friends who

are expecting so much, and have often lent their life savings to help

finance their child's education, and it meant defeat. But this is exactly

what happened last summer.

The long-range consequences of tightening our work permit requirements are, in my opinion, even more serious than the short-term

results just stated. In 1952, Congress recognized the political need to

develop a strong program of international cultural exchange by designating, in the act of 1952, that the United States had no intention of

hindering aliens who wished to pursue a course of study here in this

country. We had finally come to the realization that the fragile bonds

of economic and military relationships had to be strengthened if

another World War was to be avoided. Education and cultural exchange

were chosen as possible tools to aid us in our diplomatic endeavors.

As educational exchanges proved to be a positive force in international movements toward detente, foreign students were increasingly encouraged to utilize our universities. In 1961, Congress further

emphasized the need for improving international relations by passing

the Mutual Educational and Cultural Exchange Act of 1961. This act

enabled the U.S. Government to do all in its power to promote international cooperation for educational and cultural advancement and

thus to assist in the development of friendly, sympathetic, and peaceful

relations between the United States and the other countries of the

world.
12

After establishing such a defined course of support for educational

exchange, which has been one of the major factors leading to the

encouragement of increased foreign student enrollment in our universities, I believe that we will seriously jeopardize our relationships

with all countries that cannot afford to send their students here on

Government grants if we continue to support Mr. Chapman's decision

to restrict work permit distribution. The less developed countries that

are most greatly affected by the food crisis, the population crisis, the

energy crisis, cannot spare the large sums our universitites demand to

educate their citizens. And so, these countries, the very ones that

need educated citizens to help with the required technical assistance

so necessary to develop agricultural potential, raise health standards,

or employ good birth control methods, will be penalized for their lack

of student funding programs.

Commissioner Chapman's restrictions of work permit allocations

will not affect the rich countries, many of which already have national

educational grant programs that send their best students to United

States and European schools.

Those less developed countries that are affected can only react with

anger and distrust to our calloused attitude in the face of their desperate need to develop a corps of national technicians that will aid them

in their difficult task of economic overhaul.

In response to this situation, as I see it, I introduced H.E,. 15819

in the last Congress, and a similar H.R. 1787 in this Congress. This

bill simply reverses Commissioner Chapman's decisions so that the

foreign student's individual schools can once again distribute the work

permits where they see the greatest need. The school is better equipped

for such a responsibility, because it has advisers that are familiar with

the students' needs, and it has the necessary work force, something Mr.

Chapman has often claimed the INS is sadly lacking.

I ask this committee to consider this bill, to consider the many outgrowths of Commissioner Chapman's decision, and to reverse his decision, so that all needy foreign students will be able to get work permits

when necessary.

This country can absorb, and has absorbed, the possible 20,000

summer jobs this means, and the many cultural and political benefits

we derive from this international exchange program far outweigh the

relinquishmentof 20,000 jobs to the foreign students.

Now, if I may just add a few more comments off the cuff, Mr.

Chairman. Our office in California, as is true of most of the congressional offices in southern California, is inundated with immigration

cases. I do not know of an office that does not have to maintain at

least one full-time congressional office staff to handle immigration

cases. The reasons for this are the fact that, as I am sure the Commissioner will testify, their offices are overloaded. They are inundated

with the mass of paper work required to deal with the complexities

of the immigration law.

I do not like to have to call the Regional Immigration Director to

deal with a simple case of a student who should be taken care of in a

half an hour at the local level but instead becomes a matter that

involves probably dozens or hundreds of man-hours of the regional

office. I think it is ridiculous to assume that we are going to have any

improvement in the operation of the student work permit program

or any other program by enhancing its complexity, by taking it away
13

from the school or other local agency and putting it into an Immigration and Naturalization Service office. I think what you are going to

do is less production at about ten times a greater cost to the taxpayer.

And I think the experience of most other congressional offices would

tend to verify this.

Now, I am aware of the reports made by the GAO as to the fact

that there are a number of cases which any audit will disclose where

the regulations are not being perfectly enforced. There are students

who are working illegally. There are students here who remain here

after they should go back to their country. There are other examples

of this sort•students who readjust to permanent residence as a result

of the unfair advantage which they have received as students over

here. These are inequities. They do not begin to compare with the

problems in southern California where we have estimates that there

are at least a half a million illegal aliens working now and not being

taken care of by the INS. And to single out this small group of students who are here as a result of a national policy decision that is

aimed at improving the condition of the world by building up, by

contributing to the welfare of the countries that need the education

of the students, and by helping establish detente, is the greatest

misapplication of governmental resources and governmental emphasis

that I can possibly imagine.

Just to dwell on that for a moment•and we will take southern

California. There could be 5,000 students who might technically be in

violation of some portion of the regulations and there are half a million

of illegal working aliens that the INS can do nothing about. And so

what does the GAO report recommend? A tightening up on the

regulations, hire more people, spend more money to correct this

problem, and presumably, let the other problem go. This is not my

idea of the proper way for the Government to function. I think that

if I were to make a recommendation on the student problem in

general, it would be perhaps to strengthen the auditing provisions

that exist in the INS, to spell out more specifically to the schools the

kinds of regulations that we want to enforce, to make regular checks

on the enforcement of these things, but to not attempt to take away

the responsibility from these schools. Its only effect can be a vast

increase in the expenditure of money and a far less effective process

for achieving the results that are to be sought, and, I think, a total

neglect of the overriding public policies which created the foreign

student program to begin with. And this is the point which I think

needs the greatest emphasis.

I think we have become entangled in a bureaucratic concept here

that totally neglects the needs, the overriding policy needs of this

country which led to the creation of the student program. And I

would like to see the subcommittee give some consideration to the

nature of the problem in this light.

[The prepared statement 01 the Honorable George E. Brown

follows:]

STATEMENT OF HON. GEORGE E. BROWN, JR., A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CALIFORNIA

Mr. Chairman and Members of the Committee:

I appreciate this opportunity to testify on the subject of foreign students here

in the United States. 1 will direct the main part of my testimony to the effects of

78-206•76 2
14

Immigration Commissioner Chapman's 1974 decision which changed foreign

student work permit application procedures so they had to apply directly to the

Immigration Service, instead of to their individual schools, for work permits.

The resultingeffects of this decision fall into two categories•the short term and

the long term. The short term effects are, as always, more easily demonstrated and

clarified. When Mr. Chapman made his April, 1974, announcement that foreign

students must apply directly to the Immigration Service for work permits, few of

us were prepared for the resulting confusion and cases of hardship. Of the approximately 157,000 foreign students that attend our schools each year, about 20,000

apply for summer work permits. For these students, this source of additional

income has often given them that slight financial edge necessary to continue an

expensive university education.

Their understanding of our work permit regulations was•that a foreign student

who is able to show changing economic circumstances, after the commencement of

study in the United States, resulting in economic need, can apply for a work

permit. Precedence had also shown that these permits were available for those in

need. As stated in "Immigration Law and Procedure", by Charles Gordon and

Harry Rosenfield, "The Service (INS) has usually authorized approved schools

to permit foreign students in need of funds to accept employment during the

summer vacations."

And so, in April of 1974, some 20,000 students were preparing to apply for summer work permits when Mr. Chapman changed the regulations with the intention

of stringently decreasing work permit allocations. No warning had been given and

many students were left with no means of earning that extra $1,000-52,000

required to help them through the rest of their education period. Certain students

were deported when their lack of funds was discovered; some students turned to

illegal work: and a few came close to starvation from fear of disclosing their

financial difficulties. It is difficult for anyone to return home to relatives and

friends who are expecting so much, and have often lent their life savings to help

finance their child's education, and admit defeat; but this is exactly what happened

last summer.

The long range consequences of tightening our work permit requirements are,

in my opinion, even more serious than the short term results just stated. In 1952,

Congress recognized the political need to develop a strong program of international,

cultural exchange by designating, in the Act of 1952, that the United States had no

intention of hindering aliens who wished to pursue a course of study here in this

country. We had finally come to the realization that the fragile bonds of economic

and military relationships had to be strengthened if another world war was to be

avoided. Education and cultural exchange were chosen as possible tools to aid us

in our diplomatic endeavors.

As educational exchanges proved to be a positive force in international movements toward detente, foreign students were increasingly encouraged to utilize

our universities. In 1961, Congress further emphasized the need for improving

international relations by passing the Mutual Educational and Cultural Exchange

Act of 1901. This Act enabled the U.S. Government to do all in its power to

promote international cooperation for educational and cultural advancement and

"thus to assist in the development of friendly, sympathetic, and peaceful relations

between the U.S. and the other countries of the world."

After establishing such a defined course of support for educational exchange,

which has been one of the major factors leading to the encouragement of increased

foreign student enrollment in our universities, I believe that we will seriously

jeopardize our relationships with all countries that cannot afford to send their

students here on government grants if we continue to support Mr. Chapman's

decision to restrict work permit distribution. The less developed countries that

are most greatly affected by the food crisis, the population crisis, and the oil

crisis, cannot spare the large sums our universities demand to educate their

citizens. And so, these countries, the very ones that need educated citizens to

help with the required technical assistance so necessary to develop agricultural

potential, raise health standards, or employ good birth control methods, will be

penalized for their lack of student funding programs. Commissioner Chapman's

restrictions of work permit allocations will not affect the rich countries, many of

which already have national educational grant programs that send their best

students to U.S. and European schools.

Those less developed countries that are affected can only react with anger

and distrust to our calloused attitude in the face of their desperate need to develop

a corps of national technicians that will aid them in their difficult task of economic

overhaul.
15

In response to this situation, as I see it, I introduced H.R. lo819 in the last

Congress, and a similar H.R. 1787 in this Congress. This bill simply reverses

Commissioner Chapman's decision so that the foreign student's individual schools

can once again distribute the work permits where they see the greatest need.

The school is better equipped for such a responsibility because it has advisors

that are familiar with each student's needs, and it has the necessary work force.

(Something that Mr. Chapman has often claimed the INS is sadly lacking.) I

ask this Committee to consider this bill, to consider the many outgrowths of

Commissioner Chapman's decision, and to reverse his decision so that all needy

foreign students will be able to get work permits when necessary.

This country can absorb, and has absorbed, the possible 20,000 summer jobs

this means; and the many cultural and political benefits we derive from this

international exchange program far outweigh the relinquishment of 20,000 Jobs

to the foreign students.

Mr. EILBERG. Thank you, Congressman Brown.

Mr. Brown, you spoke vehemently, and I am only going to ask a

few questions about the illegal alien situation. Very little is being done

about the illegal alien situation in your district. As you may know,

the subcommittee has completed the hearings on the illegal alien bill

H. R. 982. I wonderif you have hadanopportunitytoexaminethatbill.

Mr. BROWN. I have not in any detail. I am familiar with the considerable work that the committee has put in on this, and I appreciate

the fact that you are attempting to resolve this problem.

Mr. EILBERG. We are scheduled to have our first markup session

this coming Tuesday on one bill, H.R. 9S2. I commend it to you for

reading. And, of course, do you have a position on the bill that you

would care to mention to the committee at this time?

Mr. BROWN. I would prefer not to do so until I have looked in a

little more detail at the bill, Mr. Chairman. I would just mention as a

matter of general principle, that, in dealing with this problem, you

have the alternatives, as I see, a couple of alternatives. One, of a

vastly increased police effort, aimed at preventing the crossing of the

border of these illegal aliens, an almost impossible task. And I can see

us adding innumerable agents to the various forces seeking to prevent

this, with very little success. And then, as an alternative, the possibility of establishing a system under which those persons who hire

these illegal aliens may be subject to penalties which would inhibit

their willingness to do so, which has not been the case up to date. And

I know it has been considered as a possible thrust of the legislation on

numerous occasions.

I think personally that the only way we can go to solve this problem

is going to be to enact penalties which will apply to those who have

hired the illegal aliens, so that it no longer is attractive to them to do

so, which I think will reduce the number of people seeking to come

over here illegally.

Mr. EILBERG. SO what you have just discussed is incorporated in

our bill. You would be for the bill that would contain such a principle?

Mr. BROWN. I would favor it such in a postscript, ves.

Mr. EILBERG. In that event, hopefully we would liave a barrier

which would reduce the numbers of illegal aliens that would be employed, thereby reducing the problem.

Have you had the opportunity to look at any comparison between

the number of work authorizations given by the Immigration Service

since the regulations were adopted and the number authorized under

the previous system?
16

Mr. BROWN. I have had the occasion to look at the figures. I do

not have in mind the precise figures right now. It is my understanding

that there has been a reduction in those figures, as a result of the

Commissioner's decision, and that the rate of denials has increased

as a result of the decision.

Mr. EILBERG. You do not seem to be too familiar with the figures,

and I would welcome, Mr. Brown, your staying or your staff members

staying so that your office can get the benefit of whatever information

General Chapman has been able to provide and if you wish to be

included in the dialog after that we will be happy to hear from you

again.

My district in Philadelphia has recently experienced perhaps the

most difficult presummer season that I have witnessed in my years

in Congress. It is my ninth year, and I have never had a time as difficult in terms of American students looking for jobs. It is a very bad

and very tragic situation. I wonder what your experience is.

Mr. BROWN. Of course, my experience has been very similar to

yours, Mr. Chairman. There is no question, in fact, that the economic

situation which confronts the general population as well as the student

population seeking summer work is worse than it has been anytime

m my adult experience. Of course, I lived through the Depression

when it was equally bad, but we have had nothing comparable since

then, and I recognize the bearing of this situation on the foreign

student. I can only say that, of course, the Congress is taking action

and will vote, I think, has voted this week, to fund summer student

employment on the basis of hundreds of thousands of jobs to help

alleviate this situation. And of course, we assume that the work that

the Congress is doing to help reduce the total unemployment will have

a bearing on this. We have to weigh this in the light of the total impact

of the foreign student employment requests and applications that are

being granted, which, as you well know, are on the order of 10,000

to 20,000, and weigh this against the total situation. Admittedly, a

foreign student taking a summer job will probably take it away from

an American student and that the results this summer will be worse

than they have been in some time.

We are legislating here, and the Congress, as you well know, has to

legislate for the long time. We hope economic conditions will improve,

and that our efforts to provide summer jobs for our own students will

help to alleviate the bulk of that problem. Here we have an opportunity in dealing with the foreign student, to take a stand which is

miniscule in comparison with the total problem of foreign student

employment which can have an impact on world relations, which can

have an impact on the future on our country, in terms of its ability to

assist other countries of the world. And these things have to beconsidered.

Mr. EILBERG. Thank you.

Mr. Fish

Mr. FISH. Thank you, Mr. Chairman.

And thank you, Mr. Brown.

If I understand the situation prior to April 1974, a foreign student

in one of our institutions of higher learning was able to show changed

economic circumstances after the commencement of study in the

United States, resulting in economic need would then apply for a work

permit at the school which he is attending.
17

Mr. BROWN. That is precisely correct.

Mr. FISH. NOW, in April of 1974, the Immigration and Naturalization Service, by regulations, provided that such application be made

directly to the Immigration Service. And in your statement you say

that Mr. Chapman changed the regulations with the intention of

stringently decreasing work permit allocations. But I see no substantiation for this conclusion. I wonder if you would like to elaborate

on that. I think it is the heart of your effort to change that regulation.

Mr. BROWN. Well, you have touched on an important point And

for me to assert what the Commissioner's intentions were is probably

not fair. I put that assertion in there because that is the common

attitutde which has been conveyed to me by literally dozens of people

working in foreign student affairs, based on their experience with the

reduction in the number of work permits. They have assumed that

because there was a reduction and that it was made more difficult to

procure, that it must have been the intent. Now, that is notlogically a

necessity, and I recognize that, and I will apologize to the Commissioner

if I misstated that. But that was the way in which the matter was

conveyed to me, as I say, by literally dozens of individuals involved in

foreign student work at universities all over this country. And that is

the basis of my statement.

Mr. FISH. Well, we will get from the Commissioner his intention to

issue this regulation. Hopefully, also, as the chairman indicated, that

comparatively of the number of work permits that would be issued

before and after the institution's regulations, because it seems to me

that does show a material change, when the objections to the regulations are removed.

I just have one other question. Of the 20,000 students that normally

apply for summer work permits, foreign students, do they find jobs

themselves, or would they benefit from the summer youth employment program that the Congress just voted some $450 million for?

Mr. BROWN. Well, as far as I know, they would be eligible for

employment on these federally funded programs, and I am subject to

correction if I am wrong here. But normally, there is a separate foreign

student apparatus on each campus which has counselors who assist

the students in obtaining jobs and who have a particular awareness

because they are foreign student counselors, who have a particular

awareness of the needs and abilities of the foreign students. And

normally, the procedure is for the foreign student to go through that

foreign student apparatus and find them jobs. That does not preclude

his finding jobs on his own, and there are many examples of relatives

or friends who go through those relatives or friends to find employment during the summer, and do so rather successfully.

We have in general•and I am sure it is not news to you•the

foreign students are a high caliber of persons with initiative and

ability superior to the normal in their own country, and possibly

in our country, and they make extensive efforts to solve their own

problems with whatever resources they can.

Gentleman, I think the best answer to your question is that most

of their efforts to secure employment are directed to the foreign

student counseling setup that exists on each of the campuses with

which they normally work during the school year.

Mr. FISH. Finally, the GAO report you cited before us deals primarily with the issue of the fact that so many people who come to
18

this country as visitors, including the category that conies under

students, simply disappear and constitute one of the major contributors to the illegal alien population of the United States, and in my

view I think one that we can control the best in terms of better screening before.

Thank you, Mr. Chairman.

Mr. BROWN. May I comment on this in further reference to my

possibly mischosen or ill-advised attribution of intention to the

Commissioner.

I think the Commissioner, if he is as good as administrator as

I think he is, would want to consider the GAO report and seek to

tighten up his operations and his intentions in making the change

in regulations, and in all probability were highly influenced by the

GAO report.

I do not think that there would be any serious doubt about that

but I think that what the subcommittee needs to do and what I have

done is question whether or not the alternative procedures adopted

by the Commission are the most effective way to address the problems

brought up by the GAO report. Now I honestly do not believe that it

is. I honestly and strongly do not believe that it is, and regardless of

whether the intent was in recognition of the economic conditions

of the country to reduce the number of foreign student employees

or to tighten up on some of these situations is really immaterial.

I think that we need to address the broader policy issues here as

to what is the most effective way to achieve the public aims of this

country as it relates to foreign students and the proper enforcement

and efficient enforcement of our regulations.

Mr. EILKERG. Mr. Brown, just to interrupt, I do not think you

answered Mr. Fish's question, that report indicates that most of the

people who disappear are a substantial factor in the illegal alien

question.

Mr. BROWN. Mr. Chairman, not most of the foreign students,

some of the foreign students disappear. Most of them go back to their

countries.

Mr. ErLBERG. I think the report is rather shocking in terms of the

number of people that overstay in the United States.

Mr. BROWN. And who also adjust status to permanent residence.

Using the student status is an unfair method of doing it. I think this

is the problem.

Mr. EILBERG. Mr. Cohen.

Mr. COHEN. Thank you, Mr. Chairman. Thank you, Mr. Brown,

for your statement.

I have a question, where you indicate that roughly 20,000 students

each year, foreign students, seek summer employment or part-time

work, and I was wondering with respect to your statement about many

of the students coming from countries, and I assume third-world

countries, who are really not in a position to help them out.

Are you aware of any statistical breakdown of the 20,000 students

who do work as to what the breakdown is in the countries that they

represent?

In other words, if we had students from Iran seeking employment

here, that might cast an entirely different perspective on the need of

the student relative to the wealth in the country.
19

Mr. BROWN. I do not have those figures before me. I presume the

Commissioner could supply them to some degree. It is not•you

mentioned Iran. There is, of course, a substantial number of Iranian

students over here. Some of them are sponsored and selected by the

government, others who are antigovernment and who suffer real

problems in getting along with their governments. So it is hard to

make an assumption. Presumably, they are from wealthy Iranian

families, but the politics of the underdeveolped world are very

complicated.

Mr. COHEN. With respect to the statement concerning the number

of students who were deported, do you know how many students

were actually deported last year, and would you know from the

statement whether they were deported for the lack of funds or whether

there are other factors that may have led to their deportation?

Mr. BROWN. The GAO studies have some figures on that, Mr.

Cohen, and it is a very small number, actually, that would be quoted,

a very small percentage. I would have to go give you the figures.

Mr. COHEN. I just made one observation on my part that I think

we are talking about foreign students' responsibilitv, No. 1, would fall

upon the parents to see to it that their children could bear the expense

of being educated in this country. The country sponsoring the students

ought to bear the responsibility. And then we get into the Iranian

situation and other, I suppose.

And finally, you might consider the university students as far as

what scholarships and grants they have available, as to what their

feeling of responsibility is, but the last resort should be to allow

the students that go out, to displace students in this country, and not

simply students but other people who do not have any jobs. And I

was interested in your comment about the long view that this Congress has to take. Therefore, we should not jeopardize the long-term

policies and objectives of this country. My own concern is, however,

that unless we do something to reduce the unemployment among our

own students, young people who are not students looking for work,

that the fear and the anger and the frustration that is going to spread

throughout this country is going to jeopardize whatever long-term

goals we seek, that the short-term frustrations will endanger the longterm goals of this country.

So I think that is what tins country has to be concerned with as

far as this is concerned.

Mr. BROWN. I have to agree with you, Mr. Cohen. My personal

view is that any program that this country adopts has to be in our

own long-range self-interest and my plea is that we consider a broader

perspective on what our long-range perspective well-being is than the

narrow one of what the immediate economic circumstances and economic impact of, say, 20,000 foreign students each earning a thousand

dollars will save. That amounts to $2 million, does it not? Or $20

million. In the light of this country is $20 million worth of work engaged in by foreign students in the summer compared with the tremendous benefits that we get in assisting to educate the elite of the

underdeveloped world and to help them to solve their problems.

Can you say that our country's welfare is damaged by that $2Q

million compared with the benefit that we might otherwise receive?

That is all that I am asking.
20

Mr. FISH. We just went through an exercise here in the Congress

this week where one of the principal arguments for a veto was the

fact that we lost 36,000 jobs in the mining field, and this was apparently•I found it not to be substantiated but highly persuasive.

Mr. BROWN. Obviously, that is important. Again, and I do not

want to haggle, 20,000 summer jobs is not even comparable to 36,000

full-time jobs left in mining. It is equivalent of 2,000 on an annualized

basis or something like that, or 3,000 or 4,000. Itis a significant number

and I ask that it be weighed in the light of our overall national

perspective.

Mr. EILBERG. Mr. Russo.

Mr. Russo. I do not have any questions.

Mr. EILBERG. Thank you very much for your contributions,

Mr. Brown.

We invite you and vour staff to remain.

Mr. BROWN. I would like to remain as long as I can, Mr. Chairman, and may I say again how much I appreciate your holding this

hearing. My office, perhaps more than others, has been the subject

of a great national tnrust of communications on the subjects because

we have taken interest on it and you have helped me immeasurably

and I appreciate it very much.

Thank you.

Mr. EILBERG. Mr. Chapman?

We are pleased to welcome you again this morning, Mr. Chapman,

and we look forward to your statement on this very important subject.

As you know, this subcommittee initiated the GAO report which is

presently before you, and I must say that I was reading it again. I

am pleased with the number of things that have been instituted

already and it has continued, of course, to be a very important subject.

Congressman Brown has just heard that he has been joined by

some 37 other Members. It is a matter of some concern to many

people in this country, so we look forward to your statement.

TESTIMONY OF HON. LEONARD F. CHAPMAN, JR., COMMISSIONER,

IMMIGRATION AND NATURALIZATION SERVICE, ACCOMPANIED

BY JAMES GREENE, DEPUTY COMMISSIONER, AND SAM BERNSEN, GENERAL COUNSEL

Mr. CHAPMAN. Thank you, sir.

It is a pleasure to be here. I will furnish you with our views, if I

may proceed with my statement

Mr. EILBERG. GO ahead.

Mr. CHAPMAN [continuing]. Concerning nonimmigrant students in

the United States. I am accompanied by Mr. James Greene, Deputy

Commissioner, and Mr. Sam Bemsen, who is the General Counsel of

the Service.

The law permitting foreign students to come to the United States

temporarily to pursue an education has been in effect since 1924, over

50 years, and the number entering as students continues to grow.

From 10,000 foreign students entering in 1950, the total has grown to

109,000 last year. This fiscal year, through March; 93,354 have already entered.
21

I believe this is a good provision in the law and, if administered

properly, can have benefits for the United States and other nations as

well. However, it is extremely important that the foreign student program is maintained as prescribed by law and in the manner and spirit

which Congress intended.

The law defines the "F" student as follows:

An alien having a residence in a foreign country which he has no intention of

abandoning, who is a bona fide student qualified to pursue a full course of study,

and who seeks to enter the United States temporarily and solely for the purpose•

And I emphasize the word "solely"•

for the purpose of pursuing such a course of study at an established institution of

learning or other recognized place of study in the United States.

Mr. EILBEKG. Can I just interrupt there?

Can you at this point cite the section of the Immigration and Nationality Act which allows students admitted to the United States

with "F" visas to take gainful employment?

Mr. CHAPMAN. There is no such provision in the law, sir. I believe I

deal with that in the next two or three paragraphs.

Mr. EILBERQ. The next question that I would ask would be when

was it proper for the Immigration Service initially to delegate to

schools the discretion to grant permits with permission?

Mr. CHAPMAN. In my opinion, it was not proper, although I must

say it has been in effect for a number of years.

I emphasize the word "solely"•to divert from my prepared statement for a moment or two, sir•as to emphasize that the effect of the

law is that the student must come here solely to pursue his education.

That does not imply that he can come here with the expectation and

intention of working. Therefore, he has to show that he has or has

available the necessary funds and other resources to carry him through

the course of instruction, and the requirement is written into the visa

processing requirements for foreign students applying overseas, and is

certified to by the student in the form that he signs when he applies

for the visa.

Accordingly, an alien seeking to enter as a student must establish

that he will be able to finance the entire period of his stay and study in

the United States without having to engage in employment off th«

campus.

There is no express provision in the law for an F-l student to

engage in employment. Nevertheless, for many years, the Service has

permitted students to accept employment under special conditions

which we believe to be consistent with the intent of the statute.

If a student is to be emplo3red on campus in a job in which he will

not displace a U.S. resident, INSpermission is not required.

A student who seeks employment off campus must first obtain

approval of an application for that purpose and submit it to the

appropriate district director of the Service.

There are two situations in which off campus employment may be

authorized. These are cases where the employment is required because of economic necessity arising from unforeseen circumstances

following arrival in the United States, or where the employment is

recommended by the school in order for the student to obtain practical

training in a field related to his course of study.
22

An application based on economic necessity must contain the

certification of a responsible school official that the employment will

not interfere with the student's ability to successfully carry a full

course of study. If the application is approved, the student is authorized to work part time. This means he may work up to 20 hours a

week while school is in session, and full time when school is not in

session. The period of employment permission in economic necessity

cases is granted in increments of up to 1 year, not to exceed the period

of authorized stay.

An application to accept employment for practical training must be

endorsed with the recommendation of a responsible school official.

Employment for practical training may be engaged in full time

Mr. EILBERG. Mr. Chapman, may I interrupt for just a moment.

Mr. Fish would like to comment.

Mr. FISH. I take it that you aie describing the existing process, the

current process, not the preamble 1974 procedures?

Mr. CHAPMAN. The process I am now describing for year-round

employment is the same that has been in effect for a number of years,

and was not changed by the April of 1974 regulation which dealt only

with summer employment, only with summer employment. The

requirement to apply to the Service for year-round

Mr. FISH. Off campus?

Mr. CHAPMAN. Off campus•has been unchanged for a number of

years.

Mr. FISH. Prior to April of 1974, it was necessary to get the Immigration Service approval based on the conditions enumerated, or

economic necessity, lor the recommendation of the school.

Mr CHAPMAN. Thatis right.

Mr. FISH. Finally, in that case, is it not still the responsibility of the

school to find the employment so that the Immigration Service does

not become an employment agency. It is just an approving agency, fo

the work permit•is that correct?

Mr. CHAPMAN. We just approve the application to be authorized

to work.

Mr. FISH. Thank you, Mr. Chairman.

Mr. Russo. Mr. Chairman, may I ask just one question to clarify

something?

Mr. EILBERG. GO ahead.

Mr. Russo. Has the normal practice been that the INS always gives

approval except for the summer employment program?

Mr. CHAPMAN. That was the case prior to April of 1974. And beginning last summer, the student must in addition apply to us for summer

employment.

Mr." Russo. So now, under all circumstances, the student must seek

permission from the INS; is that correct?

Mr. CHAPMAN. Except for on campus.

Mr. Russo. On campus?

Mr. CHAPMAN. Off campus, yes.

I might interject on this note, that in fiscal 1973, we approved

32,041 applications for off campus work year-round. In fiscal 1974

the figure was 38,147.

Mr. EILBERG. Do you have summer figures for 1973 and 1974?

Mr. CHAPMAN. rrhe figures for 1974 were 19,785 applications

adjudicated for summer employment only. We approved 11,042 as
23

having justified economic necessit}7. That is in 1974; that is in May,

June, July, and August of 1974. We denied 8,743 of the 19,785 .whose

justification was insufficient.

Mr. EILBERG. Do you have 1973 figures•that is, under the prior

system?

Mr. CHAPMAN. In 1973, the schools reported to us that they had

approved 17,739, and we have reason to believe that they denied

practically none. We think almost all, practically all were approved,

and unforeseen economic necessity was not a criterion in the school

review of the request.

I might also say that these numbers that I have quoted you, Mr.

Chairman, are those that we know. We do not know how many

thousands of students are working without permits; but we are sure

that there a great many.

Mr. EILBERG. DO you have any idea how many students are illegally

working during the summer months ?

Mr. CHAPMAN. All kinds of illegals?

Mr. EILBERG. Students.

Mr. CHAPMAN. I do not have a figure as to how many were illegally

working. I do have these figures, that in fiscal 1973, the number of

students located in an illegal status was 7,107; and in fiscal 1974, the

number was 8,132. That was the number of students in an illegal

status, which would include not only working without permission,

but overstay and other kinds of illegal status.

Mr. EILBERG. Finally, on this point, do you know how many

foreign students go home each summer?

Mr. CHAPMAN. NO, sir, we do not have those figures.

Mr. EILBERG. Should you not have those figures?

Mr. CHAPMAN. I am sure we could get those figures, sir.

Mr. EILBERG. I am concerned about the necessity of having these

figures to satisfy our present requirement; but it would seem to me

that the Immigration Service should, as a matter of course, know how

many of these students are returning each summer.

Mr. CHAPMAN. We may be able to get that out of our computer.

We will see if we can.

The student, of course, must check out when he leaves; and then,

of course, we have to admit him when he returns. So, we may be able

to pull out of the computer•many return in that status.

Mr. EILBERG. YOU might give us those numbers then for 1973 and

1974.

Mr. CHAPMAN. If we have them, we will give them to you, sir.

[The information referred to was not available from the Immigration and Naturalization Service.]

An application to accept employment for practical training must be

endorsed with the recommendation of a responsible school official.

Employment for practical training may be engaged in full time and

may be authorized in increments of 6 months, not to exceed 18 months

in the aggregate.

In addition to these employment policies, the Service used to have a

special employment program for F-l students. I believe that this is the

program that Mr. Brown addressed. Under that program

Mr. EILBERG. May I interrupt again? For the benefit of the members, would you just briefly define what the "F" student and the

"J" student are?
<r

24

Mr. BERNSEN. The "F" student comes to the United States under

Section 101 (a) (15) (F) of the Immigration and Nationality Act. He

comes temporarily and solely for the purpose of pursuing a full course

of study at a school approved by the Attorney General.

The "J" student comes to the United States under the exchange

visitor program, which was enacted in 1961. Exchange programs are

designated by the Secretary of State, and in the cases of students, the

Secretary of State may approve exchange programs for the purpose

of study. Many schools in the United States, in addition to bringing

aliens here as "F" students, also have programs approved by the

Secretary of State under the exchange program, and these schools also

bring aliens here as exchange students.

Mr. DODD. Excuse me, Mr. Chairman, I apologize to you. Could

you run it by just very quickly and explain the difference again?

I am sorry.

Mr. BERNSEN. Well, the "F" student comes under section 101(a)

(15) (F) of the Immigration and Nationality Act. That is a provision

that has really been in effect under earlier law for about 50 years,

starting in 1924. Schools obtain approval from the Attorney General

to bring students under the "F" provision of the law.

The exchange students are brought to the United States

exchange programs approved by the Secretary of State, so we have

schools bringing students in an "F" classification, and we also have the

same schools having an approved exchange program bringing students

in as exchange aliens.

By the way, there is a certain disability, as you know, which may

apply to an exchange student. An exchange student may be subject

to a foreign residence requirement, which means that after he goes

back to his own country, he has to stay there for 2 years before he

may become a permanent resident under certain circumstances. That

disability does not appty to an "F" alien.

Mr. CHAPMAN. In addition to these employment policies to review, the Service used to have a special employment program for

F-l students. Under that program, INS would make an annual

determination, after consultation with the Labor Department,

whether to authorize school officials to permit students to accept

summer work.

On April 19, 1974, the Service announced that the program under

which school officials could approve individual summer employment

applications would not be authorized that year. Instead, students

desiring to work off campus would have to request permission directly from the Service and qualify under the criteria applicable in

cases of economic necessity or practical training. Such permission

could well include the summer vacation period.

The decision concerning the summer employment program was

made after careful consideration. As in previous years, the Service

consulted the Labor Department regarding the anticipated impact

on the domestic labor market if the summer program was authorized

in 1974. That Department had been advising us for several years of

increases in unemployment among American youth.

In expressing its views with regard to 1974, the Labor Department

emphasized that the situation had become worse and that the summer

employment program would deprive young Americans of needed

employment opportunities.
25

It was pointed out that there are never enougs jobs to meet the

demand, and that some million and a half of our own youth seeking

work were still unable to find jobs last summer.

Upon further review of the summer employment program, the

Service proposed that it be terminated permanently for the reason

that the authority to regulate the conditions of admission of nonimmigrant students conferred on the Attorney General should be

delegated only to immigration officers and should not be exercised

by school officials. Notice to that effect was published in the "Federal

Register" on November 15, 1974, and interested persons were invited to submit representations. All representations received were

carefully considered. Our final determination, published February 5,

1975, was that the program should be discontinued. While the fgreat

majority of the representations received were in opposition to the

proposal, none responded directly to nor presented overriding arguments against the Service's reason for proposing the termination.

I wish to reiterate that discontinuance of the special summer program in no way affects an F-l student's eligibility to obtain work

permission for any period of the year. However, the decision on the

request is made by INS rather than by a school official.

I believe the Service policy on student employment is fair and

equitable. From September 1974, through April 1975, 19,816 students

have been granted work permission by INS. This constitutes 79

percent of the 25,098 whose applications were adjudicated.

One other matter I should like to mention is that the Service has

undertaken to define the statutory term "full course of study."

The definition is sorely needed in the interest of clarity and will take

into account the different types of educational institutions involved.

For example, in a university or a college, a student pursuing an undergraduate course will be required to take at least 12 hours of instruction

Eer week, or its equivalent. In a vocational school, at least 20 class

ours of attendance per week will be required. The proposed regulations on "full course of study" were published in the "Federal

Register" on April 4, 1975.

Mr. Chairman, this concludes my prepared statement.

I hope we will be able to answer any questions that you may have.

[The prepared statement of Hon. Leonard F. Chapman, Jr., Immigration and Naturalization Service, follows:]

STATEMENT BT HON. LEONARD F. CHAPMAN, JB., COMMISSIONER, IMMIGRATION AND

NATURALIZATION SERVICE

Mr. Chairman and members of the subcommittee, it is a pleasure for me to be

here to furnish you with my views concerning nonimmigrant students in the U.S.

I am accompanied by Mr. James Greene, Deputy Commissioner, and Sam

Bernsen, General Counsel.

The law permitting foreign students to come to the United States temporarily

to pursue an education has been in effect since 1924, and the number entering as

students continues to grow. From 10,000 foreign students entering in 1950, the

total has grown to 109,000 last year. This fiscal year through March, 93,354 have

already entered.

I believe this is a good provision in the law, and if administered properly can

have benefits for the United States and other nations, as well. However, it is

extremely important that the foreign student program is maintained as prescribed

by law and in the manner and spirit which Congress intended.

The law defines the "F" student as follows: "An alien having a residence in a

foreign country which he has no intention of abandoning, who is a bona fide

student qualified to pursue a full course of study and who seeks to enter the
26

United States temporarily and solely for the purpose of pursuing such a course

of study at an established institution of learning or other recognized place of

study in the United States . . ."

Accordingly, an alien seeking to enter as a student must establish that he will

be able to finance the entire period of his stay and study in the United States

without having to engage in employment off the campus.

There is no express provision in the law for an F-l student to engage in employment. Nevertheless, for many years the Service has permitted students to accept

employment under special conditions which we believe to be consistent with the

intent of the statute.

If a student is to be employed on campus in a job in which he will not displace

a United States resident, INS permission is not required.

A student who seeks employment off campus must first obtain approval of an

application for that purpose and submit it to the appropriate District Director

of the Service.

There are two situations in which off campus employment may be authorized.

These are cases where the employment is required because of economic necessity

arising from unforeseen circumstances following arrival in the United States, or

where the employment is recommended by the school in order for the student to

obtain practical training in a field related to his course of study.

An application based on economic necessity must contain the certification of a

responsible school official that the employment will not interfere with the student's

ability to successfully carry a full course of study. If the application is approved

the student is authorized to work part-time. This means ne may work up to

twenty hours a week while school is in session and full-time when school is not in

session. The period of employment permission in economic necessity cases is

granted in increments of up to one year, not to exceed the period of authorized

stay.

An application to accept employment for practical training must be endorsed

with the recommendation of a responsible school official. Employment for practical

training may be engaged in full-time and may be authorized in increments of six

months each not to exceed eighteen months in the aggregate.

In addition to these employment policies, the Service used to have a special

employment program for F-l students. Under that program, INS would make an

annual determination, after consultation with the Labor Department, whether to

authorize school officials to permit students to accept summer work. On April 19,

1974 the Service announced that the program under which school officials could

approve individual summer employment applications would not be authorized

that year. Instead students desiring to work off campus would have to request

permission directly from the Service and qualify under the criteria applicable in

cases of economic necessity or practical training. Such permission could well

include the summer vacation period.

The decision concerning the summer employment program was made after

careful consideration. As in previous years the Service consulted the Labor

Department regarding the anticipated imp:tct on the domestic labor market if the

summer program was authorized in 1974. That Department had been advising us

for several years of increases in unemployment among American youth. In expressing its views with regard to 1974, the Labor Department emphasized that the

situation had become worse and that the summer employment program would

deprive young Americans of needed employment opportunities, it was pointed

out that there are never enough jobs to meet the demand and that "some million

and a half of our own youth seeking work were still unable to find jobs

last summer."

Upon further review of the summer employment program the Service proposed

that it be terminated permanently for the reason that the authority to regulate the

conditions of admission of nonimmigrant students conferred on the Attorney

General should be delegated only to immigration officers and should not be

exercised by school officials. Notice to that effect was published in the Federal

Register on November 15, 1974 and interested persons were invited to submit

representations. All representations received were carefully considered. Our

final determination published February 6, 1975 was that the program should be

discontinued. While the great majority of the representations received were in

opposition to the proposal, none responded directly to nor presented overriding

arguments against the Service's reason for proposing the termination.

I wish to reiterate that discontinuance of the special suinmsr program in no way

affects an F-l student's eligibility to obtain work permission for any period of the

year. However the decision on the requsst is made by INS rather than by a school

official.
27

I believe the Service policy on student employment is fair and equitable. From

September, 1974 through April, 1975, 19,816 students have been granted work

permission by INS. This constitutes 79 percent of the 25,098 whose applications

were adjudicated.

One other matter I should like to mention is that the Service has undertaken to

define the statutory term "full course of study." The definition is sorely needed in

the interest of clarity and will take into account the different typas of educational

institutions involved. For example, in a university or college, a student pursuing

an undergraduate course will be required to take at least twelve hours of instruction per week, or its equivalent. In a vocational school, at least twenty class hours

of attendance per week will be required. The proposed regulations on full" course of

study" were published in the Federal Register April 4, 1975.

This concludes my prepared statement. I will be happy to respond to your

questions.

Mr. EILBERG. Thank you very much for your statement, General

Chapman. We would like to ask you some questions.

I understand that the Department of Labor, by request of the

Immigration and Naturalization Service provides an advisory opinion

each year on the appropriateness of summer employment for "F"

students based on the labor market in the United States.

What is the forecast for the coming summer of 1975?

Mr. GREENE. Mr. Chairman, we did not ask the Department of

Labor for the projected summer figures for this year because we had

no intention of authorizing the student advisers to grant that permission. We do have a projected figure, and from what we have received

from the Department of Labor, the situation is going to be worse

this year than it was last year. I do not have the figures with me,

but we will furnish them to you for the record.

Mr. CHAPMAN. I think it is something on the order of 3 million

American youths seeking employment for whom there are 1% million

possible jobs.

Mr. EILBERG. I think there is a lack of communication on the

question. My question was, do you have any idea from the Labor

Department how many F students might properly receive summer

employment for this coming summer.

It is my impression, General, that your Department requested this

information from the Department of Labor, and I was asking you

what their answer to your question was?

Mr. CHAPMAN. This year

Mr. EILBERG. For 1975.

Mr. CHAPMAN. We did not request the Labor Department for an

advisory, as Mr. Greene just said, with regard to summer employment of foreign students, because we did not propose to authorize

the school officials to make the decisions.

Mr. EILBERG. But for your own purposes and guidance in making

the decisions yourself, it would seem to me that .you would be concerned with the facts on the labor market: and if you do not ask the

Labor Department, how do you arrive at true judgment? That is,

whether there is a need for workers of particular kinds in different

areas of the country. It seems to me that that exercise has to be performed by some agency.

Mr. CHAPMAN. We know without an official request that the situation this summer is worse than it was last summer, and the preceding

summers, and therefore we are carefully adjudicating each request,

and we are not approving those that do not have a bona fide reason.
28

Mr. EILBERG. That is, bona fide reason as far as the individual is

concerned; but apparently without consideration as to the effect on

the labor market. That worries me, General.

Mr. CHAPMAN. As has previously been testified, even one foreign

student worker, whether or not he has economic need, has an impact

on someone American who is hunting for a job.

Mr. EILBERG. You take the position, then, that every foreign student, every F student who gets a summer job is taking a job that might

go to an American student. There is an American student out there

that is available to take that job, is that your position?

Mr. CHAPMAN. No question about it.

Mr. EILBERG. Has the number of foreign students entering the

United States with F visas in the last years increased or decreased?

Mr. CHAPMAN. It has increased, sir.

Mr. BERNSEN. There has been a general increase.

Mr. EILBERG. Mr. Bernsen, I question that. I wonder in view of the

increases of the cost of a college education, whether that is in fact

true. It is my impression that the numbers were increasing in the

1960's, but declining in the 1970's, and I just wanted to know what

your experience was, since you have custody of the records of the

actual visas.

In other words, are there less F students coming in the last couple

of years, than say in the 1960's.

Mr. BERNSEN. Well, I think last year we heard that there were

109,000 F-l students, and my recollection is that that is a new record,

a new record high in the admission of F students.

Mr. EILBERG. I wonder if you would give us the figures for the last

10 years on an annual basis?

Mr. BERNSEN. We will submit that for the record.

Mr. CHAPMAN. WO will provide them.

[The information referred to follows:]

Student*

admitted at

Years: nonimmigrant*

1974 109,197

1973 90,693

1972 __ 96,568

1971 94,035

1970 98,197

1969 90,486

1968 73,303

1967.. 63,370

1966 55,716

1965 50,435

1964 44,952

Mr. EILBERG. What type of statistics on aliens does the Immigration Service maintain in the foreign student programs that is over and

above their year of entry and the country from which the alien student

enters? What records do you keep on foreign students?

Mr. BERNSEN. Each foreign student who comes into the United

States has to present a certificate of eligibility issued by the school and

examined by the American Consul. Through that certificate, the

American Consul satisfies himself that this person is a student and is

eligible for a visa.

The certificate of eligibility is surrendered to the Immigration

Service. We retain in the immigration records those certificates on

every student.
29

Mr. EILBERG. Do you continue any followup records of any kind?

Mr. BERNSEN. Well, we have the ability to followup on the student's

temproary admission through a copy of his arrival-departure card,

form 1-94. Systemwise we have the ability, but we do not have tne

manpower to actually follow up on our student overstays.

Mr. EILBERG. Well, then, is my statement correct that all you have

aside from the papers }

r

ou have indicated is the year of entry, ana the

country from which the alien student arrived.

Mr. BERNSEN. Well, the certificate of eligibility gives considerably

more information about the student than what you nave stated.

Mr. EILBERG. All right.

So, all that you have basically is the information that appears on

the certi6cate of eligibility?

Mr. BERNSEN. Yes; which is more extensive.

Mr. EILBERG. All right.

Mr. CHAPMAN. I have here a copy of the certificate, so I will perhaps submit it for the record.

Mr. EILBERG. Without objection, it will be made a part of the

record.

[The information referred to follows:]

IC-20C•7C-
30

•M -' StJdeM FM if H Cai-i.J HUM Ntl ,,,rt kU»ci* «r«

Dmf •'•nub. ear, rta» Caonlr, •! •*» CookM* el MMMUKtF

READ CAREFULLY THE INSTRUCTIONS ON PAGE 4

"RWol school

School Ofktal To It Kotrtrt el SlMOonM Arri.al w US

Addreu M School (Inctodo t* Cede)

VMM *FMW»

MM HO. 4SMSS*

CERTIFICATE

OF

ELIGIBILITY

(POII NONIMHItUNT "f-l*

STUOSNT STATUS)

II I* nt'tiy cfft.'.f 1 at fene-1

1. Thll MrttficlU il t».-i| ni*(*1 tl IM Itodfflt '•!-»! »er»ln for [Chert Ml)

I, D IniliaJ attendance at |hn ichoot fe. Q Cokimeetron eftoi • MtM«l obtooct ouh'de Ik* United State*

n it epneeii en form l-M M hit KtMitiw. oipife* (month, da/, frt

«. n w>ar (»»>te<r»

• pitwnttr •JMMM •»*».

I. The it«J**t named here* kN bee* orceptrd tor a t»H c » et mtfn M to* echo** (il M "wtt M» a* t* bofore a ioo*i*ed i

H.I major i.** •( in*** !i_ , irormet'r rtajuwtitf fhoecrf* Hn(« el kraaiiol cow to:

kit itjd>*i ir mil mtMule not later tti»n_.

1 The uhoei hat dti*"».»ed kr a cerrioi eteWetieo at the tMent'i eoatiftcat*** that the i

rtt'UM a Ml tou-ie el itody.

I. Chert w( M w < it awoertju t

a n aio*cien*» m the [n|Mft lentaae* •* rooairod **4 tM MAOO)

Inn tar *atarnutation

I I'M w»c*nt Kktwiit proporatioa at I

k. 0 at«ftc«ficr |B IM F"a<>tn i*»t««|T it ten I*J il "• ibidem loth* tort pc'c.«-;r he mil be

Q [wreiitd in i lutt tee",* el ttucr at ine.1'*" * tnn tcheei.

n $•**" *oeti*l Inttroctie* IB [•|liih, utitth *ilt fentitt at

, e"d Ma »•*..(• K«Msi( jwer ceal lor fr*inc kxidontM

a D rVo^JhmOSf m tin t»(litt> lentuaeo >• nat required ttptow•_

S. The ptetCot kteMrnK vfei coil lot tuition end Ian 11

HMtiMl it animated 10 be ,^_^_^^^^^^^^^^_^^^^______^^_^^__^_^_^__^^^_^^_^^_

t (Check one M fill M it eppiopneti )

a. Q The htftooi n«i made the loiiowrnj arrangement* tar lb* itodent to retain on Income:

D The itwdent hat been *«atded a ichoivtnip or Wmi»er coot hi Bw turn of | for ontH

Q Tko llutfent not If afa'M »^pic,n-»n! go it., tanpwi irh.fti will not SitOlace a Unitod Sltltt mni.-l. Too ralo ol oof It l_

po* Tto on»iOT"*rit w.11 not mterlare -it" hit »tii,t, to tmri tucconluiii • loll cue el an

G Otr>e> re>oiaii»_

». Q Too K*MO< Mi maao no arrantaioaot ror pit iluotnl to reroive an <ocoi«o. but H Mtuood on At •**•% ol too ttitrut aoboMttod Out »

atMtitl ao'iiij to pwMt Ae above cavno of itotfy lull time. nt» otaoonoi mil be met bi (otoJaio)

7. T»it KftQOl (01 ll

• L-. SI Of »-'•!*• I' a part) urat aopreeea for

i, me Sdmol Diatrtci under Ntiidi H operatej or•

atlfndonce b* ooaimmicroat atodtoll b) Ola ImmifratNa and biatutaiiiatran le«inco I

Joe* aeeMOoot tut not boon revoked.

t ttM«a»_

^

FORM I-3QA 1WEV. &-1-7J3 V

oQaJojM c i t^iogl olfn.j! kotfieixed E» (h* «n»J le u*e ftxnt I M«.

title Oele el rttufice tThit teit.'.cilt ei(wet

U moaibt tliti OM data of rtaianc*)

UNHID fcTATflt DEfaRTUENT OF JUSTICE lmm>fratiofi and NotiirohutioA SeraoM
CERTIFICATE BY KOMMMICRtNT STUDENT UNDEK SECTION 101 !i: ITS) (Fl 0

OF THE IMMIGMTION WO NATIONALITY Ml

1 t im lo anlar in Hfii^n in in* Un.ted Stairs temporari") »"fl ioi«ty for tr-r purpose of pursuing a 'ull course Of study at Ihe school 'j^rt on

rare 1 c' Maj j)f

- Fun p-.M name >n M 1 fc'y -"ar Turn en tiC'peled Stay iSf'Qrithicr Veers)

Vy edw<etonal «iie.: «« •»

i t am f-na.-ir.iariy aole tv ^ucix'l >--/•« ' <ur •• « i • r« uer«: e* my sUv .« tne im.ine Spates wh.*e pu-vu-nf a full course Of ITuTy (Stall IlllfH

tog amount c< supper 1 {Documertery evidct.e cl meant o> actual support *"•*»« ce attached to (Ku form]

* i t**i oi'ended (Name of UMA <CI,J y.j: (Country,

7 lay netor '.eld Of Hwl.ti was • I completed npch siud.es on (Oetel

1. The D«non most C oser, il*IN !0 me *no livot CuU.de Ihe United Stales -»

••*-*, (Beiet,o"sh,p) (Address!-

1 1 :. In* person mot! closely reieied to ma wno Imps in ma United Slates nv lit rou have no relate* .n >n« United States g.ve th» name c' • 'rand )

(fTasrnP) |r>«*At<onsJiip| (Address.'

1 1

P. A nonimmigrant student applying *of «l•«c" lo the Omted Stales (or the '«»! time after being issued am F-1 (student tl tnsP. anil rtpt

IM aOm.iiad unless fa intends to at tone ihe school specified m that nu. Therefore, it before r>« etpiHi for the United States the iv«w

deed** to Btlpnd ICAM] Pthpr school, he should t"*mu'i.«M with the issuing Ama'.een consular oftce fpr the purpose Of he. >rt| ' -i

ct-»i school speched m the v» Any other o»,im.ni:,Mni student anil not be admitted to the United Stale* unless he intends to attend

the school spec-AM m the Form 1-29 or Form I 94 arS.^h no presents lo the irnmierslion officer at Ihe port o> entry,

L A - • -i Tirmjrart, student >• not re'Titled lc wprlt 0" <impti« for • wage or salary or engage in business »h i« in the United Stetee unen

re"" ii'O* to do M

pa* hrit been granted r, the immtfel-ftn and Ni!ur>Lu:«n Service- A itucani »'o recurev employment 'LJ r-ace-ie

ol aconomic n«c«ot:iy due to v-'o'ft•"i craE«fht*A<>ceIi ar>«.<ruj after admittioh, t- (2) to otrtein practical training, may apply to the -mmi-

(Tit-on anJ Natural>ial>on Sennce OM Form I->H for perm>i»ioh lo a'.cept »uch anrployment Additional informatiort co^camihA amriiitiment i% (et trjrth m Form i S3J. T

ne at" kpowu or chiW eccompanyina; or following to torn a torn mm•grant student is not perm>Tted

to arork M the Un.ted states

C. A norKmn-. [f»nt student >t permitted to remain m the Un.lad states only while maintaining non.mmtgranl student Status, »n« in any

evant no' tonerer then the pei'M *iied et the time ot eamiision ;or change to ktuoent cu^t-f'cjtion) uni«*s ha applies lo the immigration

and r-iau rji.Miicn Service on Form i-SMl >n accordance with the instructions on thai form between IS and 10 days pr.or to the •c-'»-

t.on of the pe-ita o4 his authomed stay and obta-ns *n m«n».on of his stay.

1 Cach year, every nor,rnmigrant student .n the United States on the hrst day of January must suftm.i oy the Silt day o' January a erritlrh

notice ol his adcress to the rmmicration a"o N*turai>(»t-on Svrvce. in addition, a notice must M sent «nth<n 10 days a'ter e*ery tha> je

ol addnaae. Ptefrardtett of whether "e mc.ri each nan.rrimgrant student is requ-red to hte wntten not>ce of his address every 3 months.

Prmud forms r-.a i»i>ie al me Urtitetf ••ale* •mm>g.-a:>on o*>ce or pest uh;a should t« used V ma*>ng the annual address report, trip

change o* address report, and the In-ontrt address report

t At the '.me a ncr-ir n.r»a-' student cera-ts "T" rt-e Un<ted S'atet. hts tempprpry entry permit (Form I-WI -s to O* surrendereJ to a

representative 0' Inp S'ea tshn or ami' c il he i*a>es v.a a seeporl or a-rport. lo a Canadian imm.grat^n pmcer .1 he iea.es ecrass fe

Canad-an porper. or lo a United lutes .n-mg'at<on ofice* it he leawes across the Mencan t>orde'

l. A nc*i>rnm(grant student m*t rema>n n the Ln.ted States temporarily onty for the pjipose of oursumg • futt course o' study et a soecifaM scnooi If. alter :«, ^ adnutted. the student deaires tp transfer to anpther scrHdi he ritual mane written appi-caifan on form i MJJ

for pe r> '.«,.on tc meaa such a transfa.' Tn« acoiical<on n- ist te sut>*nitied to the ohice of the Immigration and Netureiiiei-on ae-. LO

having iur.sdiciion c-*er the arep >» whtch the school fons n*-ch ha enshes to trarrsfer rs located The pppi.catton mutt te a;co-*ean ed

py Form 1-30 cpmp'atad by the school lo wh.cn he wiehpt to transfer, fte m»r hot tians'er until his aoohcalion ra apprpkPd. The application w.ll DP denied 'i the sluoant ta-ied to actuai'y take a full course of study at the school he was last autnonted try ihe Service ip

elter-d. unless he estahi'Shrs that t.is failure lo do so was due to CifCurr-stances beyond his control or was otherwise, jwslihed.

g A student who seehs tp re-enter Ihe united Stales as a m>nimmigrant student after a temporary absence must lap w> poaseuign of in*

fpppeung documents

ft} A vatid unpMp.red student *>se (unless eaempt frcm visa roQuirement*))

(u» A passport vaifd for jiti montf.s oeyend rhp period of rpaomss-or- (unless esempt from passport 'eeu-ntmerrtsi.

I' •) A Current copy of Form i te >* end L' However, pnly the "A" copy o' 'orm i JO .1 required In the case Ol a nonimmigrant -Indent

returning frorr lemporar, ah-.mce uit .*• the United Sta'as to continue jtten<:ahC4 at the same school which the immigration and1

Natural i re ('an Servce last auihorued hm to attend: m such case. Form IMA may be retained by the student aod used try htm lor

any number j> reentnps withm twelve months from the date of issuance, the eeruftcate on page 2 of Form I-?GA need not P* completed, and Form i 201* should be destroyed

K A npn.mmifrant vludent who does not register at the school specified in his temporary entry permit [Form !-U). or whose sc*-i v a\'t •-,-

ancp •» tarmanaiM. or wn.~ takes >ess than a • i cujrse ol study, or *rhp accepts unauihoniad empio>men(. tharoo* tP>(a to mamtB'n

his atatua and must deport from the Uruted Stales unrwatdteieiy,

• CCPTIFV THAT TME AECVC IS COR: ECT I feraby agrt* to ca.-'p'. w.tn the aoove and any other terms and condilfpns of my adrnissasn end »ni as

" stay. 1 also hereby authciaa the namnt schppl -n an- scnppl h> wh>ch t may sutseouently trans.'er lo release IP tnp immigration •• .J

I utearrnefepM rpauaslaa tnsermg pn my statue a* a nonimmigrant student and my places pi residence m tnp umtrd SUtea.

(City) (State or Province} (Country) foetej

(S>gnalure of Parent or Guanpn -' 5tuci--t >s Under 21 yea's cl Age) tHeletronthip!

' nennvrt^renl sludpvrt an Inp Umteat fcusles has any pvest-om cpnt

•mm>g;ratipn ofhee. That on.ee will oo pleased ip help tr>e student.
32

NOTfCE AND ftCPORT COHCMNtNG

NONIMMIGRANT "•F-l" STUDENT

Vi" Ktffla «( UtfvM•r«mf| Mama iCaptiif UfiVii f-»' :..-( t)<*4'a N«*«

Mi a* fcrft Ma-, far ftwj C«j.-lr( 0* Vutll 1 CauMrr •< "ii*.yi. n

READ CAREFULLY THE INSTRUCTIONS ON PAGE 4

NWTM Gl ItftaOl

KVKH OActaf l« Da «ct.»*4 or S1ud»"fi Ann*) KL-I

AlaVata H SrtwM [lntU*« I«C«a*t

PAH I tl NOTICE TO SCHOOL CONCIRNINC -f-f STUOtNT

.Mi-,'-' » r--j - .- "•« .-:»)

Mill »t'«T newpitrjv mi iHHtGMTiM orrrci PAVINI nmsD'C'irM wi* raw tcwoot

»l_t«WMMi of nnn T»I cipcwmwcu wicwuno m 'un m, mow

L*ftWI 10 »USMif IIWIJID MPORTS HIT tlllHT T* WIIHSMWIL JT tm IttEiClalHHl w

N»lV»ii>;»IrOS iI«Htf Of ITS iCMO^iOt T00I JCKOfH 10* *mnO*JtCC_lr_ .,-l"»i'.--l"'

r'«|w.

PART III-REPOP.T BV SCHOOL CONCERNING "F-1~ STUDENT

TO: lmmi|iilion *n3 NaturllisatiM W».C«

1. NiWf! •-.'•• BB«

(A) Q (fc4 not r*rtiar »»-io-«iir at tfm ttkMl wlM H AAr* e« tM lilt »..••'•-»

(II Q >• MMI<«| lilt tfcw I full cewrtl c< ttady 0< ii M1«nlifi| cUiii k Is i laiilf tilcnl ih** »ar»a»f ra*wtad .«•»•»«• •" Raaaatktl.

" " C G '*<WNM •Rntdlnri it »•* itnaoi MMri cempntion o< i»* tvmciter

t

1

*-'• r«*«fi 1» [aitr-nat'SI rt «»•*»H

(TcrmMiattort latt)

'tDl 2 larminalal tttftiance II I'-n i:n«i afaa clAOttliM at ttit MitttUi

(Citt ttaion fir ta' wtotl'4" i« Rfnarti)

(TfrsMiattM datl)

•Pa aal itw»\ -.'-t-z-o'i tfinr«M*«a*** at atlandanca larmf a iiii| «a<aM. or bacivit el aruta tftoeu w Mjorj Waiili, X *W4c*t 'a'l ta r*au<»e attewAaaca

HM lepwl muit ce lubnutlrd A itu-nm mHn. on »• lett el lti< recommefiaat.oii M jour ichoni. IJI baa" aarhwurt to accept rrDitr**"! 'a* praclitu ira^mt

m a AaM related ta it cwrta of itwdtai ii coni<4arad Is be M IMHI •» at rw acnoei :.(•••[ »e I.I'T.;M paood o* w<* *-PS!?-•-*•» Piaaet 5« |«>M

ktarSMi(<r n (wbmllMf reanti c«<Ka>"M| tia4anlt •*! aa»» 4w pa>•t1tl ta miaca « practttat I>IMMB

1 Jhw I!U;-M i mi ittwwi IMIIII in tha U S -« J*pt mHnbtr am »• ;r» car* i*) (Nym»f aM ili**tt (Crtj W law] iJtata' [Dp caoe!

3, 1»« fetl<mi»( Wfarmatian ta faa*iaM4 <anca*n'n| Via Mudaafa dacarta'a ar alartna* 4aaa<tu>e Uom IV U-itrt Statei

Data al Oapartara Pwt a( fapaftwa Nam* al 1X1*, mtimt. <x fanw^utiaa coaaja«|

W3-eii atioaa

M«*t«ra cf idcel aPitial

FORM !»e |»EV. 5-171) T

TPT
33

INSTRUCTIONS TO SCHOOL OFFICIALS

This certificate may be signed and issued only by an authorized school official in the United States

after he has determined that the student is eligible. A false certification or improper issuance of this

certificate to a student may result in revocation of the approval of your school for attendance by

foreign students.

1. Before issuing th;s certificate you may wish to arrange to have the student tested Tor English language proficiency, tf you wish

to use e teat of your own section yoii may nave it administered abroad by any person o* agency you care to designate or by an

American consular officer. Alternatively, if you wish to use s lest which hat been furnished to American consular officers by fhe

Department of State, you should instruct the student to arrange with the consular officer to Ukc the Department's English

language examination. The results of any test administered by the consular officer wilt be forwarded direct to you.

You should not issue this certification unless you are satisfied that the student meets the language and scholastic retirements

to pursue the prepesed course of study at your school, and that he is able to pay his expenses {including those of any accompenymg spouse end children) dunng hrs stay in the United States. A copy of the evidence subletted by the student concerning

scholastic preparation and ability to pay expenses must be retained by the school for the duration of the student's attendance

there.

2 Complete page 1, and PART 1 of page 3, of this form for;

a. Every nonimmigrant student whom you accept for admission to your school and who will apply for a visa and/or admission

to the United States under Section 101 la) (15) IF} (ij of the Immigration and Nationality Act;

b. Every nonimmigrant student in the United States whom you accept for transfer to your schcoi;

c. Every alien in the United States who appi.es for a change to nonimmigrant student status and has been accepted to attend

ycur school. tA.i afien who has been admitted at seeks admission to the United States for permanent residence is not das*

sitwble as a nonimmigrant student. Forms 1-20A and B should not be issued to any such alien.)

Remove carbon interleaf and furnish I-2QA and 1-208 to the student. The Immigration and Naturalization Service, after authorizing

admission (except in the case of a student returning from a temporary absence outside the United States to continue attendance

at the same school), transfer, or change in status, will endorse and mail Form I-20U to the school. For procedure applicable in the

case of a nonimmigrant student returning from a temporary absence outside the United States to continue attendance at the same

schcoi, see item llg, page 2, cf Form I-20A.

3 A student's spouse and minor children following to join him are not eligible for admission into the United States unless they

present Form I-20A from the school in which the student is enrolled, slating th.it he is taking a full course of study, and the

form is noted by the school to indicate the date of expiration of his authorized stay in the United States as shown on the student's Form 1-94. When issuing Form I-2CA for the us* of his spouse and minor children, the school should fill in only the block

giving the name and personal data relating to the student, the block giving name and address of the school, item 7 relating to

schocl apprj.jl, and item 8. "Remarks", showing the date of expiration of the student's stay as. "Student's authorized slay

tn United States expires ." In this instance. Form I-20B and the carbon interleaf should be destroyed.

(date)

4. If the student fails to register, does not carry a full course of study, or does not attend classes as required, or it his attendance is terminated, fill in PART III of Form 1-206 {page 3) and mail immediately to the office of the Immigration and Naturalixatien Service having jurisdiction over the area in which your school is located. (Please read PART II of Form I-20B for

tunher instructions)

INSTRUCTIONS FOR NONIMMIGRANT STUDENTS

1. Till in page 2 of Form I-70A and complete and retain page 5 for your records. Do not fill in any other pages of the form.

2. If ycu are an applicant for admiss-on to the United States, present both I-20A and I-20B to the American consular officer at the

time of your visa application (unless you are exempt from vise requirements) and to the immigration officer upon your arrival

in the United States. For procedure applicable in the case of a student returning from a temporary absence outside the United

States to continue attendance at the same school, see item Ug, page 2, of I-20A.

1 It you are an applicant for pe'mission to transfer to another school (or for transfer and extension of stiy). mail or bring Form

1-538 and both J-20A and 1-206 to the office of the Immigration and Naturalization Service having jurisdiction over the area in

wh'Ch the school from which you w.sh to transfer is located, together with your temporary entry permit (Form 1-9* ARRIVALDEPARTURE RECORD). (If your temporary entry permit is attached to your passport, the permit should be removed for this

purpose.) DO NOT SEND IN YOUR PASSPORT.

4- ff you are an applicant for change to nonimmigrant student status, appty on Form 1-506 and attach both 1-2QA and 1-208. Apply

at the office of the Immigration and Naturalization Service having jurisdiction over the area in which you are temporarily

residing.

Severe penalties are provided by law for knowingly and wilfully

falsifying or concealing a material fact in filling out this form.
34

CERTIFICATE BY NONIMMIGRANT STUDENT UNDER SECTION 101 (a; (IS) IF) (0

. OF THE IMMIGRATION ANO NATIONALITY ACT

.' Pieeie print name in lult i «/rrca.,rnym»nhci0atedstayis!M©nth*orYearsj

1 My ettuiilionei objective is

* 1 am financially able IQ supprnt myself for the *nl,re pennd of my itty .n tne United States while pursuing • full course Of Study. (Slate source

•fid Amount of support.) (Oocumanlary evidence Of m«m of actual support must be attached 10 this form)

1 I last altended (Name of School) (City) (SUM (Country)

7 My mi,or field of studies was S I corr,pi*tiHi such stud.es on (Date)

L The wicn moll closely related to me who lives outside trie united itia'.es iv

(Name) (>• r •,••:•••.•• r.i (Address)

1 1 u The C*Fioo m«l closely related to me who live* .n the United Slates U: [If you have no relative in the United SUMS, g've the name Of a friend.)

(Ntme) ilr V ::•••• ... (Address)

1 1 11. I understand the ioflowm«i

«. A nonimmigrant atudert applying for adm.ttion to the United Slates for the f.'il lima after be.ig issued an F-l (student's) vis*, wilt not

be admitted unless he intends to attend the school ipeci'uM >n that vie* There'ore. if before he departs for the United States the student

deodes to attend some other vcnool. he should communicate with the issuing American consular office tor the purpose or having such

other school specified in the visa, Any other "tn.nmj'ini student wiir net re Mm n«o tg the Un-icJ States unless he intends to attend

the school specified in the Form i-TQ or Form I'M which he presents to the immigration officer at the port of entry.

b. A nonimmigrant student is not permitted to work off campus for e wage or salary or engage >n business while in the United States unless

pe'm.si on to do to has first been granted by the immigration and Natural.ration Service A student who requires employment (11 because

At economic necessity due to unforeseen circumstance.) Arising after adrmsscn. or ij- to obtain practical training, may apply to the Immigration ami fieturn nation Serv.te on Fo<m i-SM for permission to accept tush employment. Additional tntormation concerning employment is set forth in Form MM. Tne alien spouse or child accompanying or following to rain a nonimmigrant student ts net permitted

to wont in the United Stales.

£. A nortimmmranl student Is permitted to remain in the Uniisd Steles only while mamtinnlna, nonimmigrant student status, and In ens'

event not longer then the period luted at the time of edmissio" (or change to ttuJeni ciast>f'Cat on) unless he applies to the immigration

and Natural, la lion Service on Form i-Mi in accordance with the instructions on that form between 1$ end M days prior to the eaoiration 01 the period of his authorised stay and obtains en e» tension of his stay,

d Cach year, every nonimmigrant student m the United Steles en the first day of January must submit by the list day rtf January a written

notice of his address to the Immigration and hUturentation Service In addition, a notice must be sent within 10 days after every change

of address. Regardless of whether he moves, eeih nonimmigrant student is required to tile written notice of hie address every 3 months.

Pr>med forms obtainable at the united States immigration oft ce or post of.ee should be used in making in* annual address report, th#

change of address report, end the 3-month address report.

p. At the time a ftonimmn,'rent student departs from ln» united States, his temporary entry permit (Form V54J is to be surrendered to e

representative of the steamship or airl.no if he 'raves via * seaport or airport, to a Canadian immigration officer it he leaves across the

Canadian border, or to a Uniied Slates '•'••'• t'-ii .•'• officer il he <ri*#t across the Ve*i£an. border.

f, A nortimmigrant student may remain in the United States temporary only fnr tne purpose of pursuing • full course of study el a specified school. If, after being admitted, the student desires to transfer to another school, he must make written application on form Hit

for permission to make such a transfer. The appiicelron must be submitted to the office of the immigration end Naturalization Service

having iurisdKlion orer the area in wh.ch the school from whiih he wishes lo t-.v •.'••r is located. The application must be accompanied

by Form i JO comp'eted by the school to which he wishes to transfer. He may not transfer unlit n,s application ,i approved. The aopiication will oe denied if the student la.'ed to actually u-c a full course of study at the school he was last authorised by the Service to

attend, unless he establishes that his failure le da so was due to circumstances beyond his control or was otherwise justified.

g. A student who seeks to re-enter the United States as * nonimmigrant student after a temporary absence must be in possession of the

following oecuments:

(i) A valid unespired student visa (unless erempt (rcm visa requirements];

(MI A passport valid for m months beyond the period of reidrmssion (unless esempt from passport requirements):

(in) A current copy Of Form IN (A and 0) However only the "A" copy of Form t-70 Is requred in the case Of a nonimmigrant student

returning from temporary absence outside the United Slates to continue attendance at the same school which The Immigration and

Naturalization Service lest author-red h.m to attend; in such case, Form |?0A may be retained by the student and used by him tor

any number of reentries withm twelve months from the date of issuance, the certificate on page t of Form i-TQA need not be compieled, and Form I-20B should be destroyed.

H, A nonimmigrant student who doe. not register at the school specked in his temporary entry permit (Form 1-941. or whose school attendance •• terminated, or who tekei lets thtn a full course of study, or who accepts unauthorized employment, thereby fails lo maintain

his status and must rtepart from Ihe Ui>led States immediately.

• I CeRTIFV THAT THE ABOVE IS COPRECT. I hereby agree to comply with Ih* above and any olher terms and conditions of my admission and any eetension of stay. I a'se hceby aut*>orao the named school and any school to which I may subseowmtry transfer lo release lo the immigration and

.Naturalisation Service any information requested bearing on my status a* a nonimmigrant student and my pieces of residence in the United Slates.

*> \ (Signature of Student) (City) (Stele or Province)

.iify that the abort it correct end concur there n.

(Signature ol Parent or Guardian if Student it Under 21 years ol Age] (ffe:ationst<rp) (Date)

H any nommmij-rent student in the umicd States has any questions concerning fits immigration status, he should not hesiUte to call or writ* lo lht»

Merest imm.gration office. That otfice w.il be pleased to help the student.

THIS PAGE IS TO BE COMPLETED ANO RETAINED BY THE STUDENT FOR HIS RECORDS

Mr. EILBERG. Mr. Chapman, how many "F" students are there in

the United States at the present time? ***

Mr. BERXSEN. We do not have an official figure on how many/'F"

students are in the United States. We can only estimate that. We

think that there may be a couple of hundred thousand in the United

States. Of course, "F" students include not only university and college

students•most of us think of university and college students. "F"

students also include students at vocational schools, business schools,

language schools, high schools, elementary schools.
35

Mr. EILBERG. Mr. Bernsen, do you really think your answer is

adequate to the question that I have just asked?

I am asking your opinion.

Do you think you have given an adequate answer?

Mr. BERNSEN. AS adequate as I can give it, sir.

Mr. EILBERG. That is not the point.

It seems to me, as the chairman of this committee, that you should

certainly know the number of "F" students in the country. Now, I

do not think this is unreasonable. Yet you beat around the bush

indicating that you do not know, and it seems to me an important

subject why do you not know?

Mr. BERNSEN. I do not know whether our computer can possibly

five us that information. We have not had that information. We have

een trving to work up that information for years, and we simply have

not had it.

Mr. EILBERG. But you act on each one of these, do you not?

Mr. BERNSEN. Yes, but your question is how many are in the

United States at a given time. Students move in and they move out,

and at a given time it is extremely difficult to have a definite figure.

Mr. EILBERG. Well, let us ask the further question. How many

"F" students, certificates of eligibility, and valid certificates do you

have on file at this moment in the entire country?

Mr. BERNSEN. We do not maintain a statistic on that particular

figure.

Mr. EILBERG. I understand your particular problem very well, and

that this is a subject which is not of the highest priority as far as you

are concerned; however, it would seem to me that you ought to have

some statistics in this area.

Mr. CHAPMAN. I agree with you, Mr. Chairman, and I wish we had

the figures. We do not; we have made some pretty extensive plans to

increase our computer capability and our computer programs, with

the intention of getting data of this kind, and in the future, if we can

implement those plans, we will have them.

Mr. EILBERG. You put out an annual report which we looked at

with some interest, and seldom with enough time, but it seems to me

that you cover a wide variety of subjects and that this is one of

sufficient interest to warrant being included, and I would respectfully

suggest to you that vou consider including this in your reports.

Mr. CHAPMAN. Yes, sir.

Mr. EILBERG. Has there ever been a long-range study, either by

the Departments of State or Justice, or by any group evaluating

student programs on how many students do return to their own

country?

Mr. CHAPMAN. Not to our knowledge. I am rather confident that

none has ever been made by the Justice Department, but I just

cannot state that

Mr. EILBERG. IS there any evidence that these students that do

return use the training they acquired in the United States?

Mr. CHAPMAN. I think it would follow logically that many must do

so, but we have no study on the statistics to document that point.

We, rather, the figures we do have show that many seek to stay here

and put to use the education and training that they have gotten in

the United States.
36

Mr. EILBERG. General, in our trying to evaluate the situation, if

you were sitting here or on this committee, how would you advise us

in terms of trying to evaluate these programs beoause this committee

is responsible for the oversight and, maybe, legislation ought to be

changed. We do not know the answers to these questions. How would

you initiate study? What should we do, if anything?

Mr. CHAPMAN. Sir, that gets into the field of the future legislation or

possible legislation, which I am somewhat handicapped in addressing

this morning, as you know, Mr. Chairman. I would just say, I think,

that I believe our decisions and our policy with respect to the employment of foreign students, permission for them to work are sound and

equitable and proper and that the real question under the law, since

we are permitting to work, only those students who can show a demonstrated, unexpected economic condition that has arisen since they have

arrived in the United States. But, the basic question is whether any

foreign students under the law should be permitted to work or not,

other than, perhaps, for practical training.

As the chairman knows very well the law would seem to inhibit any

employment of foreign students in this country since the law speaks to

entering the country solely to pursue a course of instruction.

Mr. EILBERG. One further question before I vield to my colleagues.

You have the GAO report before you. I know that you have gone over

it extensively. Would j'ou care to give a general response to the GAO

report?

Mr. CHAPMAN. With a few minor exceptions, we fully agree with the

conclusions and recommendations of the GAO report, and we have so

stated in our response to the report and in those cases•in the case of

those recommendations•where we have the capability, we have

already implemented, or are in the process of implementing, the

recommendations of the report, such as, for instance, a better definition

of the full course of study and some other things, but in some of the

other recommendations, such as checking at these schools to insure

that they are continuing to comply with the rules and regulations with

regard to foreign students, we simply do not have the manpower

to do it. We are just incapable of doing it. We would like to, but we

cannot.

Mr. EILBERG. Have you finished your answer?

Mr. CHAPMAN, Yes, sir.

Mr. EILBERG. Mr. Russo.

Mr. Russo. Just to follow up your question asked previously, Mr.

Chairman, I do not think we had an adequate answer. We are sitting

here in a position of oversight to determine whether or not the procedures being implemented T)y the INS are proper, and the answer

Even was that the judgments on employment were sound and proper,

owever, we are trying to determine the statistics and data which are

the basis for that statement. Basically, I feel that this has not been

clarified. Saying that a decision was just improper does not solve our

problem in determining the basis on which the decision was made.

Mr. CHAPMAN. First, I believe that authority given to the Attorney

General under the law and delegated, in turn, to me should not be

delegated any further than the officials of the Immigration Service.

Second is that no student should be permitted to occupy a job off

campus in this country who cannot demonstrate a bona fide need

that has arisen due to economic emergency since he entered the
37

country, or to obtain practical training in his field of study, since the

law provided that he will enter solely to pursue an education.

Tnird, as a result of those two conclusions, we examine each application for employment year-round or any employment application

on its merits. If it is practical training and is related to the course of

study and the school recommends, then we approve. If it is based on

economic necessity, then his petition must demonstrate what that

necessity is, and what are the unforeseen circumstances that have

arisen.

Mr. DODD. Will the gentleman yield? Mr. Chairman, I am a bit

confused, as well, General. I think it is really important that we have

some statistical data information. Now, you quoted some figures to

us, 32,000 plus approved employment opportunities. Is that a 1973

figure? Then it was 38,000 approved. You have an idea of how many

in the illegal alien status, 1973, 1974; 7,170 in 1973; 8,132 in 1974. It

seems to me that the chairman asked a very important question.

People, when they apply for a student visa, if they are in the F classification or the J classification should be able to give the Service a

readout on how many students are in this country under those

classifications.

Mr. CHAPMAN. From that country, from that particular country?

Mr. DODD. Overall. I do not understand why we do not have that

statistical observation, because I think it is really important in joint

to determine whether Congressman Brown's bill, the merits of that

bill, based on the number of objections or acceptances, which the

INS has given, or the institutions gave prior to April 1974, in terms of

trying to determine if they are being dealt with fairly, and, then,

of course, how that interfered with the employment and unemployment situation in this country today, vis-a-vis the amount of students,

the foreign students, who are in this country in our educational institutions. I think that is absolutely essential before I can even as one

Member proceed to determine how, just exactly where we are.

Mr. CHAPMAN. Well, you have asked several questions here. Let me

see if I can remember them all. A number of students entering each

year we know; there were 109,000 last year. The total number in the

country at any one time, we do not know. It is probably on the order

of 200,000, and I have already agreed that we should know, but we do

not.

Mr. DODD. What would be the practical reasons for not knowing?

I presume when you apply for a student visa, it is for a certain period

of time, for 1 year, 2 years, 3 years, depending upon what the course of

education is, or what the person has applied for, and I would think

that at that point a determination of 1 year or 2 years, then that

person, had they not reapplied for an extended visa, would then be in

an illegal alien status.

Mr. CHAPMAN. He would, unless he leaves on time, and we just do

not have good records as to who leaves this country, so that we do not

know at any one time how many are still here, whether legal or

illegal.

Now, if there are on the order of 200,000 here at this time from last

year, we know this that of the 50,753 applications for work permits, we

approved 38,147.

Mr. DODD. In 1974?
38

Mr. CHAPMAN. That is in 1974. That is the last year for which we

have full year figures, and we denied 12,606.

Mr. EILBERG. Are those for the entire year around ?

Mr. CHAPMAN. That is fiscal 1974. As I previously said in 1974 we

located 8,132 in an illegal status, F-l student in an illegal status. Now,

I go on to point out with regard to both of these figures that that is

the number we know; that is the number who applied to us for permission to work. We do not know how many went to work without

applying for permission, and with regard to those located in an illegal

status, we know how many we caught, but we do not know how many

we did not catch, and it is probably a large number.

Mr. EILBERG. One question before I yield to Mr. Fish. Mr. Brown

and many others have stated, properly I think, the long-range goals

of our country which involves exchange of students, and we cannot

disagree; on the other hand, there is an evil, which we presume'to be

present. Many students come from underdeveloped or developing

countries, perhaps as intending immigrants, in fact, and after some

training or no training, they just disappear into the general community. Now this concerns the committee. How do you react to that?

What should be done about that ?

Mr. CHAPMAN. I agree with Mr. Brown's two possible courses of

action. One is to build a huge immigration service, and it would have

to be huge•bigger than the Marine Corps.

[General laughter.]

Mr. CHAPMAN. Or, in some way, deny the job opportunity. That is

why they come. Whether they are intending immigrants or students

or tourists who come illegally, they come to get a job in" this great

country. I must say I cannot blame them very much. *m

With respect to the students from disadvantaged countries'entering

this country to pursue a course of study and then return and contribute

to the advancement of their countries and the fact of the poor economic

circumstances in those countries, again I would have to point to the

word solely in the law. I am confident from having read the hearings

that it was the full intent of Congress that that word solely be there,

and that it means just what it appears to mean.

Mr. EILBERG. Mr. Fish.

Mr. FISH. Thank you, Mr. Chairman. Perhaps, the general has

given us a thought here. General, do you know what the practice is

in foreign countries on American students who are accepting study in

Great Britain, or France, or the Soviet Union, or elsewhere, as far as

their permission to seek employment on a year-round basis, or in the

summer?

Mr. CHAPMAN. I do not know, sir.

Mr. FISH. Could you provide the committee with the information?

Mr. CHAPMAN. Yes, sir, we will have to get some advice from others

on that, because, of course, we have no control whatever over American

citizens.

[A study prepared by the Congressional Research Service follows:]

AUSTRALIA

(Prepared by Robert L. Nay. Assistant Chief, American-British Law Division,

Law Library of Congress, April 1974)

There are no law or published rules that specifically regulate the conduct of

foreign students In Australia. The immigration officials have policy guidelines
39

that are used concerning the entry of students but these, according to the

Australian Embassy, are restricted and unavailable for use by the general public,

AUSTRIA

(Prepared by George Jovanovich, Senior Legal Specialist, European Law Division, Law Library, Library of Congress, April 1974)

The educational system of Austria is governed by several law and decrees

administered by the Federal Government through the Ministry of Education.

Among these the most important are:

(1) the School Organization Act (Schulorgauisationsgesetz) of July 25,

1902,l(available in English) pertaining to high schools and vocational

schools; and

(2) the General Law Concerning University Studies (Allgcmeines Hochschul-Studiengesetz) of July 15, 1960," (not available in English).

Both of these laws provide for the admission of students prior to registration.

Xo distinction is made between students with respect to their citizenship, but

one is made between regular students seeking a degree and special or great

students seeking only credits.

Foreign students must obtain a residence permit from the police authorities.

They may obtain it upon showing evidence of admission to any school, together

with an indication of the length of time required for graduation from that school.

Once foreign students are admitted to a school they may be employed. Their

income is not subject to any income tax sfor a period of either up to 6 months

or during the entire time of study, depending upon the student's country of origin.

All Austrian universities have special courses organized for foreign students.

The tuition fees are modest, as described in the extracts from The Keiv Guide to

Study Abroad and This Way Out appended to this report.4

CANADA

(Compiled by James TV. Elder, Reference Librarian, American-British Law'

Division, Law Library. Library of Congress, April 1074)

Foreign students are governed by the following laws and regulations in Canada :

1. An Act Respecting Immigration. Can. Rev. Stat., c. 1-2, § 7 (1) (1970).

Regulation*: Immigration Regulations, Pt. I amended, SOR/67^31, 101

Can. Gaz. Pt. II. 1350-1362 (September 13, 1967) ; amended by SOR/72-443,

106 Can. Gaz. 1991 (November 22, 1972) ; SOR/73-20, 197 Can. Gaz. Pt. II,

83-68 (January 10, 1973) ; and SOR/73-443, 107 Can. Gaz. Pt. II 2066

(August 22, 1973).

2. An Act to Amend the Immigration Appeal Board Act. Can. Rev. Stat., c. 27

(1970).

Regulations: Immigration Adjustment of Status Regulations, SOR/73-446,

197 Can. Gaz. 2007-2071 (August 3, 1973).

(From the Canada Gazette, Pt n, vol. 101, No. 17, Sept 13, 1987]

35. (1) Subject to this section, a student described in paragraph (/) of subsection (1) of section 7 of the Act may be allowed to enter and remain In Canada

as a non-immigrant if•

(a) he complies with the requirements of the Act and these Regulations;

(6) he presents to an immigration officer an official letter of acceptance

from a university or college described in that paragraph or an educational

institution providing academic professional or vocational training approved

by the Minister for the purposes of rhat paragraph ; and

(c) in the opinion of an immigration officer he has sufficient financial resources to maintain himself and any dependent accompanying him during

the period for which he is admitted as a student.

\SchulorganUatton»gc»ets 196S. School Organization Act 19St. Deutsch-Engllsh (Wlen Osterrelchlscber Bundeaverlag. 1965 or 6).

* Schnppich-Sporn. OetterrctoMsehe* Recht. Allgemelnes Hochscbul-Sttidlengesetz, Item 320 (Salzburg, 1968).

*Da« Einkommtntteuerge»etz (Manz Edition, 1961).

,,\i^nA. Garraty, et al., Study Abroad 76-78, 137-138. 164-167. 231-233, 375-376

(1974) ; and John Coyne and Tom Hebert, Thit Way Out 319-321 (1972). See Appendice* I and IL
40

(2) A student referred to in subsection (1) and his dependents shall not take

employment in Canada without the written permission of an officer of the

Department.

(3) The period during which a student referred to in subsection (1) may

remain in Canada shall not exceed twelve months from the date of his entry

Into Canada but may be extended by an immigration officer for further periods

not exceeding twelve months each if•

(a) he remains In good standing with and actual attendance at a university, college or educational institution described in paragraph (6) of

subsection (1) :

(6) he has observed the conditions of his entry ; and

(e) he complies with the requirements of the Act and these Regulations.

(Translated by Dr. Domas Kriviekas, Senior Legal Specialist, European Law

Division, Law Library, Library of Congress, April 1974)

APPENDIX II•REGISTRATION OF FOREIGN STUDENTS IN UNIVERSITIES1

The Minister of National Education,

Considering Law No. 68-978 of November 12, 1968, on the Orientation of

Higher Education as Amended, and Especially Its Article 21;

Considering Decree No. 71-376 of May 13, 1971, concerning the Registration

of Students in Universities and Public Establishments of a Scientific and Cultural Character Independent from Universities, and Especially Its Article 14;

Considering the Order of May 13, 1971, concerning the [Time] Limit for Registration In the year 1971-1972,

Decrees:

Art. 1. Students of foreign nationality [who are] candidates for the first registmtion of the first year of higher education in a French university must have

satisfied the requirements for registration on October 31 at the latest at the

beginning of the academic year. No registration may be made after that date,

with the exception of a special authorization granted by the rector of the academy, on the proposal of the president of the university.

The provisions of Article 9 of the Decree of May 23, [sic] 1971, specified

above, and the provisions of Article 3 of the Order of May 13. 1971, specified

above, shall be applicable in all other cases to students of foreign nationality.

Art. 2. For the academic year of 1971-72, and in derogation from the provisions

of Article 1 above, the date of October 31, specified in that Article, shall be

carried over to November 30,1971.

.4 rt. .1. Tn conformity with the provisions of Article 21 of the Law of November 12. 1968, specified above, the universities may decide to organize an orientation course for the newly-registered students of foreign nationality when they

Tthe universities] consider that it will be useful to check their knowledge of

the French language.

After this course, the students might be requested to pursue a [further] course

to Improve [their] French language relther] before or during their studies.

Art. 4. The director in charge of universities and of establishments of higher

•education and research and the rectors are charged in the matters that are his

concern with the execution of the present order which will be published In the

Journal official of the French Republic.

Made in Pnris, July 2,1971.

OLIVIER GtricrtARD.

GREAT BRTTATN

(Prepared by (Mrs.) Audrey F. Glover. Legal Specialist, American-British Law

Division, Law Library, Library of Congress, April 1974)

Section 3(2) of the Immigration Act. 1971, c. 77. makes provision for the

Secretary of State to lay before Parliament statements of rules, or changes In

rules laid down by him, as to the practice to be followed for regulating the entry

and stay in the United Kingdom of persons required by the act to have leave to

enter. People requiring leave to enter the United Kingdom are those who do not

have the right to live there.

1

2 La M d'orientation de Vensetanement tvperleur, »e« amtnaaementi et «» textet

^application. Acaa&nle <Je Strasbourg, Cbancellerle d>8 Unlrergitft 818 (1970).
41

Enclosed are copies of the pertinent section of the Immigration Act, the statement of immigration rules for control on entry, and the statements of immigration rales for control on entry and after entry for Commonwealth citizens.

IMMIGRATION RUI.ES: CONTROL AFTER ENTRY

Commonwealth Citizens

The Home Secretary has, with effect from 30th January 1973, made

changes in the rules laid down by him, and contained in the statement

laid before Parliament on 23rd October 1972, as to the practice to be

followed in the administration of the Immigration Act 1971 for regulating the stay of persons not having the right of abode. This statement contains the rules as so changed, so far as they relate to

Commonwealth citizens and British protected persons.

The powers conferred by the Act are to be exercised without regard

to a person's race, colour or religion.

PART A. VARIATION OF LEAVE TO ENTER OR REMAIN

Introductory

1. Under sections 3 and 4 of the Immigration Act 1971 an Immigration Officer,

when admitting to the United Kingdom a person subject to coutrol under that

Act, may give leave to enter for a limited period and, if he does, may impose

conditions restricting employment, or occupation in the United Kingdom. Under

section 24 of the Act it is an offence to remain beyond the time limit or to fail

to comply with such a condition.

2. Under section 3 (3) of the Act a limited leave to enter or remain in the

United Kingdom may be varied by extending or restricting its duration, by

adding, varying or revoking conditions or by removing the time limit (whereupon any conditions attached to the leave cease to apply). The main purpose

of this part of the rules is to set out, in relation to the chief categories concerned, the principles on which leave to enter or remain will, on application,

be varied. In the following paragraphs "leave to enter" includes leave to remain.

Rights of appeal

3. Under section 14 of the Act a person has a right of appeal against any

variation of his leave to enter or any refusal to vary it, except that there is

no appeal against a variation of leave which reduces its duration, or against

a refusal to extend or remove a time limit, if the Secretary of State personally

decides that the departure of the person concerned from the United Kingdom

would be conducive to the public good as being in the interests of national

security or of the relations between the United Kingdom and any other country

or for other reasons of a political nature. Where•

(a) an application for variation of leave to enter is refused, or

(6) a variation is made otherwise than on the application of the person

concerned, or is less favourable than that for which he applied,

notice of the decision and. if an appeal lies, of his right of appeal will be handed

to the person concerned or sent to his last known address. If notice of appeal

is lodged, a summary of the facts of the case on the basis of which the decision

was taken will be sent to the appellate authorities and to the appellant.

» » • > • * *

Students

12. A person who satisfied the Immigration Officer that ho had been accepted

hero for a full-time course as a student, could maintain himself during his

stay, and would leave when his studies were completed, is likely to have been

admitted for an initial period of up to 12 months, depending on the length of

his course, with a condition restricting his freedom to take employment. If the

Immigration Officer was not so satisfied, the student may have been given

leave to enter for a short period, with a prohibition on employment, and advised

to apply to the Home Office for n variation of his leave when he had completed

his arrangements for study.

13. Applications from students or would-be students for variation of their

leave will consist mainly of applications for extension of stay as a student.

An extension for an appropriate period, normally up to 12 months, may be

granted if the applicant produces evidence, which is verified on a check being
42

made, that he has enrolled for a full-time course of daytime study which meets

the requirements for admission as a student; that he is giving regular attendance; and that he has adequate funds available for his maintenance and that

of any dependants. When an extension Is granted the student may be reminded

that he will be expected to leave at the end of his studies.

14. Doctors, dentists and nurses admitted as postgraduate students will be

permitted to take full-time employment which is associated with their studies.

Other brma fide students may, with the approval of the Department of Employment, work in their free time or vacations and there is no restriction on the

freedom of their wives to take employment: earnings so obtained may be taken

into account in assessing the adequacy of their arrangements for maintenance.

If the Immigration Officer imposed a condition prohibiting employment on

someone who later establishes satisfactorily that he is engaged on a full-time

course of studies, the condition may l>e varied to one permitting him to take

approved employment. Except as mentioned in this paragraph, employment Is

inconsistent with student status.

Hoxo Koxo

(Prepared by Mya Saw Shin, Senior Legal Specialist, Far Eastern Law Division,

Law Library, Library of Congress, Washington, D.C., April 1974)

The Immigration Regulations, issued under Section 59 of the Immigration

Ordinance of Hong Kong, govern the entry of foreign students into the Colony.

Section 2(3) of the regulations states as below:

2. (3) Permission to a person to land iu Hong Kong as a student shall be subject to the following conditions ofstay•

(a) that he shall become a student only at a specified school, university or

other educational institution and undertake such course of study as may be

approved by the Director; * and

(6) that he shall not•

(i) take any employment, whether paid or unpaid; or

(it) establish or join in any business."

INDIA

(Compiled by Krishan S. Nehra, Legal Specialist, American-British Law

Division, Law Library, Library of Congress, April 1974)

Foreign students are dealt with generally under the various orders and rules

issued by the Central Government. Xerox copies of the following regulations are

attached:

1. The Foreigners Order, 1948;

2. The Foreigners (Restricted Areas) Order, 1963:

3. The Registration of Foreigners Rules. 1939; and

4. The Passport (Entry into India) Rules, 1950."

IBAN

(Prepared by Dr. Zuhair E. Jwaideh, Chief, Near Eastern and Africa Law

Division, and William W. Reese, Legal Reference Assistant, Law Library,

Library of Congress, April 1974)

In Iran no special laws or regulations exist for foreign students. Foreign nationals wishing to study in Iran are subject to the Law concerning the Entry and

Residence of Foreign Nationals of 1931. A close examination of the law showed

that it does not contain any provisions dealing with students, their entrance

or residence in Iran, but only general provisions concerning the issuance of

visas. The Regulations for the Entry and Residence of Foreign Nationals of 1973

do contain sections pertinent to the residence of nil foreign nationals, and these

regulations have been included here. Foreign nationals wishing to study in Iran

'"Director" 1B denned In Section 2(1) of the Immigration Ordinance, 7 Lav>» of Hong

Konn ch. 115 (rev. ed. 1972). 5. as meaning the Director of Immigration, the Deputy Director of Tmmigration and any assistant director nf Immigration.

• Subsidiary legislation to the Immigration Ordinance, 7 Lau>» of Hong Kong ch. 115

(rev. ed.) 1972). Al.

"K. K. Slneh. Mmhar Hutain'g Lato Relating to Foreigners, Pastportt and Cittzenihip

In India (5th ed. 1972).
43

will be granted a residence permit only upon the recommendation of the Ministry

of Science and Higher Education.1

Any foreign national wishing to work in Iran is subject to the Foreigners Employment Regulations of 1971 which are also included.

There are no specific financial requirements for students with the exception

of the general provisions of Article 2 paragraph g of the 1931 law which authorizes representatives of the Iranian Government to deny an entry to any foreign

nationale ". . . who is not in a position to assure his own means of support in

Iran through capital or a useful profession . . .".*

JAPAN

(Prepared by Dr. Sung Yoon Cho, Senior Legal Specialist, Far Eastern Law

Division, Law Library, Library of Congress, Washington, D.C., April 1974)

In Japan, the question of foreign student programs is governed by the Immigration Control Order3

and its Enforcement Regulation.4 Under the aliove Order,

an alien desiring to enter Japan is required to have the pertinent "status of

residence'' in advance. Thus, if a foreign student desires to study in Japan, he

must apply, before his entry into Japan, to the .Minister of Justice for permission for student status as set forth in Article 4 of the Order:

Article 4. 1. Unless otherwise provided for by the Cabinet Order, any

alien (excluding a crewman) without the status of residence which comes

under any one of the following items (meaning the status of the alien who

is authorized to conduct activity while residing in Japan) shall not be

permitted to land in Japan.

(l)-(5). [Omitted]

(6) An alien who seeks to pursue a specific branch of study or undergoing education at a certain academic or educational institution In

Japan;

(7)-(16). [Omitted]

2. The period of stay for aliens coming under any items of the preceding

paragraph . . . shall be prescribed within a period not exceeding three

years by Ministry of Justice Ordinance.

3. Any alien who comes under paragraph 1. item (6) . . . shall, in advance to his landing Japan, apply to the Minister of Justice for the issuance

of the certificate of his eligibility for the pertinent status of residence in

accordance with the procedures prescribed by Ministry of Justice Ordinance.

4. In case the application under the preceding paragraph has been submitted, the Minister of Justice shall consult with the pertinent Minister in

charge of the activities to be conducted by the person who has applied

for the status of residence and may issue the said certificate in respect

to the person under the same paragraph, only when he finds that the person

in question is eligible for the status of residence claimed.

The length of stay authorized for a foreign student is one year as specified

in Article 3. paragraph 1, item (3) of the Enforcement Regulation :

Article 3. 1. The period of stay provided for in Article 4, paragraph 2 of

the Order shall be fixed ... as follows :

(l)-(2). [Omitted]

(3) In the case of a person who comes under Article 4, paragraph

1, item (6) . . . of the Order, one year;

As long as an alien maintains the student status, his stay may be renewed

each year with the permission of the Minister of Justice under Article 21 of

the Order:

Article SI. 1. Any alien residing In Japan may, without changing his

status of residence, make application for an extension of his period of stay.

2. Any alien desiring to extend his authorized period of stay pursuant to

the provision of the preceding paragraph shall apply to the Minister of

Justice for extension of such period in accordance with the procedures prescribed by Ministry of Justice Ordinance.

1

/ran Almanao and Book of Facts 191S. 12th ed. Tehran, Echo of Iran, 1973. p. 318.

• UajmHah-i Qav&nln 1.110. Tehran, 1933. p. 19.

'Cabinet Order No. 319, Oct. 4. 1951. This Order came Into force as law on Apr. 28,

1952 by Law No. 128, which wag last amended by law No. 130 Dec. 81, 1971.

' Ministry of Foreign Affairs Ordinance No. 18. Oct. 1)0. 1951. This Ordinance came Into

force as Ministry of Justice Ordinance No. 7, Aug. 1, 1952, which was last amended by

Ordinance No. 39, May 13. 1972.
44

3. When the application has been made under the preceding paragraph,

the Minister of Justice may grant such request, only In cases where there

are reasonable grounds to justify the extesion of the period of stay on

the strength of the document submitted by the alien.

4. When the permission under the preceding paragraph has been granted,

the alien shall have the extension of the period of stay noted in his passport

by the Ministry of Justice or the immigration inspector in accordance with

the procedures prescribed by Ministry of Justice Ordinance.

Any foreign student is allowed to work with the permission of the Minister of

Justice under Article 19, paragraph 2 of the Order :

Article 19. 2. In case nn alien . . . desires to engage in an activity other

than that to be properly conducted by the person under the status of

residence, he shall obtain prior permission therefor from the Minister of

Justice in accordance with the procedures prescribed by Ministry of Justice

Ordinance.

With res]>eet to financial and other requirements for a foreign student. Article 3, paragraph 2, item (1) of the Enforcement Regulation states:

Article 3. 2. Any applicant for the issuance of a certificate showing his

eligibility for the status of residence under Article 4, paragraph 3 of the

Order shall submit to the Minister of Justice the documents mentioned in

each pertinent item in accordance with the classification of status of

residence given in the following items:

(1) In the case of a person who comes under Article 4, paragraph 1,

Item (6) of the Order [a foreign student], two copies of the application

mentioned in the Annexed Form No. 1 accompanied by three copies of

each of the written admission issued by the academic research or educational institution at which the applicant seeks to pursue his research

or to undergo education, or the certificate of his educational record

showing his eligibility for admission or other documents equivalent to

these, a document showing his ability to bear all the expenses Incident

to his residence in Japan, and a written guarantee given by a reliable

guarantor in Japan for good behavior of the applicant, or other reference documents.

MEXICO

(Translated by Mr. Armando E. Gonzalez, Senior Legal Specialist, Hispanic

Law Division, Law Library, Library of Congress, April 1974)

General Law on Population of December 23, 1947 (Diario Oficial, Dec. 27, 1947).

Art. 50. Nonimmigrant is any alien who temporarily enters the country by

permission of the Ministry of the Interior:

V. As a student, for the purposes of initiating, completing, or perfecting

his studies in official or private educational institutions, under annual extensions [of his admission permit] and who is duly authorized to remain in the

country for the duration of his studies as well as for the additional time

necessary to process and obtain the corresponding documents for this purpose, of time of up to 120 days per year.

Regulations to the General Law on Population of April 27, 1982 (Dario Oficial,

May 3, 1962).

Art. 7.3. The admission into the country of non-immigrant aliens referred to

in article W>. section V of the General Law on Population shall be subject to the following rules:

I. The petitioner must prove, to the satisfaction of the Ministry [of the

Interior] that his is able to receive sufficient means for his support on a

regular and periodic basis.

II. Should he be under 15 years of age, the admission petition shall be

signed by whoever exercises parental authority over him, bv his guardian

or by any other person under whose care and eustodv he'shall be while

residing in this country.

Ill The petitioner' must state the kind of studies the applicant Is to

"I** nntl the educational institution where he inends to register

IV. The admission permit shall be cancelled in case the student drops out

of his courses or if he Obtains failing grades.

V. Upon requiring an annual extension [of his admission permitl the

petitioner must submit proof that he Is registered in the educational insti-
45

tation where he was authorized to undertake his studies and that his grades

allow him to take the subsequent courses, together with proof that bis economic means of support still subsist.

VI. The administrators of educational institutions are under the obligation to report to the Ministry of the Interior, within 15 days, any foreign

student who fails to obtain passing grades or who drops out of school.

VII. Non-lmmlgrants referred to in this article are entitled to leave the

country for up to 120 days each year. In order to return to the country,

they must appear before the corresponding Mexican consulate in order to

obtain confirmation of their immigration permits. Without the fulfillment

of this requirement, they shall not be admitted [Into the country].

VIII. [Foreign] students are forbidden to develop any kind of paid activity, except those concerning professional practice and social services related to their studies, provided they obtain the corresponding license from

the Ministry of the Interior.

IX. Relatives of [foreign] students shall have the same migratory status.

Their admission Into the country shall be authorized solely to those related

[to the student] In the first degree, provided they furnish sufficient proof

thereof.

Law on Migration Taxation of December 27,1960 (Diario Ofloial, Dec. 30,1960).

Art. 1. The following tax and migration fees shall be paid by non-Immigrant

aliens or immigrants as the case may be.

Act. 2. (As amended by Decree of Dec. 30, 1961, Diario Ofloial, of the same

date) Non-immigrants (art. 50 of the General Law on Population) :

(I) Those who have been granted political asylum (sect. IV) and students

(sect. V) for validation of their admission permits or extension thereof . . .

50.00 pesos.

Art. 4- For changes in the migratory status:

In order to obtain immigration status change, in addition to the payment of

the immigration tax, the petitioner shall pay:

(a) For change from section I (tourists) to III (visitors) or to V (students of article 50 [of the law on Population] . . . 1,000.00 peso*.

(o) For change from section III (visitors) to V (students) of article 50

[of the Law on Population], 1,000.00 pesos.

Art. 6. In order to replace Immigration papers in case they were stoden, lost,

deteriorated, or unavailable for any other reason chargeable to their holders,

they shall pay:

* * *

Non-Immigrants, 50.00 pesos.

THAILAND

(Prepared by Mya Saw 9hin, Senior Legal Specialist, Far Eastern Law Division, Law library, Library of Congress, Washington, D.C. April 1974)

The entry of foreign students into Thailand is governed by the Immigration

Act of B.E. 2493 [1950] and the Ministerial Regulations issued thereunder in

1951,1954,1959, and 1972.

Section 15 of the Act excludes any alien from entry into the country if he

has no means of support. According to Section 18, an alien student with means

of support and with means of acquiring education within the kingdom, entering

for the purpose of acquiring education at any of the educational institutions

designated by the Ministry of Education for the purpose, and remaining in Thailand only for the period required for getting such education, is not deemed to

be an Immigrant

Section 19 provides that a person not deemed to be an immigrant under Section 18 may be permitted by the Director General in charge of immigration or

by the competent official deputized by him to remain temporarily in the kingdom

subject to such conditions as may be laid down. The period of time for temporary stay in the kingdom is not to exceed, for students, thirty days. This period

of time may if necessary be extended for another thirty days. However, permission for any further extension mast be considered and granted by the Minister of Education.

Section 20 of the Act provides that n person who is not deemed an Immigrant

and who Is i>ermiUed to wtay under Section 19 above shall remain in the area

notified to the competent official. He is to notify the police at the local police

76-206•78 4
46

station of any change of residence, and on taking up residence in another

Changwat (Province), he must notify the police station of such Changwat within twenty-four hours from the time of arrival. When leaving Thailand, he must

notify the competent official in accordance with the rule laid down in the Ministerial Regulations.

Although aliens in general are required, under Section 28 of the Act, to have

with them a prescribed amount of cash at the time of entry into Thailand, aliens

not deemed to be immigrants are specifically exempted from this requirement

by clause (7) of Section 30.

Mr. FISH. Congressman Brown emphasized the relationship with

other countries. I think it is interesting to see what their policies are.

General, there are a couple of places in your prepared statement where

YOU speak of discontinuing the special summer program. Would it not

be more accurate to say that employment eligibility for the special

summer programs is now in termination by the Service?

Mr. CHAPMAN. Both are correct, sir. The so-called special summer

service was one in which we authorized the student advisers to authorize a foreign student to work during the summer. That is the

program we have canceled, with the net result then that the student

must apply to us.

Mr. FISH. I do not understand why you canceled because it is

going on; in 1974 j^ou approved 11,042 applications for summer

employment.

Mr. CHAPMAN. What we canceled was the delegation authority to

the student adviser.

Mr. FISH. I see.

Mr. CHAPMAN. In the summer, T believe I had previously given the

figures, last summer we authorized IT,042 out of 19,785.

Mr. FISH. Would you tell us would foreign students in the summer

of 1975 be eligible for any of the over 800,000 federally funded youth

employment jobs that the House acted on this past week and that

will assuredly be law very shortly?

Mr. CHAPMAN. I do not know.

Mr. FISH. I would like to explore the basis for the decision in April

of 1974. The chairman has raised the question of the deviation from

the norm of the public service and not consulting the Labor Department this year, I am going to turn it around slightly and ask you,

General, What is the authority of Immigration Service to give consideration to domestic labor market conditions in the first place?

[Pause].

Mr. BBRNSEN. The summer program, was initiated about 20 years

ago, and it was not done on the basis of any statutory authority, it

was done on the basis of consultation with the Labor Department.

It was done administratively, and a criteria was adopted which was

much less stringent than the criteria of economic necessity arising

due to unforeseen circumstances. Under the summer program, a student could work if he just needed to supplement his funds, his available

funds, so he could have a little more money around to help him pay

his expenses. It was not done5

Mr. FISH. Who determined the criteria at the time?

Mr. BERNSEN. I imagine it must have been determined by the

Commissioner of Immigration at that time and in consultation with

the Labor Department.

Mr. FISH. And this criteria that was changed in April 1974 became

far more stringent, as you indicated?
47

Mr. BEBNSEN. Well, it was not criteria that changed, sir; it was

that the summer employment program was terminated, that is, tliis

program by which school officials

Mr. CHAPMAN. Let me go back here some. The program was not

terminated, the summer work only.

Mr. FISH. But, the criteria that the General Counsel just mentioned for the summer program was a very loose one; it was not the

economic necessity. That surely is not the case today.

Mr. CHAPMAN. That is quite right, sir.

Mr. FISH. That has been changed?

Mr. CHAPMAN. Yes. Economic necessity year around that has

arisen since the student entered the country solely to pursue a course

of instruction.

Mr. FISH. Did you determine that? Who determined that criteria?

Mr. BERNBEN. The economic necessity criteria?

Mr. FISH. The criteria that the general just enunciated.

Mr. CHAPMAN. The Immigration Service did a number of years

ago.

Mr. FISH. There is no legislative authority for any summer program, is that correct?

Mr. BERNSEN. There is no express legislative authority, no, sir.

Mr. FISH. Is there any for the off-campus, year-round program?

Mr. CHAPMAN. NO, sir. There is no legislative authority.

Mr. BERNSEN. No, sir.

Mr. CHAPMAN. I go back to that word "solely."

Mr. EILBERG. The criteria, again, General, what kind of changes or

circumstances do you consider? Do you consider an increase in

tuition? The cost-of-living index? What kind of emergency?

Mr. CHAPMAN. Yes, sir; inflation, tuition increases, if the father

has gone bankrupt; conditions in his home country; perhaps, inflation has gone out of control; there has been economic disaster.

Perhaps, the country has prohibited the sending of funds out of the

country for economic reasons.

Mr. FISH. SO, in answer to my question, What is the authority of

the Service to give consideration to domestic labor market conditions is simply that this program is run by the Immigration Service and they set such criteria as they please. Is that correct?

Mr. BERNSEN. Yes, it was adopted administratively. There is no

express statutory provision.

Mr. FISH. In the press release you issued, Commissioner, on April 19,

1974, you indicated the reason for the change was a finding that the

colleges were not adhering to the standards, particularly that concerned change in natural circumstances. This was the reason, the

basic reason, for the change in April?

Mr. CHAPMAN. Ecomonic, the ecomonic emergency standard was

not being applied.

Mr. FISH. How did you find out that the colleges were not adhering

to this standard?

Mr. CHAPMAN. By reports from our district directors and various

other sources, primarily.

Mr. FISH. If this was a matter that college personnel handled

themselves, how would the district director know? Did he go in and

go through the files, the applications of colleges to base his judgment?
48

Mr. CHAPMAN. I do not know. In fact, we have no record of, we

have no knowledge of how many were declined or rejected.

Mr. FISH. Well, I grant you that it is a circumstance to consider if

the colleges did not deny anybody, but you took an authority away

from the colleges and terminated the program that existed, set up a

new procedure, and your reason for doing so was that the colleges

were not adhering to the standards and guidelines in conducting some

of the program, and I am not sure the committee understands how

you arrived at that judgment when we were considering, perhaps,

several thousand colleges.

Mr. CHAPMAN. We extrapolated from numerous individual cases

to arrive at that general conclusion and decided that it would be better

for the Service to make the decision, and that is the change we made.

Mr. FISH. The district directors did then take a sampling of

students who were given summer jobs, college mechanisms

Mr. CHAPMAN. They knew individual cases of that kind.

Mr. FISH [continuing]. Look at their backgrounds of financial

conditions and decided that the colleges would not, were not following

the guidelines of the program?

Mr. CHAPMAN. In many cases.

Mr. FISH, If I could take a moment later, Mr. Chairman, I was

interested in the issue of accreditation of colleges as described in F-l,

and I wonder how does the Service fulfill those responsibilities in the

recognized place of study as listed in the statute?

Mr. BERNSEN. The school which seeks to be approved for attendance

by nonimmigrant students has to submit a petition to the Immigration

Service, giving considerable data as to the school, its finances, its

curriculum, its instruction, courses and so forth. All that material, and

any other pertinent evidence are then transmitted to the Office of

Education. Under the statute, the Attorney General is required to

consult with the Office of Education on whether a school is a bona fide

educational institution. After we receive the advice of the Office of

Education that the school is a bona fide educational institution, and

if the school promises to make the required statutory reports, we

approve the school.

Mr. FISH. Thank you.

Mr. EILBEHG. Mr. Dodd.

Mr. DODD. Thank you, Mr. Chairman; I will try and be brief.

Mr. DODD. I would like to followup on a question by Mr. Fish

including statistics that schools prior to your April 1974 decision,

17,739 schools had approved job applications particularly in summer

relief programs. Was that particularly the summer programs?

Mr. CHAPMAN. That was the summer program.

Mr. DODD. But you do not have any statistics on the number

that were denied?

Mr. CHAPMAN. That is true.

Mr. DODD. The figures you quoted earlier vou approved around

38,000 in 1974, fiscal year 1974 and denied 12,607. Do you have a

breakdown of those that applied? I presume that figure would be just

for summer jobs because the same, or is that for total?

Mr. CHAPMAN. These are the year-round approvals.

Mr. DODD. Do you have a breakdown on figures as for those people

who applied for the summer jobs as a result of changed regulation

on April 1974?
49

Mr. CHAPMAN. Yes, sir. The number who applied was 19,785.

Mr. DODD. And how many were denied?

Mr. CHAPMAN. 8,743, and the number approved was 11,042. That

was last summer, May, June, July, and August.

Mr. DODD. YOU do not have any idea of how many applied in the

schools in the previous year, the 17,000 figure, the total applications

for schools?

Mr. CHAPMAN. We do not know how many were denied so we do

not know the total. The number that were approved was the 17,739.

Mr. DODD. Could you try and get that figure for us? I think that

would be particularly important in terms of trying to evaluate whether

or not the schools are adequately performing their function. [Pause.]

We received one figure, and I do not know why we cannot get the

other one.

Mr. CHAPMAN. Well, the figure of 17,739 comes from the many

individual schools for that summer period. They did not report how

many they denied, I do not know whether it would be feasible to

query all those schools whether they kept any records as to how many

that applied were denied.

Mr. DODD. Mr. Chairman, I make the request that that information is important, and that we get that information. I think it would

be important in determining how successful the schools have been

with this program. Because really what we are trying to do is evaluate

whether the INS is more capable than the schools are in terms of

deciding who should have.

Mr. CHAPMAN. Well, I think the approximate figures give some

indication in that the previous summer we know that 17,739 were

approved. Whereas the summer that we made the decisions only

11,042 were approved.

Mr. DODD. May I ask you how large a staff is on INS that deals

with this specific issue; in other words, the reviewing staff of the

application?

Mr. CHAPMAN. This is done by the adjudicators in our 32 districts

in the country and we give it priority during the close of the school

year on students who are applying, particularly for summer work.

Mr. DODD. In other words, if a decision is made at the district

level to deny an application can a student then apply or appeal that

decision?

Mr. CHAPMAN. NO, sir.

The district director's decision is final.

Mr. DODD. I would just like to ask you one more question, kind

of a broad question, general with regard to a policy and that is how

do you or does the INS view the status of foreign students in this

country with regard to working? Do you feel this is something that

this countrv should make available to foreign students who come

here ostensibly to seek an education but for whatever reason and

need, to work to supplement their incomes. Do you think the kind

of thing that this country ought to be doing to provide or to make

available; that jobs for these students is kind of an overview look.

But, I would like to know what the position of the service is in regard

to that in terms of foreign students in this country.

Mr. CHAPMAN. In the case of economic necessity, as we have already described, we do believe they should be authorized to do work.
50

Now, as to the larger question, should foreign students in general be

authorized to work in this country, I would say no.

I believe that the students should come to study. There are many

ways of getting funds to pursue a course of study. Of course there are

grants, fellowships, or aid to education projects of all kinds. I do not

believe that an alien student should support his course of education

in this country by working in this country. And I would oppose

that except in the special circumstances I referred to.

Mr. DODD. Thank you, Mr. Chairman.

Mr. EILBERG. Now, Mr. Russo has several questions. . Mr. Russo. I have no intention of asking any questions, Mr.

Chairman, and I just want to make a short comment. I simply want

to say that I appreciate the program, I like the foreign student program, I like the program under the F-l. But I also think that the

General is right in his observation that we are making certain conditions, we are allowing students to come here to take advantage of

our program. The statute is clear, the statute indicates that they

must have their own financial assistance and I think that he is just

abiding by the law.

If there are any changes that have to be made I think we have to

make them. I appreciate his coming here and I do have some questions

and I will submit them to you later for your answers. I appreciate

your coming.

Mr. EILBERG. Mr. Russo, I do apologize to you.

Mr. Russo. That is all right, Mr. Chairman. When you are last

in seniority on all committees, you sort of get used to it.

Mr. EILBERG. Thank you very much, gentlemen.

[Whereupon, at 12:05 p.m., the subcommittee adjourned, subject

to the call of the Chair.]

STATEMENT BY THE HONORABLE TOM RAILSBACK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

THE NEED TO APPROVE THE FOREIGN STUDENTS BILL

Mr. Chairman, Members of the Subcommittee, I very much appreciate this

opportunity to submit my views in support of H.R. 1787, the Foreign Students

Bill which you are currently considering. As you may know, I have sponsored

this legislation with my colleague George Brown of California, and H.R. 1787 is

very similar to a bill I introduced in the last Congress. I therefore urge this Subcommittee to give the legislation every consideration.

Foreign students enrolled in American colleges and universities can and do

significantly enrich American life. The presence of nonimmigrant foreign students

strengthens academic programs and enlivens cultural activities. And, at the

completion of their educations, these students return to their homelands with a

greater understanding and appreciation of our country.

As you are all undoubtedly aware, for a foreign student to obtain a student

visa, he must be coming to the United States solely for the purpose of pursuing

a full course of study. Such a student must demonstrate that he will receive adequate financial support throughout his stay. Unfortunately, however, unforeseen

circumstances arising after the student enters the United States may force him

to seek additional funds. Increased tuition, the effects of inflation, or the devaluation of foreign currency may cause such a financial emergency. Because foreign

students are ineligible for many grant or loan programs, employment during the

school year or during vacation periods may be crucial if a student is to complete

his education.

A foreign student may apply to the Immigration and Naturalization Service

(INS) for permission to accept part-time employment during the school year. In

addition, a financially hardpressed foreign student used to be able to apply to his

college or university for permission to accept employment during summer vaca-
51

tions. Last year, however, INS announced that school officials would not be

authorized to issue work permits to foreign students during the summer of 1974,

and that the students would have to apply directly to INS. The number of work

permits granted by INS in 1974 was substantially smaller•about one-third less•

than the number of permits that had been granted by school officials in 1973.

And, I have heard from numerous school officials that these cutbacks have

adversely affected many foreign students.

In February of this year, the policy of allowing school officials to issue work

permits was permanently discontinued. INS cited the need to protect employment

opportunities for American youths as one reason for the discontinuance. I certainly do not mean to minimize our country's own domestic, economic problems;

but, if the small number of jobs held by foreign students were made available to

young Americans, the unemployment problem would not be significantly reduced.

But the loss of jobs for foreign students will have significant impacts upon international educational interchanges.

Personally, I believe that school officials can do a better job of identifying

those foreign students who have genuine unanticipated financial needs than can

a government agency, unacquainted with the student or his college or university.

It is for that reason our bill, H.R. 1787, permits•upon approval by the student's

school-•any nonimmigrant foreign student to be employed during a regularly

scheduled school vacation or any school term during which the student is not

enrolled. I believe that our doors should be kept open, not only to the world's

wealthy students, but to students from developing countries and to middle-class

students from around the world as well.

In conclusion, Mr. Chairman, Members of the Subcommittee, I would hope

that you will approve, H.R. 1787, the Foreign Students Bill, without delay.

Thank you very much for your time and consideration.

REVIEW OF IMMIGRATION PROBLEMS

Consular Functions Abroad

WEDNESDAY, DECEMBER 10, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE OX IMMIGRATION.

CITIZENSHIP, AND INTERNATIONAL LAW

OF THE COMMITTEE ON THE JUDICIARY,

Washington* D.C.

The subcommittee met, pursuant to notice, at 10:31 a.m., in room

2141, Rayburn House Office Building, the Honorable Joshua Eilberg

[chairman ofthe subcommittee] presiding.

Present: Representatives Eilberg. Holtzman. Dodd, and Fish.

Also present: Garner J. Cline and Arthur P. Endres, Jr., counsel;

Janice A. Zarro. assistant counsel; and Alexander B. Cook, associate

counsel.

Mr. EILBERO. The subcommittee will come to order.

Today's hearing represents the first in a series of oversight hearings

which will be held by this subcommittee to review the consular function of the Department of State.

In addition, we will examine in detail the role of the Bureau of

Security and Consular Affairs in administering the provisions of the

Immigration and Nationality Act.

In this regard. I wish to state that I believe the consular function

to be an extremelv important•though often forgotten•phase of

the U.S. Foreign Service for a variety of reasons. First of all, an

alien's interview with a vice consul who is processing his application

for an immigrant or nonimmigrant visa is usually that alien's initial

contact with Americans and one which no doubt leaves lasting impressions. Second, to Americans abroad, the consular officer is often

the only contact that individual has with his government. Finally,

it is my understanding that a significant percentage of the Department of State's resources and personnel are involved in work associated with consular affairs.

On a more personal note and for the record, I would like to state

that consular officers have been of great assistance to me, and I am

sure to my colleagues, in our travels abroad, and I certainlv appreciate the information and cooperation which they have provided over

the vears.

Consequently, I find it very difficult to understand why such a low

priority has been attached to consular operations bv most ambassadors,

by regional bureaus, and by the Department itself. T should add that

in recent months I have noted some improvement in the Department's

(53)
64

attitude toward, and interest in, the consular function, and I am

hopeful that this trend will continue in the years ahead.

The primary objective of this hearing is to determine whether the

Immigration and Nationality Act is being properly implemented by

the Department of State and whether sufficient resources are being

allocated for that purpose.

In the past I have been particularly concerned that the consular

program has consistently lacked proper direction, and in my judgment

there is an urgent need to improve consular operations around the

world.

This problem becomes more acute as increasing numbers of persons

seek to visit the United States. As a result of increased travel to the

United States, enormous, and often unreasonable, demands are made

upon consular officers. Efforts must be made to insure that these heavy

workloads do not adversely affect the morale of consular officers or

reduce the quality of visa processing.

In this regard, I was surprised to learn that an INS-funded study recently estimated that approximately 3 million of the illegal aliens residing in the United States are from countries other than Mexico. This

problem could l>e alleviated to a great extent if consular officers were

able to conduct more thorough investigations of questionable nonimmigrant visa applicants and if there were greater utilization of computer technology by both the Departments of Justice and State.

Hopefully all of these issues will be discussed during the course of

our oversight hearings and I would now like to welcome the Deputy

Undersecretary of State for Management, Lawrence S. Eagleburger.

We are very pleased that the administration has sent over such a

high-level representative to help enlighten us here this morning. We

apologize to you. Mr. Eagleburger. for beginning late, and I understand that the two minority members are at a meeting which is ofsome

importance and are expected to be here shortly.

Please proceed.

TESTIMONY OF HON. LAWRENCE S. EAGLEBURGER, DEPUTY

UNDERSECRETARY FOR MANAGEMENT, DEPARTMENT OF STATE,

ACCOMPANIED BY LEONARD F. WALENTYNOWICZ, ADMINISTRATOR, BUREAU OF SECURITY AND CONSULAR AFFAIRS; RONALD

K. SOMERVILLE, EXECUTIVE DIRECTOR, BUREAU OF SECURITY

AND CONSULAR AFFAIRS; AND LOREN E. LAWRENCE, DEPUTY

ADMINISTRATOR, BUREAU OF SECURITY AND CONSULAR

AFFAIRS

Mr. EAGr.F.BrnoF.R. Thank you. Mr. Chairman.

Perhaps I should begin by introducing the gentlemen who are here

with me. Chi my far right, where he normally is. is Mr. Walentynowiez,

the Administrator of the Bureau of Security and Consular Affairs;

next to him is Mr. Somerville, who is the Executive Director of the

Bureau; and on my left is Mr. Lawrence, who is the Deputy Administrator of the Bureau.

Mr. Chairman, members of the subcommittee, I appreciate this opportunity to discuss State Department consular operations with you.

Although it is usually the. political and economic aspects of our

foreign policy that capture attention, it is the consular function, and
55

those in the Department and the Foreign Service who perform consular work, that most influence the attitudes of Americans toward the

State Department, as von have yourself pointed out.

In the early days oi our Republic, consular affairs were the primary

duty of American diplomats overseas. Since then our world responsibilities have drastically changed our order of priorities. Today, for

example, only 22 percent of our personnel resources are devoted to

consular operations. Nonetheless, consular work is of great importance,

and the Department of State recognizes this fact.

Although statistics are never the most gripping of topics, I know

this committee is interested in facts, so let me briefly review the most

salient ones with you.

Consular operations encompass three functions: first, visa issuance;

second, passport and citizenship; and third, special consular services.

Althougn passport requests have declined since fiscal year 1972, workload demands m all three categories have increased in volume or complexity in recent years.

The Department has sought to meet these increasing demands both

through management reforms and increased allocation of resources to

consular work. During the 5-year period from fiscal year 1972 through

fiscal year 1976, the Department has requested, and Congress has provided, some 305 additional positions with a first year cost of $3,394,100

to meet our increased consular workloads at foreign service posts.

While many consular officers at smaller foreign service posts must

perform several or all consular functions, the majority of our consular

personnel are primarily engaged in visa work. Under the Immigration

and Nationality Act, as amended, foreign service personnel holding

consular commissions are responsible for granting or refusing both immigrant and nonimmigrant visas to aliens seeking entry into the

United States. This responsibility is of great importance, both in terms

of our national interests and our allocation of resources to it.

In fiscal year 1975, for example, approximately 313,000 immigrant

and 3.400,000 nonimmigrant visas were issued, at a cost of some 300

man-years of consular officer time.

In recent years visa work has become more difficult as a result of

two developments: first, because of the rapidly expanding and highly

seasonal number of nonimmigrant visa applications; and second, because of the increasing prevalence of fradulent practices and

documents.

Let me turn now to citizenship and passport for a moment. Approximately 85 man-years of American consular officer time were employed

in providing citizenship and passport services overseas in fiscal year

1975. Our officers have had to deal with citizenship claims, and have

been called upon to provide various types of passport, services to

American citizens abroad, such as issuing passports and registering

births. This citizenship and passport functions overseas has, over the

years, been relatively stable in terms of resource requirements.

Finally, approximately 140 man-years of consular officer time were

devoted to special consular services overseas in fiscal year 1975. This

includes such diverse types of assistance as helping American citizens

in need, trying to find missing citizens, and administering vairous

tynes of Federal benefits programs for beneficiaries residing abroad.

The. demands upon our special consular services have grown steadily,

commensurate with the increased overseas travel and residence of
56

American citizens. In the past decade, in particular, there has been a

substantial increase in travel by younger Americans. At the same time,

foreign governments have tightened their enforcement of drug laws:

as a consequence, there has been a dramatic increase in the number of

American citizens requiring protection of services. As of November

1975, for example, some 1.700 American citizens were being held in

foreign jails on drug related charges.

Let me turn now to the question of the staffing of our overseas consular positions. Frankly. Mr. Chairman, the Department has long

faced a difficult problem in deciding how to divide its personnel resources between our diplomatic requirements and our consular responsibilities. By the late 1960's. we had come to recognize thatthe combined

effects of inadequate recruitment in previous years, increasing personnel attrition, and a growing workload threatened to make it impossible

for us to fulfill our consular responsibilities.

As a result, the Department began recruiting young FSO candidates

specifically for careers in consular work. Since 1969, using normal foreign service examining techniques, we have been able to close the gap

between personnel needs and availabilities. In June 1968. the Department had a shortfall of some 70 consular officers. In September of this

year, that gap had been reduced to 10, despite the fact that our total

requirements for consular officers had grown by almost 100 positions

over the same period of time.

Thus, emphasis on the cone system for recruiting consular officers

was. in the main, a successful method for reducing the substantial

shortage we experienced in the late 1960's. But, the cone system carried

with it other disadvantages•disadvantages which have led the DeEartment, within the last year, to move to modify the system. I will

a glad to discuss these modifications, and the reasons for them, with

you if you wish.

Mr. ErLBERO. Mr. Eagleburger, may I interrupt at this point? I think

it would be very appropriate here if you would briefly describe the

operation of the cone system.

Mr. EAGLEBrROER. Right, sir.

The cone system essentially is divided into four categories: consular,

economic and commercial, political, and administrative. The purpose

of the cone system was specifically to recruit and promote within each

of these career ladders. The effect was that administrative officers

would compete with administrative officers for promotion and generally for assignment; the same for the other three cones. That is the

general concept.

Mr. EILBERG. Thank you.

Mr. EAGLEBFROER. The current modest shortage of consular personnel is aggravated by the fact that one-third of our people are, in any

given year, moving from one post to another, with an inevitable loss of

productive time. Moreover, an increasing number of consular personnel are assigned to nonconsular work, or to various types of training

such as area and language study, or to university and senior training.

There are now, for example, some 62 consular officers in Washington

assigned to training or to nonconsular assignments outside SCA. The

resultant staffing shortfall is met by utilizing officers from other functional specialties who are available for normal tours of assignment, or

temporary duty, in a consular section.
57

Despite these burdens, the Department strongly believes that it is

important not only to continue, but to increase the number of out-offunction assignments for consular officers. We take this view because

our objective is a foreign service capable of performing well in a

variety of jobs. We believe this to be in the national interest, and, in

the long run, the best interests of the individual Foreign Service

officer.

We want no second-class citizens in the Foreign Service. Everyone

should have an opportunity to develop a sufficiently broad background

so that, if he has the capability and desire, he can some day rise to the

highest ranks of responsibility of the service.

Promotion opportunities are obviously related to position requirements. Here we nave a problem insofar as consular officers are concerned, and there is no sense in trying to ignore that fact. This

subcommittee was advised in 1973 that the Foreign Service had a major

reclassification study underway that would result in the equitable

adjustment of position levels in the Service. While the classification

study did produce a 15-percent increase in the FSO-5 level of consular

positions•thereby raising bv one class the normal working level for

consular positions in the field•it also resulted in significant decreases

in the number of FSO-4, 3, and 2 positions in all four Foreign Service disciplines•consular, administrative, economic, and political.

Mr. EIUSERO. May I interrupt again to request confirmation for the

concept that the FSO-7 is the lowest level, and as one approaches 6,

5, 4, 3, 2, and 1, these represent higher levels within the system.

Is that correct?

Mr. EAOLEBUROER. Mr. Chairman, that is correct, except that the

lowest level is 8.

Mr. EII.BF.RG. Eight.

All right.

Mr. EAGEEBFRGER. Consular positions, on the average, continue to be

classified the lowestof all core disciplines in the Foreign Service. There

is no easy answer to this problem, and all I can assure you of at this

moment is that we will continue to give it our attention. I am hopeful

that out-of-cone assignments for consular officers will improve their

promotion potential and career opportunities, and mitigate the effects

of a grade classification structure that is inherently disadvantageous

to consular officers.

Mr. Chairman, the Department, through the use of the consular

package budget technique, has been able to develop a data base that

has enabled us to justify to the Congress our need for increased consular positions. Because of the support of this subcommittee, and our

improved ability to defend our case, the Congress provided 62 consular

positions in fiscal year 1974, 87 in fiscal vear 1975. and 74 in fiscal year

1976.

Mr. ETEBERO. May T interrupt once again to just ask you briefly to

describe the consular package budget technique ?

Mr. EAGLEBCROKR. Essentially. Mr. Chairman, the consular package

budget technique is a piocess whereby the Bureau of Security and Consular Affairs goes out to each embassy and consulate, asks for estimates

of their present workload and proiected workload, tries to determine

from that process the need for additio"nl consular officers over the

course of the next budget cycle. Those, then, are put together, looked
58

at, and conceptually approached by the Bureau of Security and Consular Affairs itself which then, on the basis of the statistics derived

from the field, recommends to me or to whomever is in my job, an

additional X number of positions to meet these projected needs. These,

then, are examined by us, and in every case except the last year they

have been forwarded to the Office of Management and Budget and

eventually the Congress for approval.

In preparing the State Department's fiscal year 1977 budget request

for presentation to the OMB and the President, the Bureau of Security

and Consular Affairs recommended to me that we request 68 new consular positions for fiscal year 1977. That request, based on workload

analysis and projections of increased demand abroad, was a legitimate

one. I have no doubt that the Department will need some 60 to 70 new

consular positions during the 1977 fiscal year. Nevertheless, I disapproved SCA's recommendation: I went further•I disapproved every

recommendation sent to me from any bureau in the Department if

it called for a request to the Congress for an increase in S and E positions•that is salaries and expenses positions. This decision on my

part was discussed at length with Secretary Kissinger, who wholeheartedly supported what I had done.

Mr. Chairman, I decided that the Department was not going to

request any positions from the Congress for fiscal year 1977 for one

simple reason: it is time we in the Department took a very hard look

at what we now use our resources for, and how we can make more effective use of the resources we already possess. I do not believe, to put

it bluntly, that the Department needs to request additional positions

from the Congress for consular work, or for any other requirements

that were identified as we prepared our fiscal year 1977 budget. I am

convinced that, if we are ruthless in our examination of what the

Department now does, and the resources it uses to do that job, we can

draw the 68 positions SCA has requested from existing resources.

Thus, for fiscal year 1977, I intend to fill the need for additional

consular positions, as well as other new position needs, by reprograming within the Department and the Foreign Service.

It will be a difficult and painful task. But in a time of expanding

budgets, economic recession, and a Presidential undertaking to hold

down Federal expenditures, we owe it to the American people, the

Congress, and ourselves to examine whether we are doing the very best

we can with the resources at hand. And in the process of this examination, I suspect that we will find that there are some things we now do

that we need not do at all, and other activities that are. at best, of

marginal utility. And when we are done. I hope that the Department

of State will be a more effective instrument for the conduct of the

Nation's foreign affairs than it was before we began.

Mr. Chairman, that concludes my prepared statement.

I would like to add one additional thought, if I may, which has come

to me in the process of preparing myself for this hearing. I think it

will come as no surprise to the members of your subcommittee that on

occasion the Department of State's relationships with some members of

some committees of the Congress have not always been the most

felicitous.

I want to say, however, that in preparing for this hearing today it

became very clear to me that in the case of this subcommittee a nurn-
59

ber of very useful and productive things have been done by the Department of State that would not have been done if you had not been here,

and I mean that very sincere]}' and not as an effort to ingratiate myself.

It is clear that the hearings in 1973 pointed out to the Department

some places where we had been at fault. It is clear that the whole

consular package concept is largely a result of the interaction between

this committee and the Department, and it is a process that I hope will

continue, and I hope this hearing today is the beginning of that process.

I would like to offer that if you want to go on with these hearings

in detail after I have appeared today, I would be glad, for example, to

make sure that the Director General of the Foreign Service comes

up here and discusses in far more detail than I can what we are trying

to do in the personnel field, that she goes into detail with you on that.

I would be glad to send anybody else up that you should want to have,

Mr. Walentvnowicz or anyone else.

I would like to see these hearings pursued because they have been

useful to us and there has been no question about that.

[The prepared statement of the Honorable Lawrence S. Eagleburger, Deputy Under Secretaiy for Management, Department of

State, follows:]

STATEMENT OF THE HONORABLE LAWRENCE S. EAGLERURGEB, DEPUTY UNDER

SECRETARY FOR MANAGEMENT, U.S. DEPARTMENT OF STATE

Mr. Chairman, members of the subcommittee, I appreciate this opportunity

to discuss State Department consular operations with you.

Although it is usually the political and economic aspects of our foreign policy

that capture attention, it is the consular function, and those in the Department

and the Foreign Service who perform consular work, that most influence the

attitudes of Americans toward the State Department. In the early days of our

Republic consular affairs were the primary duty of American diplomats overseas.

Since then our world responsibilities have drastically changed our order of

priorities. Today, for example, only twenty-two percent of our personnel resources are devoted to consular operations. Nonetheless, consular work is of

great importance, and the Department of State recognizes this fact.

Although statistics are never the most gripping of topics, I know this Committee is interested in facts, so let me briefly review the most salient ones with

you.

Consular operations encompass three functions: (1) visa issuance; (2) passport and citizenship; and (3) special consular services. Although passport requests have declined since fiscal year 1972, workload demands in all three categories have increased in volume or complexity in recent years. The Department

has sought to meet these increasing demands both through management reforms

and increased allocation of resources to consular work. During the flve-year

period from fiscal year 1972 through fiscal year 1976, the Department has requested, and Congress has provided, some 305 additional positions with a first

year cost of $3,394,100 to meet our increased consular workloads at foreign service posts.

Visa issuance

While many consular officers at smaller foreign service posts must perform

several or all consular functions, the majority of our consular personnel are

primarily engaged in visa work. Under the Immigration and Nationality Act, as

amended, foreign service personnel holding consular commissions are responsible

for granting or refusing both immigrant and nonimmigrant visas to aliens seeking entry into the United States. This responsibility is of great importance,

both in terms of our national interests and our allocation of resources to It. In

fiscal year 1975, for example, approximately 313,000 immigrant and 3,400,000

nonimmigrant visas were issued, at a cost of some 300 man-years of consular

officer time.

In recent years vias work has become more difficult as a result of two developments: First, because of the rapidly expanding and highly seasonal num-
60

ber of nonimmigrant visa applications; and second, because of the increasing

prevalence of fraudulent practices aud documents.

Citizenship and passport

Approximately 85 man-years of American consular officer time were employed

in providing citizenship and passport services overseas in fiscal year 1975. Our

officers have had to deal with citizenship claims, and have been called upon to

provide various types of passport services to American citizens abroad•such as

issuing passports and registering births. This citizenship and passport function

overseas has, over the years, been relatively stable in terms of resource

requirements.

Special consular services

Finally, approximately 140 man-years of consular officer time were devoted to

special consular services overseas in fiscal year 1975. This includes such diverse

types of assistance as helping American citizens in need, trying to find missing

citizens, and administering various types of Federal benefits programs for l>eneflciaries residing abroad.

The demands upon our special consular services have grown steadily, commensurate with the increased overseas travel and residence of American citizens.

In the past decade, in particular, there has been a substantial increase in travel

by younger Americans. At the same time, foreign governments have tightened

their enforcement of drug laws; as a consequence there has been a dramatic

increase in the number of American citizens requiring protection services. As

of November 1975, for example, some 1,700 American citizens were being held

in foreign jails on drug related charges.

Staffing of consular positions

Let me now turn to the question of the staffing of our overseas consular i>ositions. Frankly, Mr. Chairman, the Department has long faeed a difficult problem

in deciding how to divide its personnel resources between our diplomatic requirements and our consular responsibilities. By the late 1960's we had come to

recognize that the combined effects of inadequate recruitment in previous years,

increasing personnel attrition, and a growing workload threatened to make It

impossibe for us to fulfill our consular responsibilities. As a result, the Department began recruiting young FSO candidates specifically for careers in consular

work. Since 1969, using normal foreign service examining techniques, we have

been able to close the gap between personnel needs and availabilities.

In June 1968 the Department had a shortfall of some 70 consular officers. In

September of this year, that gap had l>een reduced to 10, despite the fact that

our total requirements for consular officers had grown by almost 100 positions

over the same period of time. Thus, emphasis on the cone system for recruiting

consular officers was, in the main, a successful method for reducing the substantial shortage we experienced in the late 1960's. But, the cone system carried

with it other disadvantages•disadvantages that have led the Department, within the last year, to move to modify the system. I will be glad to discuss these

modifications, and the reasons for them, with you if you wish.

The current modest shortage of consular personnel is aggravated by the fact

that one-third of our people are. In any given year, moving from one post to

another, with an inevitable loss of productive time. Moreover, an increasing

number of consular personnel are assigned to non-consular work, or to various

types of training such as area and language study, or to university and senior

training. There are now, for example, some 62 consular officers in Washington

assigned to training or to non-consular assignments outside BOA. The resultant

staffing shortfall is met by utilizing officers from other functional specialities

who are available for normal tours of assignment, or temporary duty, in a consular section.

Despite these burdens, the Department strongly believes that it is important

not only to continue, but to increase he number of ont-of-function assignments

for consular officers. We take this view because our objective is a foreign service

capable of performing well in a variety of jobs. We believe this to be in the national Interest, and, in the long run, the best interests of the Individual foreign

service officer. We want no second-class citizens in the foreign service. Everyone

should have an opportunity to develop a sufficiently broad background so that•

if he has the capability and desire•he can some day rise to the highest ranks

aud responsibilities of the service.

Promotion opportunities are obviously related to position requirements. Here

we have a problem in-so-far as consular officers are concerned, and there Is no
61

sense in trying to ignore that fact This Subcommittee was advised in 1973 that

the foreign service had a major reclassification study under way that would

result in the equitable adjustment of position levels in the service. While the

classification study did produce a 15% increase in the FSO-5 level of consular

positions•thereby raising by one class the normal working level for consular

positions in the field•it also resulted in significant decreases in the number of

FSO-4, 3 and 2 positions in all four foreign service disciplines•consular, administrative, economic and political. Consular positions, on the average, continue to

be classified the lowest of all core disciplines in the foreign service. There Is no

easy answer to this problem, and all I can assure you of at this moment is that

we will continue to give it our attention. I am hopeful that out-of-cone assignments for consular officers will Improve their promotion potential and career

opportunities, and mitigate the effects of a grade classification structure that is

inherently disadvantageous to consular officers.

Mr. Chairman, the Department, through the use of the consular package budget

technique, has been able to develop a data base that has enabled us to justify

to the Congress our need for increased consular positions. Because of the support of this Subcommittee, and our improved ability to defend our case, the

Congress provided 62 consular positions in fiscal year 1974, 87 in fiscal year 1975,

and 74 In fiscal year 1976.

In preparing the State Department's fiscal year 1977 budget request for

presentation to the OMB and the President, the Bureau of Security and Consular

Affairs recommended to me that we request 68 new consular positions for fiscal

year 1977. That request, based on workload analysis and projections of increased

demand abroad, was a legitimate one. I have no doubt that the Department will

need some 60 to 70 new consular positions during the 1977 fiscal year. Nevertheless, I disapproved SCA's recommendation; 1 went farther•I disapproved every

recommendation sent to me from any bureau if it called for a request to the

Congress for an increase in S and E positions. This decision on my part was

discussed at length with Secretary Kissinger, who wholeheartedly supported

what I had done.

Mr. Chairman, I decided that the Department was not going to request any

positions from the Congress for fiscal year 1977 for one simple reason: it is time

we took a very hard look at what we now use our resources for, and how we can

make more effective use of the resources we already possess. I do not believe, to

put it bluntly, that the Department needs to request additional positions from

the Congress for consular work, or for any of the other requirements that were

identified as we prepared our fiscal year 1977 budget. I am convinced that, if

we are ruthless in our examination of what the Department now does, and the

resources it uses to do that job, we can draw the 68 positions SCA has requested

from existing resources. Thus, for fiscal year 1977 I intend to fill the need for

additional consular positions•as well as other new position needs•by reprogrammlng within the Department and the Foreign Service. It will be a difficult

and painful task.

But In a time of expanding budgets, economic recession, and a Presidential

undertaking to hold down federal expenditures we owe it to the American people,

the Congress, and ourselves to examine whether we are doing the very best we

can with the resources at hand. And In the process of this examination, I suspect

that we will find that there are some things we now do that we need not do at

all, and other activities that are, at best, of marginal utility. And when we are

done, I hope that the Department of State will be a more effective instrument

for the conduct of the nation's foreign affairs than it was before we began.

Mr. EILBERG. "We have to go over and vote in a moment, but I want

to thank you on behalf of the subcommittee for your remarks. We

hope to take you up on your offer and look forward to working closely

with you in order to achieve better results.

The subcommittee will just recess for a few minutes.

[A brief recess was taken.]

Mr. EELBERG. The subcommittee will resume.

Mr. Secretary, a subject has been troubling me for some time and it

is becoming one of the things that we remain very interested in, the

matter of Nazi war criminals. As you may know, I have been continually urging the Department of State to assist the Immigration and

76-206•76 3
62

Naturalization Service in every possible manner with regard to the

investigation of alleged Xazi war criminals residing in the United

States.

During a recent trip to the Soviet Union by this subcommittee the

Soviet officials offered their complete cooperation in our investigation,

including allowing us to interview Soviet citizens or permitting their

travel to the United States for the purpose of testifying in denaturalization or deportation proceedings. Of course, this was not at the

highest levels; but we received these offers from highly placed officials;

and yet, the State Department has not formally approached the Soviet

Government on this matter.

Can you tell the subcommittee whether the Department of State

intends to go to the Soviet Union in the near future to seek their

assistance in obtaining eyewitness statements from individuals

residing in the Soviet Union ?

I am also aware of the fact that we do not recognize the Soviet

annexation of the Baltic States, and this may present some problems

in obtaining statements from the individuals who mav reside in those

States.

Can you elaborate on this particular issue, recognizing that there

are special problems as far as the captive states are concerned ?

Mr. EAGLEBURGEK. Yes; Mr. Chairman.

I am aware of the entire problem. I went into it in some detail before

I came up here. I think, as you know, we now have before us some 55

cases. I think you are also aware that we have just received from the

Federal Republic•well, not just, but several weeks ago received from

the Federal Republic of Germany some additional information which

is now being translated and which I am told will be completed by the

end of this week. We will have analyzed bv the end of next week all

of those documents, at which point we will be able to make a decision on whether we will go to the Soviet Union on the cases we have

received and have before us. I cannot at this point, Mr. Chairman, say

with any absolute certainty that we will go to the Soviet Union. I can

say that on the basis of the examination of documents received from

the Federal Republic we will be able to make a determination on

whether we can go to the Soviet Union and on which cases we should

I think you know, and I need not elaborate, our concern on the

issue of due process. I know this has been discussed with you before

and you share the concern. As to the issue of whether there is a way

around the problem of U.S. nonrecognition of Soviet control over and

annexation of the Baltic States, frankly I would prefer, unless

Mr. Walentynowicz has a view, to hold off on an answer to that until I

have talked to the lawyers. I frankly do not know what the legal

implications of that are,

Mr. EILBERO. Can you suggest to the subcommittee why such a decision must await your analysis of information submitted by the West

German Government, if, as we believe to be the case, there are identifiable witnesses in the Soviet Union. Why must we wait to see what the

German reports are and then base our decision on the information in

these reports?

Mr. EAGLEBURGER. In essence, the answer to that question, Mr. Chairman, is our concern that we are fairly clear in our own mind thatthere

is substantial evidence that Mr. X is, in fact, I do not want to say
63

guilty, but that there is a substantial case which ought to be pursued,

as against a fishing expedition.

Again, it is the issue of due process, and that is our concern at this

point. We want to make sure that we have in hand evidence which

indicates to us thatthere is a legitimate case which ought to be pursued.

Mr. EILBERG. If you are provided with names of potential witnesses

within the Soviet Union or their occupied territories, how can you

assume that the witness is credible or not until you see that witness ?

Mr. EAGLEBURGER. That is a perfectly legitimate question, sir. We

cannot. I have to reverse the process again. The question in our minds,

at least at first, must be is there a prima facie case that deserves further pursuit on the basis of the evidence that we have before us. This

does not rule out that at some point we will go to the Soviets and ask

them to provide witnesses, even on cases that we ourselves do not believe provide substantial evidence of possible wrongdoing.

We want to start, however, with the cases where we do nave substantial evidence before we move into this more nebulous category where

we are told there are witnesses.

I want to make one thing clear, Mr. Chairman, if I may. I know

there is concern with this subcommittee in terms of our delay. I looked

into this myself. I have been concerned myself about the delays. I must

say, however, on the basis of discussing this with all of the people that

are involved, I have myself come to an independent judgment, recognizing the concerns of this committee, recognizing the legitimate concerns of this committee, that we must be terribly careful in terms of

assuring due process.

I know you share that view. It may mean that we take longer than

it would be preferred by some that we take. But, as we build our cases,

we want to be very certain that we have protected the rights of American citizens.

Mr. EILBERG. Mr. Secretary, I must question the position of the Department, however, as to its desire or intentions of giving expeditious

treatment of the subject. Approximately 2 months ago we had a meeting with Mr. Walentynowicz's deputy, I believe, and other officials

from his bureau, and some of the officials from the Immigration and

Naturalization Service. You were told atthattime that there were some

200 pages of German transcript available and that they would be

here within a week or 10 days. I have since learned that a stenographer

was assigned but was unable to complete the task when she became

pregnant and no replacement was provided. I find this absolutely deplorable and inconsistent with any idea of your expeditious handling

ofthis matter.

Mr. EAGLEBURGER. Mr. Chairman, I am not familiar with this particular case.

Mr. EILBERG. One of your colleagues nods in recognition.

Mr. EAGLEBURGER. I will not debate the point, I am prepared to

accept it. I also will tell you that in examination of this process I

found out that we are taking, in my view, an inordinate amount of

time in translating the most recent documents that we have received.

I can assure you that since I learned that fact the situation has

changed and it will be completed this weekend, by the end of this week,

or I will know the reason why.
64

I accept the point. Mr. Walentynowicz knows more aboutthe specific

CTB^S±£^I can addthis, si, I am ft•J*#

the speed in which this matter is bei^handl^. I toje eror^ed my

concern repeatedly, and one factor, I think, that must be allowed for

is that much of the material that we have received from the Lrerman

goSrnSis confidential. As a result, the decision was made not to

fust simply contract out the translation of this material, but to use

in-house people who are quite capable. ,

Mr. EUERG. Mr. Walentynowicz, if you •

uld.^#J^JJ5

assistance of a reporter who has security clearance, of the highest kmd

and is familiar with the German language from the House of Repre

sentatives, we would be delighted to provide one^tot-yon. I should

think it would not be necessary to do this with the State Department,

but I make this offer atthistime.

Mr. EAGLEBURGER. Mr. Chairman ?

Mr. EILBERG. Yes? , . , .., ...

Mr. EAGLEBURGER. Mr. Chairman, let me just conclude with this

point, that it will not happen again.

Mr. EILBERG. Thank you, sir. I believe you mean it.

Mr. Dodd?

Mr. DODD. Thank you, Mr. Chairman.

Thank you, Mr. Secretary for appearing.

I have a few questions based on your statement here. On page 4, you

refer to the problems you are having in the various consulates with

the fraudulent practices and documents that you get. I am sure you

are quite aware that this Committee has been concerned with this

matter. The full Committee has marked up a bill dealing with illegal

aliens, and we have information that a substantial number of the

people who are in this country on illegal status have come in on the

nonimmigrant visa as tourists and so forth, and then have stayed. In

fact, their numbers are astronomical.

I am wondering if you can enlighten us as to what some of these

fraudulent practices are, what sort of documents you are getting, and

what the consular service is doing to try to screen out these people

who do come and stay. What is the relationship between consulates

in the various countries where we are able to trace these people in

terms of trying to get a hold of them?

Mr. EAGLEBURGER. If I may, Congressman, I would like to ask

Mr. Lawrence to respond to that. He knows much more of the details

than I. .

Mr. LAWRENCE. Congressman Dodd, the fraud in the nonimmigrant

area centers around that individual's particular qualification for the

type of visa he is seeking. It occurs not so often in NIV cases, but

more frequently with respect to his relationship to someone here in the

United States. The prime test, or one of the first tests that we attempt

to establish in the issuance of a nonimmigrant visa is the alien's intent

to return to his place of abode. We do that by trying to reach a judgment as to whether, frankly, he has more in country A to bring him

back than to cause him to remain in the United States. To establish

this point wc look at literally any type of documentation or evidential

material that he wishes to present. This can range from a tax state-
65

ment to a bank statement to statements of employment, professional

cf 'l t i j < f*jt" f*pfr 1*1*51,

I think one of the major problems that we have had in this particular area in the last decade or so has been the very dramatic switch

in the areas of demand for visas. A decade ago, the bulk of our business was coming from Europe. Today, the bulk of our business is

coming from the Caribbean basin in Latin America and Asia; from

countries that are in various stages of development, that have in

common incredible population growths, unsophisticated infrastructure

development, et cetera. As such, the demand to leave the country to

go anywhere•and primarily to the United States•is very great.

These people are frequently stimulated to obtain very sophisticated

counterfeit documentation to demonstrate that they are architects or

doctors or that they have a large bank account, or that they have a

good career in that country•all in order to convince the consular

officer.

Mr. DODD. I am interested in knowing the consular officer's duty in

this area. I recognize that it may not always be that simple if a person

were, in fact, to say that I am a certified architect in the Dominican

Republic or that I have x amount of pesos in the Dominican banks,

how much further than the specific documentation does the consular

office go to verify the veracity of such statements ?

Mr. LAWRENCE. This will vary. That is one of the elements that

forces us to address the question of demand and time and resource. In

our posts where we have high fraud incidence rates, we have the

assistance of investigating units with some frequency.

Mr. DODO. Do you get any assistance from host countries?

Mr. LAWREXCE. Generally speaking, assistance from host countries

is spotty. It will vary with the country. I have recently been assigned

to a country where, very frankly, I could buy any kind of documentation from the street or from officials within the Government. This is

true in many of these countries. The only way I believe•and this is

a personal opinion•to really check into this type of documentation

is to literally go out. ring doorbells, and ask questions. We have that

facility to a limited basis in some posts. But in most posts, what our

officer is left with is examining as closely as he can in the very short

amount of time the documentation in front him, questioning the applicant closely in a concentrated period of time, and reaching a

judgment.

Mr. DOOD. OK.

Now, once we have determined that you have extended a visitor's

visa, a tourist visa for 1 month, or 4 months, or 6 months, or whatever,

is there any kind of a circular file, or whatever, that would indicate that

a> person should be back in the Dominican Republic or should have left

the United States at a particular point ? And is there a flagging system

wherein then a check would be instituted in this country to determine

whether or not that person is still here or whether or not they have

returned ?

Mr. LAWRENCE. At this state of the art, there is not. That is exactly

one of a series of programs that we have been working on jointly with

the Justice Department's Immigration and Naturalization Service•

a method of knowing how many people are here, who is due to leave,

and who has left. We do not have that facility at this point.
66

Mr. WALENTYXOWICZ. There is an attempt by the INS to do that.

There is a formal retrieval system, but it is inadequate in terms of the

present demands and relatively inefficient. When a person comes in

under an NIV, he is supposed to fill a card out and turn it in as he

departs. I do not recall the exact number of the form•it's 1-94 ? Unfortunately, it just is not sufficient for what we are trying to do, and

one of the things that we are proposing in conjunction with INS is

an automated visa control system that will give us a very effective

monitoring system. That is what you are asking us to do, to monitor

those people who come in, to make sure thatthey honor the visas, and if

they do not honor them, to see to it that they are removed. But that is

only part of the problem.

Mr. DODD. I am not suggesting a monitoring system. I do not mean a

tracking system to keep an eye on them on when they are here.

Mr. WALKXTYNOWICZ. No, I am not talking about monitoring in the

sense of "big brother." I am simply talking about monitoring in terms

of a computerized entry system and exit, that is, when person x comes

into the United States under a visitor's visa that is due to expire in

6 months and now, 6 months later, he has not turned in the visa or

he has not been cleared for departure. These facts would be kicked out

and the INS could make a decision as to what to do.

Tn essence, a very limited kind of monitoring. Incidentally, we are

nun-e than happy to give you more detailed lists of fraud, both in the

IV and NIV category. As a matter of fact, what we can do is offer

this to the committee as a separate exhibit. (See p. 79 for procedure

followed by visa officers in identifying fraudulent visa applications.)

Mr. EILBERG. Mr. Fish.

Mr. Frsn. Thank you, Mr. Chairman. Mr. Secretary, I extend my

welcome to you. Let us pursue Mr. Dodd's line of inquiry. It seems

to me that the responsibility, after the visitor is in the United States

and has received an extension, and his whereabouts is really the responsibility of that of the Immigration Service rather than that of the

State Department. But what concerns me, as it does Mr. Dodd, is at the

very beginning of the stage, the issuance of the nonimmigrant visa,

whereas the testimony we have received, I believe from General Chapman, was that 600,000 visitors a year•he loses about 10 percent of the

6 million which is 600,000•disappear at some point or overstay.

I can understand that very expert fraudulent documents would be

available, but, nevertheless it is my recollection that this is a responsibility of the Foreign Service personnel in the field to make a judgment

as to whether or not that person is a bona fide immigrant or nonimmigrant, and it is the assumption that anybody applying for a visa is

nn immigrant unless they prove to the Consular Office's satisfaction

that he is a visitor. So I do not know whether it is so important that

the documents are fraudulent documents because there need not be any

documents. That is just a fact to be considered, is it not, by the officer

in the issuance of the visa.

I do not really expect an answer. I just want to point that out

because I know in previous testimony pressure from the Department

of Commerce was alluded to, that this was a good time for people

to travel. We want to encourage travel to the United States. Well,

I just would hope that if you do feel these kinds of pressures that

you allow us to be supportive of you and the Administrator here to
67

bring a counterpressure to help us in meeting this problem of illegal

aliens.

Mr. EAGLEBURQER. May I make a point here ?

Mr. FISH. Sure.

Mr. EAGLEBURQER. I agree with what you said. I would go further

and I will say it before I am asked specifically, I do not think there

is any doubt that the fact that the consular officers in many posts are

overworked, that that has something to do with the number of people

that slip through. We are trying to take some steps now in the assignment of consular officers under the consular package to this problem,

particularly recognizing that there are some places where, particularly when people are overworked, this tends to heighten the problem.

I have also asked Mr. Walentynowicz, in the development of future

consular packages, to pay particular attention to this as an element

in the development of those packages so that we can begin to face

the problem. I am prepared to admit that it is clear, that at least in

some of these cases it is the fact that we do not have enough consular

people, given the workload that they have to face.

Mr. FISH. AS regard to consular personnel, I believe in your opening

statement you refer to it as the lowest classification in the Foreign

Service, and am I to understand that there is an element of rigidity

that you go into the consular service and the chances are that you

will stay most of your career in that service ?

Mr. EAGLEBTJRGER. I am glad you asked that question.

There are a number of factors, and let me talk about the cone

system for just a moment, if I may, because it is very relevant to this.

I happen to believe, and I know this is not a view that is universally

shared, that in fact were we to continue with the cone system as it

had existed, we would perpetuate a disequilibrium between consular

officers and other officers.

This June Secretary Kissinger gave a speech in which he laid

out a number of changes he wanted made in the Department and in

the Foreign Service. He had earlier taken a step which removed the

cone system for the senior levels. That is the FSO-3 and above. This

latest step was to, in fact, remove specific recruiting by cone so that

as we recruit from the bottom up, there will be a general examination

which all Foreign Service applicants will take. It will try to give us

some sense of the particular applicant's abilities across the four functional fields, not just the one.

It used to be that if you were going to come in as a consular officer,

you took a consular examination; for administrative officers, an

administration exam, and so forth. The basic point the Secretary has

been concerned about in the 2 years he has been in the Department

is that what the Department needs at senior levels•and it is a terrible

word, but it is the best word I can come up with to describe it•

is synthesizers, people who have enough experience across the range

of Foreign Service functions that they can put things together for

the senior policy level officers to make their judgments.

Now. it is his feeling that the cone system, as it was used, as it has

developed, too much kept people in their narrow category and did

not give them enough experiences in political work, economic work,

and consular work. As a result, as Foreign Service officers moved up

the career ladder•partly because of the cone system and partly be-
68

cause of the folklore of the Department, that political officers are the

thinkers, and everybody else does something else•it was clear that

too many people at the senior levels were coming from the political

and economic cones. It was also clear that if the structure was kept as

rigid as the cone system was keeping it, it reduced, rather than raised,

the opportunity for consular officers and administrative officers to

reach the high levels of the Foreign Service because they had not had

sufficient experience outside their cone.

So what the Secretary has done now is say, we will recruit young

Foreign Service officers across the board. We will not recruit them

for any particular cone. There is another point to this. How can you

ask a 25-year-old who does not know the Department of State and

does not know what working in the Foreign Service is like to make

his career choice before he has entered the Foreign Service, and how

can you ask the Department to make the judgment that this man

ought to be an administrative officer for the rest of his career until

they have seen how he performs ?

So, we have eliminated the cone system at the junior level 8,7 and 6;

5 and 4 and 3 will maintain a cone system so that they can get their

general development in a specific field in that intermediate period.

I misspoke when I said earlier we had eliminated the cones for

FSO-3's. We have eliminated them for 2

?

s and l's, the most senior

levels.

They will, hopefully, in the early years get broad experience in a

number of fields. Then, after knowing something about how the Foreign Service functions, the Department knowing something about

them, wo will make a joint decision as to what cone they proceed

through in their middle years, their middle grades.

At the time they reach the FSO-3 level and we begin to look for

the policy level, for the people who are supposed to be the synthesizers,

hopefully we will have had a breadth of experience and will be able

to identify more clearly who they ought to be.

Mr. FISH. Well, Mr. Secretary, 1 would just like to say I am delighted to hear what you have just said. I could not agree more that

nobody should be asked to make a career choice the day he enters the

Department. There should be this mobility within all the various

aspects, political, administrative, and consular.

I would also like to point out that the American tourist, the person

that lie is likely to see in the field, is the consular officer, and this is

an important fact to the person who complains to us about how he

was treated at the American mission at home, is generally talking

about the person he rims into, the consular person.

In addition, we frequently have a situation where your consular

general will be the officer in charge of the consulate general, and T

cannot imagine a man being put in charge there who had not had at

least one or two tours of duty as a visa officer. So. if I understand you,

it is the balance between the experience and all the disciplines and

against the structure orstagnation ofstaying in one.

There is one final word•I do not want to take up any more time•

but I would like to suggest that our missions abroad, particularly the

embassies, are open on Saturdays and Sundays for business in the

sense that they have somebody who can answer the phone. I have had

the experience of where the American citizen was arrested in the
69

foreign country and their wife telephones the Embassy, and she was

told it was Sunday, and she remarked quite correctly, that the police

in that country M-orked on Sunday, and it was not until I personally

got in the act Monday noon and called the State Department that we

got an answer in an hour. I just thought that was unfortunate but

since this lady had made more than one call and had just gotten no

place because no one was around of authority or the willingness to

go to the police station and that kind of thing.

And thisshould not happen.

Mr. EAGLEBURGER. Mr. Fish, let me just say that you do not need

to give me the name now. I would like to know what embassy that was.

That is totally against regulations. Any embassy or consulate is supposed to have a duty officer on weekends if there is no one else there,

and that is unacceptable conduct, and I would like to know where

it happened.

Mr. FISH. Thank you. Thank you, Mr. Chairman.

Mr. EILBERG. Mr. Eagleburger, we are planning to go until 1 o'clock.

I hope that is convenient for you. We have a great deal of material. I

understand, that you have kindly offered to come back at some future

time. I just want to give you some idea of what our plans are.

Ms. Holtzman.

Ms. HOLTZMAN. Thank you very much, Mr. Chairman.

I am very pleased, Mr. Eagleburger, that you are here to discuss

some of the serious problems affecting the performance of the consular

officers.

I must say that what concerns me very much is that the figures

that I saw several months ago indicated that, for example, in New

York City about 60 percent of the aliens apprehended for being here

illegally were persons who had overstayed visitor's visas, which indicates that the tightening of the consular practices is something that

is extremely important with respect to properly dealing with the

illesral alien problem in New York City.

What troubles me is that I see you mentioned in your testimony

really in one sentence, granted it is a sentence of six lines, in one sentence this problem. I am sure 3

r

on feel it is a serious problem, and I

feel it is an extremely serious problem, and I thought we could have

gotten some detailed facts from you as to how you are handling at

present the problem of fraudulent applications for visitor's visas, how

you are handling the problem that Congressman Dodd raised about

overstays and the tickler system, or whatever you want to call it, and

what your plans are to improve it concretely, not vague statements.

I must say that I am very disappointed with respect to that, and I

think it would have been a much more fruitful hearing if we could

have had this information to begin with, so that we could ask questions, not designed to get facts, but to understand what the policies

are because this is an area that I am personally very concerned about,

and I know that other Representatives in the New York area are very

concerned about.

This is a problem that directly affects the illegal alien problem in

Aew York City, and I would hope we could get some additional information, concrete information about what you are doing, what the

scope of the problem is, and what you are doing to correct it.
70

Before I ask you some specific questions -with respect to that, there

was a reference on page 9 to the fact that everyone should have an

opportunity to develop sufficiently broad background, and you refer

to "he." Can you give me some information about the number of

women that you have in the Foreign Service in the consular offices

and give me some statistics as to not only this year, but last year, and

anv plans that you have with respect to hiring additional women?

Mr. EAOLEBTTRGER. I will have to supply the statistical information

for the record. I do not have it with me. 1 can talk a bit about•I cannot be specific on the statistics. I do not have them with me, and I

would be glad to supply those for the record.

Ms. HOLTZMAN. I would appreciate it,

[The information requested follows:]

WOMEN SERVING IN FOREIGN SERVICE POSITIONS

Level CM

3 4 5 6 7 g 9

2 (FSl) (FS2) (FS3) (FS4) (FS5) (FS6) (FS7-10) Total

September 1974:

FAi 1 1

F0> __ 1 6 6

FR> 2 12

FS<

RU» _ 1

Total 1 9 20

September 1975:

FAi • 1 1

F0» 1 7 6

FR» 3 10

FS«

RU«. 1

_ 2

32 50 90 33 32 21 271

14 32 51 65 62 16 254

8 21 66 147 238 375 712 1,567

9 8 7 12 28

63 111 214 246 334 412 712 2,122

"32 52 98 44 39 ii".'.~Z'.'.Y. 301

18 48 66 95 85 21 34b

7 19 69 142 232 335 728 1,532

9 8 9 3 1 31

Total 1 11 18 66 127 242 284 357 378 728 2.212

> Foreign assistance officer.

I Foreign Service officer.

> Foreign Service reserve officer.

< Foreign Service staff.

' Foreign Service reserve officer, unlimited.

WOMEN HAVING PRIMARY CONSULAR SKILL CODES SERVING IN FOREIGN SERVICE POSITIONS

Level CM 1 2 (FSl) (FS2)

5

(FS3)

6

(FS4) (FS5)

8

(FS6)

9

(FS7-10) Total

September 1974:

F0> 3 3

1

4

2

11

1

3

36

9

11

14

15

16

14

21

16

9

X

1

93

FR«

FS»

50

49

Total 2 4 6 15 56 45 51 13 192

September 1975:

F0>

FR«

FS« _

2 2

1

5 12

2

S

44

12

13

19

22

17

18

21

11 .

11

3

- -

113

61

46

Total 2 3 5 19 69 58 50 14 220

> Foreign Service officer. 1 Foreign Service reserve officer.

' Foreign Service staffMr. EAGLEBTJRGER. The use of the word "he"' is a mistake. The Director General of the Foreign Service at the moment is Ambassador

Laise, whom you may or may not know. She and, in fact, the Department are very conscious of the broad sweep of our minority problem
71

in the Department of State, and of the problem of women in senior

positions in the Department. I have to emphasize our problem is far

worse in terms of minorities than for women, and is something we are

peeking to correct.

We are, in fact, I personally think, in better shape•though not

where we should be in terms of women brought into the Foreign Service, and now beginning to move up into senior positions, though we

are not anywhere near where we should be. There is no question that

the Foreign Service and the Department of State are now paying a

price for a long attitude of lily-white WASPism. We have undertaken some special programs to "try to correct that process, including

some lateral entry programs in the middle of the Foreign Service career ladder. It will be a long time before we have really adequately

corrected it.

I think one place where we have begun to make substantial progress,

both in terms of minorities and women, is in broadening substantially

the number of people who are coming in through the examination

process at the bottom, but that is going to take a long time before they

percolate to the top.

For example, just one example, we signed an agreement with the

American Foreign Service Association some months aero for a special

program to bring 20 minorities and women into the Foreign Service

into the middle levels; 10 women a year, 10 minorities. I will be frank

with you, the agreement was made over some substantial objections

from the career people, themselves, who see this as a blockage of their

opportunities for promotion. Thus far the program•it has not been

in operation long enough to be able to give you any firm judgments•

but I think it is fairly clear in terms of the number of applicants that

we have had and the quality of the applicants that we will very easily,

be able to meet the quota of 20 each year. This is a 5-year program;

now that is not enough, and I know it is not enough. We have to

balance that problem off against the fact that we are also dealing with

a career service.

We also have to balance that problem off against our concern that

when we bring people in, they are able to compete with the people who

have come in through the normal career service because wo do no one

any justice if we bring them in and they do not get promoted. So we

have to be careful to be sure that we are high in our standards.

As I say, we have just started this program; it is very clear, at

least in the first 8 months of operation, that we are getting very, very

good candidates. I think the program will work.

Ms. HOLTZMAN. I appreciate your answer, and I would very much

like to see the statistics.

Mr. EAGLEBURGER. We will get them for you.

Ms. HOLTZMAN. And some additional details.

Mr. EILBERQ. Mr. Secretary, it has been suggested on several occasions that the Department of State or the Bureau of Security and Consular Affairs should be reorganized in order to give higher priority to

the consular affairs program.

One suggested reorganization would place program responsibility

in an Under Secretary for Consular Affairs similar to the Under Secretaries of the other functional services of the Foreign Service, that is,
72

Under Secretary for Political Affairs, Under Secretary for Economic

Affairs.

How do you react to this suggestion ?

Mr. EAGLEBURGER. Mr. Chairman, I would like to think about it a

bit more, but let me tell you the concerns, and they run in two

directions.

I react myself rather negatively to any proposal to create a further

hierarchy on what we call the seventh floor of the Department of

State. We already have Under Secretaries and Deputy Under Secretaries falling all over each other. That is an exaggeration, and Henry

Kissinger will fire me, but. nevertheless, there is a problem, and yon

can build a topheavy organization.

The issue really. I think, has to be judged on the basis of, frankly,

whether the Deputy Under Secretary for Management, as the situation

now stands, gives the Administrator of the Bureau of Security and

Consular Affairs sufficient access to get his needs addressed on the seventh floor, and whether, in fact, the Deputy Under Secretary has sufficient access to the Secretary of State to make those needs known when

they have to be.

I can see an argument that says institutionally you have to give

adequate weight in terms of the senior levels of the Department to the

various fvinctional processes within the Department. I can see that

argument. I can only counterpose against it at this point my prejudice

that the issue is far more in terms of people than it is in terms of some

institutional structure, and that the critical issue is access to the Secretary of State if you need it, and that that is not necessarily solved by

creating another senior level job in the Department.

Mr. EIT,BERG. In your opinion, is there a need for any increase in

staff at the bureau level in SCA and would such an increase enable the

Administrator to provide better direction for the consular affairs

program?

Mr. EAGI.EBTTRGER. I think the general answer to that is that Mr.

Walentynowicz has made it very clear to me that there is a need for

more personnel. "We have just allocated three more positions to the

Bureau. I am not sure how many positions are needed. I am sure it is

more than three. I think the basic answer to your question is yes, they

need more people. How many, I cannot at this point say.

Mr. EnBERG. Additional recommendations have been made that the

Bureau of Security and Consular Affairs should be reorganized or

restructured in order to enable the Bureau to exert greater control

and provide more guidance to its constituent offices. Passport Office,

Visa Office, and the Special Consular Services. What is your opinion

of this recommendation?

Mr. EAGLEBURGER. Frankly, T am familiar with the recommendation. I am not, myself, prepared to make a judgment. I think, frankly,

the Bureau runs reasonably well, but let me ask Mr. Walentynowicz

for his view on this.

Mr. WALKXTYNOWTCZ. Well this issue has a number of facets to it

one of which is, of course, the Bureau's or the ima^e identity and its

appearance of importance. Tf the Bureau is to run efficiently and carry

out its statutory function, it is very important that the other parts of

the State Department resoect that identity and work in close cooperation and coordination with SCA.
73 :

I am very, very pleased about Mr. Eagleburger's remarks and also

his cooperative attitude in making sure that the consular function has

the same importance•not more importance•as any other function of

the State Department.

Now, with respect to reorganization of the constituent offices of

SCA, I think the present day in which we are organized is quite efficient. I am not a believer of always trying to improve things simply by

reorganization. I think we are structurally sound. There is always the

problem of people and the interaction of personalities, and sometimes

this causes impediments to the efficient operation of the office. But, I

feel that these things can be overcome, given a period of time.

Mr. EAGIEBURGER. Mr. Chairman, let me just make one point. My

general view is that senior level management should not, by and large,

be telling subordinate organizations how to organize themselves. They

have to make those judgments basically themselves, and my job then

has to be to make sure that if they are not doing the jobs that they are

supposed to be doing, to point that out to them in the most forceful

terms. But how they organize themselves. I think ought to be a decision left to the men most closely involved with the problem.

Mr. EILBERG. Mr. Dodd.

Mr. DODD. Thank you, Mr. Chairman. I would like to ask, Mr. Chairman, unanimous consent to request that the specific documentation or

reports that you may or may not have at this point, if you do not have

them, I would like to have them submitted, outlining specifically

exactly what the interphase is between INS and the State Department

and any proposals, concrete or general, that vou may have with regard

to the issue that I raised, and which was brought up again by Ms.

Holtzman with regard to the problem of the nonimmigrant visas.

Mr. WALENTYNOWICZ. May I just make a brief response to this ? We

would be more than happy on an another occasion to address your concerns as well as those of Congresswoman Holtzman. It was our understanding that the primary purpose of this hearing was oversight and

not necessarily a detailed response with respect to the visa problem

or the illegal alien problem. You see, with respect to the alien problem

we are thinking in broader terms than just illegal aliens, the challenge

is to devise procedures to control the movement of people into the

United States, both temporarily and permanently, and not just to

control illegal movement.

Mr. DODD. Concerning visas and the treatment of nonimmigrant entries into the country, certainly this is the direct stage at which the

consular officers deal with this problem in terms of oversight.

This is a massive concern to the American public in terms of the

problems with illegal entries. Therefore, I raise the question, I am not

trying to sandbag you by bringing up a subject that you did not think

was poing to be brought up. But I cannot believe that yOi would not

imagine that this would be of major concern to this committee, given

the fact that we are also responsible for the legislation dealing with it.

Mr. EAGLEBURGER. Mr. Dodd, we will be glad to provide for the

record everything that you have asked for. We will be glad to provide

for the record or proceed to discuss this morning the subjects that Ms.

Holtzman raised.

If we were not prepared to discuss those subjects in some detail,

whether or not they are in the opening statement, we should not be

here at all.
74

Mr. DODD. OK, fine, thank you.

The other question I wanted to get to and I wanted to first of all

say that the State Department has been tremendously cooperative in

the initial stages, but I would be interested in your comments.

Mr. EAGLEBURGER. Watch out where you get to the final stages.

Mr. DODD. Yes; I know. You noticed I entered in a caveat, I said in

the initial stages. I am encouraged by your comments with regard to

the number of women and minorities and I had the very same question

Ms. Holtzman did.

An area that does concern me deeply however, is that dealing with

the handicapped in regard to the consular service. There is, as I understand it, a prohibition within the State Department regulations in

terms of hiring consular officers, for instance, who are blind. I do not

know whether that extends to other disabilities dealing with paraplegics or people who are deaf and so forth, but it seems to me that

when you talk about on page 9, second class citizens, that certainly in

this country, second class citizens is a proper description for those

people who do suffer from some sort of disability.

I would be interested in knowing what your thoughts are, I know the

State Department has told that they are rethinking this issue with

regard to hiring handicapped people who would otherwise qualify to

the examination process and so forth to serve as good officers, Foreign

Service officers.

And I would be interested to know if you could enlighten me any

further as to the thinking of the State Department with regard to that

issue, particularly in the area of consular officers.

Mr. EAOLEBURGER. Mr. Dodd, one of the normal State Department

answers, and unfortunately I have to give it to you today, is that the

question is under study. I do not, frankly, know where we will come

out.

' We have paid much more attention, to be honest with you to the

issue of minorities and women than we have to this other problem of

the handicapped. We have now begun to realize that it is problem. We

are looking into it.

I would also be less than honest if I did not say thatthere are obvious

institutional problems created particularly when you are sending people abroad, as they relate to some forms of handicap, one of which is

clearly the question of the blind. We are studying that now. I cannot

guarantee you what our answer will be, I can only say we are looking

at it with as sympathetic an eye as we can. And once we have completed

the study and I have had a chance to look over it myself and talk to

the Secretary about it, I would be glad to come down and talk to you

about it.

Mr. DODD. I appreciate that. I have a number of acquaintances who

are Foreign Sendee officers and one of the issues that is raised quite

repeatedly is the period of time of service in a particular locale.

What is the general tenure in a particular post, generally?

Mr. EAGLEBUBGER. It depends very much on whether it is a hardship

post or not. But the general rule is, let's just say in the average Foreign

Service post, it would be 4 years, 2 years, home leave, and back for 2, or

3 years, home leave and another post. In general I would say it is

probably a 3-to-4 year assignment.

Mr. DODD. One of the issues raised with regard to the tenure, is that

it usually takes a new person in a particular post, roughly 9 months
75

to a year to get acclimated, set up, and familiar enough with the situation to become an effective officer. Then, I am told, and I do not know

how true this is, that in the last 6 months or so or more of your service

you are beginning to process out with a new person coming in.

In effect, what they are suggesting, the people I have talked to anyway, is that you get a year and a half, maybe, of good time out of someone in a post.

I recognize, and I think it would be a great mistake to extend the

tenure of service for a 10-year period. I think you would have a problem there with someone losing their effectiveness in maintaining

their objectivity. But, I am wondering if possibly, you know, a 5 or 6

year term in that area could give someone the opportunity to really

become an effective operator in an area. Particularly, we are talking,

say, about the illegal entry problem, getting to know the players in a

country, getting to know the systems, as to where the problems do lie,

the false documentation, and so forth.

I get the feeling that iy2 or 2 years, I may be off in saying it takes

6 months, or 9 months or 1 year to get acclimated, but it just seems to

me that you eventually get a person in a position where they really

can be an effective consular officer in the country, and then they are

switched, pulled out and put some other place.

I wonder if any thought has been given to extending that period of

time to allow for just what I am talking about without going beyond

the period of time that a person or their effectiveness is apt to fall off.

Mr. EAOLKBURGER. A great deal of thought lias been given to it. Not

just now, but for manv years. First, there is no question that it takes

at least 6 months really to begin to learn, and in some cases a lot

longer.

It depends, to some degree for instance on the difficulty of the language, but it certainly takes a period of time, 6 months to 1 year to get

to know your country. It is also true that in the last 6 months, you are

thinking more about where you are going than where you are, there

is no question about this.

I would suspectthatthe people you have talked to have been assigned

to London, Paris and Bonn rather than some hardship post.

Mr. DODD. Not at all. I will not tell you where they are from, but I

will tell you that they are in generally hardship posts, people who

feel that they could be a lot more effective there too, if they had a

longer tenure in a given post.

Mr. EAGLEBHRGER. There is, nevertheless, I think, a concern, particularly where the hardship is a health hardship, that you cannot keep

people too long. Our problem is that when you have to consider that

our assignment process is worldwide available, and you have country

X where we think it is not wise, normally, to keep them more than

2 or 3 years, and then you have some country where this is not a problem, and you can keep them, say, for 6 years, it becomes very difficult

to run a personnel system when you have those competing demands;

unless what you do is keep people circulating, one group within the

area of countries where hardship is no problem, you know, London,

Paris. Bonn, whatever, and you have another set of people who are

circulating in hardship posts.

Now, I do not dispute the. point. I would only argue that there are

people and more than that, there are medical reasons, in some cases for
76

not wanting to keep people in a post too long. And you have a competing set of demands. . .

Having said that, my own personal view is that 4 years ought to be

the minimum. I do not think we will ever achieve that, but 4 years

ought to be the minimum assignment in any post.

Mr. DODD. But I suspect that, I feel you have a lot more dedicated

people than you feel you have.

The people that I have run into have lived in some pretty rough

spots and they have wanted to stay in them because they felt they

really were doing a job. And thev got moved out. _ But, for whatever that is worth, anyway, thank you, Mr. Chairman.

Mr. EILBERG. Thank you.

Ms. Holtzman ?

Ms. HOLTZMAN. Thank you, Mr. Chairman.

Maybe if we can get to some of the specifics respecting the problem

of fraudulent practices

Mr. EILBERG. Will the gentlelady yield for a moment ?

Ms. HOLTZMAN. Surely. ,

Mr. EILBERG. I wouldjust like to observe that we are indeed fortunate to have Secretary Eagleburger with us. And I would hope that

we would draw from his expertise at the management level as much as

we can.

It is not often that we have someone of his stature in management

level with us.

Please go ahead.

Ms. HOLTZMAN. YOU mentioned first the increasing prevalence of

fraudulent practice in documents. Do you have any statistics on this?

Mr. LAWRENCE. No ,we do not have statistics on this. I pause because

that is a very hard question to answer.

Ms. HOLTZMAN. Well, just tell me, do you have any figures to prove

that it is increasing as opposed to decreasing?

Mr. LAWRENCE. Well, I think we have figures that would prove that

trend, yes. We have refusal rates going up in the nonimmigrant area

on our side. On the INS side we have more and more illegals being

discovered, and working in a specific post, you begin to understand

that fraudulent practices are on the upswing on the basis of the kind

of documentation. You see that, more or less, the profile of the type of

people who are increasing in numbers in terms of seeking visas•this

type of thing. But, quantifying it specifically, as your question came,

the answer is no.

Ms. HOLTZMAN. Okay. What steps do you take with respect to the

consular officers who are issuing visas in terms of monitoring the judgment that they exercise ?

For example, is there any feedback in terms of the number of•let

us just assume there is one consular officer who has exercised bad

judgment and issued visitors' visas, for example, to people, a large

number of people who were picked up in New York City as illegally

overstaying their visa? Does that information come to you in some

fashion, so that you can deal with this consular officer, or do you have

any way of learning from the mistakes that people have made?

Mr. LAWRENCE. We have feedback devices and there are a number

of them. First of all, we measure performance, by what we call our

efficiency report in which a supervisor is examining the work on a

continuing basis of the people that are assigned to him.
77

Two, we have a continuing dialog with people in the Immigration

Service who frequently will spot trends at a specific port of entry

that we may not have spotted.

Three, in countries where fraud is on the increase, you have a

literal jungle of allegation and counter-allegation that develop. It is

hard to describe. In one of my recent posts, you would start out

with a couple of thousand people every morning in your waiting

room. You knew that before you said a single word, that probably 85

percent of those people in front of you would be questionable. In

that kind of an environment, you begin to develop allegations from

the community that this officer is too tough, this officer is simple. We

had an incident a number of years ago in Hong Kong.

Ms. HOLTZMAN. I am not talking about allegations from the community, I am talking about when a particular consular officer has

issued many visas in which the result has been that the person has

overstayed. Do you find this information out and does this go back

mto your management practices so you can say this consular officer

ought to be talked to and shown the results of his work.

That was the question.

Mr. LAWRENCE. The point I was trying to get to was that in the

composite of all of these things, you begin to identify posts where

this is a problem, or within posts officers where this is a problem.

And then you can deal with it as a management problem.

Ms. HOLTZMAN. I am not sure I have that answer. And I see Mr.

Eagleburger shaking his head. Is there a way of identifying mistakes•mistakes in judgment or other kinds of mistakes•by a particular officer %

Mr. EAGLEBUKGER. AS I understand it, there is a review process

which includes an office in Security and Consular Affairs which is

seized with this problem.

Let me see if Mr. Walentynowicz can describe it more accurately.

Mr. WALENTYNOWICZ. In answer to your question, Congresswoman

Holtzman, if you are asking whether we have a system whereby we

precisely identify each and every "illegal" alien that became illegal

because the visa was improperly issued, the answer is no.

But there are various mechanisms where we get data regarding

the problem of a particular officer not doing his ]ob as effectively as

he should. Let me give you an example•we do monitor the visa

refusal rates and also the number of visas issued. These things are

reported back to the Department.

Ms. HOLTZMAN. The visa refusal rates do not tell you whether

increases may result from an increase in applications.

Mr. WALENTYNOWICZ. That is one factor, but we also monitor

visas granted. In other words, we have given instructions to the posts

abroad, particularlv the supervisors and to the people at the visa

office to monitor and examine the visas that were issued to see whether

or notthere are any poor practices.

We have upon a number of occasions found out that a particular

visa officer has been, for want of a better word, perhaps too liberal

and is not. tight in his judgment; and we have cautioned those visa

officers to tighten up on their judgment.

So, in answer to your question, yes, there is a system. It may not

be as precise as the question you put here. In other words we do not

take a particular alien that has been picked up by INS and say that

76-206•76 6
78

his visa was issued by officer X and therefore go back to officer X. We

do not do that.

Ms. HOLTZMAN. You do not have any system that can tell who

the visa officer was who issued a visa to a person who overstayed

his

Mr. WALENTTNOWICZ. Yes, we can identify it. But we have not

collected it.

Ms. HOLTZMAN. Do you compile that information ?

Mr. WALENTTNOWICZ. No.

Mr. EAGLEBUKQER. MS. Holtzman, I have checked now, in my briefing book. Let me read to you:

There are no procedures for determining the number of non-immigrants who

return abroad and the Immigration and Naturalization Service does not notify

the posts of overstays. The Service does however notify the non-immigrant visa

issuing post concerning an alien whose case falls within the following categories. And INS has, or intends to take action with respect to such alien. The

categories are as follows: nonimmigrant visas cancelled by the Immigration

and Naturalization Service if the alien was excluded at the point of entry, that

is notified back to the post. A nonimmigrant visa cancelled by INS since the

alien withdrew his application at the port of entry. A non-immigrant visa

cancelled by INS because deportation proceedings have been initiated. A nonimmigrant visa cancelled by INS and the alien has been permitted to depart

voluntarily.

And, finally•

a nonimmigrant visa cancelled by INS because it has revoked the order permitting the alien concerned to enter the United States on the basis of a waiver

given earlier, under Section 212(d) 3 of the Act.

A basic point is, in answer to your question, it seems there are no

procedures for determining the number of nonimmigrants that return

abroad.

And the Immigration and Naturalization Service does not notify

the posts of overstays. It does notify the post in that series of events

where the INS has canceled the visa for one reason or other.

Ms. HOLTZMAN. Yes; but even in those instances, I would hope that

that information is used in a way so that you can improve the issuance

of other visas.

Mr. EAOLEBTTROEn. I cannot guarantee that in every case when it

comes back to the post it is brought to the attention of the particular

officer. But if it is not, it should be. And that is the purpose for the

notification.

Mr. WALENTTNOWICZ. Can I just simply arid this example answer

to your question. There was a post from which certain planeloads of

people came into a port of entry. They were found by INS to be illegal

and they were stopped. Now. we took that information and data from

INS and we brought that particular visa officer back here for further

consultation, training, advice, et cetera. We are taking action. Whenever we see such a situation the officer involved is advised of his responsibility and is helped to perform his job better.

Ms. HOLTZMAN. I know. My point, Mr. Walentynowicz, is to make

sure, that you see that situation when it occurs.

Mr. WALENTTNOWICZ. We are very vigilant about that.

Ms. HOLTZMAN. Mr. Chairman, I just wonder if we could get some

further information, perhaps at a later time, about the procedures

involved in handling these particular visa applications, how much time

is spent on them, whether, for example, there are any file of phone
79

calls to banks, employers, with respect to documentation, so that we

can get some clear understanding of the method by which these visas

arc handled and what you intend to do ?

Mr. EAGLEBUKGER. Let me undertake to supply that for the record.

Mr. EILBERG. Would you do that ? And I would hope to be directing

questions to the Secretary regarding management problems. Perhaps

some of these could be discussed at some other hearing. But we appreciate your offer to supply the details.

[The information referred to follows:]

PBOCEDUBES FOLLOWED BY VISA OFFICEBS IN IDENTIFYING FRAUDULENT

VISA APPLICATIONS

Nonimmigrant visa applications are processed by a consular officer on a flrstcome, first-served basis. Nonimmigrant visa applications involving fraud are, of

course, interspersed with bona fide nonimmigrant visa applications. At posts

where fraud is known to be a problem, a high percentage of applicants are interviewed personally by the consular officer.

In cases where the consular officer is able to determine immediately at the

time of the visa interview that an aspect of fraud is involved in the application,

the alien's visa is refused on a spot under an appropriate provision of the

Immigration and Nationality Act. In cases where there is some doubt as to the

veracity of some documents or statement, the consular employee may attempt

to verify it on the spot through a phone call to a bank, employer, government

official, or other reference. When such an Immediate verification is impossible

or unsatisfactory because of fraud or the source of the document, action on the

application may be deferred, and it may be referred to a fraud investigating

unit if one exists, or personally investigated by the consular officer at a later

time if his workload permits.

Unfortunately such time and facilities do not exist at most posts and thus the

consular officer must first and foremost rely on close scrutiny of the documentation at hand plus careful questioning of the applicant during a brief period of

time to reach a judgment. Time spent on such applications vary from two or

three minutes to an hour or more, depending upon the circumstances.

In attempting to identify fraudulent visa applications, the consular officer

may rely on several resources including institutional memory in the form of

precedent files or past examples of fraudulent practices at the post. However,

the officer's judgment, knowledge of the local scene, experience and intuition

are his most important resources. The officer's degree of success in identifying

an apparent fraudulent or otherwise mala fide nonimmigrant visa applicant is

also, of course, related to the time available to consider the applications.

Nonimmigrant visas refused because of a fraudulent application can be

statistically identified if the applicant is refused under Section 212(a) (19) of

the Immigration and Nationality Act, which provides that a visa shall not be

issued to "any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by

fraud, or by willfully misrepresenting a material fact." However, because of the

obvious difficulty in establishing fraud as a certainty without an often impractical, long investigation, an applicant suspected of fraud is often merely refused

under Section 214(b) of the Immigration and Nationality Act as an alien who

has failed to overcome the presumption that he is an intending immigrant. As

this Section is also used for many refusals not involving fraud of any kind

there are no accurate statistical figures which would reflect the specific incidence

of fraud at a particular post.

The consular officer may be alerted to misrepresentation and possible fraudulent documents by many factors, but most often by inconsistent information.

For example, a laborer hoping to enter the U.S. on a tourist visa to seek employment depicting himself as a bank teller is likely to raise suspicion by his

personal appearance, his manner, limited vocabulary and limited ability to

write. Documents are screened for obvious inaccuracies of detail ranging from

the most obvious, such as misspellings in letterheads, to the more subtle, such as

inappropriate format or a poorly forged signature. Additionally, supervisory

consular officers monitor the work of visa issuing officers by reviewing a sampling of issued cases as well as refused cases. Such supervisory review of

completed cases is helpful both In ensuring the uniform application of criteria
80

aa well as In Identifying possible fraud patterns not initially detected by the

consular officer. The need for vigilance and techniques for detecting and dealing

successfully with visa fraud are emphasized in the Department's consular training programs, at regional consular conferences, in the Department's Foreign

Service Inspection Program and In individual bureau consultations with consular officers when they are in Washington. In the event potentially serious

lapses in the quality of visa adjudication are detected, experts from the Visa

Office may be dispatched for on-site assistance or the responsible field officer

may be brought to Washington for in depth consultations.

If a visa is mistakenly issued to a mala fide non-immigrant, the issuing post

has access to feedback from the Immigration and Naturalization Service that

helps evaluate the effectiveness of the officer's decisions. The posts are informed

when a visa has been cancelled in the United States and when nonimmigrant

visa bearers apply for permanent residence on the basis of claimed changes in

factual circumstances or intent.

IXS also distributes to all of our consular posts copies of Its Consolidated

Intelligence Summary, a weekly summary of information on detected visa fraud,

imposters, alien smuggling, surreptitious entry and so forth, by country of

origin of the alien concerned. Finally, INS cooperates with the Department in

its efforts to monitor visa Issuance patterns and procedures by notifying the

Visa Office and Foreign Service posts of any unusual trends or numbers of mala

flde nonimmigrants from a given post or area that might indicate visa fraud

or improper adjudication.

Statistical information on overstays from individual countries is not available

from the Service at present It is anticipated that such information will become

available upon implementation of the alien control project currently under development by INS and the Visa Office. That type of information will enable the

Department to systematically evaluate the effectiveness of Individual visa issuing

officers.

Mr. ETLBERG. Over the years there have been numerous suggestions

that the functions of consular officers and immigration offices should

be consolidated. Since it represents an unnecessary and costly duplication of efforts, these critics would place both functions in a single

agency which would then be responsible for adjudicating these applications as well as determining admissibility at ports of entry.

What is your reaction to this proposal ?

Mr. EAGLEBURGER. "Well, Mr. Chairman, I suppose the simplest answer to that is since it would affect some 700 Foreign Service officers I

do not like it very much. But let me be more specific.

Again, I think there are arguments on both sides. My basic argument would be severalfold. One•and this is a problem for the Department of State, not just a problem with INS•there is•and I would

again be foolish to deny it•a problem of appropriate State Department control over U.S. representatives abroad.

We have a serious problem. It is one we are constantly battling with

and it is one that the Congress has on more than one occassion reminded us that we must be responsible for. and thatis the State Department needs to be responsible for the conduct of U.S. foreign relations

in country X. I am inclined to think that you would create an additional problem by taking the consular function out of the Department, co-locating it with or combining it with INS, and having a semiindependent organization representing those functions abroad. That

is the first point.

Second, I am inclined to think that the system works better, though

it may work anywhere near as well as we would like, because you have

kind of a doublecheck system.

That doublecheck system is perhaps improved by the fact that the

doublechecks are performed by two different agencies. So my basic

judgment, and it is not something I have thought long and hard about,
81

and I would like to think about it some more, would be that it would

be unwise to pursue that proposal.

Mr. EILBERG. Alternatively it has been suggested that we separate

the consular function from the other functions of the Foreign Service

and we establish a consular service. Furthermore it has been suggested

that there be established an independent passport service. Whatis your

opinion of these ideas and to what extent have they been discussed in

the Department of State ?

You may wish to disagree with these concepts since they are based

on the idea that consular work is demeaning and beneath the dignity

of the Foreign Service.

Mr. EAGLEBURGER. The proposals have been discussed within the

Department off and on on a number of occasions and I suspect the

passport office at least, would support the proposal. Again, I think

there are a whole range of reasons why I am fairly clearly opposed to

that.

No. 1, I would argue, sir, that if you create a separate consular

service we are doing exactly what I was talking about earlier when I

said you are in fact creating a second-class status. There would be

clearly a limit to how far they could rise in their chosen field, point

one.

Point 2•I would argue that any good consular officer anywhere

abroad is not performing simply a consular function. He has the job

of representing the United States abroad. As you have pointed out,

he is the person that is seen by more Americans than anybody else.

He also can pick up political information which ought to be passed

into the political section, economic information, too.

His task is more than only stamping a visa. It is a part of the

Foreign Service process in that post, and I think you begin, if you

create a separate consular service, you begin to set them aside and I

think that is probably bad in the long run for the quality of the people you would have in the consular service. It is certainly bad for the

total picture of how the United States represents itself abroad.

As to the Passport Office, again, my own view is that the passport

and the issuance of a passport is clearly a part of the process of the

conduct of foreign relations. I frankly think the Passport Office

works rather well under the umbrella of the State Department and

see no real reason to change it. Though, as I say, I think there would

be others who would disagree with that.

Mr. EILBERG. In your statement you stated that we want no secondclass citizens in the Foreign Service. Is it reasonable to conclude that

consular officers are now in fact second-class citizens in the Foreign

Service ?

Mr. EAGLEBURGER. Mr. Chairman, the answer to that is frankly I

do not know. Let me tell you why.

In 1971 we proceeded with a worldwide reclassification study which

was to take a look at each Foreign Service position, whether it was

classified too high or too low. That study took 3 years. As I indicate

in my statement, it meant that when they were through the average

grade for a consular officer was raised to FSO-5, though it is also

true that that is one grade below the average for the other three cones.

In that sense I think it is clear there is a second class citizenship

of a sort, but it is also clear to me from a management point of view
82

that on the basis of a classification study done worldwide, drawing

on civil service staff and advice and using the best techniques we could

find in the process of classification, these experts told the management of the Department that although consular officers were generally

on the average graded too low, that all they should be raised was one

grade.

It also•and we have, a major problem with this•we have grade

creep and that same classification study reduced a number of the senior

level positions not just in the consular cone, but throughout the Foreign Service.

So from the management point of view, in terms of tools that I

have available, I am told by the experts that the situation is now correct. However, there is also no question that in terms of the performance of the Department of State on an adequate classification of jobs

and an institutional method of recognizing that the content of a job

will change and sometimes suddenly, we have been delinquent.

The Director General of the Foreign Service has very recently substantially upgraded the office of classification within the personnel

system in the Department, put new people into it with the intention

to try to develop now a classification office which will take an ongoing

look at all classification problems and at the classification of positions

across the board.

Mr. TValentynowicz has made a rather eloquent argument to me that

in fact the classification process did not take sufficient cognizance of,

for example, the growing responsibilities of consular officers in protection and welfare cases, where they have to deal with senior level

officials in country X off and on, on a personal basis and therefore

the classification system decisions that were made do not represent

true reality.

I have told Mr. Walentynowicz that since we have now established

a more effective classification office in personnel, what he must do is

make his case, put it down as carefully as he can, go to the classification office and I promise that he will got a hearing as soon as he moves

to the classification office.

I would hope, in other words, that we have now•that we are now

at least in the process of putting together a system where people who

are expert in the classification of jobs will be available to look at jobs

immediately. It is not something that we have to invent a classification study every 5 years in order to accommodate. In fact the demands

change on people; and those changes need to be recognized where they

occur.

Mr. ETLBERG. Mr. Dodd ?

Mr. DODD. Thank you, Mr. Chairman.

I was wondering, Mr. Secretary, with regard to the hiring of consiilar officers, what is the examination process ? Is it the straight Foreign Service officer exam, that all applicants take the straight one;

is that it?

Mr. EAGLEBTTRGER. If we are now talking about people who come into

the Foreign Service through the examination process, this year will

be the first time since 1969. I think, that we have shifted back to a

general Foreign Service exam which all people will take. Over the

course of the. years, from 1969 until the present, the Foreign Service

exam would have a part that was given to everybody and then there
would be a part of the exam that was aimed specifically at those who

were going to come into the consular service or the administrative

service, or the political or economic cones.

This year we are shifting back to a general examination which will

be given to everybody. It will have parts in it which everybody has

to answer which will try to give us some sense of where the person's

expertise lies. But nevertheless everybody has to take the same exam.

Mr. DODD. What about language training?

Mr. EAGLEBURGER. Language training?

Mr. DODD. Assuming that you have a person who has been accepted

and has in turn accepted the position and is about to be sent to Latin

America or some other place and does not have any prior language

experience, what is the language training? I would think that would

be so vitally important.

Mr. EAGLEBURGER. We have•if someone could dig me up the statistics here•we have a number of positions abroad which are designated as language positions and it is as of October 1975•there were

1.146 language designated positions worldwide. Of these, 282 were

consular designated. In other words, they were supposed to have the

language before they went to that position; 213 or 76 percent of these

282 consular positions were staffed by officers having the language

proficiency for the job.

Mr. DODD. What is the FS rating when you consider proficiency?

Mr. EAGLEBURGER. It is S-2, R-2, if you know what that means.

Mr. DODD. OK, yes, I do.

Mr. EAGLEBURGER. The fact of the matter is we would like to provide-•and I think we have done a good deal better on this than we

did in the past•we would like to be in a position to provide language

training to everybody who goes to a particular post. That frankly is

beyond our resources.

Mr. DODD. I can appreciate that.

It seems to me though, boy, you really have a problem here.

Mr. EAGLEBURGER. NO question about it.

Mr. DODD. You are getting a consular officer who is•again•going

back to that initial point•you are trying to screen people and

so forth who are sitting there speaking pidgin Spanish or pidgin

French to someone and they are at a complete disadvantage.

Mr. EAGLEBUORER. There is no question about that. When you reach

a situation like that then you obviously have to get somebody else

who sits there with you and translates the questions back and forth.

That is not a good thing.

What we have tried to do since, our resources are not adequate to

train everybody in every language every time he goes to a different

post, we have set up these language designated positions where we

have decided that it is critical that the man have the language in order

to perform the job. As I say, we hit about 75 percent in the consular

service in meeting that demand on language-designated positions. It.

is obviously our hope that we will be able to reach 100 percent, but

that will take some time. There is no question in my own experience in

the Foreign Service that you are so much better off when you have

the language.

I personally have spent 10 months learning Serbo-Croatian and it is

an experience I would not want to go through again. But it makes a
84

tremendous difference when you arc in that country. There is no question aboutthat. Itis also very expensive.

Mr. DODD. I appreciate that.

Can you assure this committee that there are adequate transferable

resources in the Department, not only to meet the non-immigrant-visa

workload, but to meet the recent increases in the demand for consular

services, particularly providing assistance to Americans in residence

abroad ?

You mentioned the 1.700. I would like an answer to the first part,

and second, what do we do•what generally happens when an American is arrested overseas? What involvement does the consular

officer take with regard to an arrested American on a drug charge or

any other charge ?

Mr. EAGLEBTJRGER. I missed the first part of the question. Can I

assure that what?

Mr. DODD. That your resources, your transferrable resources within

the Department would be able to handle not only the non-immigrantvisa workload, but as you would appear, and I do not know whether

statistically this would be borne out. but that with the_ number of

young people going overseas more and with the more stringent drug

laws that we have, or that they have overseas, that we may be seeing

an increase in the number of incarcerations overseas and as that load

increases in various posts with the non-immigrant-visa status, whether

or not you are going to be able to transfer your resources from a management standpoint to deal with these two increasing problems, at

the same time adhering to your last statement that you do not see or

you do not feel you need to ask for additional personnel.

Mr. EAOLEBTTRGER. Let me answer this question and then ask Mr.

Lawrence to talk about how we handle an arrest, that is, someone

arrested and what we do.

The answer to your question if we. are talking: about the lone term,

do we have sufficient resources to meet the need; the answer is no. My

decision for the fiscal vear 1977 budget was based simply on the conviction•and I think it has been substantiated since then by the examination we have proceeded to ro through•that there are sufficient

resources in the Department of State to meet the demands which are

foreseen for fiscal year 1977. where the consular package requested 68

positions.

T can get those 68 positions out of existing resources. T cannot•

given everything I can see now over the course of the next 5 vears as

to the demands on the need for increased consular positions abroad•

T could not possibly meet those within the resources of the Department

for the next 5 years. T know verv well T can meet them for fiscal year

1977. perhaps even for fiscal year 1978. We will have to examine that

as we go along.

In that sense I am convinced the Department of State has sufficient resources to meet that need. I am convinced we are doing things

we did not need to do at all and that it is time we took a very careful

look at that.

One of the ways we do it is by saying we are not going to ask the

r"ongress for any more positions, so that evervbodv has to sweat to

find them from within the resources we now have. And it is amazing

under those circumstances how many jobs you will find around the
86

Department that people say, "Well, we do not need that one anymore.

We need him for something else." You begin to get the answers.

So, in terms of the immediate future, I am convinced we can meet

it with our own resources. As to the longer term, there is no question

the demand is going to be far too high and we will have to come back

to the Congress for more positions.

Mr. DODD. My time is up but when we come back•you tantalize me

with that question of things we do not need to be doing.

Mr. EILBERO. Since it is my time at this point, Mr. Secretary, I will

pick up with that.

Mr. EAGLEBURGER. YOU want to know what it is we do we do not

need to do ?

Mr. EILBERG. Not only that, but how are you going to do it.

Mr. EAGLEBURGER. As to the first part of that question, Mr. Chairman, it reminds me of a story of someone who said in effect to his

boss, if you do not know what is wrong with me I am not going to

tell you.

[General laughter.]

Mr. EAGLEBURGER. I cannot honestly at this point give you any

very specific examples of things we are doing that we do not need to

do. What I am convinced of and what the process of the examination

has already proved to me since we decided wc were not going to ask

for any more positions, is that this is one way to force managers, the

assistant secretary for whatever bureau, to take a very hard look at

what it is he is now doing and make some judgments on what it is

that he is doing thatis of marginal utility.

The second tiling is that it forces the Department as a whole to take

a look at things that are being done in two or three places and that can

really be handled in one place. The process has now progressed sufficiently so that I am confident we are going to find all of the positions

we need, not only for the consular package, but for all of the legitimate

requests of the other bureaus. How we do it is more or less as follows.

One of the decisions the Secretary made in this June speech was that

lie would establish a priorities policy group of which I am the chairman, which has on it the Assistant becretary for Administration, the

Inspector General, the Director General of the Foreign Service, the

Counselor of the Department, the head of the Policy Planning staff

in the Department.

The purpose is to establish a group at the seventh floor level which

tries to bring the substance of policy and the allocation of resources

together. The Department's problem for vears has been that policy is

made at one level and resource allocation is made at another and never

the twain•I should not say never the twain meet, obviously they do•

but they have not met sufficiently.

We have asked the head of the Policy Planning staff in the Department of State and the Counselor of the Department, both of whom are

substantive officers, to sit on that board so that we can try to bring

together the issue of what are the policies that we are going to be

following next year or the next 5 years, and how do we now have to

begin to adjust our resources, recognizing that a year from now we are

going to have a problem.

An example•the oil crisis. There is no question that the demands

on the Department in terms of positions hi the Department to handle

the international oil issue have grown tremendously since the boycott.
86

Now. you have got to begin, you have to force from the seventh floor

some conceptual approach as to how it is the Department of State is

going to handle the oil problem for the next 5 years. Otherwise you

are going to have five bureaus all saying we have problems with oil and

we want 16 people to handle it. And what you have is no conceptual

approach from the top.

This priorities pohc}-group was deliberately established to try to

come to grips with those problems and as well to try to force each of

the Assistant Secretaries to come before this group, defend his requests

for new positions, and in fact defend them against rather difficult questions of why do you need to do that, somebody else is already doing it

or what can you give up in order to do that job ?

That is the process and it is a back and forth process. It comes to

focus during the budget cycle. But it ought not stop there or start

there. It ought to start as soon as we finish the fiscal year 1977 budget.

AVe have already begun the process for the fiscal year 1978 budget. It

is a continuing process and it is one where we have to ask questions,

get answers and go back and forth.

Mr. EILBERG. Going to a couple of other areas for a few minutes; on

November 12th I wrote to Secretary Kissinger requesting his personal

involvement in urging Soviet officials to grant exit visas to a large

number of Soviet relatives of U.S. citizens for permanent residence,

particularly those whose names were listed on the exit visa representation list presented this summer to the Soviets by Ambassador Stoessel.

You know of the concern of this subcommittee on this subject.

Are you in a position to inform the subcommittee whether Secretary

Kissinger intends to raise this matter with Soviet officials in the near

future?

Mr. EAGLEBTTRGER. The Secretary has determined that at an approEriate opportunity in the near future he will personally reaffirm to the

oviet Government his continuing interest in the issue of family reunification in the context of the exit visa representation list which

Ambassador Stoessel presented on August 18.

[A letter addressed to the Honorable Joshua Eilberg from assistant

secretary for Congressional Relations Department of State follows:]

DEPARTMENT OF STATE,

Washington, D.O., December 8,197S.

Hon. JOSHUA EILBEBG,

Chairman, Subcommittee on Immigration Citizenship and International Law,

House of Representatives

DEAB MB. CHAIRMAN : The Secretary has asked me to thank you for your letter

of November 12, and inform you that at an appropriate opportunity in the near

future he will personally reaffirm to the Soviet Government his continuing interest in the issue of family reunification and the Exit Visa Representation List

which Ambassador Stoessel presented on August 18.

Of the 641 individuals in 249 family units on the List, the Soviets have granted

exit permission to date to 37 individuals in 12 family units.

Thank you for informing us of your Interest in this aspect of our family

reunification effort.

Sincerely,

ROBERT J. MCCLOSKET,

Assistant Secretary for Congressional Relations.

Mi-. EILBERG. In your statement you refer to the 1,700 citizens being

held in foreign jaiis under various drug charges. Congressman Dodd

also referred to that subject. I am aware that a substantial number of

Americans are currently incarcerated in Mexico and this has been a

matter of serious congressional concern.
87

It is my understanding that several Department officials have recently returned from Mexico after reviewing the situation there. Can

you bring the subcommittee up to date as to the current situation and

can you tell us whether our consular responsibilities with regard to

these arrested Americans are being satisfactorily performed ?

Mr. EAGIJOBURGER. Yes, Mr. Chairman, strangely enough I have two

of the gentlemen with me right now and I will ask Mr. Walentynowicz

in 1 moment to describe to you their recent trip.

Let me only say•and I would rather be ellipitical about this obviously in an open session•that as to the issue of Americans held in

Mexican jails, I just wanted to inform this committee that the Secretary lumself has taken a personal interest in it and•he has become

involved in the issue. I would rather not, in open session, describe what

he has done. But I just want you to know he is himself involved in the

issue and has taken some actions on it and perhaps informally after

the session we can go into that a little bit more.

Mr. Walentynowicz?

Mr. "WALENTYNOWICZ. Yes.

In response to your question, Mr. Chairman, I can report to you

that the level of our protective services in Mexico, particularly at the

working level•the consular contact with the prisons•has, in my

mind, in Mexico, improved dramatically and I think that our level of

performance is quite satisfactory.

This is not to say, however, that we do not have problems. We have

problems there because, as a result of the drug interdiction program,

because of the program, there has been an increasing number of Americans arrested in various countries. One of the things which I discovered upon my recent trip in Mexico is the fact that m some of these

countries•and I make mention of Mexico•their penal institutions

may not be equipped to take increasingly large amounts of people. As

a matter of fact, it would appear that in some instances their jails are

overcrowded simply as a result of the increase of their own population.

In other words, they have population growth, and increase and then

when you add the fact that you have a larger number of Americans

traveling, you have a number of problems resulting from it.

I can report to you that from our contacts with the Mexican Government we feel that we are in a position to work on these problems

together and we have to have some forthcoming results in fairly rapid

fashion. I find that many of the so-called abuses or allegations of

abuse are not only directed to Americans but have a general

application.

Mr. EILBERG. Mr. Walentynowicz, finally before I yield to Mr. Dodd,

I am sure that all the Members of Congress are very interested in the

subject we are now discussing. I would appreciate it very much if you

would please keep us informed on the subject so that we might enlighten all of our colleagues as to what the situation may be. Would

you do that ?

Mr. WALENTYNOWICZ. I would be more than happy.

May I just simply add that this is a subject of inquiry by another

congressional committee and we are reporting to that committee also.

Mr. EILBERG. Thank you.

Mr. Dodd?

Mr. DODD. Thank you, Mr. Chairman.
88

On the question I raised about language training, it occurred to me

as I was sitting here as to whether or not the consular service with the

limited number of people that you do have, that do receive an extensive

language training; are they placed in priority positions where you

have inordinate amount of applications for United States visas?

Mr. EAGLEBTJKGER. I am told, yes. But if you give me a moment I

will see.

Here is a two-page listing of where consular officers are in terms

of their language skills and I think I could supplv this for the record.

But the basic answer to your question is we try. But again, given the

shortage that I must admit we still have in terms of language skills,

we do not always succeed. But, yes, we try to put them at the places

where they are most likely to be needed.

LANGUAGE SKILLS OF CONSULAR OFFICERS (AS OF OCT. 14, 1975)

Language

Number

of consular

cone FSO's

having tested

language skill

NumberTof

consular cone

FSO's with

tested 2+

or higher

speaking skill

Afrikaans

Amharic

Arabic •

Bulgarian . ... .. •

2

1

12

4

1

2

12

4

8

17

4

248

151

11

2

S

5

11

7

81

5

3

9

12

13

45

296

3

31

13

2

9

6

7

4

17

2

1

10

4

Cambodian

1

Chinese (Mandarin)

Danish .

Dutch

3

j

Finnish 3

French

German .. .

166

112

Hebrew 1

Hindi 3

Hungarian

Japanese

Indonesian

5

7

Italian 5?

Korean.... .. ..

Nepali.

2

2

Norwegian _.. .. 8

Persian (Iranian)

Polish _.

Portuguese

9

9

34

Spanish 234

Romanian 2

Russian

Swahili .

-• 15

13

1

Swedish ..-

-

3

Thai _

Turkish ..

Urdu

...... 4

4

3

15

Mr. DODD. It was suggested at previous oversight hearings by this

committee that in those areas where there is an inordinate amount of

activity during peak periods of the year, I would imagine, say, in

Europe for instance, that there be temporary people placed in various

consulates in order to handle that. Is that done ?

Mr. EAOLEBTJKGEK. It is done but I do not think sufficiently. And

that is a result of a series of factors, the most important of which is•

I would have to say we simply do not have the bodies. We try to do it.

For example, in Mexico City it is clear that during peak periods we

just do not make it. We are examining the problem now to see what
89

can be done. Let nie give you the sorts of problems that we run into.

The Mexican case is one that is fresh in my mind.

The suggestion has been made•well, if you cannot get enough

people•and we are sending some now•but it you cannot get enough

people during these peak periods why do we not ask secretaries to fill

m or in fact ask foreign sen-ice wives to fill in. Now, Mr. Walentynowicz has made it abundantly clear to me the problem with this. It is

again suggesting that consular work can be done by people who are

not trained for consular work. He is quite right.

So the issue becomes one of having, if you will, a pool of consular

qualified officers that you can shift around the world during these

peak periods and I would be less than honest if I did not say we do

not meet that need by any means. We are trying but we are not there.

Mr. DODD. My last point is more of an observation of mine and I

would be interested in any comments you may have on it.

Having lived overseas myself for some period of time, I was so

intrigued by the fact that our American community in the countries

that I did live in or visited, that there seems to be sort of a barrio kind

of concept where you end up with the American community living in

very close quarters, in many instances, divorced from the culture in

which they are deeply involved.

And I am wondering if there is a changing policy in the State Department with regard to this practice, where we make an effort

through whatever mechanism is available, through compensation or

whatnot, to encourage, to strongly encourage our consular people and

our embassy people do not try and live in these circumstances where

they are next door in certain sections of a city where they seem to

congregate. Do you understand what I am talking about ?

Mr. EAOM5BTTRGKR. Oh. yes, yes.

Mr. DODD. I wonder if there is a changing policy with regard to

that. I found that in many instances there was one where many of

these people did not have language experience and had never learned

it over 2, 3 years: and second, that there were many instances•they

were unaware of what was going on politically or culturally within

the country that they were living in and they had worn a beaten path

between their home and the consulate and had very little observation

or feeling about what was going on in the area.

I am wondering if that is a changing policy and what specifically is

being done, if so.

Mr. EAGLEBUROER. Congressman Dodd, the policy for some years•

and we are talking policy for a moment•has been that we want

Foreign Service officers out and around in the community. We do not

like the barrio environment. It is a policy that is on occasion more

violated than followed. There is no question about that. There are

some substantive reasons and I will get to them in a moment.

It depends very much on the attitude of the ambassador in the given

country. The State Department can say this is the policy but unless

the ambassador is sitting there everyday, pounding it into his staff,

the tendency, the natural tendency is that people, particularly where

there is a language problem, will congregate, particularly where it is

a hardship post, particularly, you know, where it is hard living.

Now, there are some very substantive reasons for this problem, in

addition, in certain cases. For example, and let me give you my own

experience in Belgrade, No. 1•and I was there 10 years ago. But it
90

has not changed substantially. There is, in the first place, a domestic

housing shortage of substantial proportions. In the second place, early

on•and this has happened in a number of places throughout the

world•the Department of State built an apartment building right

next to the Embassy in Belgrade and most of the employees in the

Embassy live in that apartment building.

It was built in the first place for the good and sufficient reason that

there simply was not housing available in Belgrade. But once you

have built that, once you have made that investment, even if the

housing situation changes in Belgrade, what are you going to do with

it ? It is an investment of substantial amounts of U.S. Government

funds. You cannot leave it empty, and pay to put some American

employee off in a house somewhere.

It is the same in Bonn-•where after the war we built this huge complex because there was a housing problem and because we had this

huge number of Americans in Bonn; and I could name you any

number of similar places around the world where you have this sort

of development.

Once you have made the investment, despite the fact that there is

no question that in terms of the efficiency of your operation and in

terms of people learning something about the country in which they

live, we tend for monetary reasons to have to continue to use those

facilities.

There is also no question in my mind that the younger Foreign

Service officers we are getting these days are far more adventurous

than some of the older ones and that they like to get out and they want

to get out and around. I would argue that even in cases such as

Belgrade, if the Ambassador is intent on forcing his people to get out,

to make them take trips around the country, you can ameliorate it

to a great degree.

But I would not argue with you. It is a problem, there is no

question about it.

Mr. DODD. Have there, been memoranda to the effect that this would

be a strongly suggested policy where feasible and possible?

Mr. EAGLEBTJHGER. NO; I think the answer since the Secretary has

been in•I cannot think of anything. It is something I will take under

immediate advisement.

Mr. DODD. Thank you.

I just want to make one last comment. Mr. Chairman, that it has

been awfully nice here this morning•I am a very junior member of

this committee•to be able to have such an involvement in the subcommittee level. It is delightful.

Mr. EAGLERUGER. May I make one other point on this?

Mr. DODD. I have to remind you of the seniority system around here.

[General laughter.]

Mr. EAGLEBURGER. We have another problem in some countries

which I should have mentioned. It is the growing terrorism problem.

For instance, Beirut is an example where if you are spread out all

over the community the opportunities for kidnaping and so forth

are substantially greater. Now this is not something that we worry

about in every single post, but there is no question that this is becoming an increasing problem for us and runs in the opposite direction

in some countries, from the natural desire to try to get people out

and around.
91

Mr. DODD. Thank you, Mr. Secretary and thank you, Mi*. Chairman.

Mr. EILBERG. One other question here.

Mr. Secretary, during our last oversight hearing we discussed the

need for the temporary assignment of consular officers and other

officers to certain posts which are experiencing a heavy nonimmigrant

visa workload, for example, during summer months. This becomes

a particular problem in a post which already has a shortage of consular officers and often complicates the vacation schedule in consular

sections. Such a problem does not exist with respect to foreign service

officers in other cones where there are not peak man times. What

recommendations can you make to the subcommittee which will serve

to alleviate some of these problems, and more importantly, to insure

that the quality of work does not suffer?

Mr. EAGLEBURGER. I would like to ask Mr. Lawrence to talk about

that in a moment, Mr. Chairman.

Let me say, and I tried to indicate it earlier, as to recommendations

I want to come back to this committee a little later with some further

thoughts on it. I am not sure. Well, I am sure at this point I do not

have an answer to this problem. I do not think we are doing well

enough in terms of meeting those peak needs. I said that earlier.

I think we are doing better than we have done.

Now, I do not know whether the answer is to try to create some

sort of pool. It is an issue we are now studying and I cannot give you

any very clear answer at this point except we are not doing it as well

as we should.

With that•Mr. Lawrence ?

Mr. LAWRENCE. I really cannot add anything except that this past

summer, Mr. Chairman, we have had this problem. It became quite

acute in Mexico City. There the management of the embassy experimented quite successfully, I think, with drawing down people from

other activities in the Embassy, other sections of the Embassy who

had had consular experience at some previous point in their life or had

at least had consular training and moved them in temporarily to help

out. That was only possible because of the size of the Embassy in

Mexico City where you have a resident pool that you can call on, and it

was only done at the expense of doing other things. It is not a good

solution.

Mr. WAIENTTNOWTCZ. May I just add one other thing ?

There is another significant factor in these visa workload demands

that you are talking about. This factor is timing. Many times these

increased workloads take place in the summer which is also the peak

time for the movement of the consular officer from one post to another.

Mr. Eagleburger is giving great consideration to the spacing out of

this movement so that less of it takes place during the summer peak

periods.

Mr. EAGLEBURGER. If I might, Mr. Chairman, on that last point,

I know that our time has about run out but we have a problem, and

I did not realize how major a problem until I got into my present job.

We have a major problem in the Foreign Service in what is called

the man in motion. We have•the specific figure has eluded me•but

it is almost one-third of our people who are either going somewhere or

coming from somewhere and they are not in the job. It is a normal

part of our problem, namely that we move people around. But so our

resources, though they may look as though they are x, it is * minus
92

whatever number of people there are who are now in motion to somewhere else. Part of the problem clearly is that we have over the years

tended to make most of our transfers during the summer; school is out.

these, sorts of things. It is something that we are looking at very hard

right now to see if we cannot begin to space out those transfers and

that would take care of part of the problem.

It also creates some substantial morale problems that we will have

to sort through.

Mr. EILBKEO. Mr. Secretary, Mr. Dodd said that he found this experience today delightful, that is the opportunity to engage in discussion with you.

I would like to say that I think you displayed great frankness and I

must say that unfortunately I have not always felt this way about witnesses from the State Department. I do appreciate your obvious candor

and the cooperation you have shown us. I think we have had a very

fruitful morning.

Thank you very much.

Mr. EAGLEBCRGER. Thank you, Mr. Chairman. It has really been a

pleasure to be here. I meant what I said. I would hope that the Department would cooperate totally in continuing this process. What

vour committee has done to us and for us has been more than useful.

It has made us make some changes and it has forced some changes on

us. I would like to see this process continue.

Mr. EILBERQ. Mr. Secretary, what we would like to do for the present

is send you some questions that we have not been able to get to today

and then arrange to have you come back at some later time.

[See Appendix for additional questions.]

Mr. EAOLEBURGER. Sure, I would be glad to.

Mr. EILBERO. Thank you very much.

The subcommitte is adjourned.

[Whereupon, at 1:09 p.m., the subcommittee adjourned subject to

the call of the Chair.]

[Additional questions follow:]
93

DEPARTMENT oif STATE,

Washington, D.C., November 6,1975.

Hon. JOSHUA EII-BERG,

Chairman, Subcommittee on Immigration, Citizenship, and International Law,

Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN : You will recall that I wrote you on September 8 concerning your letter to the Secretary in which you advised the Department of the

Subcommittee's intent to pursue its oversight responsibilities.

In your letter you requested detailed information in several areas of specific

concern to the Subcommittee. Among these was an update of appropriate questions and answers that appear in Appendix 4 in the hearings entitled "Review of

the Administration of the Immigration and Nationality Act." Enclosed in question and answer form is the information you requested in narrative an well as a

complete recapitulation of the 57 questions and answers contained in Appendix 4

so as to permit you to determine what questions you may wish to pursue further.

We greatly appreciate the opportunity to inform the Subcommittee of actions

taken by the Department since 1973 to support and supervise the performance of

statutory consular operations. Consular work is receiving a very high priority in

the obtention and distribution of personnel resources in the Department and it

will continue to do so in the future . We hope the enclosed information will be helpful to the Subcommittee in its

oversight responsibility. We value the Subcommittee's support of our consular

operations and would be pleased to go into greater detail on any of the material

should you so desire. Please let me know if I can be of further assistance.

Sincerely,

ROBERT .T. MCCIOSKEY,

Assistant Secretary for Congressional Relations.

Enclosure: Responses to Questions.

Question. What actions have been taken to implement the recommendations

made by the Inspector General?

Answer. As the Subcommittee Is aware, the Office of the Inspector General

regularly schedules periodic on-site reviews of operations at all Foreign Service

posts and all domestic operations of the Department of State. These reviews are

carried out by a small cadre of senior officers, which for the first time, now includes a fully qualified and experienced senior consular cone officer and the Inspector General is seeking out one or more additional consular cone officers for

assignment to the staff. Until the Inspector Oenernl obtains sufficient numbers

of consular officers on regular assignment, SCA, in close coordination with the

geographic bureaus, will continue to make available to S/IG on a TDY basis for

specific inspections consular officers otherwise assigned to key consular positions.

An example of this procedure was the recently concluded inspection of posts in

Mexico, which because of the magnitude and complexity of consular operations in

that country, required the TOY assignment of the Chief of Field Operations of

the Visa Office as well as the senior consular officer regularly assigned to the

Inspector General's office.

The Bureau of Security and Consular Affairs works closely with the Inspectors in respect to matters affecting or affected by consular operations.

Within a given inspection cycle, this begins with participation in general substantive briefings of all assembled inspectors by the Administrator and other

senior officers of the Bureau. Subsequently, specific briefings by the Administrator

and appropriate officers in the three constituent offices of SCA are scheduled for

each inspection team. These consultations focus on particular concerns related

to consular operations at the specific posts to be inspected by each of the several

inspection teams and are supplemented by "fact sheets" on each post detailing

any problem areas of concern to the Bureau. Immediately upon return to Washington, the inspection team provides an informal recap of its findings to SCA.

thereby providing SCA the opportunity to initiate any urgently needed corrective

76-208•76
94

actions on an immediate basis in advance of the issuance of the formal inspection

report. Subsequently, upon issuance of the formal report, SCA, in coordination

with the posts, geographic bureaus, and olher areas of the Department as appropriate, finalizes corrective action initiated as a result of the earlier informal

debrieflngs.

The constituent offices of SCA participate fully in this entire process and we

believe that it results in an appropriate, mutually beneficial, productive and objective relationship between the Bureau of Security and Consular Affairs and the

Inspector General of the Foreign Service. The Department and/or the Bureau of

Security and Consular Affairs would be pleased to provide to the Subcommittee

information concerning the status of implementation of any recommendations

made by the Foreign Service Inspectors which may be of specific concern to it.

Question. What is the status of proposals to modify the cone system ?

Answer. Proposals to modify the cone system were aimed at correcting the

arbitrary rigidities that had beset the concept since its implementation. Those

deficiencies were specifically identified as (1) inflexibility in the assignment

process, (2) overemphasis on functional expertise as the basis for promotion,

and (3) intake of lesser qualified candidates through the functional self-selection type written examination.

In the first instance consular officers found It difficult to receive excursion

assignments in other cones and to serve In jobs with an interfunctional mix

of responsibilities. The promotion process disadvantages officers who had received a variety of assignments and tended to militate against the broad range

of experience required for senior level program direction responsibility. Consular officers tended to benefit even less from that system. In the intake process

many applicants took the consular examination unaware of its Implications,

and were frequently people seeking what they perceived to be the easiest route

into the Foreign Service Officer Corps. (The latter was In fact not true.) Nevertheless, because of the above factors, dissatisfaction with cone labels resulted,

particularly at the junior levels.

The Department has had two objectives in mind In its modification to the cone

system. One is to correct the problem described above and the second is to maintain a system which provides the mid-career functional expertise that the Service needs. Consequently, rather than completely negate the cone concept we have

made some modifications to deal with the troublesome aspects.

"We have emphasized out-of-cone tours at the mid-career level, and as indicated elsewhere, have provided more language and other types of training opportunities to consular officers. To encourage a mixed pattern of assignments,

to qualify officers for program direction jobs, we have reserved a portion of

mid-career promotions for officers with interfunctional experience. In fact this

practice has not disadvantaged consular officers, because we ensure that our

consular functional requirements are met. As a result of the more flexible assignment process greater numbers of consular officers should also begin to receive

a bigger share of the interfunctional promotions.

Starring this year we have changed the examination process to test all applicants in all four cone areas to ensure that we get the best candidates in each

functional field, and thereby avoid missing the best qualified candidates in a

particular area for reasons irrelevant to their real aptitudes and qualifications.

We will not assign a cone label to officers upon entry, but will defer that decision until both the Department and the individual decide upon the most appropriate mid-career area of specialization. We are now implementing these changes,

find we expect that they, rather than a strict connl system, will facilitate

attainment of the goals mentioned In the 1973 report and reaffirmed by the

Secretary this year.

Ourxiion. What efforts have been made to elevate grades of consular officers

and improve career opportunities in this phase of the Foreign Service?

Answer. The consular function is an Important and Indeed an essential element in the spectrum of responsibilities exercised by the Department of State

mid the Foreign Service. We are constantly seeking ways to improve and promote the development of officers specializing in consular work and of other functional groups required by the Service. Our efforts over the past several years to

upgrade the consular function have centered in the area of career development,

with increased training for such officers and increased opportunities for broadening assignments which will better qualify officers in the consular field for future

program direction responsibilities.

In the area of training, in addition to courses related to consular affairs,

officers In the consular field are selected for advanced career training (e.g.,
95

Senior Seminar, National Defense University, Sloan Fellowship at Stanford).

At least two mid-career officers in the consular field are assigned annually to

graduate-level management programs at the Maxwell School, Syracuse University. In addition, this past year consular officers have been accepted in midcareer courses in other specialties•such as the FSI intensive university-level

economics course!•n order to qualify for out-of-cone assignments and thus

increase their future prospects for senior positions. Consular officers now

account for 10 percent of the students in the economics course and we expect

that this number will remain constant or Increase.

Language training is another Important aspect of career development. The

Department has increased language training for officers in the consular field.

Currently, 54 percent of all consular officer positions abroad are language designated positions, a relatively high ratio compared to other oonnl groups.

Although language training normally is tied directly to onward assignments

to language designated positions, this year we have succeeded In plncing three

consular officers in hard language training without a specific onward assignment

to a language designated position. This unusual move is designed to provide area

specialization for these officers which will qualify them for future program

responsibilities outside the consular specialty.

We are convinced that this broadened training program will strengthen the

capabilities, performance and career opportunities for officers in the consular

cone.

An important aspect of the career development of offV-ers is exposure to a

broad spectrum of Foreign Service experience through out-of-cone assignments.

The current record for consular officers is impressive. Of the 96 FSO consular

officers now serving in the DepartniPnt, 51 are in non-consular positions. In addition, there are 7 consular officers on detail to other agencies.

The issue of whether special efforts should be undertaken to elevnte the grades

of consular officers•both by increasing the grade level of consular positions and

increasing the number of consular promotions• raises serious questions concerning the integrity of our position classification system and our promotion system.

Both systems must be designed to meet the overall needs of the Service and to

assure equity in the treatment of officers of all functional categories.

The level of consular positions overseas is determined on the basis of job

classification surveys which are intended to provide a bnlnneed job level structure world-wide. These surveys take into consideration not only job levels for

similar consular responsibilities at other posts but also job levels for other types

of work (i.e., political, economic and administrative) in the same post and

worldwide. On the basis of evidence of substantial upward grade creep over the

years, an extensive survey of the content and levels of all Jobs In the Foreign

Service was recently concluded. The world-wide classification survey. Implemented on June 30, 1974, resulted in the general downgrading of positions in all

functional areas. It was conducted using standard methods, and with reference

to Civil Service Commission classification standards. Even so. it resulted in what

we believe is an improved relative standing for many consular positions. Specifically, the study resulted in a 14.8 percent increase of positions at the FSO-5

level, raising by one class the accepted journeyman level for field consular work.

Promotion opportunities for all Intermediate-level officers of the Service are

arrived at by comparing positions, by functioual specialty and class, with employees, also by functional specialty and class. The difference between the two,

taking into consideration also other factors (I.e., expected attrition, funds, needs

of the Service), equals opportunities. Promotion opportunities for officers in the

consular field, therefore, are as fairly allocated as those for officers in the other

functions. The fact that officers are reviewed and promoted on a functional basis

at classes 3. 4 and 5 assures the Department of a sufficient number of officers

in oarii function tn fill vacancies at the next higher level. Thus, promotional opportunities Increase as the Department's needs increase. To go bevond this jeopardizes a promotion system that is based both on merit and need. (For reasons

explained in the answer to Question 7, promotions In the senior grades are

non-functional.)

For these reasons, the Department's approach to upgrading the consular career

has focused on programs which strengthen the career development of consular

officers through skills Improvement and broader work experience. Over time such

improvements will be reflected In a greater number of assignments of officers in

the consular field to more senior, program direction positions and improved

propspeet for nnn-functlonal promotions.
96

Question: In commenting on a recent GAO report "Need to Reduce Public

Expenditures for Newly Arrived Immigrants and Correct Inequity in Current

Immigration Law" the Department of State noted: "The Department also plans

to work for the establishment and funding of additional consular officer positions

in order to more realistically meet the manpower needs of immigrant visa processing. Developments of the supervising consular officer review procedure which

was initiated by an instruction to all consular offices abroad on November 5,

1974 is also contemplated. Such procedures will provide for systematic and periodic review by supervising consular officers of all Immigrant visas issued as well

as refused." _ . Would you please summarize for the Subcommittee the status of these eltorts

to obtain additional consular positions and to improve the supervision of consular officers.

Answer: As noted in the updated answer to question number 4o of Api>enaix

4, 20 new American and 07 new Foreign Service local consular positions were

established in fiscal year 1975 as a result of increased appropriations for this

purpose. Thirty additional American and forty-four additional Foreign Service

local consular positions are contained in the fiscal year 1976 appropriation. The

Bureau of Security and Consular Affairs, in close consultation with Foreign

Service posts and the geographic bureaus, has recommended further substantial

position Increases in fiscal year 1977 to meet priority consular workloads.

While because of severe budget stringencies, the Department has determined

to ask for no new S&E positions in its fiscal year 1977 budget request, it Is fully

appreciative of the requirement for adequate staffing to meet Its statutory responsibilities in the consular field. In light of this decision, and in order to better

align priority programs with existing personnel resources, the Department has

initiated n rigorous review of all programs with the objective of identifying lower

priority activities which can provide a source from which positions may be obtained for reprogrammlng to higher priority work. Additional consular positions

is certainly a high priority requirement and we expect through reprogramming to

be able to meet most, if not all, of the consular staffing requirements identified

by the Bureau of Security and Consular Affairs in the fiscal year 1977 Consular

Package.

With specific regard to the staffing of our posts in Mexico, which was the area

of primary focus In the cited GAO report, the Department has since April of

197") alone established 10 new American and 12 new Foreign Service local consular positions. We would anticipate that an additional 8 FSL positions will

soon he established at posts in Mexico from increases Included in the fiscal year

1970 appropriation, bringing the total consular position increases for those posts

to 10 American and 20 FSL's this year.

We have taken numerous steps to improve the supervision of consular officers,

particularly in the consideration of visa applications. For example, we have

instructed all visa issuing posts to establish a review procedure for visa approvals as well as refusals. We closely monitor the visa work of individual posts

through closer maintenance of post flies and provide detailed written briefs for

foreign service inspectors. We also encourage all consular officers to consult

closely with SCA and the Visa Office before reporting to posts of assignment and

when on home leave. Finally, we have established two positions in the Visa Office

for the specific purposes of monitoring and helping to resolve visa problems

through personal visits to posts experiencing temporary difficulty in coping with

visa workloads.

Question 1. What Is presently the number of career consular officers? How

does this fltrure compare with other phases of the Foreign Service?

Answer. As of June 30, 1975 there were 668 career consular officers, i.e.. officer

level personnel of all categories (FSO. FSR. FSSO) with "consular" as their

primary skill in the Foreign Service. These figures pertain only to officer level

personnel in the Foreign Service available for service on a worldwide basis.

They do not include those Foreign Service Reserve Officers, Foreign Service

Staff Officers and Civil Service Officers not available for service outside the

continential United States. For a breakdown by category (FSO, FSR, et cetera)

see answer to Question 8. These officers represent 10 percent of the total 6,675

officer level personnel In the Foreign Service.

Question 2. How often do those choosing consular work as their specialty

change their minds after being Involved In this type of work for a period of

time?

Answer. The cone system has been modified over the years and Is now less

rigid. Present policy, for Instance, does not require officers to opt for a particular
97

cone until they reach the mid-career level. In accordance with this modified

policy, competition for promotion at the beginning levels is interfunctional rather

than cone oriented and junior oflicers are assigned to and are encouraged to

pursue assignment to a variety of positions, crossing conal lines. Because "excursion tours" (i.e., out-of-cone assignments) are encouraged, today's junior

officers need not take formal re-coning action to qualify for such assignment and

a change of cone is thus rarely requested. (Only one junior officer, in fact, has

asked to be re-coned since July 1. 1973.) The record for excursion tours in the

early years shows that of the 305 junior officers who chose the consular track

when they entered the Foreign Service, 32 are serving in non-consular and combined function positions today. These officers remain consular cone officers and

return to consular work at the end of the out-of-cone assignment.

Some 45 officers at the mid-career level (and one junior officer) have "reconed" in the last 2% years. Only three consular officers have changed to other

tracks, although the cone gained 14 officers from other areas during the same

period of time.

The record by cone shows :

Cone Gain Loss

4 7

14 3

18 7

10 29

The records on out-of-cone assignments for mid-career and senior level officers

have also been reviewed, and the trend for "excursion tours" also continues at

these upper levels. Of the 96 consular officers at present assigned within the

United States, 34 are serving in the Bureau of Security and Consular Affairs

and 51 are serving in non-consular positions elsewhere In the Department and

on detail to other government agencies; 11 are in long term training programs.

The policy of rotating junior officers within consular sections at posts overseas continues. The plan permits officers to gain working experience In all

phases of consular operations. Workload permitting, many posts also make

efforts to rotate junior officers through all the sections of the mission for their

broader familiarity with all Service functions.

Question S. What percentage of Foreign Service Officers are presently engaged

in consular work?

Answer. Of the 3,478 Foreign Service Officers (FSO's), 15 percent are engaged

In consular work as of June 30,1975.

Question 4. Could you estimate the average grade level of consular officers and

can you inform us whether as a general proposition these grade levels are lower

than other phases of the Foreign Service?

Answer. The following statistics, as of June 30, 1975, include Foreign Service

Officers (FSO's) only:

Number of Average grade

Primary skill FSO's level

Consular ..

Administration

Economic/commercial

Political

Information

Special professional

Executive/program direction

Total 3,478

Question 5. Although I recognize that the decisions of consular officers are final

with respect to visa Issuance or the denial or visas, is there any formal or qualitative review of these questions by the consular officer's immediate supervisors?

Answer. A formal review procedure is provided by regulation for all Immigrant visa refusals under any of the grounds of inellgibllity specified in the

Act. The principal consular officer at the post, or a designated alternate, is

570 FSO-5

608 FSO-4

808

1,216

FSO-4

FSO-4

2

6

318 ....

FSO-3

FSO-2
98

required to review the findings of ineligibility. If the reviewing officer disagrees

with the original finding, he may request the Department's advisory opinion

concerning the case and resolve the case upon receipt of the advistory opinion,

or he mav assume responsibility for the case and reverse the original finding.

In the case of refusal, the applicant himself, or any other person having a

legitimate Interest in the applicant's case may request that the consular officer's

finding be further reviewed. Such requests may be made to the Department or

directly to the consular office at which the application was made.

Supervisory consular officers also conduct a regular spot check review of immigrant and nonimmigrant visas issued at a post by each officer of the visa

section. Should the review reveal that the visa was improperly Issued, it may

be revoked. However, the purpose of sample reviewing of issued visas is not to

revoke them, but rather to insure that standards of decision making among all

officers are reasonably uniform, and that inexperienced officers are given adequate and continuing guidance.

Question 6. Do you believe that consular officers should be upgraded and

promotional opportunities increased for this phase of the Foreign Service?

Answer. The consular function is an important and indeed an essential element in the spectrum of responsibilities exercised by the Department of State

nnd the Foreign Service. We are constantly seeking ways to improve and promote the development of a professional corps of consular and other functional

groups required by the Service. It is important, however, that we examine our

needs and programs for upgrading professional competence and career development of particular functional groups against the standards of overall service

needs. Therefore questions of position levels and promotional opportunities for

consular officers•as for administrative, political and economic/commercial officers•must be viewed as part of the overall question of management of all

employees of the Department and the Foreign Service.

(a) Consular positions.•The level of consular positions overseas is determined on the basis of Job classification surveys which are Intended to provide

a balanced job level structure worldwide. Thpse surveys take into consideration

not only job levels for similar consular responsibilities at other posts but also

job levels for other types of work (i.e., political, economic and administrative)

in the same post and worldwide. On the basis of evidence of substantial upward

grade creep over the years, an extensive survey of the content and levels of all

jobs in the Foreign Service was recently concluded. The worldwide classification survey, implemented on June 30. 1974. resulted in the general downgrading

of positions in all functional areas. It was conducted using standard methods,

and with reference to Civil Service Commission classification standards. Even

so, it resulted in what we believe is an improved relative standing for many

consular positions. Specifically, the study resulted in a 14.8 percent increase

of positions at the FSO-5 level, raising by one class the accepted journeyman

level for field consular work. Consular workload is the principal factor used

in classification of senior consular positions at our field posts. We anticipate

that such workload will increase, and will justify further improvement in the

consular position structure.

(b) Promotional opportunities.•Promotion opportunities for all intermediatelevel officers of the Service are arrived at by comparing positions, by functional

specialty and class, with employees, also by functional specialty nnd class. The

difference between the two, taking into consideration also other factors (i.e.,

expected attrition, funds, needs of the Service), equals opportunities. Promotion

opportunities for officers In the consular field, therefore, are as fairly allocated

as those for officers in the other functions. The fact that officers are reviewed

and promoted on a functional basis at classes, 3. 4, and 5 assures the Department

of a sufficient number of officers In each function to fill vacancies at the next

higher level. Thus promotional opportunities increase as the Department's needs

Increase. To go beyond this jeopardizes a promotion system that is based both

on merit and need.

Question 7. I understand that there has been a new promotional procedure

established by which, for example, consular officers would compete for promotion only with other consular officers. How has this procedure been working?

Answer. The Department, up until last year, reviewed and promoted officers

on a functional basis at classes 2, 8, 4. 5. and 6. Last year, as a result of a careful study approved by the Secretary, functional consideration at C'asses 2 and 6

was eliminated. This decision was based on the realization that the Foreign
99

Service mast balance the need to develop officers' expertise in particular functions, such as consular work, with the need to maintain and develop the corps

of officers available and qualified for worldwide service in position which cannot

he defined simply in terms of a single functional category. Thus, for example, a

senior position may require of the incuml>ent a mixture of skills•political,

consular, economic/commercial, and administrative. At the same time, It la

essential at junior levels to give officers a broad exposure to Foreign Service

•work before entering the mid-career period where particular functional expertise Is emphasized. In any event, officers in the consular field did not suffer In

classwide competition in 1974 and 1975 at either the senior (Class 2) or the

junior (Class 6) threshold levels. At Classes 4 and 5. where competition has remained primarily on a functional basis, officers in the consular field continued to

receive a proportionate number of promotions based on merit and need. Attached

are charts showing promotions by function in 1974 and 1975.

FOREIGN SERVICE OFFICE PROMOTIONS BY FUNCTION, 1974-75

Function

Number

reviewed

(eligible)

Percent

of

eligible:

Promotees as percent of•

Number

promoted

Number

eligible

Number

promoted

Class 2:

Executive program direction

Political _

Economic/commercial

Administrative

Consular

Special professionals

Total

Class 3:

Executive program direction.

Political

Economic/commtrcial

Administrative

Consular _

Special professionals

Total.

Class 4:

Political

Economic/commercial

Administrative

Consular

Special professionals

Total.._

Class 5:

Political

Economic/commercial.

Administrative

Consular

Special professionals..

Total.

Class 6:

Political

Economic, commerc.al

Administrative

Consular

Special professionals..

Total

Total, aH classes:

Executive program direction.

Politxal

Economic/commercial

Administrative

Consular

Special |

Total.

67

81

82

38

10

5

23.7

28.6

29.0

13.4

3.5

1.8

283 100.0

19

225

146

93

44

3

3.6

42.5

27.5

17.5

8.3

.6

530 100 0

304

203

105

75

5

43.9

29.4

15.2

10.8

.7

692 100.0

215

123

89

97

41.0

23.5

17.0

18.5

524 100.0

257 100.0

2,286 100.0

17 25.4 28.8

21 25.9 35.6

1? 14.6 20.3

7 18.4 11.9

2 20.0 3.4

59

4

43

19

12

4

1

83

57

24

26

10

2

119

73

33

28

20

154

101

516

20.8

21.0

19.1

13.0

13.0

9.1

33.3

15.7

18.8

11.8

24.8

13 3

40.0

17.2

34.0

26.8

31.5

20.6

29.4

39 3

22.6

100.0

4.8

51.8

22.9

14.5

4.8

1.2

100.0

47.9

20.2

21.8

8.4

1.7

100.0

47.4

21.4

18.2

1X0

100.0

77 28.0 35 48.6 34.6

47 18.3 14 29.8 13.9

hi 25.3 20 30.8 19.8

n 28.4 32 43.8 31.7

100.0

86 3.8 21 24.4 4.0

897 39.1 229 25.5 44.4

601 26.3 102 17.0 19.8

390 17.1 93 23.8 18.0

299 13.1 U 22.7 13.2

13 .6 3 23.0 .6

100.0
100

TOTAL PROMOTIONS BY FUNCTION WITHIN THE FOREIGN SERVICE OFFICE

Through general com

Total PD Pol

petition

E/C

or classwide

Adm Cons

By primary function

Total PD Pol E/C Adm Cons Spt

Class:

2 59 17 21 12 7 2

3 60 4 n 17 1 23 . 5 2 12 3 1

4 35 . 33 2 84 . 24 22 26 10 2

5 46 . 43 2 1 108 . 30 31 27 20 .

6 101 . 35 14 20 37

Total 301 21 170 47 28 35 215 0 59 55 65 33 3

Key to symbols: PO=Executive program direction; Pol=Political; E/C-Economlc/Commerical; Adm - Administrative;

Cons-Consular; Spt =Special professionals'
101

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102

Question 8. How many officers In each of the separate categories (cones)

which comprise the Foreign Service?

Answer. The following statistics areas of June 30, 1075, and include Foreign

Service Officers, Foreign Service Reserve Officers Unlimited, Foreign Service

Reserve Officers available for worldwide assignment, and Foreign Service Staff

Officers available for worldwide assignment:

Executive/program direction 408

Administration 2, 216

Consular 668

Information 30

Economic/commercial

Political 1, 2S1

Special professions

Total 5, 664

Question 9. Does SCA play any role in evaluating the performance of consular

officers?

Answer. Information in answer to this question provided to the Subcommittee

November 7,1973, remains current in all important respects.

Question 10. There are a number of different types of appointments and assignment commissions for consular officers. Give a description of each and how many

officers are in each category.

Answer. (1) The four major categories, by pay plan, of consular officers are as

follow:

Category and number: Description

FSO, 520 Foreign Service Officers who shall be appointed

in accordance with Section 511 of the Foreign Service Act of 1946, as amended.

FSRU, 6 Foreign Service Reserve Officers Unlimited

appointed under authority of Public Law

90-494.

FSSO (worldwide), 93 Foreign Service Staff Officers who shall be

appointed in accordance with the provisions

of Section 531 of the Foreign Service Act of

1946, as amended.

FSR (worldwide), 49 Foreign Service Reserve Officers who shall 1«

assigned to the Service on a temporary basis

from Government agencies or appointed on

a temporary basis from outside the Government in accordance with the provisions of

Section 522 of the Foreign Service Act of

1946, as amended, in order to make available

to the Service additional skills as may from

time to time be required.

(2) Appointment Commissions•Since 1969, all Foreign Service Officers

(FSO's) receive one appointment commission which covers their appointment

as FSO of class, their appointment as a Consular Officer and their appointment

as a Diplomatic Secretary. Foreign Service Reserve and Staff Officers receive

an appointment commission as a Consular Officer and/or, In the case of Reserve

Officers, a Diplomatic Secretary.

(3) Assignments Commission•An assignments commission is the formal

notification by the United States Government to the host foreign government of

the assignment of an officer to that country In an official capacity. The consular

and/or diplomatic title reflects the needs of the position to which the officer is

being assigned. All Foreign Service Officers (FSOs) and Foreign Service Reserve

Officers (FSR's) assigned to perform consular work are designated as Vice

Consuls. Consuls or Consuls General.

Section 533 of the Foreign Service Act of 1946, as amended, provides that

Foreign Service Staff Officers may be commissioned only as vice consuls and

consuls.

Question 11. Are personnel policies the same for positions appointed by the

President and consular agents which are appointed by the Secretary of State?

Question 12. What criteria is used in evaluating the performance of

Presidential appointments and consular agents?
103

Question IS. What is the extent of the practice of appointing: (1) noncitizens

as consular agents? (2) temporary acting consular agents?

Answer. Consular Agents perform limited consular services, such as notarials,

and act as point of contact between citizens and the principal officer of the

supervisory consular post of the district. They are not consular officers and are

not authorized to issue passports or visas. They are responsible for reporting

deaths of U.S. citizens to their supervisory consular office and can assist in

handling estates of deceased citizens, but only under the supervision of a consular officer. They can also provide various non-statutory services for U.S.

citizens, as the need arises.

Consular Agents work only on a part-time basis, with no regular, required

work schedule. Since they are not required to work fixed hours, they do not

acquire annual leave, sick leave or overtime pay, as Foreign Service Officers and

other Government employees do. It is unlikely that this differentiation in compensation affects the performance of any Agent, however, since these positions

are not undertaken as a full-time means of support. Typically, candiates are

drawn from American businessmen, foreign employees of American companies

and retired Foreign Service personnel living in the area. While preference is

given to Americans, qualified U.S. citizens who are willing to take on such

responsibilities are sometimes difficult to find and thus non-citizens may also

serve in this capacity. Acting Consular Agents exist only while the hiring and

approval of a permanent Agent is pending and the Acting Agent is normally

the same individual who will be appointed permanent Agent.

There are three classes of Agencies, Class I, Class II and Class III, with a

respective salary range of $3,400, $2,250, and $1,700 per annum. Classification Is

based upon the importance of the services provided by the Consular Agent to

the Government and volume of work performed. At the present time there are

ten Class I Consular Agencies and three Class II Agencies.

Foreign Service Officers, who are appointed by the President, and other career

Foreign Service employees, are given thorough performance evaluations at least

once a year in accordance with the requirements of the Foreign Service Act,

Comprehensive and detailed annual performance evaluations are not completed

on Consular Agents, however, since they are not competing for advancement

within the Foreign Service. Their performance is monitored by the principal

officer of the supervisory Kmbassy and the appropriate geographic bureau and

SCA to assure that it fully meets the Department's requirements. Additionally,

Consular Agencies are periodically Inspected by the Inspector General of the

Foreign Service as are all Foreign Service operations.

Question 14. The ambassador, as the representative of the President, has

responsibility for the overall direction of U.S. Government activities overseas.

He also determines the precise structure of the mission in light of the local

circumstances. How much does he influence the number of consular officers In

his country?

Answer. Information in answer to this question provided to the Subcommittee

November 7, 1978, remains current in all important respects.

Question 15. Has the number of consular personnel increased during the past

few years? Have there been any cuts?

Answer. There has been a steady increase in the number of permanent

American consular positions in recent years. The following positions compared

to political and economic/commercial positions.

PERMANENT AMERICAN POSITIONS

Economic

Date Consular commercial Political

January 1970

June 1971 _

June 1972 _

Jane 1973

June 1974 _ _ _...

June 1975 _

Note: These figures include (1) FS0, FSR/FSRU and civil service positions, and (2) FS0 FSRU/FSR (worldwide FSS

(worldwide). FSR (department service), FSS (department service), and civil service officers. Clerical and other nonconsular

positions located in the passport office, visa office and office of special consular services are not included. Also excluded

(re foreign service local (foreign national) positions abroad and temporary positions in the United States.

785 883 1,499

817 830 1,382

834 810 1,258

841 848 1,220

899 880 1,212

940 900 1,258
104

Question 16. In determining the number of consular personnel needed, what

criteria has been established?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 11. It is my understanding that a monthly report entitled "Nonimmigrant and Immigrant Visa Work Load" is provided to each regional bureau

advising them on visa staffing problems. In your opinion, do these reports appear

to have any influence on tbe bureaus when they determine the number of consular personnel which they will require?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 18. To what extent does the Administrator of SCA advise the Director

General of the Foreign Service and the geographic bureaus on the assignment of

key consular personnel? In other words, how much influence does the Administrator of SCA exert with respect to the allocation of consular personnel?

Answer. Information in answer to this question provided to the Subcommttee

November 9, 1973, remains current in all Important respects.

Question 19. Does a consular officer receive any additional training after his

arrival at his assigned post?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 20. Are the economic and political phases of the Foreign Service

given a higher priority for staffing purposes then the consular functions of an

Embassy?

Answer. The answer continues to be no and for the reasons given in the previous report. The ratio of consular positions and personnel increases to those in

the political and economic/commercial cone still favors the consular area as

demonstrated in the answer to Question 15.

Question 21. I understand that there are certain limitations on the compensation and other benefits which are available to consular agents (i.e., no overtime,

annual or sick leave). How do these limitations affect the performance of consular agents?

Answer. The answer to this question is contained in the reply to Questions 11,

12, and 13.

Question 22. What is the "Visas Raccoon" system or the so-called "Sixty-six"

message system? Have these systems been fraudulently used by aliens to enter

the United States?

Answer. Several years ago the Department adopted code words (numbers,

animals and birds) to be used in messages between the Department and Foreign

Service posts, and also between Foreign Service posts, which serve to reduce

the number of words in repetitive type messages having to do with the visa

function. Visas Raccoon and Visas Sixty-six are but two of the many code words

currently in use, and these may be described as follows:

Whenever an alien appears at a Foreign Service post and reports that he Is

one who had been lawfully admitted to the United States for permanent residence

but whose document evidencing such status (Form 1-151•Alien Registration

Receipt Card) has been lost, stolen, or never received, the consular officer may

transmit, at the alien's expense, a telegram to the Immigration and Naturalization Service via the Department's communication system requesting the Service

to confirm the alien's claim to lawful residence status. Such telegrams are

authorized only when the alien is able to demonstrate to the consular officer's

satisfaction that he would be seriously inconvenienced were he required to

remain abroad until the Service could issue and deliver to him a replacement

Alien Registration Receipt Card. The telegram from the Foreign Service post

is headed Visas Raccoon, and it contains certain basic information about the

alien which enables the Immigration and Naturalization Service to check its

records.

All incoming Visas Raccoon telegrams are routed electronically to the Central

Office, INS, and information copies are passed to the Visa Office in the Department. The Central Office contacts the appropriate district office of INS, either

by Telex or telephone, to determine whether the alien concerned had in fact been

admitted for lawful permanent residence. If this is established, INS telephones

the Visa Office which in turn prepares a Visas Sixty-six telegram for transmission to the Foreign Service post. Upon receipt of such telegram, the consular

officer contacts the alien and Issues him a letter which authorizes him to proceed
105

to the United States, as contemplated by section 211(b) of the Immigration

and Nationality Act.

Although the Department has no actual evidence to support the belief that

the system may have been used fraudulently by aliens to gain entry into the

United States, no doubt some aliens have posed as lawful residents by assuming

the identity of know resident aliens, and thus conceivably could gain entry

under the Raccoon procedure. For this reason, the entire Visas Raccoon procedure was amended midway through 1973. Briefly stated, the revised procedure

calls upon the consular officer to require every alien for whom a Visas Raccoon

telegram is sent and a Visas Sixty-six received, to complete an application form

for a replacement Alien Registration Card. That form, together with the alien's

photograph, is carried by the alien to the port of entry and the immigrant inspector compares the alien with the photograph and other documentation, such as

his passport, before admitting him as a returning resident alien. The application

for a replacement Allen Registration Receipt Card is then forwarded to the

appropriate district director's office where final action is taken on the issuance

of a new card.

Although the Central Office of INS has Informed the Department that none

of the District Offices have reported any difficulties with the procedure and,

most importantly, that no imposters are known to have gained entry by assuming

the identity of another person, even with the new procedure it is possible for

an imposter to effect entry. The real possibility that legally admitted aliens are

selling or lending their I-151's to other aliens to enable them to make an illegal

entry into the United States, and then are claiming that the I-151's were lost or

stolen to obtain a duplicate, is very difficult to control.

The Department is preparing instructions to all consular officers to follow procedures similar to those used in the lost or stolen United States passport cases

whenever there is any suspicion of fraud. These procedures include close interrogation of the applicant about the circumstances of loss, careful screening of

available documents, and confirmation of identity by as many sources as

possible.

Question 23. At what consular posts are visas presently being issued by mail ?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 24. In your opinion, are any screening controls sacrificed by this type

of procedure since it obviates the interview with a consular officer which is of

utmost importance in determining the subjective intent of the visa applicant?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 25. Are visas issued by mail only in those posts which are experiencing

a very small amount of fraud or mala fide N.I.V. Applications?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 26. Can you estimate what percentage of the total number of adjustees each year actually change their mind and decide to remain in the United

States after arrival? Isn't it really only a small percentage and don't most adjustees have a preconceived intent to stay when they apply for their nonimmigrant visa?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 27. You stated that fraud may take the form of false letters from

employers, false bank statements and false marriage or birth certificates. What

stej>s are generally taken to determine the validity of these types of documents?

Answer. The Department has established a fraud unit within the Visa Office

staffed by three officers and one clerk to brief and debrief visa officers•especially

those en route to or from high fraud posts•to analyze patterns of fraud, to coordinate anti-fraud activities, to provide guidance for visa officers in the field

and to act as liaison between INS, the Visa Office and the Security Office of the

Department of State. The unit arranges consultation with INS offices at ports of

entry for all visa officers going to high fraud posts. Besides learning about INS

operations in general, the officers watch airport inspections and discuss with

their INS colleagues the kinds of fraud prevalent in the posts they are destined to.

Experience Indicates that within a reasonably short period of time at past

visa officers are able to detect many kinds of fraudulent documentation, and
106

that in runny cases these are detected at the time of preliminary interview or

examination' of the visa application. In cases in which the visa officer is in

doubt about the validity of documentation submitted in connection with the visa

application, visa issuance is, of course, withheld pending verification.

The visa officer may verify local employment letters by telephoning the employer, or may verify job offers in the United States by writing to the employer.

Bank statements and civil documents may be checked with the issuing authority

If thev appear to be questionable.

At'some posts staffing limitations and sheer volume of work unfortunately

preclude in-depth checking of all documentation submitted. The visa officers at

those posts must be guided by institution based on experience in assessing the

validity of documentation submitted in the absence of time or resources to perform meaningful investigations.

Question 28. You stated that the efficiency of a particular post cannot be judged

bv looking at the number of visas issued per officer assigned. How, in fact, is the

efficiency of a post ascertained•is it based on the number of applications

considered? ' Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 29. Are there any procedures for determining the number of nonimmigrants who return to their residence abroad in accordance with the terms of

their visa: or, alternatively, is a post notified when a nonimmigrant overstays

and is located by the INS or if a nonimmigrant seeks and obtains an adjustment of status?

Along these lines have any efforts been made to make INS and State computer systems compatible in an effort to promote a greater exchange of information between consular officers and INS inspectors?

The Electronic Name Check File now contains only refusal data or negative

information with respect to a particular applicant (i.e., he was refused a visa

at a post, a particular applicant is excludable under one of the statutory

grounds). Can these computers lie utilized to develop a data base which would

contain positive detniled information regarding all visa applicants?•Should

this information be available to INS inspectors at ports of entry?

Do you plan to expand the Electronic Name Check File to any additional posts

in fiscal year 1974 or fiscal year 1975?

Answer. There are no procedures for determining the number of nonimmigrants who return abroad and the Immigration and Naturalization Service does

not notify the posts of overstays. The Service does, however, notify the nonimmigrant visa issuing post concerning an alien whose case falls within the following categories and INS has, or intends to, take action with respect to such

alien :

Nonimmigrant visa cancelled by INS as alien was excluded at port of entry;

Nonimmigrant visa cancelled by INS since alien withdrew application at port

of entry;

Nonimmigrant visa cancelled by INS because deportation proceedings have

been initiated;

Nonimmigrant visa cancelled by INS and alien has been permitted to depart

voluntarily;

Nonimmigrant visa cancelled by INS because it has revoked the order permitting the alien concerned to enter the United States on the basis of a waiver

given earlier under Section 212(d) (3) of the Act; and,

Nonimmigrant visa cancelled by INS because it was presented by an imposter.

I.e., an alien different from the one to whom it was issued.

The Department of State itself hns no means of determining the number of

nonimmigrants who return abroad in accordance with the terms of their visas:

the Immigration and Naturalization Service, however, does collect information

on departing aliens and this forms a basis for calculating the number of alien

overstays. The Service does not notify our posts about overstays located since

this in itself would serve no useful purpose, but it does take the following

actions:

INS sends form G-325A to the post that Issued an alien's visa if he applies

for adjustment of status (from nonimmigrant to permanent resident statvs)

under section 245 of the Immigration and Nationality Act. Receipt of form G325 A causes the post to check its files for derogatory information and It also

alerts the post to the alien's impending adjustment of status.

INS sends from I 275 (Notice <>f Withdrawal of Application for Admission)

to the visa issuing post when an alien is permitted to withdraw his application

for admission to the U.S.
107

INS sends form 1-213 (Record of Deportable Alien) to the visa Issuing post

when an alien is granted voluntary departure in lieu of being deported.

INS furnishes the Department of State with a monthly list, by visa issuing

post, of the number of form I-275's and form I-213's applicable to visitor and

student visas Issued by each post. The Department makes use of this statistical

information in determining which posts have the highest ratios of aliens refused

admission or deported in relation to the number of visas issued during a given

period. Although this management analysis tool has only been available for a

short time, we hope that it will enable us to identify posts which are having

particular difficulty with mala fide nonimmigrant visa applicants and to provide

the posts so identified with useful guidance.

IXS also, under authority delegated by the Secretary of State, cancels the

nonimmigrant visas of aliens who; are excluded at a port of entry; are permitted to withdraw their entry applications; are granted voluntary departure

in lieu of deportation against whom deportation proceedings are initiated; have

their 212(d)(3) visa waiver orders revoked; are found to be iniposters or to

have their visas or other documents presented by imposters seeking entry.

(a) Although the Department of State has used a computer for lookout purposes for several years, the Immigration nnd Naturalization Service only recently began to use an automated system. Both agencies recognize the need to

develop a system whereby Information possessed by one can be shared and

indeed made available to the other electronically, and to this end have agreed

to seek recommendations from a private research corporation that [we hope

will shortly examine] has examined both consular and INS operations along the

United States-Mexico border. It is [hoped] anticipated, as a result of the study

and the recommendations of the research group, that even greater and more

integrated use will be made of computers and present day communications systems by State and INS.

(b) Although most of the data in the computer's name check file relates to

known or suspected ineligible aliens, the system as presently programmed has

the capability of storing considerable additional information. For example, the

Embassy at Manila has been adding to the file the names of applicants who are

registered on oversubscribed waiting lists of intending immigrants; information

regarding lost, stolen, or invalidated foreign passports is being added by the

Department on a continuing basis; and information on beneficiaries of temporary work petitions is added by four of our larger posts. The Department has

not been unmindful of the possibilities of using the computer to even greater

advantage and, in this connection, notes that a mechanization study was prepared a few years ago that proposed utilizing the computer to maintain waiting

lists of intending immigrants, trigger the dispatch of instructions to applicants

through posts abroad at the appropriate time depending on priority date, foreign

state chargeability, and availability of visa members. However, we were unable

to implement these proposals because of insufficient funding, lack of both hardware and software, and the need for amendments to the immigration laws. [Yet

as both State and INS move ahead, it is intended to explore the development]

Yet both State and INS are moving ahead in the development of new systems

that are compatible and which serve the needs of the two agencies, including,

of course, consular offices and ports of entry. This could, in the long run, include

positive detailed information regarding all visa applicants.

(c) At the present time, 25 Foreign Service posts, are "on line" with the Department's computer. A recent survey indicated that these "on line" posts account

for approximately [40 percent] 38 percent of the overseas workload in the nonImmigrant and immigrant visa function. It is contemplated that additional posts

will be included in tin- computer system in the future as funds become available.

The cost of installing the system at a single post Is in the neighborhood of

$100,000 for the first year of operation and roughly $80,000 for each succeeding

year. The costs vary of course depending on the distance from a given post to

Washington and the charges involved for least of communications link.

Question* .W. You indicated last week that one of the problems in the consular area is that the State Department is organized on n geographical rather

than a functional basis. Yet most ambassadors and geographical bureaus couldn't

care less about consular activities. In view of this and the fact that SCA has

been created by statute and expressly charged with the administration of the

Immigration and Nationality Act, shouldn't greater consideration be given to the

functional role of SCA?•In other words, shouldn't SCA have control (greater

control) over all aspects of consular activities abroad?
108

You indicated that the consular function must compete for resources with the

more prestigious functions of the Department of State. Therefore, wouldn't It be

advisable to administratively separate the consular function from the other

phases of the Foreign Service and place this function under the direct supervision of SCA?•Would legislation be needed to accomplish this objective?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question St. Isn't it true that when cutbacks at our embassies are orderd by

either OMB or the Department of State, the consular service is the first to be

affected (the salaries of political and economic officers are often partially paid

by other branches of the government•AID. CIA. Defense•while consular officers

are paid entirely by the Department of State•therefore, the greatest savings

would he rea'ized by eliminating the number of consular services) ?

An°wer. The number of officer-level positions as opposed to support staff in

the Department of State has increased by 14 percent since December 1968 and

by 17.6 percent since June of 1973. The cuts desired under the so-called BATvPA

and OPRED programs have generally been achieved and present staffing levels

for the United States Oovemment abroad are now monitored through a process

referred to as MODE (Monitoring Overseas Direct Employment).

Consular positions for the Department of State have increased relative to both

1968, the base year, and to 1973. At present there are 940 consular positions representing a 9.S percent increase over 1968 and by 11.7 percent relative to 1973.

This is the second largest increase of any functional position In the Department.

The increase is exceeded only by the increase in administrative positions much of

which, in turn. Is attributable to an upgrading of staff support positions primarily in communications and to the need to greatly expand our security positions because of the dramatic increase in terrorism worldwide. For comparison.

Program Direction positions increased by 6.8 percent, Economic/Commercial

positions decreased by 0.6 percent and political positions by 14 percent during

the same seven year period.

Question 32. Ton indicated that you would supply the Committee with sample

copies of the different examinations which are given for each phase of the Foreign Service. Do all exams have the same degree of difficulty and are there uniform requirements for the passage of these exams?

Answer. Under the new FSO examination procedures adopted this year. State

Department applicants will no longer choose examination In a particular function.

Instend they will take a test which includes questions from all four functional

areas. Candidates will have to achieve passing scores on both the General Background and English Expression tests, and on the Functional Field test as a

whole.

As Indicated in 1973. the writen examination Is the property of the Educational Testing Service (ETS) of Princeton University, the Department of State's

prime contractor for development of this year's written examination. Because of

copyright, and contract relationships we are unable to provide a full copy of the

examinations. The enclosed announcement of the 1975 examination contains a

sampler of test, questions.

Question SS. Ton stated that you work closely with INS in the United States

and abroad in your efforts to deal with the illegal alien problem. Can you give

us any specific examples of this close cooperation?

Answer. Information in answer to this question provided to the Subcommittee

November 9.1973, remains current in all important, respects.

Question .1}. Do you anticipate that any specific actions will be taken to Implement the recommendations which will be made by the Special Nonimmigrant

Visa Survey Team which has Just returned from visitinc various posts abroad?

Answer. The Special Nonimmigrant Visa Snrvey Team which visited various

posts abroad in the summer of 1973 prepared a detailed report of its findings.

On February 8. 1974, the Department transmitted by telegram to all Foreign

Service posts the attached guidelines for the improvement of the nonimmigrant

visa issuing process. These guidelines were based on the findings of the Survey

Team.

Attachment. [Telcgrnm]

DEPARTMENT or STATE,

Washington, D.C.

To all diplomatic and consular posts.

For ambassadors and principal officers from the Deputy Under Secretary for

Management.

Subject: Non-immigrant visa issuance process.
109

1. As a result of the visit of a survey team to selected posts last summer and

recommendations they developed, I have approved the following policy and working guidelines concerning the nonimmigrant visa function.

2. Policy statement and working guidelines on the nonimmigrant visa issuance

process.

A. IMPORTANCE

The processing and issuance of nonimmigrant visas is a key statutory responsibility of the foreign service. There never has been a time when the demands were

greater on the consular officer than today with respect to the nonimmigrant visa.

Visa fraud is a constant concern, Illegal immigration, trafficking in drugs, and

terrorism all add increasing responsibility. At the same time we are embarking

on an unprecedentedly large effort to promote foreign tourist travel to the United

States, placing a greater emphasis on good public relations. It is through the

nonimmigrant visa program that a large number of visitors to the United States

acquire initial contact with Americans and develop their first impression of

Americans institutions. Effective performance of the nonimmigrant visa function

helps to facilitate tourism, commercial and trade relations, cultural contacts, and

the exchange of ideas and technologies.

B. PURPOSE

The following guidelines are designed to provide an approach to the process

of issuing nonimmigrant visas which may help achieve greater effectiveness and

efficiency. It is our hope, too, that they will assist toward strengthened morale

among consular officers, foster professionalism and focus the attention of posts

on the significance and complexity of the NIV problem.

These guidelines are not conceived to be comprehensive. Many procedures are

already being followed at a number of posts. Each post is urged to review its

current NIV operation with a view to adhering as closely as practicable to these

guidelines and to developing independent initiatives toward other Improvements

In local operations.

c. OPERATIONS

1. A review of operations at a number of posts has suggested that a more

effective use of manpower might be possible. The following suggestions are based

on practices which some posts have found to be effective:

It is often inefficient for a post to remain open for nonimmigrant visa applications for a full 40 hours per w

r

eek. Many posts have found that a reduction of

the time in which they are open to the public to a maximum of 20 hours a week

is more productive. The remaining hours can then be devoted to screening and

processing of applications and other essential operations. Posts which have not

already done so are urged to consider the desirability of limiting open hours.

In so limiting these hours, some posts have found continuous open hours more

efficient than closing and opening more than once in the course of a day. In

adjusting post hours, adequate notification of changes should, of course, be given

to the public Including use of local mass media.

It would be appreciated if posts changing their hours in accordance with this

suggestion will carefully assess the effectiveness of the change and after a reasonable trial period rejwrt on the results.

2. Wherever practicable, interviews with American officers to determine eligibility should precede clerical processing of completed applications. This will

strengthen the public relations role of the consular officer and afford an opportunity to meet the public as well as expedite final disposition of applications.

3. Every effort should be made to minimize congestion in waiting rooms and

to limit staff utilized exclusively in processing walk-ins:

A. Applicants should be encouraged to receive their visaed passports by mall

thus obviating the need for:

The applicant either to return to pick up his passport, or, less desirably, to

wait until it is ready.

B. "Where extensive waiver of personal appearance is possible, the public

should be encouraged to apply for MIV's by mail or through reliable travel agencies or transportation companies. If appropriate, the media should be requested

as a public service to publicize the "visa-by-mail" program.

C. Also where extensive waiver of personal appearence is possible, convenient

and secure means, appropriately advertised, whereby applicants can leave their

passports and applications for processing together with a self-addressed envelope

-should be provided at the consulate.

70-206•70 8
110

4. Telephone inquiries on consular matters should be channeled, to the extent

possible, towards a limited number of staff members, thereby permitting the

majority of the staff to work uninterruptedly. Posts should also examine the

feasibility of utilizing tape recordings to inform the public of "open" hours and

to respond to the most frequently asked questions.

5. Posts are encouraged to issue visas for the maximum length and entries

permitted by reciprocity and established department policy.

6. Posts are encouraged to separate applications and applicants into district

categories (visitors, third country nationals, students, transits, etc.) for processing particularly if the post handles a large volume of applicants and if one or

more category requires greater attention than others. This would also provide

maximum usage of pre-set Todd protectograph visa plates for different categories.

In implementing these guidelines, posts should bear in mind that primary emphasis in processing applications must be placed on the post's capacity to meet

over-all applicant demands. Exceptional cases will arise and will require special

attention. Obviously, post procedures and personnel should not be geared to the

exception but should be oriented to providing services for the majority of

applicants.

D. WORKLOADS AND STAFFING

1. The goal is to process NIV's as rapidly as possible in accordance with the

requirements of the law and regulations and with minimum inconvenience to the

applicant. Nevertheless, requirements of law and sheer numbers of applicants

often cause some backlog of cases. Cases carried over from one day to another

do not constitute a backlog but cases carried over more than a week do and such

a backlog should not be permitted to develop. Applicants should be informed of

the specific date•or processing time in the case of mail•on which their passports will returned. Since processing time may vary from month to month or even

week to week depending on existing workloads, the chief of section should review

the operation at appropriate Intervals to assure that target date are as short as

possible consistent with effective processing.

2. Consular complements are established to accommodate normal workloads.

Peak period requirements should be met, in the first instance, through recourse

to the manpower of other sections that can be made available. Chiefs of consular sections should keep the principal officer or DCM and the administrative officer advised in a timely manner of the anticipated workload increase to permit

timely deployment of personnel.

3. At those posts where local salaries (in dollar equivalents) have risen to

such a level that the employment of resident Americans becomes cost-effective,

posts should consider hiring qualified dependent resident Americans in lieu of

local personnel to perform functions normally assigned to local personnel. This

applies to both temporary peak season and regular employment needs. First

priority should be given to spouses of foreign service personnel, followed by

spouses of other United States government employees and other dependents of

U.S. Government employees.

In the case of temporary employment, the temporary position ceilings do not

distinguish between Americans and locals, prior clearance from the geographic

bureaus to substitute an American for a local Is therefore not necessary. Requests for necessary shifts in permanent position ceilings for Americans to fill

permanent local positions should be submitted to the geographic bureaus with

appropriate cost data. "Cost-effectiveness" will in this case be determined by the

department (M/FRM) upon receipt of the geographic bureau's approval of the

request.

Posts should bear in mind that all prospective American employees, temporary

as well as permanent, should receive security clearances in accordance with

3 FAM 161.4B before they may be appointed.

E. POST RESPONSIBILITIES

1. In those countries where there are constituent posts, the embassy Is

responsible for the maintenance of compatible nonimmigrant visa issuance procedures at the constituent posts. This includes the establishment of consistent

procedures and the rationalization of personnel resources, both American and

local. Embassies are encouraged to examine constituent post workloads and to

shift resources or workloads where required.

2. In any operation that involves the public, it is always highly desirable for

the U.S. Government to provide an environment that does It credit. It Is not

always possible to provide the optimum. However, special attention should be
Ill

paid to enlargement and attractiveness of work space and public areas and to

enhancement of operational efficiency including adequate privacy for counter

interviews conducted by American officers. The use of office machines and other

labor-saving mechanical aides should be explored. The department intends to

provide posts with technical assistance in these areas, but in the interim wishes

to encourage local review and examination of other possibilities for consular

program improvement.

F. EVALUATION

Where resources In terms of manpower, funds and equipment are determined

Inadequate to meet demands after full implementation of these guidelines, posts

are requested to forward an evaluation telegraphically by April 30. End text.

3. In implementing the for going guidelines, it should be borne in mind that

an environment should exist and operations be such in the nonimmigrant visa

processing that consular officers may take pride in the quality of their work,

and recognize the value the department places on it. Kissinger.

Question 85. On page 18 of your prepared statement you indicated that you

are considering reinstating the requirement that every new Foreign Service

Officer take basic consular officer training. You are also considering increased

language training for consular officers. The Subcommittee would be anxious to

know whether these matters are in the early formative stages or whether we

can expect action in these areas in the near future?

Answer, (a) During the Junior Officer Basic Course at the Foreign Service

Institute, every new Foreign Service Officer, regardless of cone or onward assignment, receives a good gounding over a three-day period in the statutory obligations which the Immigration and Nationality Act imposes upon the Foreign

Service.

(b) Increase language training for consular officers has occurred within the

context of increased training for all Foreign Service Officers as the Department

has greatly strengthened enforcement of the Language Designated Positiou

(LDP) program. Under this program the Department trains to a designated

level of language proficiency, prior to arrival at post, all officers assigned to an

LDP or ensures through testing that officers have the required level of proficiency. Exceptions are rare and can be authorized only by the Director General

or designee. The purpose of the program is to insure that key positions abroad

are filled by officers competent in the language of the host country.

There were 981 occupied LDP's in September 1974. Of these, 223 were consular

positions. Seventy-five percent of the officers in these consular positions had

the required language proficiency. Since 1974 the number of LDP consular positions has been Increased more than 25 percent to 282, based on recommendations

by Ambassadors and Principal Officers abroad. In addition, consular officers

not assigned to LDP's receive requisite language training at FSI whenever

possible and are encouraged to make use of post language programs in the

field. A compilation of the language skills of consular cone officers is attached.

Question S6. Many individuals have suggested that we prohibit adjustment of

status to those who enter as F's, H's, J's, and L's. Others have suggested that

we prohibit adjustment to those who are seeking visas as 3rd, 6th, and nonpreference petitioners. How would you react to these suggestions?

Answer. Information in answer to this question provided to the Subcommittee

•November 9,1973, remains current in all important respects.

Question 37. The Subcommittee is extremely concerned that there have been

abuses in the admission of A and G aliens (diplomats). For example, some

embassies have filed an inordinate amount of these petitions. Would It be feasible

for the Department of State with the cooperation of the foreign country to

tstabllsh a maximum amount of A and G petitions which may be filed?

Answer. We have been advised by INS that nothing can be done when the

spouses and dependents of the principal alien is considered by the Department

of State to be maintaining his diplomatic status. Shouldn't something be done

to prevent these spouses and dependents from working?•Is the principal alien

notified that his spouse and dependents are not permitted to work?•How many

A and G aliens "moonlight" in addition to their work at the embassies?•How

often are the diplomatic lists revised to eliminate those who are no longer

maintaining their A and G status?•Is INS notified when this takes place?

Under the authority contained In Sections 101(a) (15) (A) and 101(a) (15) (G)

of the Immigration and Nationality Act visas are issued to diplomats, officers

and employees of designated International Organizations, members of their
112

immediate family and their attendants, servants and personal employees and

members of their immediate family.

The bona fides of an A-l, A-2, or G-l or G-3 visa request Is most generally

established by the submission of a formal diplomatic note to a consular oflioer

identifying an individual by name, rank and position of assignment

The basis for determining eligibility for G-4 visa classification is generally

an official communication from a designated International Organization identifying an alien by name and position as an oificer or employee (including family)

of the organization.

The types of communication mentioned above are usually accepted at face

value with respect to determining eligibility of "A" or "G" visa classification.

No "petition" procedure is involved.

Restricting the issuance of "A" or "G" visas could raise a most significant

political issue that would necessarily have to be resolved at the highest levels

of government. It would involve questions of International law and practice,

reciprocity of treatment for American diplomatic and consular establishments

abroad, United States obligations under international agreements to which this

country is a party as well as agreements between the United States and the

various international organizations having offices in the United States.

The Department of State does seek to prevent the dependents of diplomatic

personnel from working in violation of their visa status. Since March 1965 all

embassies have been on notice that, with the exception of educational, nursing

and cultural pursuits, the acceptance of gainful private employment by a family

member, servant, or personal employee of a foreign government official, as well

as the official himself, is inconsistent with their exempt status as nonimmigrants

under Section 101(a) (15) (A) of the Act. By agreement with the Immigration

Service, the Office of Protocol has served as the action office within the Department to receive and approve or deny requests from embassies for special

authorization to accept such employment. From the evidence available to the

Department it would appear that the embassies do notify the principals that

neither they nor their dependents may accept outside employment without this

permission. A new communication sent in September 1975 to all diplomatic

missions restated the Department's policy and emphasized the importance of

obtaining advance approval from the Department through the mission to avoid

jeopardizing one's privileged status.

The Department has taken the same position with respect to international

organization aliens classified as nonimmigrants under Section 101(a) (15) (G) of

the Act

Should any such person in either class wish to engage in gainful, private

employment, either full or part-time (with the exception of educational, nursing

or cultural pursuits). It Is necessary for that person to obtain a change or adjustment of status. The Department has no means of knowing how many aliens in

"A" or "G" status "moonlight" In addition to their regular job.

When the Department is officially notified that an alien in "A" or "G" status

is working in violation of his status, the Department advises the appropriate Embassy or International Organization of the fact and indicates that the unauthorized employment must cease or steps will be taken to terminate the alien's

status and facilitate his departure from the United States.

The diplomatic lists are revised and published anew every quarter on the basis

of corrected copy filed by each embassy and checked against Protocol's records.

These publications are of course available to INS. In addition, copies of the individual notification of termination of assignment forms with respect to employees

are routinely forwarded to INS. Heretofore copies of the forms notifying the

Department of the termination of a diplomat's assignment have not been sent to

INS on the theory that diplomats are career officers who leave tlie United States

for another assignment. However, It is possible that a problem can arise when a

coup takes place and diplomats might choose not to go home and might not be

retained in the diplomatic service under the new regime. To close this potential

gap, the Department Is instituting a change to provide INS with notification of

the termination of all diplomatic assignments.

Question 88. The Subcommittee did not become aware of the manpower problems in Korea until about six months after these problems originally developed.

I wonder if a procedure could be worked out whereby the Subcommittee would

he advised, say on a monthly basis, of the posts which are experiencing administrative backlogs. Can an arrangement be made whereby we can be specifically

advised when personnel shortages prevent the Issuance of visas to eligible

applicants?
113

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 89. It has been suggested that there is a need for greater management

and administrative skills on the part of the consular officer. Would you support

the idea of a management training program for consular officers prior to their

assignment to a particular post?

Answer. The previous response to this question in 1973 indicated that the Department was investigating the feasibility of especially designed management

training programs for consular officers. Subsequent studies indicated that it

would not be practicable to create a separate management training program

solely for consular officers prior to their assignment to a particular post. However, the Department is very aware of the need for improved management skills

for consular officers.

Consular officers are selected for advanced career training (e.g., Senior Seminar, National Defense University, Sloan Fellowship at Stanford in fiscal year

1976). At least two mid-career consular officers are assigued annually to graduatelevel programs in management and administration at Syracuse (Maxwell). The

Department strongly encourages consular officer participation in the FSI Management Behavior Seminar, in addition to other FSI short courses. The Consular

Course and Advanced Consular Course both include elements of managerial

training.

Question 40. On page 4 of your prepared statement you indicated that 'It is

the consular officer who must pass on the validity of most of the documentation

submitted." Does the consular officer ever go behind the approved petition to

verify the information contained in the supporting documents (i.e., authenticity

of college degree, medical certificates, etc.) ?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question -}l. What steps are taken to determine whether the applicant is

excludable under the Immigration and Nationality Act? How often do consular

officers check police records ?

Discuss the 212(d)(3) waiver procedure•what steps have been taken toprevent terrorists from entering the United States?

What evidence of financial support is usually required for those applying for a

B-2 visitor's visa?

Answer. In addition to examining each nonimmigrant application form for

completeness and also to see whether the alien has indicated if any of the excluding provisions of U.S. law are applicable in his case, the consular officer cheeks

the post's files and the Department's Visa Lookout System. If the applicant has

resided elsewhere, i.e., in another country or countries for six months or more,

the consular officer will normally ask the Foreign Service post or posts concerned

to give "clearance" before he makes a final decision in the ease.

Consular officers do not routinely require nonimmigrant visa applicants to

present police certificates in support of their applications. Where circumstances

warrant, however, such certificates may be requested.

Section 212(d)(3) of the Act contains those provisions which authorize a

consular officer or the Secretary of State to recommend to the Immigration and

Naturalization Service that a nonimmigrant visa be issued despite the fact that

the alien concerned is ineligible to receive a visa under one or more provisions

cited in Section 212(a) of the Act. (Such waivers are not authorized in the cases

of aliens who are ineligible under sections 212(a) (27) and (29).) In the absence

of INS concurrent in the recommendation, no visa may be Issued.

Consular officers are authorized to seek INS concurrence direct In the majority

of waiver cases by contacting the INS officer stationed abroad who is responsible

for the area in which the Foreign Service post is located. In specific cases the

consular officer is required or may choose to seek the Department's advisory

opinion and simultaneously recommend that the Department request INS,

Washington, to grant a waiver. If INS grants the waiver the consular officer is

so informed and the notation "212(d)(3)(A)" followed by the number of the

paragraph in Section 212(a) which has been waived is written immediately below

the visa stamp in the alien's passport. Any restrictions such as a designated port

of entry or period of authorized stay are also noted in the passport.

With regard to restricting the entry of terrorists into the U.S., the Department

incorporates into its lookout system the names and biographic data of known or

suspected terrorists received from the intelligence and investigative agencies at

Washington and abroad. These agencies also provide data to the Department

concerning groups known or suspected to use terrorist tactics. This information-
114

is also passed along to the Foreign Service posts. When a post receives a visa

application from a known or suspected terrorist, the consular officer suspends

action on the application and immediately notifies the Department. The final

decision on whether or not a visa will be issued is made by the Department.

Concerning evidence of financial support for those applying for B-2 visitor

visas: Attached to the visitor visa application form is information as to how

one should apply for a visa, as well as a detailed listing of the documentary requirements and other evidence one should submit in support of an application.

The following sentences appear in those instructions: "U.S. Law prohibits aliens

who are granted visitor visas from working in the United States; they must,

therefore, demonstrate that they will be supported there by some interested

person. In this connection, evidence should also be submitted regarding the arrangements you have made to cover your expenses while in the United States."

Applicants usually submit a letter from a bank or a savings deposit book, or a

letter from an employer. Those who will rely on relatives or friends In the United

States for living expenses customarily submit letters or affidavits of support

from such relatives or friends.

Question lfi. Is there any exchange of Information between INS and State

when patterns of illegal conduct are identified (i.e., large numbers of Indian

students who have been accepted at a particular trade school)?

Answer. Information in answer to this question provided to the Subcommittee

November 9,1973, remains current in all important respects.

Question 43. In a recent issue of a GAO report, there was mention of the

definite lack of cooperation between INS and State in combatting the Illegal

alien problem. Has any action been taken by the State Department to achieve

greater coordination and cooperation with INS as a result of this report?

Answer. Cooperation between INS and State is currently at an all-time high.

Most significant, the Visa Office and INS have now been working together and

sharing expenses for nearly two years In the development of a technically

advanced alien documentation and control system. This joint effort Is aimed'

specifically at achieving improved control over the illegal alien problem. In a

general sense, also, working relations between INS and State are now marked

by good coordination and increasing operational cooperation at the working

level.

Question 44. What efforts, if any, are being made by the Administration

to ensure the passage of H.R. 982 and H.R. 981, in the event of House approval

of the latter bill?

Answer. The Department has for a long time supported enactment of such

legislation and continues to do so. The Department intends to take every

appropriate occasion to make its support known to the Congress and to urge

early consideration of such legislation.

Question >J.5. How many additional consular positions do you anticipate will

be requested In fiscal year 1975?

Answer. An Increase of 20 American and 67 Foreign Service Local positions

were included in the Department's fiscal year 1975 budget request to meet

rising consular workloads at Foreign Service posts. Upon enactment of the

Department's fiscal year 1975 appropriation, the same numbers of new consular

positions were allocated to posts most severely in need of additional personnel

resources.

Question 46. Would you please explain your statement on page 15 that the

quality of consular work cannot be insured merely by providing more consular

officers•Isn't it true that additional personnel would greatly increase the

quality of decision making by consular officers?

Answer. Additional personnel are helpful not only because officers can work

at a less hnrried pace if the workload Is shared, but also because an excess of

consular officers would allow for more flexibility in assignments, including

assignments to training programs and to positions which allow for professional

broadening. The most important factor remains the professional competence

and experience of the officers performing consular work. Work quantity Is of

great Importance for the reasons outlined in 1973, but quality of work cannot

be sacrificed for mere amount. Thus, the Department continues In its efforts

to establish programs and to Implement measures which will enhance even

further the high level of competence of consular officers.

Question 41. Some critics have suggested that the Immigration and Nationality Act Is not admlnistrable. Does this represent the thinking of many Individuals In the Department of State and if so, why has no legislation been

recommended by the Administration to correct this problem?
115

Answer. There Is no question but that the Act is a very complex statute

and that its administration is rendered even more complex by the principles

and requirements of administrative law. For this reason, considerable sophistication, technical expertise and sensitivity are required to ensure that its provisions are administered effectively and humanely with due regard for the interests of the United States generally and the purposes of the Act.

Perhaps the most difficult aspect of the administration of the Act involves

determinations whether an applicant for a nonimmigrant visa is entitled to a

nonimmigrant classification or Is an intending immigrant. Section 101(a) (15)

of the Act which sets forth the nonimmigrant classification defines all such

classifications In terms of the applicant's future intentions. Therefore, the basic

Issue in each such case can be resolved only by an evaluation of the applicant's

Intentions. The officer engaged in this process is confronted with the requirement to make decisions on the basis of his perceptions of the applicant during

an interview and without the aid of objective standards to which he can repair.

There Is thus considerable uncertainty Involved In the process and the officer

who is keenly motivated to do a good job finds it very frustrating that it is very

difficult to provide any objective measurement of the quality of his performance.

Even with effective exchange of Information with the Immigration Service•

"feed-back", as it were•it is very difficult to evaluate whether the alien to

whom he issued a visa who subsequently violated his status actually had a

successfully hidden intent to do so at the time of visa issuance or subsequently

decided to do so after arrival In this country.

It is understandable that many. Including some officers engaged in administering the Act, should consider It to be unadmlnistrable. Nevertheless, while we

recognize the difficulties in doing so, especially in the area of applications for

nonimmigrant visas, we do not consider that the Act cannot be effectively

administered, given adequate personnel of the necessary calibre. What is clear,

on the other hand, is that perfection in the administration of the Act cannot

be attained and that the task of maintaining a high level of effectiveness of

administration requires both high motivation and significant commitment of

resources.

Question 48- As a part of the Government's program to encourage foreign

travel to the United States, it has been stated that "all necessary administrative

steps to facilitate the granting of nonimmigrant visas" should be taken. To meet

this challenge, and the demands caused by the increasing visa workloads, have

nonimmigrant visa procedures become too brief and simple, and thereby contribute to the illegal alien problem?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all Important respects.

Question 49. Immigration officers and consular officers make the same determination regarding an alien's classification and eligibility, although the consular officer is in a much better position to check the aliens qualifications. Yet,

to facilitate the granting of nonimmigrant visas, the consular officers may waive

certain documentation and personal Interview requirements. For example, police

certificates are not required in nonimmigrant visa cases unless there is reason

to believe the applicant has a criminal record. How can this be determined

If the applicant applies for a visitor visa and personal appearance is waived.

Answer. Information in answer to this question provldel to the Subcommittee

November 9. 1973, remains current in all important respects.

Question 50. What Is an applicant required to submit with his nonimmigrant

visa application?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all Important respects.

Question 51. The Interview is said to he the most important single aspect of

the nonimmigrant procedure. One of a number of things to be determined during

the course of the interview is whether or not the alien is a bona fide nonimmigrant. Yet, the personal appearance of an applicant for a visitor visa may

be waived by the consular officer. In what other cases will a personal Interview be waived and how does an officer determine whether the alien is a bona

fide nonimmigrant?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 52. Are there any statistics which indicate the frequency of the

waiver of a personal appearance by the applicant? If not, could an estimate

be made?
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Answer. Information in answer to this question provided to the Subcommittee November 9, 1973, remains current in all important respects.

Question 53. We understand that visas are issued prior to nonimmigrant

clearance and local check practices, i.e., on a post-check basis. Could you explain the meaning of nonimmigrant clearance and local check practices and to

what extent are visas issued on a post-check basis?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 54- We understand that post organization arrangements are to allow

typists and officers not ordinarily engaged in nonimmigrant visa duties to be

shifted to such work during rush periods. Is this a normal practice that is

followed at most posts? What is the scope of their responsibilities and do these

work assignments require any specialized training?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 55. Regarding the consular packages for fiscal year 1974 and 1975,

have the posts considered the impact of using these officers and typists during

the rush periods? In otlier words, are the man days contributed by these temporary personnel during rush periods shown in relation to the number of

consular personnel and case workloads?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all important respects.

Question 56. Posts were required to determine the effect of the Lewis-Mota

case on manpower requirements when they submitted their consular packages

for fiscal year 1974 and 1975. What will be the effect on manpower requirements

for these years ?

Answer. Information in answer to this question provided to the Subcommittee

November 9, 1973, remains current in all Important respects.

Question 57. In April 1971, GAO issued a report on the financial administration and the revision of fees in the consular services program. GAO recommended that the Secretary of State should•"revise immigrant visa and other

consular fees on a basis that is responsive to Public Law 90-609 and in consonance with public policy that services provided to or for any person should

be self-sustaining to the fullest extent possible, promulgate definitive policy and

criteria for establishing consular fees, and develop an accounting system and

related procedures for periodically determining the cost of providing consular

services."

What has the Secretary of State done in response to these recommendations?

Answer. The Department has develoi>ed unit costs for providing each of more

than 65 different consular services. In developing the cost study consular operations were reviewed at 16 Foreign Service posts which together process approximately one-third of the worldwide consular workload. A proposed new Tariff

of Fees is now being coordinated in the Department.

The Department's study shows that, from fee receipts, we are recovering full

costs for passports issued both domestically and at Foreign Service posts. Costs

abroad, however, are generally higher per unit of service because of administrative support costs entailed in maintaining Foreign Service posts and staffs.

From the study, it was determined that costs involved In the issuance of

immigrant visas are considerably greater than the fees presently being charged.

To recover costs, our findings show that immigrant visa fees should be more

than doubled. Also being proposed is a revision in the method used for the

collection of immigrant visa fees. Presently we collect $5 for the application

phase and $20 when the immigrant visa is issued. However, it was found that

the major portion of the cost for approximately four-fifths of the total cost)

Is involved in the furnishing and verification of the application for an Immigrant

visa. It is now intended that the larger fee be collected at the time the application is made and the second.or smaller fee, when the immigrant visa is issued.

Further we find that, on a cost basis, the immigrant visa fee should be greater

for adults than for children who are age 16 or under at the time the application is made. Our assessment indicates that the application fee for children

should be one-half of that charged for adults.

The policy of reciprocity in issuing nonimmigrant visas was established by

the Congress in Section 281 of the Immigration and Nationality Act as amended.

Consequently, these services are performed largely without charging fees to

cover costs. However, the Department's policy and criteria for setting fees will

recognize: (a) that these services provide public benefits in the form of increased foreign trade, tourism and cultural exchange and (b) that the value
117

of these benefits to the United States far exceed the cost of providing nonimmigrant visa services. (Fiscal year 1975, NIV fee receipts were $800,000 and

NIV services cost $14,110,542.)

The cost study has been updated and adjusted to reflect fiscal year 1975 unit

cost for each of the tariff items. The Department's consular fees collected and

deposited in the U.S. Treasury during fiscal year 1975 amounted to $35,938,043.

We Intend to implement the revised consular fee tariff not later than January

1976. Fee revisions will result in an additional deposit of approximately

$15,000,000 each year. We would expect to complete final internal coordination

and publish a revised Tariff of Fees by the end of 1975.

A. ORGANIZATIONAL

Recommendation 1.•In consultation with the Deputy Under-Secretary for

Management (M), the Administrator of the Bureau of Security and Consular

Affairs should reestablish the office of the executive director (SCA/BX), transferring from the Passport Office (PPT) such positions now engaged in personnel,

budget and fiscal, and statistical activities, as are required to form an adequate

bureau management staff.

The concept of a "Bureau of Consular Affairs" with overall responsibility for

passport, citizenship, visa and special consular services in the U.S. and abroad

is sound: (1) it conforms to the directives contained in the Act of 1952, (2)

it encourages the consolidation of responsibility and means at the appropriate

level in the Department, and (3) it facilitates the uniform application of laws

and regulations. The resources are available. What is needed is a reorganization

of the present Bureau of Security and Consular Affairs to provide the Administrator with an adequate management staff and appropriate controls over the

Bureau's operations.

Budgetary and statistical functions and personnel should be centralized as

in other bureaus. A unified bureau budget effort would strengthen resource

management and enhance the presentation of consular budgets in OMB and on

the Hill. In addition, the consolidation of budgetary and statistical functions

in one office should make it possible to save positions now engaged in duplicative work.

The need for additional staff in the SCA budget operation has become increasingly apparent since the institution two years ago of the "Consular Package".

This functional approach to resource analysis offers many advantages as a

management tool, but its potential cannot be fully realized without an adequate

staff responsive to top management.

The budget, fiscal and statistical functions in the administrative division of

the Passport Office should be transferred to the SCA executive director together

with required personnel. Sufficient fiscal personnel should remain In the Passport Office to handle fee collections and to perform required accounting.

Recommendation 2.•In consultation with M. the Administrator should transfer some legal elements from the Visa Office (VO) and PPT to form a consolidated legal staff in the front office (SOA/LS).

Some legal functions now performed in the Visa Office and the Passport Office

should be transferred to the Administrator's Office, together with the personnel

involved, to form a bureau legal staff. This group would provide top-level review

of key cases, assure the drafting and publication of key regulations, and prepare the necessary documentation for amendment or recislon of obsolete legislation. In addition, the consolidation of these legal functions should make It

possible to eliminate several positions.

Recommendation S.•In consultation with M, the Administrator should create

a bureau research and development staff in the front office (SCA/RD) consisting

of five members, three of whom should have experience In management nnd/or

computer technology.

A research and development staff should be established in the Administrator's

Office. The purpose of this organization will be to develop a unified technological

program for the entire consular affairs program. The establishment of such

a staff is essential to ensure that the consular affairs program does not fall

behind in its use of available technology.

In 1966 the Reanlac Task Force recommended the establishment of such a

function in the Passport Office. There are currently two officers in that organization engaged in this activity. The need, however, is Burean-wide. The Inspectors propose a staff of five persons, three of whom would have backgrounds

in management and/or computer technology. It will be the responsibility of this
unit to provide procedural and technological guidance to all elements of the

Bureau.

Recommendation 4.•M should transfer at least two of the 12-member Personnel Branch of PPT (PT/AP) to the Employment Division of the Office of

Personnel (PER/REM/EMP) to help the recruitment program.

Greater use should be made of centralized administrative support facilities

available in the Department, such as personnel services. With a 12-member

personnel unit, PPT appears to be more than adequately staffed to support

the Washington headquarters and the field agencies. (As a comparison, the

office responsible for approximately 5,000 Civil Service employees of the Department consists of only 10 persons.) Considering PPT's heavy dependence on

seasonal hire, some of its present personnel positions would probably be better

utilized if transferred to the Employment Division (PER/REM/EMP) to assist

in recruitment activities.

Recommendation 5.•M should transfer activities relating to domestic fraud

Investigation and prosecution entirely to SY, together with required personnel.

Personnel of the Legal Division of the Passport Office are increasingly engaged in work relating to fraud. The Legal Division estimates that currently

about 50% of the time of its 41-member staff is devoted to this activity. While

fraud prevention is a recognized concern of this division, responsibility for

investigation and for preparing cases for presentation to the Department of

Justice properly belongs to A/SY. Therefore, cases of suspected fraud should

be turned over to SY for investigation, development and submission to the

Department of Justice. Personnel in the Passport Office who are now engaged in

post-detection fraud activity should be considered for transfer to SY to assist in

assignment elsewhere. SY estimates that it would need five legal officers plus

supporting staff (not more than a total of 10 to perform this function.

Recommendation 6.•The Administrator should consult the Assistant Secretary for Administration (A) regarding space for a consolidated Bureau of

Consular Affairs.

For some time PPT has been looking for better and more favorably situated

space for its Washington operations. It has considered the idea of separating

the Washington Passport Agency from the headquarters office. Such a move

would enable PT to maintain a centrally located agency as a service to the

public without needing to house the headquarters and the extensive passport

files on the same expensive premises. At the same time it would enable the

Department to recruit personnel for service in the Washington Passport Agency

without the need for a full field security investigation, now required because

of the co-location of the agency and the Passport Office headquarters.

In terms of managerial effectiveness, It would undoubtedly be best to gather

all elements of the Bureau•the Administrator's Office, PPT (minus the Washington Passport Agency), VO and SCA•under one roof. Ideally, they should

all be housed in the State Department building. If this appears unlikely in the

foreseeable future, serious consideration should be given to locating the amalgamated Bureau elsewhere (preferably near the State Department) so that

administration of the consular affairs program can benefit from the co-location

of the responsible offices.

B. TECHNICAL

Recommendation 7.•In anticipation of a continued expansion of travel, SCA

should strive on a priority basis for Improvements In the production of the nonimmigrant visa and the passport through modern technology.

SCA should strive for further improvements on a priority basis in the two

mass-produced consular documents: the non-immigrant visa and the passport.

The order of magnitude of demand for each of these documents is about three

million per year. Under current procedures, they are hand-crafted at great

expense. Both VO and PPT have studied the problems Involved and, in the case

of PPT, moved toward designing an improved substitute for present production

methods. These commendable initiatives at office level should be reinforced by

Departmental support and the necessary funding secured to bring them to

fruitlon. This program should receive top priority.

Recommendation 8.•In collaboration with A, SCA should provide on a

priority basis for the further extension of on-line computer lookout facilities at

Foreign Service posts.

A major gain in efficiency was achieved several years ago as posts began

to be connected with the automated visa outlook operation. Additional posts

should be added to this system in advance of the expanded travel anticipated

for the Bicentennial. One possibility (which is discussed in detail In Appendix B),
119

would be to use the services of the present teletype network which serves airlines worldwide. Within the United States, on-line capabilities should be provided to all passport agencies outside Washington.

Recommendation 9.•In collaboration with A, SCA should develop Bureau

filing and records systems providing automated access to visa and passport data

and mechanization of the immigrant visa control system.

SCA, in collaboration with A, should revise filing methods within the Bureau

to provide automated access to major visa and passport collections, and should

mechanize the immigrant visa control system. Both VO and PPT have been

studying ways to regain control of their massive files, but have not received

the necessary funds to get the job done. Meanwhile, unnecessary costs continue

to mount. PPT, for example, has an entire floor of prime office space at 1415 K

Street filled with file cabinets which contain less than two years' worth of recent

passport applications.

C. PROCEDURAL

Recommendation 10.•The Administrator should institute joint staff meetings

attended by the leadership of the Bureau and heads of all three offices, meeting

initially at least once weekly.

SCA should institute joint staff meetings attended by the leadership of the

Bureau and heads of all three offices. Initially, the frequency should be at least

once weekly. Experts from within the organization or from outside could be

invited to attend for discussion of sharply-focused issues.

Recommendation 11.•SCA should continue the development of the "Consular

Package" as a functional budget and management tool.

The "Consular Package" lias given SCA an opportunity to make a significant

contribution to the development of the consular affairs side of the Departmental

budget. Currently, this is being done only with regard to the budget year (i.e.,

the Fscal Year following the current one) and there is limited input from

consular officers abroad. Thus, while the "Consular Package" has enhanced

the Department's presentation in hearings before OiiB, it has not as yet

evolved into a forward planning management tool.

The inspectors applaud the Bureau's encouragement to consular officers,

in the latest "Consular Package" call, to submit estimates of funds requirements

as well as workload statistics, which are related to personnel needs. This could

be broadened in the direction of a functional consular budget, with initial

estimates submitted at the time of the flash budget estimates so as to give

sufficient lead time for long range planning and provision made for a centralized

procurement and storage program for special consular equipment used at consular posts.

Recommendation 12.•SCA should identify those statistics which it needs for

budgetary, personnel and general directive purposes, and concentrate its collection efforts on these, imposing minimal statistical requirements on post abroad

with limited consular workloads.

At the urging of the General Accounting Office (GAO), a survey of consular

fees charged abroad is being carried out by SCA, with ther esults not available

in time for analysis in the inspection. It is apparent that two objectives conflict : one of making the users of specific services bear the specific costs, and one

of minimizing paperwork and clutter in performing consular services abroad.

Only in a minority of posts are as many as two man-years of American work

expended on consular activities, yet all posts have to assess and account for

consular fees. One might recognize that the passport fee presently charged is

higher than direct cost, and acknowledge that part of the difference represents

a prepayment of possible charges for consular services. On this basis consideration could be given to eliminating some non-passport fees presently charged

Americans abroad.

SCA should identify those statistics which it needs for budgetary, personnel

and general directives purposes, and concentrate its collection efforts on these.

Posts abroad with limited consular workloads should have minimal statistical

requirements imposed on them.

Recommendation 13.•SCA should devise new systems for handling routine

waiver requests for communist visitors, including direct communication between

requesting posts and INS, with information copies to SCA (VO).

The present system for handling routine waiver requests for communist

visitors should be revised to permit direct communication between requesting

posts and INS, with information copies to SCA (VO). The period of detente

may serve to further expand the volume of these requests, currently running
120

over 1,000 per month. Under present procedures VO is an unnecessary extra loop

ii> the decision circuit, creating added expense and delay.

Recommendation 14.•SCA and H should devise methods for more expeditious

handling of Congressional correspondence dealing with policy questions; case

correspondence with Congressional offices should be completed and signed within

the office having direct competence (the Passport Office, the Visa Office, or the

Office of Special Consular Services), with only cases of special concern to the

Department signed at Bureau level.

More expeditious handling of Congressional correspondence dealing with policy

(as contrasted with case correspondence) is required. Case correspondence with

Congressional offices should be completed and signed within the office having

direct competence (the Passport Office, the Visa Office, or the Office of Special

Consular Services), with only cases of special concern to the Department signed

at Bureau level.

Congressional telephonic requests at present are handled expeditiously by

offices having direct technical competence. Mall procedures, in contrast, are indirect, with delays almost guaranteed by complicated clearance procedures which

usually involve both SCA and H. Because of the enormous volume of case work

hiindli'd by the operating offices, they should be authorized to complete, sign

and forward Congressional correspondence on routine cases, the great bulk of

the Bureau's mall.

Recommendation 15.•SCA, in collaboration with PER, FSI and the Regional

Bureaus (as appropriate), should upgrade the training of personnel dealing

with consular affairs by: (1) bringing junior officers into direct contact with

major U.S. client groups; (2) providing higher level officers with management

training; (3) putting consular conference programs abroad on a more definite

schedule; and (4) providing additional training assistance to non-Departmental

personnel accepting passport applications.

Within the bureau and Its offices, on-the-job training is handled well. Consular

conferences abroad could be enhanced by combining them with one or two-day

workshops on specific consular problems (e.g., illegal Immigration problems In

the Caribbean) and having these attended by those directly concerned. PPT has

the problem of helping train passport application acceptors who do not work

for the Department; In this connection It has been trying for some time to have

a training film made which would be an adjunct to present written training

material.

Departmental training facilities for personnel performing consular work are

somewhat limited. FSI used to provide field orientation in New York for junior

consular officers, which Included visits to shipping companies, seamen's unions,

INS operations at an airport, etc. These key constituents, now neglected (apparently for budgetary reasons), represent a public relations problem which

should lie faced. FSI has instituted a senior consular training course which has

met with good initial results. The continued lack of access to management training for higher level consular officers and civil service personnel limits their

promotion possibilities, with resultant effects on morale.

Recommendation 16.•SCA, in collaboration with L, should update Volumes

7, 8 and 9 of the FAM and Identify obsolete legislation for amendment or repeal

by the Congress.

Steps should be taken to update Volumes 7, 8 and 9 of the FAM. Obsolete

legislation should be identified and amendment or repeal sought from the

Congress.

In the flash estimates for fiscal year 1976, VO asked for a temporary employee

to help bring the visa manual up-to-date. Delay is unwarranted. The need Is

urgent and the legal resources In SCA are more than adequate.

Recommendation 17.•The Legal Adviser should make arrangements to change

the name of the Bureau of Security and Consular Affairs to "Bureau of Consular Affairs."

Arrangements should be made to change the name of the Bureau of Security

and Consular Affairs to "Bureau of Consular Affairs". Since the removal of the

Office of Security from SCA in 1966 the word "Security" in the Bureau's title

hns been meaningless. The Bureau's only interest in security now has to do

with the detection of fraud In connection with applications for visas and passports. Sections 104 (b) and (d) of the Immigration and Nationality Act of 1952

will require amendment.
121

DECEMBER 22, 197.".

Mr. LAWRENCE S. EAGLEBURGER,

Deputy Undersecretary of State for Management,

Department of State, Washington, D.C.

DEAR MR. EAOLF.BCROER : This is to express my sincere appreciation for your

recent appearance before my Subcommittee on Immigration. Citizenship, and

International Law; and I am certain that your testimony will greatly assist us

in the conduct of our oversight hearings regarding the Administration of the

Immigration and Nationality Act.

As I indicated to you during the hearings, it was my intention to submit additional prepared questions to you concerning the consular function of the Department of State.

I am therefore enclosing a series of questions; and I would certainly appreciate

a prompt response to this request.

In addition, I am hopeful that we will be able to schedule you for another appearance before the Subcommittee at some future time.

Sincerely,

JOSHUA EILBEBO. Chairman.

DEPUTY UNDER SECRETARY OF STATE FOR MANAGEMENT,

Washington, D.C, February 12, 197G.

Hon. JOSHUA ETLBERG.

Chairman, Subcommittee on Immigration, Citizenship, and International Law,

Committc on the Judiciarp, House of llcprcscntatices.

DEAR MR. CHAIRMAN : The enclosed material is forwarded to you as requested

in your letter of December 29,197!>.

As I indicated during the hearings December 10, 1975. I or any other officials

of the Department of State who can be helpful to you in carrying out your oversight responsibilities will be glad to appear before your Subcommittee at some

future time.

Sincerely,

LAWRENCE S. EAGLEBURGER.

Enclosures: Questions and answers.

OUT-OF-CONE ROTATION-TRAINING

Question 1. Could explain in more detail how "out of cone" assignments for

cousnlnr officers have contributed to their overall marketability and to what

extent does it enhance their promotional opportunities? Do consular assignments

for nonconsular foreign service officers improve their career opportunities?

Shouldn't the Department place more emphasis on the importance of consular

assignments with respect to developing a broad background nnd enhancing the

promotional opportunities of all foreign service officers?

Answer. Out-of-corip assignments are usually highly advantageous to officers.

Such assignments provide the individual with a broader range of experience and

with a broader perspective on the nature of Foreign Service work. This in turn

has implications for future assignments, especially at the more senior levels, and

for promotions in our highly competitive system.

The actual work experience, in the political, economic or administrative functions, is valuable In itself for the consular officer, both directly and indirectly.

In a direct sense, an awareness of major political and economic trends is ex*

tromoly valuable to the consular expert because these factors may have a direct

relationship to consular work, including visas, passports, and protection and

welfare. For example, depressed economic conditions or changing political circumstances in a foreign country could lead to a sharp increase In visa

applications. *

Indirectly, this typo of assignment broadens an officer and improved his or her

ability to compete for. and ]>erform well In. the more senior management positions. In the Service, for which some familiarity with all aspects of Embassy

operations is desirable.

In the same sense, it is useful for non-consular officers to serve in consular

jobs. Moreover, the system of out-of-cone assignments provides us with flexibility

to meet our urgent needs which is especially important given the seasonal

nature of consular work and the public impact of our performance of that

function.

76-206•78 9
122

A large number of junior officers in other cones are given consular traJjitac

and consular jobs for their first assignment because of the urgent demand to fill

consuC positions at these levels. We plan shortly to provide consular train ng

to all junior officers. In addition, all rotational junior officers are given the

basic consular course and spend six months to a year of their first two-year

assignment in consular work. This consular experience enhances the value of

an officer to the Service, whatever his or her functional specialty. Thus it would

be true to sav that the Department recognizes the importance of consular experience as an integral part of the career development for all Foreign Service officers.

Question 2. As a rule, do non-consular personnel receive special training before

being given either a permanent or temporary consular assignment?

Answer Yes they do. The Foreign Service Institute offers two consular training courses, a basic four-week course given six times a year and a two-week

advanced session usually held in April and May.

Question 3{a). Could you describe the types of training being received by these

consular officers and has the Department examined the specific ways in which

consular skills can be improved through additional training.

Answer. Consular officers are eligible for most of the same types of training

as officers in other cones. Thus consular officers have been enrolled in the Senior

Seminar and In other types of top level, senior training such as the National

War College and the Industrial College of the Armed Forces. Selected consuler

officers in mid-career are assigned to such academic programs as the Maxwell

School at Syracuse, and also to the 20-week Economic/Commercial Studies

Course at the Foreign Service Institute. Of course, consular officers are also

assigned to the Foreign Service Institute for long term language training.

The Department has recently approved a proposal for a new system of training

officers in both basic consular skills and to improve the response to those problems most frequently encountered by consular officers at posts abroad. This new

course will utilize modern training techniques to upgrade the quality and effectiveness of consular training.

Question 8{b). Do consular officers participate to the same extent as other

FSO'8 in language study courses, area training and other special courses like

the Senior Seminar?

Answer. Consular officers are eligible for all training appropriate to their

assignments and their general career development. It is the Department's policy

to assign all FSO's who will occupy a Language Designated Position (LDP)

and who do not have the requisite tested skill at the time of assignment, to the

Foreign Service Institute for language training. Of consular personnel presently

enrolled in long-term language training at the FSI, eleven are studying such hard

languages as Arabic, Chinese, Japanese, Polish and Russian. This policy applies

equally to FSO's in all cones. By the same token, we try to place all officers

in the appropriate area training course for their first tour in a geographic area.

Cone considerations play no role in the area training assignments process.

In academic year 1975-76 we have two senior consular officers with the State

Department group at the National Defense university program and another

senior consular officer at Stanford in the Sloan Fellowship program. Consular

officers also attend the Senior Seminar. There are also two mid-career consular

officers at the Maxwell School at Syracuse. Moreover, a number have participated In the FSI long-term Economic/Commercial Studies Course prior to

assuming an out-of-cone economic/commercial assignment.

Question 4. How is this training different than that offered to the political and

economic officer?

Answer. Except for the specialized training which is essential to the consular

function, the kind of training available to consular officers is the same as that

available to officers in other cones. It is unlikely, of course, that a consular

officer would be selected for training unrelated to the Department's needs, such

ns long-term advanced economic training. However, those consular officers who

have been selected for the 26-week Economic/Commercial Studies Course at the

Foreign Service Institute have received exactly the same training as officers

in the other cones. Similarly, consular officers at the National Defense university

and on other senior training assignments receive the same training as officers

in other cones.

MODIFICATION OF CONES

Question 1. It is my understanding that one of the stated reasons for modifying the cone system was the overemphasis on functional expertise as the basis
123

for promotion. At the same time, the figure, indicate that only 215 FSO'ei last

year were promoted on the basis of function while 301 were promoted ^ general

competition (of the 301 promoted in general competition 1,0 were Political

officers). Don't these figures indicate that there is an underemphasis not an

overemphasis on functional expertise as a basis for promotion?

Answer. Last year the Department's promotion system provided for promotions at the mid-career levels on both a functional and a non-functional basis,

and for "classwlde" promotions at the junior and senior levels.

The figures you have quoted (215 functional and 301 non-functional) are correct However, it should be pointed out that slightly over half of the 301 (100)

non-functional promotions occurred at those levels (junior and senior) where

there was no other method of competition. The remainder (141) occurred at the

mid-career levels where separate functional competition produced the 215 functional promotions. •. . •

A few words are in order regarding the differing purposes of class-wide

and of "functional" competition. Although all Foreign Service officers are required to develop a specific "functional" expertise, successful performance In any

one functional field invariably impinges on the others. For example, an appreciation of U.S. national interests in the host country, and of the local political

environment by which they are affected, is often as essential for a consular

officer as Is a knowledge of our consular obligations to fellow citizens for a

political officer engaged in negotiations with the host government. The interrelation of local economic and political issues is similarly obvious, as is their

combined impact upon the welfare aud interests of resident or visiting U.S.

citizens. Our smaller posts Impose a particular need for cross-functional abilities in order to assure back-up and flll-ln support for all essential tasks. Moreover, principal officer and other senior overseas positions clearly demand a

"Service-wide" orientation, as well as managerial and program direction skills

which cut across functional lines.

Our present approach to promotion competition attempts to respond to this

two-fold need for officers with both general breadth nnd concentrated expertise.

At the junior and senior levels we promote "class-wide" with primary emphasis

upon "breadth". During the mid-career phase we place major emphasis upon

functional needs and abilities, while encouraging occasional "out-of-cone excursions" to bnild the breadth needed later. Officers serving out of their cone are

less competitive than their counterparts In conal competition, aud, therefore, we

also have an "interfunctional" competition for such persons.

Thus, we have approached the problem of serving both these Intermediate level

objectives through a combination of functional and interfunctional promotion

competition at the raid-levels. Typically, we have at classes 4 and 5 annually

allocated intermediate promotion opportunities among the four "functional"

groups and to a group of officers with recent "interfunctional" experience.

The allocation has been tailored to fill immediate needs in each function at

the next grnde and to encourage rather than penalize interfunctional experience.

Thus, the total officers actually promoted from eacli cone has varied from year

to year in accordance with functional needs and the extent to which various individuals In each cone may have recently served effectively outside that cone.

Last year's intermediate competition was somewhat atypical in that the •'interfunctional" element was expanded into a "general competition." by including

in it also those officers who hnd been ranked in the top third of their functional

group but who had not been readied for functional promotion. The facts that

the political cone is the largest, that political functional promotions were relatively few, and that many of the contending political officers had long experience

in class probably combined to nccount for the strong predominance of political

officers among those winning "general competition" promotion last year. As a

consequence, political officers last year received 57 of the 117 class four promotions and 73 of the 154 class five promotions.

This year we reverted to a purely "Interfunctional" competition to supplement "functional" competition in the middle grades and the relative number of

political cone promotions declined relative to consular nnd the other cones.

Question 2. How many consular officers were promoted on the basis of function; on the basis of competition?

Answer. Thirty-five consular promotions were made on an across-the-board

basis and 33 on a functional basis in 1975.

Question .?. In some materials recently submitted to the Subcommittee It was

indicated that many foreign service officers (partly•\nrly Junior consular officers)
124

are "dissatisfied with the cone labels" yet it appears that only one junior officer

has reeoned In the last 2Vi years and that of the 45 foreign service officers who

have reeoned during that period only three left the consular cone.

Answer. Most of the junior consular officers we have talked to oppose a rigid

cone system which would prevent them from receiving out-of-cone assignments,

for reasons indicated in the answer to question 1 of the section above on out-ofcone rotation. These out-of-cone assignments are designed to broaden future

consular officers' experience and to make them competitive for senior positions

in the Foreign Service. Junior officers are normally advised to wait until they

achieve mid-career status and more experience in the Foreign Service before

making a decision about recoiling. Under the new policy, discussed in the section

on recruitment below, the Department will not make connl designations in the

future until an officer passes the middle grade threshold.

The assignment process under the straight cone system would be too inflexible,

both for the officers and the Foreign Service, if out-of-cone assignments were not

possible. If a junior officer in consular or other type of work requests an onward

assignment in a different function for career development reasons, every effort

is made to meet this request, consistent with our relative needs at the officer's

level in his or her cone. Similarly, if there is n Service need to fill a consular or

other type of position, junior officers are assigned to the vacancy after appropriate training. Therefore, there is nothing inconsistent between a situation

where one finds some officer dissatisfaction with the rigidities of the cone system

and a relatively low rate of reconing. The reconciling factor is the out-of-cone

tour, which introduces flexibility, for the officer and the system, by permitting

both specialization in a major function and a broader range of experience.

RECRUITMENT OF CONSULAR OFFICERS

Question 1. It is my understanding that in the future the cone label will not

be assigned to an officer upon entry to the foreign service through the FSO

examination and that there will be no specific recruitment for consular work.

Should consular officers be recruited on the same basis as other officers, and if

so. how will the Department insure that such recruitment efforts will yield a

sufficient number of qualified officers interested in consular work?

Answer. We foresee no problem in attracting highly qualified candidates in all

four major functional areas through our new FSO recruitment examination and

intake program. While we have eliminated formal connl designation at the time

a new officer enters the Foreign Service, we hove not abandoned the concept of

functional needs. Our recruitment, effort is designed to attract individuals with

the mix of qualifications and in the numbers in each function we need and our

examination process is designed to test their functional skills and abilities, as

well as their general background and overall capabilities.

While it does not make sense, from the standpoint of either the officer or the

overall system, to make a firm conal judgment at the beginning of a career•i.e.

before the officer hns had actual job experience and we have had an opportunity

to evaluate his or her performance on the job•it does make sense to continue

to base our intake program on an assessment of our conal needs and how well

individuals appear to be qualified to meet those needs.

Therefore, our recruiting effort, including campus visits by FSO's. among

whom are consular officers, and our literature, continue to give an equal emphasis

to the consular function as to the political, administrative, and economic/commercal cones. Our recruiting brochure states, "the essence of consular work is

providing services to people." This concept of service has had a strong appeal to

many of our candidates in the pnst and we see no reason for this attraction to

diminish.

Likewise, in the examination process we are testing all officers equally for

their ability to perform in the four major functional areas. Moreover, after the

written examination, our eligibility criteria for taking the oral examination include consideration of functional competence. The oral examination process itself

is designed not only to test an individual's general capabilities but also to further

test the candidate's functional skills. As a result of these new entry procedures,

we are confident that the Department will be able to attract sufficient persons of

nil skills to fully meet our functional needs.

EVALTTATtON ANO PROMOTION OP CONSULAR OFFICERS

Question I. In what ways if any does the evaluation of consular officers for

promotion differ from that accorded to political, economic and administrative
125

officers? What importance is attached to the volume of immigrant and nonimmigrant visa applications? Is quantity rather than quality of visa processing

the important consideration?

Answer. Consular officers are considered for promotion in the same way as

officers of other categories. At the junior and senior levels officers are considered

on an across-the-board basis. At the middle levels officers are considered both

functionally, with consular officers competing for promotion with other consular

officers, and interfunctioually, with all officers serving an out-of-cone tour competing for uon-conal promotions. Selection Boards have members that represent

every major functional category, including consular, who can present the views

and speak to what is required of officers at that specialty. Officers are rated on

the basis of their overall performance and, in the case of officers in visa issuing

positions, this will include inter alia the quality of their work and, on occasion,

their productivity.

Question 2. In the material submitted by the Department of State, I note the

number of consular officers both eligible for review and actually reviewed is less

than the number eligible for review or reviewed in other cones. What is the

reason for this? What is the criteria which determines one's eligibility for

review?

Answer. A considerable portion of officers in middle and lower middle ranks

of the consular cone are Foreign Service Staff. The material presented related

to Foreign Service Officers, and did not Include staff officers. It is not surprising,

therefore, that the number of eligible consular FSO's considered was smaller

than the number of FSOs from other cones. The eligibility requirement for officers of all cones at these levels is essentially one year in class.

CAREER OPPORTUNITIES

Question J. In 1973 we were advised that there were some thirty principal

oOiceiships which were consular-designated positions. Have they all been filled?

In other words, how many more consular officers presently serve as Principal

Officers at those posts today than at the time of Dr. Tarr's testimony? What

types of |>ositioi)s are Uiey ? Can you submit for the record a breakdown by FSO

level?

Answer. Constituent posts were flrst designated according to their primary

field of interest in May, 1973. At that time 36 Consulates and Consulates General

were designated as Consular Interest Posts. At that time, the principal officers

at 17 of the posts were consular officers. (Two principal officer positions at these

designated posts. Call and Ciudad Juarez, were temporarily vacant.)

At the present time 35 Consulates and Consulates General are designated as

Consular Interest Posts. Durban and Mexicali have been removed from the

nriginal list and Capetown has been added to it. The total positions held by

consular officers has increased to 21, (including officers at post and those now

assigned who will soon arrive).

The recent breakdown of principal officer positions designated for consular

officers Is as follows: (The asterisk indicates that the incumbent is an officer of

the consular cone: the asterisk in parenthesis indicates the replacement assigned

to the position is of the consular cone.)

Bank of

pOgt: • incumbent

Bilbao

Brisbane

Cali* 0-4

Capetown 0-2

Ciudad Juarez*

Edinburgh (•)

Florence

Frankfurt

Guardalajara* O-l

Guayaquil* 0-2

Halifax* 0-2

Hamilton O-l

Hermosillo O-S

Liverpool* FSSO-1

Maracnibo O

-4

Matamoros (*) 0-8
126

Rank o]

Post: incumbent

Mazatlan* FSSO-2

Merida* 0-3

Monterrey 0-2

Montreal* O-l

Munich <•) _- O-l

Naples O-l

Nice* 0-4

Oporto* O-l

Palermo* 0-2

Ponto Delgada 0-4

St. Johns* 0-3

Salzburg 0-2

Sappoto 0-5

Seville 0-4

Tangier* 0-2

Tijuana* 0-2

Toronto* O-l

Winnipeg* 0-3

Question 2. What is the average FSO level of a Consul General? Can you supply the Subcommittee with a t'>ta! breakdown of the FSO levels of ail Consul*

General ?

Answer. The regulations set the general guidelines for the conferral of the

Consul General designation. Within the general regulations, the Department's

policy has been to reserve the title of Consul General for officers of the rank

of FSO-3 and above. Officers of the proper rank receive the title If they are

assigned to principal officer positions designated at the Class 3, 2 or 1 level at

constituent posts or if they are assigned as Chief of a Consular Section In an

Embassy or Mission at which the position Is designated at the FSO-1 or FSO-2

level. A few FSO-3 Chief of Section positions at larger Embassies are Consul

General positions by tradition. There are 102 positions which now carry the

Consul General designation. Those in the Chief of Section category are located

nt London, Manila, Mexico City. Paris, Rome (FSO-1) : Athens. Bogota. Santo

Domingo, Seoul, and Tokyo (FSO-2) ; and Buenon Aires, Berlin, Madrid, Ottawa

and Tel Aviv (FSO-3). The principal officer positions at constituent posts include

17 FSO-1 positions, 23 FSO-2 positions and 45 FSO-3 positions. Officers assigned to these jobs have the title of Consul General provided their personal

rank is FSO-3 or higher. A few officers assigned at present to Consul General

positions do not hold the title because they do not have the appropriate

personal rank.

The Consul General title remains with the position and not with the Individual

officer: it is bestowed with the assignment and lapses at the time of reassignment There can thus be no greater number of Consuls General than there are

positions at the FSO-3, 2 or 1 level which carry the Consul General title.

Question 3. Is (he idea of a consular-designated position inconsistent with

your proposed modifications of the cone system?

Answer. No. The designation of a position as "consular" is externally

generated from the nature and volume of the workload. The recent modification

of the cone system refers only to officers•not positions•and only to the junior

level. The functional designation of a position at that level will continue to

represent the type of work that the officer assigned to that poltion could expect

to perform. Regardless of our efforts to bring more flexibility into the cone system through the assignments process, there remains a continuing requirement

to correctly identify our needs for particular functional skills at particular grade

levels and the most efficient wny to do this is through position designation.

Question 4- What is the primary reason non-consular officers are reluctant to

accept consular assignments? Is it that they dislike consular work or do thev

feel that such an assignment fails to advance their career objectives? To what

extent does this reduce the quality of consular work?

Answer. Not all officers are reluctant. Some welcome the broadening aspect

of consular work, while others prefer to serve primarily In their functional field.

For those who do not wish the challenge of a consular assignment, there are a

nnmber of reasons for such reluctance, at least at the junior level. Entering

officers whose primary interest lies in the political or economic field may feel
127

that a consular assignment prevents thein from getting a firm start in their

preferred function.

The Department makes strenuous efforts to equip non-consular (as well as

consular) officers with appropriate training before they take up a consular

assignment, to ensure that the quality of work will continue to meet professional

consular standards. For this reason we feel that whatever the view of certain

non-consular about consular work, their performance has generally been satisfactory, even though their main career interests lie elsewhere.

Question 5. Are there currently any career consular officers who have achieved

the position of Ambassador or DCM (Deputy Chief of Mission) ? If not. why?

Answer. There are currently no career consular officers serving as Ambassadors, although the Consul General in Toronto was Ambassador to Paraguay

prior to his present assignment. A consular officer is DCM (now Charge

d'Affaires) in Bangui, Central African Republic.

Question 6*. It is my understanding that in an Embassy each cone has a section

chief, is that so?

Answer. If by "cone" we understand the Subcommittee to mean functional

specialty, the answer is no, not always, although this is usually the case. The

staffing pattern of each mission depends on the externally generated workload

and our needs in ench country. For example, in many of the African countries

the consular workload dues not justify the assignment of a full-time consular

officer or a full time officer in another function. In such cases, the work is performed by an officer in one of the relevant functions who has some background

in the other function. In these cises, no "Political Section" or "Consular Section" as such exists. In most Embassies, however, each function has a separate

section and a chief of section who directs the operation of the section.

Question 7. What generally are the grnde levels of the section chiefs?

Answer. The grade levels of the section chiefs in an Embassy range from FSO-

." to FSO-1, and depend on the size of the section and of the mission as a whole.

Within the Embassy the levels may vary also according to the relative size of the

different functional sections.

Question S. Is the Consul General in most Embassies of the same rank as the

chiefs of the political and economic cones?

Answer. In general, yes, but there are some differences. The Consul General

posit ion in Athens, for instance, is classified at the 0-2 level but the positions of

chief of the economic iind political section arc graded at the 0-1 level. The opixisite is true at other posts. In Kingston, for instance, the Consul General position is designated for an FSO-2 but the economic and political officer jobs are

FSO-1 level.

STATUTORY V8. K ON-STATUTORY ACTIVITIES

Question I. Can you compare for the subcommittee the number of manpower

hours expended by the consular officers on the issuance of visas versus the performance of other consular functions? In other words, how much time Is expended on statutory activities as opposed to the non-statutory functions of consular officers?

Answer. In fiscal year 1075, the total number of officer manhonrs utilized in

performing consular work was as follows:

Number Percent

Immigrant visas -

Nonimmigrant visas

Visa total

Passport and citizenship services

scs

Nonvisa total

Grand total - _ 927,964 100

While 43 percent of the time of American consular officers was spent in nonvisa activities during fiscal year 1975, this should not be construed as time

spent on non-statutory activities. This time was utilized in providing consular

services to American citizens. Most of the services provided our citizens overseas

177,711

352,185

19

38

529,896 57

149,097

248,971

16

27

398,068 43
128

are either specifically required of the Department by law or result from general

legal requirements which other agencies are not able to fulfill abroad. The Department of State has generally eliminated services not statutorily required, such

as mail-drop services for tourists. However, recent trends toward increased accountability of government agencies for services rendered (consumerism) clearly

indicate that the Department of State will not be able to further reduce time

spent in non-visa consular activities but will in fact have to increase the quality,

and possibly the types of services performed for our citizens overseas.

Increasing arrests of U.S. citizens on drug charges, especially in Mexico, and

increasing allegations of mistreatment by those arrested have resulted in the use

of increasing amounts of manpower in this aspect of consular operations. A

recent GAO study criticizes the Department's level of service in cases of national emergencies and makes a number of recommendations Including the active

solicitation of registration by our citizens overseas, which, if adopted by the

Department, will further Increase consular manpower requirements.

NEED FOR INCREASE IN CONSULAR PERSONNEL

Question 1. Do you believe that the increase in consular personnel In recent

years has kept pace adequately with the tremendous increase in the issuance

of nonimmigrant visas?

Answer. Although manpower increases may not have been equal to workload

increases in recent years, the substantial increases in consular personnel since

the inception of the consular package, coupled with technical and management

Improvements, have been generally adequate to handle the Increased workloads.

However, the Department shares the concerns of the Subcommittee that the

sheer volume of nonimmigrant visa applications does not lead to a deterioration

in the quality of adjudication given each application. This concern has led us

to increase our manpower In certain fraud-prone areas of the world both through

appropriated increases justified for this specific purpose as well as through

reprogrammlng positions away from less fraud-prone posts. The Department's

newly established mechanisms for maintaining a better relationship between

priority programs and personnel resource allocations should be most helpful in

ensuring a more rapid and accurate response to emerging consular manpower

requirements at any of the approximately 250 posts providing consular services.

Should it not be possible to meet these requirements through reprogramming.

we will seek such increases in appropriations as many become necessary in order

to maintain the quality of consular service.

Question 2. In view of the fact that no additional consular positions will be

requested in the budget for fiscal year 1977, how does the Department expect to

accommodate the heavy demand for nonimmigrant visas which will ocur next

year as the result of the Bicentennial and the Olympics in Canada?

Answer. The extra measure of nonimmigrant visa demand attributable to the

Bicentennal and the Olympics in Canada was anticipated by the Department In

developing its fiscal year 1066 Consular Package in connection with the fiscal

year 1976 appropriation request subsequently approved by Congress. As a result

of the increase in appropriations for this purpose, in combination with reprogramming efforts within the Department, 39 new American and 44 new Foreign

Service local positions have been authorized in fiscal year 1976 to meet growing

consular workloads. The preponderance of these increased manpower resources

will be utilized in processing nonimmigrant visas: the balance will be utilized in

providing protection and welfare services to Americans in distress abroad. Should

consular workloads continue to increase in fiscal year 1977, and we would expect

that they might, any resulting requirements for increased jiositions will be met

through reprogramming within the Department.

CONSULAR PACKAGE

Question 1. Can you advise the Subcommittee whether, in your opinion, the

'consular package' procedure has been working satisfactorily?

Answer. In our opinion the consular package procedure has been working

satisfactorily. Consular workload factors are reviewed jointly by the bureaus

and SCA on an ongoing basis during the year with a view toward reprogramming.

Each year through the budget process we review thoroughly the past year's

operations in an effort to forecast problem areas and request the necessary positions and funds to meet these needs.

Question 2. How would you evaluate SCA's Input with regard to the preparation of the consular package? In other words, Is it substantial, minimal, etc? To
129

•what extent do SCA budget officials interface with the consular posts, geographic

bureaus, and your office (Office of Management) in preparing this consular

package?

Answer. SCA's Input with regard to the consular package is substantial.

The consular package Is a Joint effort where each year SCA budget officials

work hand in hand with the regional bureaus in evaluating an array of statistical

and other data on each consular post to ascertain future budgetary requirements. The Office of Management becomes involved when the package is submitted for the Departmental budget review. At this time, all means of possible

reprogrammlng and feasibility of the budget request are fully explored by

SCA, regional bureau and Departmental budget officials, resulting in an approved consular package for transmittal to OMB. SCA's role is an important one

is assessing changing consular workloads and manpower needs.

Question S. Is SCA properly structured to prepare or assist in the preparation

of the consular package? In other words, isn't there a need for increased

budgetary personnel in SCA?

Answer. Although SCA appears to be properly structured for its role In the

preparation of the consular package there appears to be a need for increasing

its resources for program analysis. In this regard, three new officer positions

have just been authorized to SCA for the creation of a program analysis/research and development capability. SCA plans to expand its use of the Department's computer service in preparing future consular package submissions.

Taken together, these actions should yield an even more precise and effective

consular budgeting system. The computer was used last year for the first time in

the preparation of the package. Computer usage will be expanded this year

and this plus other projects within SCA may require in-offlce systems expertise.

Question •). What has been the reaction of the geographic bureaus and ambassadors around the world with regard to the consular package concept?

Answer. Consular package submissions from abroad are submitted by airgrams approved at a minimum by the Deputy Chief of Mission and the Counselor

for Administration. In this manner, we are sure that consular requirements

are made known to top mission management. While reactions have not been

uniform, the consular package has been instrumental in bringing about an increased interest in consular operations on the part of higher management.

The reaction of the geographic bureaus has been mixed in that the package

has sometimes been perceived as reducing their control over positions for their

area. However, they have generally cooperated and in most cases welcomed

and been very supportive in the development of an objective basis upon which

to judge the validity of requests from posts for additional consular positions.

Question 5. Would the Department support a move in the direction of full

scale functional budgeting of the consular affairs program? If not, what are

the problems with such an approach ?

Answer. At the present time, the accounting system of the Department does

not provide for capturing costs on a functional basis. The concept of functional

budgeting does have merit, however, it would require additional study before any

definite decision or commitment could be made.

76-206•70 10

REVIEW OF IMMIGRATION PROBLEMS

Immigration Benefits to Illegitimate Children

WEDNESDAY, JULY 28, 1976

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON IMMIGRATION, CITIZENSHIP,

AND INTERNATIONAL LAW

OP THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:20 a.m., in room

2237, Rayburn House Office Building, Hon. Joshua Eilberg [chairman

of the subcommittee] presiding.

Present: Representatives Eilberg, Holtzman, and Fish.

Also present: Garner J. Cline and Arthur P. Endres, Jr., counsel;

Janice A. Zarro, assistant counsel; and Alexander B. Cook, associate

counsel.

Mr. EILBERG. The subcommittee will come to order.

Today's hearing has been called to consider H.R. 10993, a bill which

would allow an illegitimate child to be classified as the child of either

of its natural parents.

I believe it is a primary function of this subcommittee to review on a

continuing basis any problem or apparent inequities that may arise

from time to time in the administration of the Immigration and Nationality Act. In order to further that objective, we have scheduled

this hearing to receive testimony on a bill introduced by a member of

this subcommittee, Congresswoman Holtzman, to equalize the immigration treatment accorded to the natural parents of an illegitimate

child.

[A copy of H.R. 10993 follows:]

(131)
132

Mm CONGKESS

1ST SESSION H. R. 10993

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 4,1975

Ms. HOLTZMAX introduced the following bill: which was referred to the Committee on the Judiciary

A BILL

To amend section 101 (b) of the Immigration and Nationality

Act.

1 Be it enacted by the Senate and House of Representa2 lives of the United States of America in Congress assembled,

3 That section 101 (b) (1) is amended•

4 (1) by striking out clause (C) ;

5 (2) by redesignating clauses (D), (E),and (F)

6 as (C), (D),and (E), respectively; and

7 (3) by striking out tbe semicolon at the end of tlio

8 clause redesignated as (C) by paragraph (2) of this

9

section and by inserting in lieu thereof "or natural

10 father; or".

I

Mr. EILBERG. I am hopeful that the witnesses today from both the

Departments of State and Justice will discuss the various issues associated with this legislation. I am certain that this morning's hearings

will be very productive and will assist us in determining whether
133

changes are needed in the definition of the term child as set forth in

section 101(b) of the Immigration and Nationality Act.

I would like to yield to Ms. Holtzman for any statement she wishes

to make.

Ms. HOLTZMAN. Thank you very much, Mr. Chairman. I want to

thank you for holding these hearings on a bill that I introduced to correct the problems with section 101(b) (1) of the Immigration and Nationality Act. As a result of cases brought to my attention by constituents of mine, I became aware that the present provisions of section

101(b) of the Immigration Act creates a discrimination between

fathers and mothers of illegitimate children.

It seems to me, Mr. Chairman, that the basis of the discrimination is

arbitrary and untenable. As the courts have held in many circumstances, itis no less important for a "child" to be cared for by its parent

when that parent is male rather than female and a father no less than a

mother has a constitutionally protected right to the custody, care, protection, and management of the children he has sired and raised.

I would hope these hearings would shed some light on how we can

bring section 101(b) of the Immigration and Nationality Act into

accord with our constitutional prohibitions against discrimination

based on sex and irrational discrimination against illegitimate as

opposed to legitimate children.

Mr. EILBKRG. Thank you. Our first witness this morning will be the

Honorable Leonard F. Walentynowicz, Administrator of the Bureau

of Security and Consular Affairs, Department of State.

TESTIMONY OP LEONARD F. WALENTYNOWICZ, ADMINISTRATOR,

BUREAU OP SECURITY AND CONSULAR AFFAIRS, DEPARTMENT

OP STATE, ACCOMPANIED BY ROBERT T. HENNEMEYER, DEPUTY

ADMINISTRATOR; AND JULIO J. ARIAS, DIRECTOR, VISA OFFICE,

STATE DEPARTMENT

Mr. WALENTYNOWICZ. I am more than pleased to appear before you

on this bill. I have with me this morning Mr. Robert Hennemeyer. new

Deputy Administrator of the Bureau of Security and Consular Affairs.

Speaking for both of us, we are very happy to be here and present

the Department's views on this bill.

If I may, I would like to read the statement we prepared in response

to your request.

Mr. Chairman, members of the subcommittee, I am pleased to have

been invited to present the views of the Department on H.R. 10993.

The Department believes the objective of the bill, which is to provide

immigration benefits to and through the illegitimate child by reason

of its relationship to its natural father, is sound.

The Department is aware that courts in recent years have conferred benefits of other types through such a relationship. There appears to be no compelling reason why immigration benefits should be

deprived through the relationship of an illegitimate child to its

natural mother but notthrough its natural father.

The Department does recognize that some basis has existed for not

permitting immigration benefits to flow between an illegitimate child

and its natural father. All of the derivative immigration benefits pro-
134

vided by the existing clauses of section 101(b) (1) of the act contemplate the existence of a family unity.

Along with the legitimate child there is included within the meaning of the term "child" subject to certain qualifying conditions, the

stepchild, the legitimatized child and the adopted child, as well as the

illegitimate child when the benefits derive by reason of its relationship

to its natural mother.

All of these classifications contemplate the existence of a family

unity between the child and the parent by or through whom or on

whose behalf a status, privilege, or benefit is sought.

The bill would include new beneficiaries within the meaning of the

term "child" by adding to the existing classifications an illegitimate

child bv virtue of its relationship to its natural father; a relationship

which does not necessarily contemplate the existence of a family unity.

To state the situation differently, a parent normally maintains a

family unity with a natural child that is bom in wedlock as would a

parent with a stepchild or an adopted child.

However, in the case of a child born out of wedlock, a family unity

is normally maintained between the child and its natural mother but

not necessarily between the child and its natural father.

Experience" would indeed indicate that, there is frequently no unity

of family between the illegitimate child and its natural father. In

these situations where there is no family unity, the separation of the

child from its natural father would not be violative of the unification

of family principles underlying our immigration laws.

The Department concedes that there is a basis for including within

the meaning of the term "child" for immigration purposes the illegitimate child claiming status through its natural father because there is

a family unity in many of these situations. However, the Department

is fearful that the enactment of H.R. 10993 in its present form will

provide open invitation to fraudulent claims.

For example, an alien lawfully admitted for permanent residence

would be in a position to claim a paternal relationship to any number

of alien children not having a common mother. If these claims were

to be considered to have been proven and were accepted by this country for immigration purposes without any requirement for participation by the appropriate authorities for the alien's own government, we

believe that fraudulent claims for the benefits would be energetically

and persistently pursued.

This would be particularly true in countries of the Western Hemisphere where the establishment of the relationship contemplated by

the bill would provide an automatic statutory exemption from the

labor certification procedures prescribed in section 212(a) (14) of the

act for the child; and after the child's admission to the United States

for lawful permanent residence a similar exemption for the child's

mother; and after her admission as an immigrant a similar exemption

for her spouse and children.

Similar pyramiding results would be possible through the relative

preference categories established for immigration by natives of countries of the Eastern Hemisphere and their dependent areas.

It is the opinion of the Department that the bill should include

some safeguard provisions to protect against the proliferation of

spurious and fradulent claims for its derivative benefits. The Department has not been able to develop a protective mechanism of this type
135

that would meet this requirement, but instead recommends an alternative proposal which it believes will substantially advance the objective

of the bill.

It is our view that clause (c) of section 101(b) (1), which provides

for derivative immigration benefits by and through a legitimatized

child, should be retained and that clause (d) of that section should be

amended to allow for the inclusion within the meaning of the term

"child" an illegitimate child by, through whom, or on whose behalf

a status, privilege, or benefit is sought by virtue of the relationship of

the child to its natural father where that relationship has been established by adjudication of a competent court.

The requirement for adjudication of paternity by a competent court

has the safeguard of requiring an examination of the claimed paternal

relationship under the internal laws of the alien's country of residence

or nationality or possibly under the internal laws of the country of

the child's birth.

An adjudication of paternity by a competent court is normally

accompanied by an imposition of obligations on the father to support

the child, as well as the establishment of visitation privileges.

With this kind of an adjudicative record, the Department believes

that the family unity concepts existing within the categories of persons covered by the other clauses of section 101(b) (1) may logically

be considered to have been satisfied.

This amendment would in the Department's view give meaning to

the acceptable objective of the bill but would substantially reduce the

opportunities for fraudulent claims. The subcommittee may feel that

further safeguards are needed to reduce anticipated fraudulent claims

under this proposed amendment such as reserving to the U.S. Government the ultimate decision as to whether the necessary relationship has

been established thus making the adjudication by the competent court,

while necessary, simply persuasive proof. The subcommittee may also,

in order to promote and reemphasize the value of family life, restrict

the immigration benefits only to the illegitimate child, eliminating any

reciprocal benefits to the natural father unless he has married the

mother or maintained a family relationship. I will be more than happy

to develop any questions along that line in the question-and-answer

session.

The Department believes that its preferred amendment of section

101(b)(1) imposes a reasonable standard of proof for establishing

the relationship of an illegitimate child to its natural father.

The lack of such a standard in existing law for establishing the relationship of an illegitimate child to its natural mother is justified by

the very nature of the event of birth.

. A record of the birth affirming the relationship of the child to its

mother is normally created. Additionally, there are ordinarily persons

having personal knowledge of the birth, such as a doctor or midwife,

who can confirm the existence of the relationship.

Evidence of this type is not as a rule available to establish the paternity of an illegitimate child. Two or more persons can logically

claim paternity of an illegitimate child and a court having jurisdiction

over the persons and documents involved in a paternity controversy

ran best determine the probative value of the evidence relating to that

issue consistent with the local laws and customs governing family

relationships.
136

The retention of clause (c) of section 101(b) (1), coupled with the

amendment of clause (d),, has the collateral advantage of continuing

in effect in the Immigration and Nationality Act the recognition of

the legal principle of legitimation.

It is a principle well-rooted in American jurisprudence and one

which is still favorably regarded by our courts as well as by oursociety.

This concludes my prepared statement and I will be pleased to

answer questions of the chairman and members of the subcommittee.

Mr. EILBERG. Thank you.

Before we begin with questions, I would like to more fully understand what we are looking into. Would you indicate without reference

to sections of the Immigration Act what benefits are presently bestowed by the mother on the illegitimate child ?

Mr. WALENTYNOWICZ. Once the relationship is established, then the

mother, if she happens to be a U.S. citizen, she can confer certain immigration benefits upon that illegitimate child. Conversely, the illegitimate child, once he has established certain benefits, he in turn can

confer certain benefits on the mother.

The fact that this relationship exists between the illegitimate child

and the mother, a natural consequence under the law, there are benefits

conferred upon both parties, is, I believe, the discrimination that

Congressperson or Congresswoman Holtzman was talking about, the

fact that there is no similar benefit or similar arrangement existing

between an illegitimate child and its father.

I think that that is the purpose behind the bill.

Our point is this, that our immigration law has certain basic philosophies behind it. One is family reunification. While we believe that

illegitimate children should have as much benefits from the natural

father and vice versa as with natural mothers•and this is a point

which the bill seeks to address•there are certain other problems

attendant with natural fathers and the determination of that relationship that must be allowed for.

As we pointed out in our statement, the relationship between the

illegitimate child and the natural mother is fairly easy to determine.

Mr. EILBERG. Your statement speaks for itself. You have answered

the question basically. My questioning at this point is very brief.

The Department of State has suggested that immigration benefits

flow through an illegitimate child only in the event the paternity issue

has been adjudicated by the court of competence.

Would you elaborate on this requirement? Don't you think this

requirement is too strict?

Mr. WALENTYNOWICZ. We do not. I will tell you why. The issue

is how do we determine the status or the relationship between the

illegitimate child and the father? As we have indicated, that is a

very difficult thing to do because the issue is very difficult to

substantiate.

If we place the burden on the consular officer, we have to put him

in a position where he has to become an expert in the law of the

country he is working in. He does not have the authority to demand

documents he may need.

He will then be in a position of evaluating evidence. True, it can be

said that imder the present section, INA, the burden is always on the

applicantto prove a certain status.
137

But, it seems to me that under those circumstances, the applicant

•would be continually approaching the consular officer and renewing

his application and coming back with more and more proof.

I think this places a tremendous burden on our consular officers.

It would seem to me the much wiser course is to have the applicant who

wants the benefits of the relationship establish that relationship in

the court and let him pay for it.

Mr. EILBERG. Are there courts in every foreign country which are

charged with responsibility of adjudicating paternity issues?

Mr. WALENTYNOWICZ. We believe that there are, but we are also

flexible in our view with respect to this point. In some countries,

perhaps there are not formal courts. Perhaps there are tribunals

that make adjudication of parentage. We are more than happy to

accept that kind of arrangement.

But we do not think that the burden should be totally placed on the

consular officer.

Mr. ErLBERG. Ms. Holtzman ?

Ms. HOLTZMAN. Thank you very much, Mr. Chairman.

Mr. Walentynowicz, let's start from the beginning. Do you agree

that the present provisions of the immigration law•which basically

prohibit the natural father of the illegitimate child from proving

parentage or in any way demonstrating family unity and in any way

conferring rights on his illegitimate child or the illegitimate child to

the natural father•are these provisions discriminatory ?

Mr. WALENTYNOWICZ. There are certain factual situations where

that could operate in a discriminatory fashion. Take, for example, you

have a father and an illegitimate child

Ms. HOLTZMAN. My question is, a circumstance where there is no

legitimation and you have a situation where you have a natural father

who has supported his illegitimate child for 10 or 15 years and the

natural mother has died.

There is no one to take care of this child. The natural father has no

way under the present immigration laws of saying, "This is my child.

I want my child to come to the United States to live with me.'

This is assuming thatthe natural father is a U.S. citizen. If a mother

were involved in the same circumstance, there would be no problem

in having the child come to the United States.

Mr. WALENTYNOWICZ. There should be some remedial legislation

addressed to that particular situation.

Ms. HOLTZMAN. OK. I would like to go to the question of why you

decide that adjudication of paternity is the appropriate mechanism.

You agree, do you not, Mr. Walentynowicz, that under the present

immigration law, if the natural father should marry another woman

other than the mother and that woman should go to•make an application under the immigration laws, that the stepmother now has rights

under the immigration laws to bring in the illegitimate child which

is not her child and that your recommendations here in no way deal

with that section, is that correct?

Mr. WALENTYNOWICZ. Not the way you phrase it. We say in the case

of the stepmother the law recognizes that because under the norms of

our society, once the woman becomes a stepmother, marries the father,

there is a family relationship established.
138

Ms. HOLTZMAN. Who is the family relationship established with if

the stepmother is not the mother of the child? The immigration lawdoes not require that the stepmother be the natural mother of the

child.

I will give you the example of where the natural father is a U.S.

citizen and an illegitimate child who lives, let's say, in France. The

natural father marries a person, citizen, here in the United States.

She can now apply and your proposal leaves this untouched, as a

stepmother to bring in a child that is unrelated to her. Isn't that

correct ?

Mr. WALENTYNOWICZ. If there is a relationship established.

Ms. HOLTZMAN. Between the father and the child, but not between

the stepmother and the child, isn't that correct? Even if the child has

never lived with that stepmother, she can still apply under the immigration laws

Mr. WALENTYNOWICZ. Yes, to confer benefits on the child. If she can

show that this is a stepchild, yes, she can do that. Correct.

Ms. HOLTZMAN. So what you are saying, then, is that your proposal

would create discrimination between natural fathers who marry and•

a woman not related to the child and natural fathers who did not marry

and say the natural father who did not marry would have to go to the

country where the child is living and go through a paternity proceeding, but that if he married a woman who had no relationship at all to

the child, that that woman could bring this child into the United States

without the father's having to go through a paternity proceeding.

That is the rational, logical conclusion to your argument. I would

like to know how you justify that difference.

Mr. WALENTTNOWICZ. I do not accept your premise. You are saying

that that is what we are doing and I say that is not what we are doing.

Ms. HOLTZMAN. Are vou familiar with the definition of child under

section 101(b)?

Mr. WALENTTNOWICZ. Yes.

Ms. HOLTZMAN. What does it say with respect to stepmothers ?

Mr. WALENTTNOWICZ. A stepchild determined by 101(b) (1), which

subdivision are you talking about?

Ms. HOLTZMAN. 101(b) (1) (b).

Mr. WALENTYNOWICZ. A stepchild whether or not born out of wedlock provided the child has not reached the time of 18 years at the

time of the marriage creating the status of the stepchild?

Is that what you are talking about ?

You still have to establish whether the child is a stepchild.

Ms. HOLTZMAN. HOW do you establish whether the child is a stepchild under the immigration laws ?

All you have to show is that he is the son or the daughter of the

natural father. Is that correct?

Mr. WALENTYNOWICZ. When the woman marries the father, the child

becomes the stepchild and only after the father has established his

relationship with that child.

Ms. HOLTZMAN. What does the present statute say with respect to

how the father establishes the relationship with the child ?

The statute does not say that the father establishes his relationship

with the child through adjudication of paternity. The present statute

does not require the stepfather•the natural father to go through adju-
139

dication of paternity to demonstrate under section 101(b), isn't that

correct ?

Mr. WALENTYNOWICZ. NO, it does not address itself at all.

Ms. HOLTZMAN. So the question I have is how do you justify•and

the law has to make rational distinctions•do you•how do you justify

requiring a natural father who has not remarried or not married to go

through an adjudication of paternity proceeding whereas no such requirement is made of the natural father who marries another woman

and attempts•and she brings the child in through section 101 (b) ?

What is the rational basis for treating fathers who marry and fathers

who don't marry differently ?

Mr. WALENTYNOWICZ. The rational basis is this. First of all, you

have got a situation whether or not a child wants to get his benefits

directly through a father. That is one tvpe of an operative situation.

Another type is a situation where the child wants to get the benefits

through the natural father but also, as you point out, he marries somebody else, say the American citizen so that conceivably•and this is

the point I think you and I differ with•conceivably the child may

end up being the stepchild of the American citizen's wife.

The American citizen's wife before she can confer a benefit on this

child has to still establish the fact that that child is her stepchild.

She will not be able to establish the fact that that child is her stepchild until such time as there is some relationship established between

the child and its father.

Ms. HOLTZMAN. You are just restating what we have already been

through. What I am asking you is how you just impose a separate

and different burden on a natural father who has not married someone and a father who has.

Mr. WALENTYNOWICZ. I do it because of the circumstances surrounding the event•the circumstance surrounding the establishment

of the relationship. When you have a mother, as I have indicated in

my statement, there is a doctor present, a midwife present

Ms. HOLTZMAN. We arc talking about stepmother.

Mr. WALENTYNOWICZ Apparently we are at odds as to what is the

premise.

Ms. HOLTZMAN. Let me state my question again. It seems to me a

very important point. The Congress can only create, constitutionally,

rational distinctions; I would like to know what the rational basis

is for treating a natural father different when he has married a woman

not the mother of the child as opposed to when he has not married ?

Mr. WALENTYNOWICZ. The fact that he married the woman who is

not the mother of the child does not automatically make the woman

the child's stepmother. She still has to establish the relationship.

You seem to assume that as soon as the so-called natural father

marries an American citizen, that automatically she can consider the

child her stepchild. That is not so.

The woman still has to establish the fact that this is the child of her

husband and therefore it becomes her stepchild.

Ms. HOLTZMAN. HOW is it done at the present time? How is paternity established under section 101(b) (1) (b) now?

Mr. ARIAS. I am Julio Arias, director of the Visa Office. Generally,

there are not many cases that come to t\ve attention of the consular
I 140

office of a stepchild relationship being established through the father

as the natural parent. But in those cases where that does occur, generally the practice is that the relationship is established for the purpose of the visa through adjudication of a court or the administrative

authorities. . .. . .

We, do have•we get in those cases a civil document in which the

acknowledgement on the part of the father is made of the paternity

of the child.

Mr. WALEXTYXOWICZ. In summary to your answer we don ttreat it

differently. In other words, we use the experience that we have developed with respect to establishing stepchild•stepmother relationship in terms of what we suggest should be done with respect to an

illegitimate child and the father.

The point that we are at odds at is the fact that when a mother tries

to claim or confer a benefit because of the stepson or stepdaughter

relationship, the relationship between her and that child has to be

established in some legal fashion. For instance, in your example, if

the child of the husband is illegitimate, that husband has to legitimize

the child, which can be done in any number of legal ways, before that

child becomes the stepchild of that wife.

Ms. HOLTZMAX. Mr. Arias, I did not understand. You said generally

speaking, you require adjudication. Are there circumstances in which

you have issued a visa under section 101 (b) (1) (b) where adjudication

of paternity of the court having jurisdiction of the child was not the

basis for the issuance of the visa? _ Mr. ARTAS. It was not necessarily adjudication of the court but of

the administrative authorities also, the civil authorities.

Ms. HOLTZMAX. With the civil authorities, what kind of adjudication do you require ?

Mr. ARIAS. An acknowledgement of paternity by the father.

Ms. HOLTZMAX. In a court proceeding ?

Mr. ARIAS. In a court proceeding or sometimes through administrative authority.

Ms. HOLTZMAX. I don't understand what you mean by through

administrative authorities.

Mr. ARIAS. In France it is done through the civil authorities rather

than through tho court.

Ms. HOLTZMAX. Do you mean you go to a notary's office and say I

am the father of the child and that is a sufficient basis for determination?

Mr. WALEXTYXOWICZ. Itis somewhat similar to that.

Ms. HOLTZMAX-. Adjudication by a court of competent jurisdiction

is not. even a standard you use at this time under section 101(b)

(D(b)?

Mr. ARIAS. That depends on the country.

Ms. HOLTZMAX. But it is not the absolute standard that is required

now.

Mr. ARIAS. Generally the practice is to require an acknowledgement

of paternity.

Ms. HOLTZMAX. An acknowledgement of paternity but not adjudication by a court of paternity ?

Mr. ARIAS. It depends on the country in which we operate.

Ms. HOLTZMAX. Sometimes it is acknowledgement of paternity and

sometimes it is adjudication of paternity.
141

Mr. ARIAS. Yes.

Mr. EILBERO. Mr. Arias, correct me if I am wrong. The first procedure is an application filed with the Immigration Service. Is that

so ? Whatis the nature of that form which is filed!

Mr. ARIAS. That is the petition form. The 130 in which the petitioner files a request for an assignment of a preference status or nonquota status for the beneficiary.

The INS generally requires the civil documents such as for instance

in the case of a stepchild, all the documents to show that the relationship exists in fact, that the child is the child of the natural father in

fact, and that the father has married the woman who becomes the

stepmother.

Mr. EILBERG. So INS would make a decision at that point?

Mr. ARIAS. That is correct.

Mr. EILBERO. Mr. Fish ?

Mr. FISH. Thank you, Mr. Chairman.

As I understand the present law, a natural father of a child born

out of wedlock, may have custody, may support the child, may live

with the child, and do all the things that a single father or widower

would do, but subsequently if he was admitted to the United States,

in view of the fact that he was not married to the child's mother, he

could not confer immediate relative status on the child.

Is that correct ?

Mr. WALENTYNOWICZ. By virtue of that relationship, that is correct.

There may be some other ways which he can confer some immigration

benefits.

Mr. FISH. How?

Mr. WALEXTYNOWICZ. The example Ms. Holtzman raised.

Mr. FISH. Marrying somebody ?

Mr. WALEXTYNOWICZ. Yes.

Mr. FISH. I think that Ms. Holtzman has presented to us a very

meritorious piece of legislation. Apparently there are some difficulties

with it and some recognition by you and the Justice Department. If I

can take this step by step, first of all, I think that the case of a common

law marriage abroad•the issue is immediate relative status for a

child•in the case of a common law marriage, we certainly should look

with favor on giving relative status to the children coining into the

United States.

Adjudication of paternity should fall into this category. Where the

father has actual custody of this child, it seems to me you should look

with favor on granting relative status. Where the father does not have

custody, but has a long record of supporting the child, this should also

apply.

That is my personal feeling, Mr. Chairman, as to the easier areas to

consider. We get to the problem, however, where you have a U.S. citizen or a lawfully admitted adult who petitions thereafter for a child

and under this bill it would be the father, the natural father.

I gather that a problem presented there is that the child that comes

over to the United States under this relative status would then be in a

position to petition for his mother who may be married and have a

family. They would all then come over.

Now how serious a problem is that?

Mr. WALENTYNOWICZ. Well, it is a concern, sir. We don't want to

make this provision unduly difficult. But as the committee well knows,
142

the United States still is the prime source of immigration of the

world. There are great demands of people coming in here. "We are

constantly besieged by problems of fraud.

Mr. FISH. I am not getting into fraud. I am asking you in the case

I have just described of the father bringing in a son, the son would

then be in a position to petition for his mother and her family.

Now how big a problem does that present to us ? It was presented

to us as an obstacle to this legislation.

Mr. WALENTYNOWICZ. "We have not projected the numbers. Conceivably, from my experience, I would think that there would be a

definite upward flow of immigration. Particularly since the potential

immigration would not in some part be subject to the numerical

limitations.

Mr. FISH. YOU think there are that many natural fathers who have

maintained the necessary family unit with their child to cause a real

bulge in immigration petitions ?

Mr. WALENTYNOWICZ. I would refer to Mr. Arias.

Mr. ARIAS. From the Eastern hemisphere, let's remember the child

would have to be an adult before he could petition for his other parent.

From the Western Hemisphere as long as the present provision exists

that a child can confer the benefits on the parents, that would mean

an increase in the number of individuals in the Western Hemisphere

who would profit by that provision. Of course it would not mean an

increase in the overall immigration from the Western Hemisphere

because that is limited by law.

Mr. FISH. So these petitions would fall under the overall ceiling?

Mr. ARIAS. That is correct. Of course, once the child becomes 21 years

old in the Eastern Hemisphere if he has become an American citizen,

he can petition for his parents to obtain immediate relative status.

Mr. FISH. In the Western Hemisphere there would be no increase

but in the Eastern Hemisphere there would be. Can you give me a

guess on the Eastern Hemisphere ?

Mr. ARIAS. There would be an increase depending on the number

of illegitimate children of fathers who when they become 21 years of

age petition for the other parent.

Mr. FISH. You are answering a question with•which I have not

asked yet. I gave you the first facts, the U.S. citizen lawfully admitted adult petitions for his son which is presently not permitted and

would be permitted if this bill became law.

Really, I am asking you do we have a problem ? Is there any ground

to think that there are so many fathers looking after children born out

of wedlock that we are going to have a real bulge in immigration if we

pass this?

Mr. WAI.EXTYXOWTCZ. My own feeling is based on my limited experience. I don't think we are talking about thousands of people. But

on the other hand, to say that we are only talking about a few people

is not accurate either. I think there would be some increase.

Mr. FISH. Having delineated everything down to the question of

fraud, you give one example on pajre 4 of your prepared testimony,

tho example of an alien lawfully admitted would be in a position to

daim parentage, of any number of illegitimate children not having a

common mother.

I can imagine that. T can see the person who has been a sailor all his

life claiming that he had children all over the world. But how real is

this?
143

Mr. WALENTYNOWICZ. I would say quite real. The movement of people in the Virgin Islands area is substantial. I am not trying to pick

on any one particular group of people or any one country, but the fact

of the matter is that the reports I get show that it is not unusual in

certain countries for the male person to be the father of a number of

different illegitimate children through various spouses. It is a real

tiling.

It is not imagination.

Mr. ARIAS. I heard of one ease

Mr. FISH. I will recognize you in just a minute. OK. I grant you in

a different culture this may be a perfectly acceptable thing. What

effect would introducing into this bill the adjudication aspect have?

He goes in and adjudicates the parentage of all the children? The

chief of the village says, yes, I know all his wives and all these are his

children; so what ?

Mr. WALENTYNOWICZ. If in fact it is true, and if we as a country as

a matter of policj' want to confer on them immigration benefits and

confer upon his children immigration benefits and then have the resulting sequential effects, fine. I have no problem if we do this as a

matter of policy.

But my difficulty is not so much that we do it as a matter of policy.

That I reserve to your judgment and also to your judgment the fact

that if you do it for the wives, why not do it for the fathers?

The point we are concerned with is how this is established. Saying

this is a policy is one thing, but carrying out that policy is another

thing. With the problems of fraud we have, we may have many claims

where people will say. Yes, I sired six or seven different children by

six or seven different wives. Now, all of a sudden, we have a real

pyramiding effect and we will be putting the consular officer to the

test of determining whether or not the claim by the individual is so.

Mr. FISH. YOU have testified to that already. I just, want to establish that, the example we are talking about right now is not a good example of fraud.

We are talking about an accepted practice of the culture of a particular community where you don't get married apparently. You just

sire children. That is not a question of fraud.

Mr. WALENTYXOWICZ. Then I have not made myself clear because it

is in part a question of fraud. While it may be that the practice of a

part of the community is to sire many children through many different wives, once it becomes known that this is a way of coming to the

United States, a good many more male members of that society or

country will want to claim that they engage in the practice even

though in fact they may not have engaged in the practice.

Mr. FISH. Why would they want to do that?

Mr. WALENTTXOWTCZ. TO get into the United States and confer the

benefits upon the children and the mother.

Mr. FISH. What interest would they have in these children if they

were not here?

Mr. WAUSNTTTTOWIOZ. This would be their means of coming into the

United States, you see.

Mr. FISH. I think you said that yon could give other examples of

fraud other than the one. in your testimony. Could you give us some?

It seems to me. this is the nub of the issue. What are the dangers here ?

Where is the fraud ? Where is the potential for fraud ?
144

Mr. WALENTYNOWICZ. If you are talking about fraud in the sense

of document fraud, I can imagine some kind of document fraud

involved in this.

For example, if you place the burden entirely upon the consular

officer to determine the status of this relationship, our experience

has been that people will come in with all kinds of fraudulent documents. One example is our problem with labor certifications. People

come in with letters indicating that they have jobs. We have examples

of people getting false affidavits from other people.

That kind of document fraud will become just as prevalent in this

situation once we create an opportunity and the people get to know

that this is their way o,f coming into the United States.

Mr. FISH. One more question. Will you tell us how many cases

of fraud have been discovered or investigated in the last 5 years involving false claims of parenthood?

Mr. ARIAS. We don't keep statistics

Mr. WALENTYNOWICZ. We don't keep statistics on that particular

item. We keep statistics on fraud butitis not thatselective.

Mr. FISH. Thank you, Mr. Chairman.

Mr. EILBERG. Mr. Walentynowicz, you raised the very interesting

proposition that the burden should be upon us, the Congress, to

establish the law, write into the law elements which would prevent

fraud rather than the vehicle of administrative regulations.

How do you arrive at that conclusion ? Why should we have that

responsibility rather than you?

Mr. WALENTYNOWICZ. I think you are raising a good question. The

broad issue is just exactly how particular do you want the law to

be as contrasted with how much authority you want the executive

branch to have in terms of running the law.

I have no difficulty with achieving the end result that I suggested

here by way of regulations. I think it is important that we at least get

an indication from Congress that this type of regulation is the kind

of regulation the Congress would find acceptable.

Many times we issue regulations and we find that congressional

sentiment is not in favor of that regulation. We made the statement

here to set forth our feelings so that you are aware of what our

position is and what our thinking is.

If you would prefer that we come to this end result by regulation

instead of by legislation, I have no big problem with it so long as

you have an idea of what we are thinking.

Mr. EILBERG. I think many people in the country feel that we are

down here making too many laws. Maybe sometime between now

and the near future you might propose draft regulations which we

could take a look at which would help us in this matter.

Would you be willing to do that ?

Mr. WALENTYNOWICZ. Yes.

Mr. EILBERG. In your statement you talk about imposition of a 2-

year resident requirement is one way of meeting the possibility of

fraud. Wouldn't this create impractical difficulties and wouldn't"this

be an unreasonable requirement in some cases ?

Mr. WALENTYNOWICZ. I think perhaps the INS has suggested the 2

years.
145

Mr. EILBERG. We will wait for INS on that. Should there be a different age limitation for qualifying as an illegitimate child than for a

natural child or a step child ?

Mr. WALENTYNOWICZ. TO be candid witli you, Mr. Chairman, I did

not give that any full thought. But my immediate reaction in terms of

dealing with the problem is that I can't see why you would have an

age difference. I think if a child is a child, he is a child. If we treat

one child one way, we should treat the other children the same way.

Mr. EILBERG. Do you see any problem with the number of illegitimate children a father may seek to have admitted to the United States ?

Mr. WALENTYNOWICZ. Yes; I do see a problem.

For example, we have had an incident that Mr. Arias related to mo

that a man in the Dominican Republic has claimed that he sired 103

children through various women. The problem I see is not so much

whether that man was able to do that, but how many other men will

claim to be able to do that? Thatis the difference.

Mr. EILBERG. Mr. Fish ?

Mr. FISH. Thank you, Mr. Chairman.

Mr. Arias, has this lucky fellow from the Dominican Republic expressed any interest in bringing these 103 children to the United

States?

Mr. WALENTYNOWICZ. Not at this point.

Mr. FISH. Why is this cited ?

Mr. WALENTYNOWICZ. Once he knows, then I think his interest will

certainly be awakened.

Mr. EILBERG. We will ask you to prepare some documentation for us

before we attempt further consideration on the bill itself. I think we

ought to answer the rollcall.

We will return and Ms. Holtzman will ask further questions as she is

the primary sponsor of the bill.

[Voting recess.]

Mr. EILBERG. MS. Holtzman ?

Ms. HOLTZMAN. Thank you, Mr. Chairman.

I wondered, Mr. Walentynowicz, if you could at a later moment but

as quickly as possible provide to the subcommittee some information on

the acknowledgement procedure that you presently are using to administer section 101(b) (1) ?

Mr. WALENTYNOWICZ. Dealing with the stepmother, I would be more

than happy. I had an additional thought. In the instance of the stepmother, a family unit is being created. The stepmother has married

the father and there is a family unit.

With respect to the situation we are discussing in many instances

there would be no such family unit. It would be the relationship between the illegitimate child and the father.

Ms. HOLTZMAN. I appreciate the observation but I think it creates

other problems with respect to discrimination between natural fathers

who are not married and natural mothers who are not married and

natural fathers who are married.

But let me also ask you one other question. I wondered if in preparing these proposed regulations that you said you would prepare this

response to your answer to the chairman whether you would consider the possibility of considering standards for determining paternity or eligibility under my proposed bill ?

76-206•76 11
146

For example, could it be pattern of support by the natural father

for his child, some kind of acknowledgement, perhaps before a notary,

perhaps in terms of a name on a birth certificate, perhaps living with

the child as alternative forms or as a combined form of demonstrating

the relationship of the father and child.

Mr. WALENTYNOWICZ. We would be more than happy because one

of the primary thoughts in our minds with respect to this type of legislation is the fact that it should emphasize the need of the family

relationship.

_ T think that that is an important policy underlying our immigration laws.

Mr. EILBERQ. We thank you for appearing here this morning. I think

one of the valuable contributions is your willingness to prepare draft

regulations. I hope they will be done as soon as possible.

It will facilitate the work of this subcommittee.

Mr. WALENTYNOWICZ. We will get at them. There is one other

problem which I think we can resolve by the interaction of the committee and us and that is this: The absence of an indication that the

regulations have committee knowledge and approval, makes it more

difficult to sustain those regulations in any kind of a court test.

One of the favorite arguments by the court with the practicing

lawyer is: "If Congress had wanted it, if would have said it."

Sometimes it is important to provide for that by the interaction that

you propose.

Mr. EIEBERG. We will be happy to. We thank you very much,

gentlemen. (See p. 150.)

Mr. WAT/EXTYXOWTCZ. Thank you, Mr. Chairman.

Mr. EILBERG. Mr. Bernsen. please? We are pleased this morning to

have Mr. Sam Bernsen. General Counsel of the Immigration and

Naturalization Service. Welcome.

TThe prepared statement of Hon. Leonard F. Walentynowicz

follows:]

STATEMENT OF HON. LEONARD F. WALENTYNOWICZ. ADMINISTRATOR, BUREAU OF

SECURITY AND CONSULAR AFFAIRS

Mr. Oba'rmin. members of the subcommittee, I am pleased to havp been invited to present the views of the Department on H.R. 10903. The Department believes the obiective of the bin. which is to prov'd? immigration benefits to mid

through the illegitimate child by reason of its relationship to its natural fafher. Is

snnr.d. The Department is aware that courts in recent years have conferred benefits of other types through such a relationship. There appears to be no eompelline

reason why immigration benefits should be derived through the relationship of

an illegitimate child to its natural mother but not through its natural father.

The Department does recognize that some basis has existed for not permitting

immigration benefits to flow between an illegitimate child and its natural father.

All of the derivative immigration benefits provided by the existing clauses of

section 101 (b) (1) of the Act contemplate the existence of a family unity. Along

with the legitimate child there is included within the meaning of the term "chi'd".

subject to certain Qualifying conditions, the stepchild, the legitimated child and

the adopted child, as well as the illegitimate child when the benefits derive by

reason of its relationship to its natural mother. All of these classifications contemplate the existence of a family unity between the child and the parent by or

through whom or on whose behalf a status, privilege or benefit is sought. The bill

would include new beneficiaries within the meaning of the term "child" by adding

to the existing classifications an illegitimate child by virtue of its relationship to

its natural father: a relationship which does not necessarilv contemplate the existence of a family unity. To state the situation differently, a parent normallv

maintains a family unity with a natural child that is born in wedlock as would

a parent with a step-child or an adopted child. However, in the case of a child
147

born out of wedlock, a family unity is normally maintained between the child and

its natural mother but not necessarily between the child and Its natural father.

Experience would indeed indicate that there is frequently no unity of family between the illegitimate child and its natural father. In these situations where

there is no family unity, the separation of the child from its natural father

would not be violatlve of the unification of family principles underlying our immigration laws.

The Department concedes that there is a basis for including within the meaning of the term "child" for immigration purposes, the illegitimate child claiming

status through its natutnl falher because there is a family unity in many of

these situations, However, the Department Is fearful that the enactment of H.R.

10993 In its present form will provide open invitation to fraudulent claims. For

example, an alien lawfully admitted for permanent residence would be in a

position to claim a paternal relationship to any number of alien illegitimate children not having a common mother. If these claims were to be considered to have

been proven and were accepted by this country for immigration purposes without

any requirement for participation by the appropriate authorities of the alien's

own government, we believe that fraudulent claims for the benefits would be

energetically and persistently pursued. This would be particularly true in countries of the Western Hemisphere where the establishment of the relationship

contemplated by the bill would provide an automatic statutory exemption from

the labor certification procedures prescribed In section 212(a) (14) of the Act

for the "child": and after the child's admission to the United States for lawful

permanent residence a similar exemption for the child's mother; and after her

admission as an immigrant a similar exemption for her spouse and children.

Similar pyramiding results would be possible through the relative preference

categories established for immigration by natives of countries of the Eastern

Hemisphere and their dependent areas.

It Is the opinion of the Department that the bill should include some safeguard provisions to protect against the proliferation of spurious and fraudulent

claims fur its derivative benefits. The Department has not been able to develop

a protective mechanism of this tyi>e that would meet this requirement but instead recommends an alternative proposal which it believes will substantially

advance the objective of the bill. It is the Department's view that clause (C) of

section 101(b)(1), which provides for derivative immigration benefits by and

through a legitimated child, should be retained and that clause (D) of that,

section should be amended to allow for the inclusion within the meaning of the

term "child" an illegitimate child by, through whom, or on whose hehalf a status,

privilege, or benefit is sought by virtue of the relationship of the child to its

natural father where that relationship has been established by adjudication of

a competent court. The requirement for adjudication of paternity by a competent

court has the additional safeguard of requiring an examination of the claimed

paternal relationship under the internal laws of the alien's country of residence

or nationality or possibly under the internal laws of the country of the child's

birth. An adjudieati'n of paternity by a competent court is normally accompanied by an imposition of obligations on the falher to support the child. With

this kind of an adjudieative record the Department believes that the family unity

concepts existing within the categories of persons covered by the other clauses of

section 101(b)(1) may logically be considered to have been satisfied. This

amendment would in the Department's view give meaning to the acceptable

objective of the bill but would substantially reduce the opportunities for fraudulent claims. The Subcommittee may feel that further safeguards are needed to

reduce anticipated fraudulent claims under this proposed amendment.

The Department believes that its preferred amendment of section 101(b) (1)

imposes a reasonable standard of proof for establishing the relationship of an

illegitimate child to its natural father. The lack of such a standard In existing

law for establishing the relationship of an illegitimate child to its natural mother

is justified by the very nature of the event of birth. A record of the birth affirming the relationship of the child to its mother is normally created. Additionally,

there are ordinarily persons having personal knowledge of the birth, such as a

doctor or midwife, who can confirm the existence of the relationship. Evidence

of this type is not as a rule available to establish the paternity of an illegitimate

child. Two or more persons can logically claim paternity of an illegitimate child

and a court having jurisdiction over the persons and documents involved In a

paternity controversy can best determine the probative value of the evident*
148

relating to that issue consistent with the local laws and customs governing family relationships.

The retention of clause (C) of section 101 (b)(1), coupled with the amendment

of clause (D), has the collateral advantage of continuing in effect in the Immigration and Nationality Act the recognition of the legal principle of legitimation.

It is a principle well rooted In American Jurisprudence and one which is still

favorably regarded by our courts.

This concludes my prepared statement and I will be pleased to answer questions of the Chairman and Members of the Subcommittee.

TESTIMONY OF SAM BERNSEN, GENERAL COUNSEL, THE IMMIGRATION AND NATURALIZATION SERVICE; ACCOMPANIED BY PAUL

SCHMIDT, STAFF ATTORNEY, OFFICE OF THE GENERAL COUNSEL

Mr. BERNSEN. I have with me Mr. Paul Schmidt, a staff attorney

in the General Counsel's office. With your permission may I make a

summary of my short statement ?

Mr. ErLBERG. We would like to include your complete statement

in the hearing record.

Mr. BERNSEN. Mr. Chairman and members of the committee, it is a

Sleasure to be here today to present the views of the Department of

ustice on H.R. 10993.

This bill would amend section 101(b) of the Immigration and Nationality Act to allow an illegitimate child to be classified as the child

of either of its natural parents. It should be noted that the proposed

amendment would not change the 101(c) (1) definition of child under

title III of the act, relating to nationality.

Presently under 101(b)(1) (D) of the act. an illegitimate child is

entitled to status, benefits and privileges only by virtue of relationship to its natural mother. An illegitimate child can obtain benefits

from its natural father under 101(b) (1) (C) of the act only if it is

legitimated under the law of its residence or domicile, or under the

law of the father's residence or domicile, before the child reaches the

age of 18 and if the child is in the legal custody of the legitimating

parent or parents at the time of legitimization.

It is also possible for an illegitimate child to qualify as a stepchild

under 101(b)(1)(B), if its father marries a U.S. citizen or lawful

permanent resident before the child reaches the age 18.

It is the administrative view, however, that such stepchild status

can be conferred only if the child, its natural father and stepmother

have resided together as a close family unit.

Prior to 1952 the term child was defined merely in a negative

manner by the Immigration Act of 1924 as not including a child by

adoption unless the adoption took place before January 1.1924. Regulations of the Department of State, however, provided that a U.S.

citizen mother could file a petition for nonquota status for her alien

illegitimate child.

In enacting the 1952 act Congress expressed its intent to maintain

the family unit wherever possible. The 1952 act definition of child

included legitimate children, stepchildren, and legitimated children

as defined in present sections 101(b)(1) (A) and (B) and (C)

respectively.

The constitutionality of precluding illegitimate children from asserting a claim to benefits in behalf of their natural fathers was
149

recently upheld by a three-judge court in the eastern district of New

York.

Basically the court held that the determination of which classes

of aliens should be admitted to the United States is reserved to Congress, and that there is some rational basis for excluding natural

fathers and their illegitimate children from the definitions of parent

and child under the act.

The plaintiffs appealed directly to the Supreme Court which noted

probable jurisdiction on June 7, 1976. The case is scheduled to be

argued in the Supreme Court next term.

The Department is well aware of the increasing judicial concern

for illegitimates.

On the other hand the Department is concerned about the increased

opportunities for fraud and the greater administrative burdens which

would result from passage of this bill. In this respect, I note that

the Supreme Court recently held in a case involving the Social Security Act that subjecting illegitimates to different standards than legitimates may be justified by considerations of administrative convenience

a= long as the standards were not irrational.

The Department believes that any new legislation should contain at

least minimal safeguards to reduce the incidence of fraud. A sufficient

safeguard might take the form of a two-year residency requirement

comparable to that presently contained in 101(b) (1) (E) of the act

related to adoptions, except that where the child is under the age of

2 status would be granted upon a showing of continuous residence

and care of the child since birth.

As mentioned earlier, administrative authorities have found the existence of a close family unit is a relevant consideration in situations

involving illegitimate stepchildren. Moreover, such a requirement

would be entirely consistent with the overall congressional concern

for maintaining bona fide family units.

In light of increased judicial concern over discrimination on the

basis of sex, it is believed that any residency requirement should be

applicable to both fathers and mothers of illegitimates.

In summary the department does not oppose equal treatment of illegitimate children claiming status through their fathers if sufficient

safeguards were added to the bill to reduce the possibility of fraud in

all cases involving illegitimates.

Thank you, Mr. Chairman.

I will be pleased to answer your questions.

Mr. EILBERG. Mr. Bernsen, you stated recently the desirability of

safeguards being placed in the legislation. I know you have been here

all morning and you heard the reaction of the members to testimony

offered by the State Department.

It seems to us it would facilitate a resolution of this issue if the departments involved were to provide their own regulations or their own

internal safeguards making our job that much easier because of the

lateness of this particular session.

Is that possible as far as Immigration is concerned? Can you prepare regulations at an early time ?

Mr. BERNSEX. We will be glad to work on regulations, Mr. Chairman.

Mr. EILBERG. Please prepare draft regulations we might take a look
150

at and use in our consideration of this matter. Is that all right with

you?

Mr. BERNSEN. Yes.

[The following letters were received from the Departments of State

and Justice relating to draft proposed regulations on this subject:]

DEPARTMENT OF STATE.

BUREAU OF SECURITY AND CONSULAR AFFAIRS,

Washington, D.C., September 21,1976.

Hon. JOSHUA EILBERG,

Chairman, Subcommittee on Immigration, Citizenship, and International Law,

Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN : During the Subcommittee's hearings on H.R. 10993, held

on July 2S, 1976, the Department was asked to submit to the SulK-onimittee information on the procedures presently used to document immigrant visa cases

arising under section 101(b)(1)(B) of the Immigration and Nationality Act,

as amended, which depend upon the establishment of the relationship of an

alleged natural father to his illegitimate child.

You will recall that during the hearing concern was expressed as to the possibilities of fraud, the burden that would be placed upon the consular officers

in the field and the Department's present standards and experience in dealing

with somewhat similar situations involving stepmothers. As a result, it was felt

provident to ask our posts abroad to provide information relating to the local

law and procedures available for establishing the relationship of a natural father

to his illegitimate child and the documentary requirements that have been imposed for establishing the relationship as well as the extent to which fraud has

been a factor in the adjudication of these cases in order to be as responsive as

possible, as well as develop an adequate data base upon which to make any regulations and further recommendations.

This accounts for the lapse of time in our submission to you. In addition this

additional information has caused us to reflect further on the merits and impact

of the proposed legislation and we make the following additional comments with

respect thereto.

Of the 111 Embassies that have responded to our request for the above-mentioned information. $7 of them have reported that no stepchild/stepparent relationships of the type in question have been adjudicated within the last year.

Only 16 consular offices reported having adjudicated any significant number of

these cases during the year. Nine consular offices have reported adjudicating 50

or more of these cases. The Embassy at Port-au-Prince, Haiti and the Consulate

General at Tijuana, Mexico have estimated that thev have separately adjudicated

about 1,000 of these cases during the last year. The Embassy at Kingston, Jamaica

has estimated that it adjudicated about 600 such cases last year and six other

consular offices, i.e., Porr-of-Spain. Trinidad: Tegucigalpa, Honduras: Guyaqnil.

Ecuador; Georgetown, Guyana; Santo Domingo, Dominican Republic; and San

Salvador, El Salvador, have given estimates of the number of these cases they

have adjudicated during the year which range from 200 down to 50.

There is a judicial procedure available under local law for establishing a paternal relationship to an illegitimate child in seven of the nine countries concerned.

There are no such procedures available in Trinidad or El Salvador. The judicial

procedures which .ore available differ from country to country. For example,

judicial procedures are available in Jamaica only after an illegitimate child has

attained the age of one year without having been administratively recognized by

his natural father. This is a lengthy process and one not easily concluded. The

judicial procedures in the Dominican Republic provide for the establishment of

paternity regardless of the age of the offspring and it is not unusual for this to

occur thirty years after the child's birth.

All of the nine countries have administrative procedures for the recognition

of the illegitimate child by its natural father. The procedures are very easy to

comply with in most instances because all of the countries in question have a

very high incidence of illegitimate births•knowledgeable sources in Jamaica,

for example, estimate that 80% of the children born in that country are born

out of wedlock. The responsibility for the welfare and rearing of the children

nsnally falls on the grandmother or other female relatives of the mother and in

Jamaica it is reported that about 5% are supported and cared for hv the natural

father. Consular officers In all the jurisdictions require a record of birth which

shows the father's name and which was created nt the time of birth or shortly
151

after the birth. In countries in which the father's name seldom appears on the

original birth record, as is the case in Guyana, consular officers require that

circumstantial evidence be presented which will reasonably establish proof of

paternity. If an early recognition of the child has not been made a matter of

offlciul record by the natural father, where that procedure is available under

local law, the consular officers usually decline to register the derivative claimant

for immigration or have an investigation made in an attempt to verify the

paternal relationship.

Consular officers will accept a judicial determination of the relationship when

there has been no record of birth created which shows the natural father's name

and where their own investigations of the circumstances fail to establish that a

relationship exists between the illegitimate child and the person claiming to be

the father. Court adjudication of the relationship is not required by most consular officers simply because alternative administrative recognition procedures

are normally available to the natural father. These procedures are less cumbersome and time-consuming and are regarded by consular officers as equally

reliable with court determinations in eliminating fraudulent claims to the

paternal relationship.

While the Department favors the objective of sexual equality in the conferring of derivative immigration benefits, such objective must be considered in

light of the other objectives of our immigration law. One such other objective

is the reunification of families. There is ample evidence in legislative history

and in provisions of the Immigration and Nationality Act, such as sections

101(b) (1) (E) and 203(a) (9), that immigration benefits will only be conferred

in order to reunite families and not simply because a biological relationship

exists.

It is true that in some instances, such as section 101(b) (1) (B), the language

of the statute appears to confer benefits once a legal or biological relationship

is established, but we believe that implicit in such language was an assumption

by Congress that such relationship invariably in practice carried with it a

family unity.

On the other hand, it is evident that many legal or biological relationships

have no family unity accompanying them. This is vividly confirmed by our

experience domestically as well as by the reports from abroad. In other words,

the conferring of immigration benefits upon the relationship between an illegitimate child and its mother carries with it the Implicit understanding that this

will promote the unity of that family. Conferring immigration benefits upon the

relationship between an illegitimate child and its father does not carry with it

the implicit understanding that this will promote the unity of the family.

The Department sees insufficient reason why immigration benefits should be

conferred simply because of a biological relationship between an illegitimate

child and its father, particularly since experience has shown us that many

fathers either abandon or show little interest in such child. Nevertheless, the

Department sees no reason why immigration benefits should not he conferred in

the same situation once it is established that the father and child is a family

unit

Accordingly, in drafting the proposed regulations requested by the Subcommittee during the hearings, the Department has been guided by the following

considerations:

(1) The totality of the Information provided by our consular offices serves to

reinforce the Department's belief that the amendment of section 101(b) (J) (D)

in the manner contemplated by H.R. 10993 will provide substantial opportunity

for the perpetration of fraud.

(2) The draft regulations allow for the concept of family unity and would

consequently bar the flow of derivative immigration benefits to a parent who

has never established or has no Intention of establishing a family unity with

the child.

(3) The draft regulations are based on the assumption that section 101(b)

(1) (C) of the Act will not be repealed but that section 101(b) (1) (D) will be

amended to permit inimicrration benefits for an illegitimate child, by, through

whom, or on whose behalf a status, privilege, or benefit is sought by virtue of

the relationship of the child to either of its natural parents, and

(4) While the proposed amendment will place additional burdens upon consular officers we believe that on balance it would be fairer to give a potential

beneficiary more latitude in establishing compliance with our requirements than

restricting him solely to local judicial and administrative determinations.
152

Furthermore, In the interests of consistency and clarity, the Department suggests that the requirements for establishing the natural father/illegitimate child

relationship for the purpose of amended section 101(b)(1)(D) should apply

equally to the natural mother/illegitimate child relationship.

The Department also wishes to call to the Subcommittee's attention that the

standards of proof proposed in the Department's draft regulations are stricter

than those imposed by courts in section 101(b) (1) (B) stepchild cases (Andrade

V Esperdy, 270 F. Supp. 516, S.D.N.Y. 1967). Regardless of how Congress acts

to amend the law, the Report should clearly show that the Department's proposed draft regulations have been favorably received.

If you believe that the Department can provide you with any further information which would be helpful In the Subcommittee's further considerations of

H.R. 10093, please let me know.

Sincerely,

LEONARD F. WALENTTNOWICZ.

Enclosure.

DRA*T REGULATIONS

(a) For the purpose of section 101(b)(1)(B) and (D), status as a natural

parent shall only be accorded upon presentation of documentary evidence which

•establishes to the satisfaction of the consular officer that the asserted parent is

in fact the natural parent of the child In question. Documentation to establish

the relationship may include, but is not limited to any one of, or a combination

thereof, the following: a contemporaneous birth certificate showing the name of

the natural father; a Judicial adjudication of paternity: civil acknowledgment

or recognition of paternity: any other official document stating the father/child

relationship; an affidavit by the natural mother identifying the natural father

and describing the nature and duration of her relationship with him; evidence

of the natural father's support and maintenance of the child; photographs: letters; and affidavits of persons having personal knowledge of the existence of the

father/child relationship.

(b) Provided, that even when a natural parent/child relationship is established, no immigration benefit or status as a natural parent or step parent shall

he accorded In the absence of a finding by the consular officer that a bona fide

family relationship exists or will be created between the natural or step parent

and the child concerned.

(c) For the purpose of ascertaining whether a natural parent/child relationship or a family relationship exists in any case, the consular officer may request

such further documentation and/or proof as may be deemed necessary.

U.S. DEPARTMENT OF JUSTICE,

IMMIGRATION AND NATURALIZATION SERVICE,

Washington, D.C., October 1, 1976.

Hon. JOSHUA EHHKRO.

Chairman, Subcommittee on Immigration, Citizenship, and International Law,

Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN : On July 28, 1976, hearings were conducted by the

Subcommittee on Immigration, Citizenship, and International Law regarding

H.R. 10993, a bill to amend section 101(b) of the Immigration and Nationality

Act to allow an illegitimate child to be classified as the "child" of its natural

father.

At the hearing, the Service was requested to submit to the Subcommittee

proposed regulations that would govern the establishment of paternity in the

event the bill were enacted. Attached is a draft copy of such proposed regulations.

The Service is presently considering whether to publish a Notice of Proposed

Rulemaking for similar regulations dealing with proof of paternity in connection

with applications by a United States citizen or lawful permanent resident

stepmother for her husband's illegitimate children under the rule set forth in

Nation v. Esperdy, 239 F.Supp. 531 (S.D.N.Y. 1965). and, In the New York

District only, under the rule set forth in Andrade v. Esperdy, 270 F.Supp. 516

(S.D.N.Y.) 1967).

Also, in accordance with the Subcommittee's request (transcript p. 43) the

following information obtained through the Department of State is furnished

concerning Canadian immigration law with respect to illegitimate children

and their natural fathers:

Canadian immigration law makes no provision for benefits to flow be-
153

tween illegitimate child and natural father unless child is formally adopted

by father before age 18. Illegitimate children sometimes are admitted to

join putative father but only by special dispensation 'outside the law' to

facilitate eventual adoption in Canada. These cases are treated individually

and no fixed rules of proof of parentage exist.

Sincerely,

L. F. CHAPMAN, Jr.,

Commissioner.

Attachment.

204.25 PROOF OF PATEBNITT OF AN ILLEGITIMATE CHILD

(a) Evidence. Any application for a benefit in behalf of, or through, an

illegitimate child by reason of its relationship to its natural father must be

accompanied by a contemporaneous birth certificate. If a contemporaneous birth

certificate is shown to be unavailable, or if such birth certificate does not

identify the father of the child, the application must be accompanied by alternate proof of paternity which may include, but is not limited to: an affidavit

by the natural mother identifying the natural father and describing the nature

and duration of her relationship with him; a court decree, an administrative

determination, or any other official document listing the relationship; evidence

of residence with the child; evidence of support and maintenance of the child;

photographs; letters; affidavits of persons having personal knowledge of the

existence of the relationship. Submission of the foregoing evidence shall not

preclude the Service from conducting any further inquiry or an investigation

into the claimed relationship, or from requiring the submission of additional

evidence.

(b) Affidavits. Affidavits should set forth (1) the nature of the affiant's

relationship, if any, to the claimants, (2) the basis of the affiant's knowledge,

and (S) a statement of facts the affiant knows regarding the relationship.

Conclusory statements as to the existence of the relationship which do not set

forth the basis and the specific facts known will not be considered acceptable

evidence.

(c) Blood Tests. Blood tests may be required in connection with any application where paternity is in issue.

Mr. EILBERO. What is currently done to determine -whether a man is

a natural father of a child in cases when an illegitimate child seeks to

be qualified as a stepchild ?

Mr BERNSEN. Visa petitions are submitted to the immigration service by the petitioning parent and that parent is required to prove his

relationship to the child. However, -we have a rather strange situation.

Section 101 (b) (1) (B) provides that a step child, even if illegitimate,

shall nevertheless be considered a child if the child was under age 18

•when the marriage creating the status of stepchild occurred.

Because of the language in section 101 a district court in New York

has interpreted the law to mean that the stepchild provision applies

to fathers as well as to mothers of illegitimate children just the other

way around. In other words, where we have a natural father of an

illegitimate child marrying a U.S. citizen woman she can petition for

that child as her stepchild under section 101 if the three of them have

lived together as a family unit. This is the administrative policy based

on a court decision in New York.

Another court in New York went one step further and said that you

don't need to show a family unit because the literal language of section 101(b) (1) (B) does permit a natural mother to petition for her

husband's illegitimate child. Her petition is submitted as the stepmother of that child.
154

We would require that paternity be established in that kind of case.

The father of thatillegitimate child would have to show

Mr. EILBERG. How ?

Mr. BERXSEX. Occasionally a birth certificate names the father. In

most cases that does not appear. In that event we would request affidavits from the mother stating who the father is and how long she

and the natural father lived together, or affidavits from people who

know the facts of the claimed relationship and any other proof that

micht have a bearinp.

Mr. ErLBERO. Mr. Fish ?

Mr. FISH. What other forms of proof? Could you develop that

further?

Mr. BERXSEX. Possiblv school documents naming the father. There

may be letters, money orders, photographs.

Mr. FISH. How about the fact of custody,support ?

Mr. BERXSEX. That would be a factor, yes.

Mr. FISH. Absent custody, how about a record of several years of

mailing support to the mother?

Mr. BERXSEX. That would be considered yes.

Mr. FISH. These are considered factors today by Immigration

Service ?

Mr. BERNSEX. Yes.

Mr. EILBERG. Ms. Holtzman?

Ms. HOLTZMAN. Thank you. Mr. Chairman.

I think the prior questioning has been extremely important because

the bill that I have introduced is designed to accomplish the objective

of the immigration laws which is to reunite families to permit natural

fathers and illegitimate children to live together and to eliminate the

discrimination on the basis of sex that appears under present law.

I share your concern about avoiding fraud. I do agree with the

chairman that the best way•in any case, I believe the best way to deal

with the problem of fraud, possible fraud, is to do it through

regulations.

The Immigration Sendee right now deals with problems of fraud

under marriage laws, under all kinds of relative applications. I certainly don't believe that the Immigration Service is any less capable

of dealing with the problem of fraud with respect to illegitimate children than it is with respect to husbands and wives, for example.

I nm concerned that the 2-year residence requirement is an onerous

requirement and will not serve to reunite families. For example the

father lives in the United States. The child was cared for by the

natural mother to whom the father was not married.

The natural mother died. No onp to take care of the child, no other

relatives in the foreign country. The father continues to sunport the

child. The father's name is on the birth certificate of the child. Yet

this father is now unable to bring this child to stay with him in the

United States.

Yonr proposal would not permit this father in this circumstance to

brinjr his child into this country where you have substantial proof

of not only parenthood but continuous concern, continuous support

over a period of time. So I would suggest Mr. Bemsen, that if you

draft some proposal, some proposed regulations, you develop draft
155

regulations that take into account different criteria from the ones you

have suggested.

I think they are much too restrictive and don't necessarily achieve

the objective we are talking about which is to reunite parents and children when they are in fact parents and children.

I would suggest that standards, for example, such as acknowledgement by the father either through letters or through his name on the

birth certificate or other means, that would be a factor that ought to be

considered in determining fatherhood.

I think also either custody or some demonstration of support over

some period of time ought to be taken into accoimt. You might also

have to take into account situations where, there has not been the possibility of support, where the mother dies quickly and you are talking

about an infant several months old, for example.

But I think that most might be criteria that would protect the interests of the United States against fraud and the same time guaranty

that fathers and their children can be reunited in accordance with the

spirit of our immigration laws.

Mr. BERNSEN. We will take those suggestions into account in trying

to draft regulations.

Mr. EILBERG. Mr. Fish ?

Mr. FISH. Sam, thank you. Thank you, Mr. Chairman. Are you

familiar with the Canadian laws in this field ?

Mr. BERNSEN. NO.

Mr. FISH. I would be interested in knowing how they resolve this.

Mr. BERN-SEX. We would be glad to find out and submit that information for the record.

Mr. FISH. If they don't differentiate, we can benefit from their experience under the law.

Thank you, Mr. Chairman.

Mr. EILBERG. Mr. Bernsen, you are familiar with H.K. 10993. What

would happen if a 101(b) (1) (C) were repealed?

Mr. BERNSEN. This is the provision that allows a legitimated child

to come in. If we repeal that, we close off one remedy which might be

better to leave on the statute books.

Mr. EILBERG. Can you suggest any other safeguards which the subcommittee might consider, especially in view of the fact that fraud is a

distinct possibility in these types of cases ?

Of course we are putting the burden on you at this point but I would

like to explore this with you further.

Mr. BERNSEN. We should explore every possible way that can be

used to exclude the possibility of fraud.

Mr. EILBERG. Should the Attorney General be required to determine

if the natural father will provide suitable care for the illegitimate

child?

Mr. BERNSEN. What is going through my mind in response to your

question is that we do require that in the orphan enses where a petition

is submitted for an orphan child, there must be such a showing. My

initial reaction is that that idea appeals to me.

Mr. EILBERG. You might consider it among your draft regulations.

Mr. BERNSEN. Yes. sir.

Mr. EILBERG. Can any administrative problems be foreseen should

this bill be favorably enacted? Do yon see any problems with the bill
156

assuming that you have regulations that would meet the fraud possibilities and so forth ?

Mr. BERNSEN. I believe that adjudication of these cases would require more time, more evidence. More evidence would be needed along

the lines that have already been suggested. We might have blood tests.

We might have to have investigations in cases that might be doubtful.

Mr. EILBERG. How many illegitimate children would qualify for

immigration as stepchildren ?

Mr. BERNSEN. We don't know. We tried to get an idea of the size of

that situation and we called New York. We are satisfied that at present it is less than 50 cases a year.

Mr. EILBERG. If there is no legitimation, should it be required that it

be established that there was a family unit? Recognizing that our aim

is family unification, should the benefits flow to a child who is not a

part of the family and will never become a part of the natural father ?

Mr. BERNSEN. If we are going to treat children the same way with

respect to fathers as well as mothers, it may not be desirable to requirethatthey are going to have a close family unit.

Mr. ErLBERG. You would not require it?

Mr. BERNSEN. That is my initial reaction to that question, yes.

Mr. EILBERG. Mr. Bernsen, would you consider that further ?

Mr. BERNSEN. Yes.

Mr. EELBERG. Mr. Fish ?

Mr. FISH. On that last point it seems to me that so many of the examples that we have been discussing are examples where you would

not fit neatly under close family unit situations witli the father.

The easiest one is where the mother and the child are in the United

States and the father is not. He had a record of monthly support over

a period of years. The law excludes him. There is one other thing that

concerned me. You seem to indicate that the ability to support the

child would be a burden on the natural father if this indeed becomes

law.

Am I not correct that the immediate relative status that the child

derives from its natural mother coming into the United States, in that

case there is no examination of the mother's ability to support ?

Mr. BERNSEN. That is correct. There is no need to show that thenatural mother will support. It comes up in this way, though. It must

be shown that the child will not be a public charge.

Mr. FISH. That is true for every applicant for immigration visa.

Don't you think if we are making the natural father on a par with this

bill with the mother that will•it will be imposing a double standard

on him and not her to show financial ability to support ?

Mr. BERNSEN. I don't know that I would characterize it as a double

standard. The problem that troubles me most is that we want to do

right without regard to sex. But we have to face the fact that the

possibilities for fraud are there and that we should be cautious in the

case where the illegitimate child is seeking a benefit through the natural father.

Mr. FISH. We have discussed at least a dozen standards by which you

are going to satisfy yourself that this is indeed the natural father. The

only one that concerned me was you seemed to indicate in response to a

question by the chairman that proof of financial support would be

considered.
157

I don't see how it bears on the issue of paternity or, really, the question of potential for fraud.

Mr. BERNSEN. I think then in the illegitimate cases involving fathers we have two problems. One is establishing paternity. Was he the

natural father? Second, we have the family unit situation. Is there

f)ing to be a family unit ? We might have to be concerned about that,

think if we are going to consider these ideas in writing regulations,

we really have to sit down and work on it and try to put all these conflicting ideas together and see what we can come up with and present it

to the subcommittee.

Mr. EILBERG. Ms. Holtzman?

Ms. HOLTZMAN. I think Congressman Fish has raised a very important point. At the same time we are trying to fashion regulations

to deal with the problem of fraud, we don't at the same time want to

put into the statutes discrimination based on sex.

If for example there is a requirement with respect to the natural

mother on the demonstration that the child would not become a public

charge, then obviously at least that requirement should be imposed on

the natural father.

But it may not be constitutional to impose different standards. Similarly with respect to family units, if there is no requirement•I think

your answer was originally there is no such requirement with respect

to the natural mother•then it would seem to me constitutionally questionable as to whether we could impose a different standard on the

natural father.

I would hope that you would take the question of discrimination on

the basis of sex into account when you draft your proposed regulations. I don't think it would be helpful to solve one problem and create

another problem atthe same time.

Mr. BERNSEN. I could not agree with you more. We will have to give

that a great deal of consideration, yes.

Ms. HOLTZMAN. With respect to family unit, we permit•it would

seem to me that if the father and child wished to live together and

wished to conduct a relationship in the United States is not so much a

concern of the Immigration laws as it would be if we prohibit that relationship. I would be concerned about imposing that burden.

Mr. EILBERG. Mr. Endres?

Mr. ENDRES. I have one question, Mr. Chairman, and that goes toward the conversation and whether any different problems would

arise or whether any different standards would be needed to be established where you have a U.S. citizen child over 21 who is filing an

immediate relative position for his natural father.

In these cases, some of the items you referred to were with regard

to support, assistance and perhaps family unit criteria which might

go out the window. Would you need a separate set of standards for

that type situation ?

Mr. BERNSEN. I am not sure. We will have to take that into account

in the study that we make on the regulations.

Mr. ENDRES. Thank you.

That is all, Mr. Chairman.

[The prepared statement of Mr. Sam Bernsen, General Counsel, Immigration and Naturalization Service follows:]
158

STATEMENT OF SAM BERNSEN, GENERAL COUNSEL IMMIGRATION AND

NATURALIZATION SERVICE

Mr. Chairman, members of the Committee, It Is a pleasure to be here today to

present the views of the Department of Justice on H.R. 10993.

This bill would amend section 101(b) of the Immigration and Nationality Act

(8 U.S.C. 1101(b)) to allow an illegitimate child to be classified as the "child"

of either of its natural parents. It should be noted that the proposed amendment

would not change the 1101(c) (1) definition of "child" under Title III of the

Act, relating to nationality.

Presently, under S 101(b) (1) (D) of the Act. an illegitimate child is entitled

to status, "benefits, and privileges only by virtue of relationship to its natural

mother. An illegitimate child can obtain benefits from its natural father under

$ 101(b)(1)(C) of the Act only if it is legitimated under the law of its residence

or domicile, or under the law of the father's residence or domicile, before the

child reaches the age of IS, and if the child is in the legal custody of the legitimating parent or parents at the time of legitimation.

It is also possible for an illegitimate child to qualify as a "stepchild" under

§ 101(b) (1) (B), If its father marries a United States citizen or lawful permanent resident before the child reaches the age of 18. (Xation v. Esperdu, 239 F.

Supp. 531 (S.D.N.T. 1965) ; Andrade v. Esperdu, 270 F. Supp. 516 (S.D.N.Y.

1967)). It Is the administrative view, however, that such stepchild status can be

conferred only if the child, its natural father, and the stepmother have resided

together as a "close family unit." (Matter of Aniado and Monteiro, 13 I&N Dec.

179 (BIA 1969) ; Matter of Soares, 12 I&N Dec. 653 (BIA 1968)).

Prior to 1952, the term "child" was defined merely In a negative manner by

{23(a) of the Immigration Act of 1924 as not including a child by adoption

unless the adoption took place before January 1, 1924. Regulations of the Department of State provided that a United States citizen mother could file a

petition for "nonquota" status for her alien illegitimate child.

In enacting the 1952 Act, Congress expressed Its Intent to maintain the family

unit wherever possible. (H. Rept. No. 1365, pp. 29, 39). The 1952 Act definition

of "child" included legitimate children, stepchildren, and legitimated children

as defined in present sections 101(b) (1) (A), (B), and (C), respectively. However, the Attorney General held that the new definition excluded an illegitimate

child seeking status through its mother. {Matter of A- I&N Dec. 272 (AG 1954)).

In response to this ruling, Congress in 1957 added subsection (D) to 5 101(b) (1),

providing "child" status to an illegitimate through its mother, and amended

subsection (B) to encompass illegitimate stepchildren. (71 Stat. 639: H. Rept.

No. 1199, pp. 7-8)

The constitutionality of precluding Illegitimate children from asserting a

claim to benefits in behalf of their natural fathers was recentlv upheld by a

three judge court in the Eastern District of New York. (Fiallo v. Levi, 406 F.

Supp. 162 (E.D.N.Y. 1975)). Basically, the court held that (1) the determination

of which classes of aliens should be admitted to the United States is reserved to

Congress, and (2) that there Is some rational basis for excluding natural fathers

and their illegitimate children from the definitions of parent and child under

the Act. The plaintiffs appealed directly to the Supreme Court which noted probable jurisdiction on June 7, 1976. The case is scheduled to be argued In the

Supreme Court next term.

The Department is well nware of the increasing judicial concern for illegitimates. (See e.g., Stanley v. Illinois, 405 U.S. 645 (1972); Weber v. Aetna Casualty

d Surety Co., 406 U.S. 164 (1972) j Jimenez v. Weinberger, 417 U.S. 628 (1974))

On the other hand, the Department is concerned about the increased opportunities for fraud and the greater administrative burdens which would result from

passage of this bill. In this respect, I note that the Supreme Court recently held

Ina case involving the Social Security Act that subjecting Illegitimates to different standards than legitimates may be justified by considerations of administrative convenience as long as the standards were not irrational. (Mathews v.

iuf?*-• U.S. 44 L.W. 5139 (June 29,1976)).

The Department believes that any new legislation should contain at least

ni^L^T"?1* t

0

.•*"• the incidence of fraud. A sufficient safeguard

might take the form of a two-year residency requirement comparable to that

7LWt1,n.

ll01b) £! 'E) of th

«'

A

«-

rplatin* «> nations, except that where the child is under the age of two status would be granted upon a
159

showing of continuous residence and care of the child since birth. As mentioned

earlier, administrative authorities have found the existence of a "close family

unit" is a relevant consideration in situations involving illegitimate stepchildren.

Moreover, such a requirement would be entirely consistent with the overall congressional concern for maintaining bona fide family units.

In light of increased judicial concern over discrimination on the basis of

sex, it is believed that any residency requirement should be applicable to

both fathers and mothers of illegitimates. (See Stanley v. Illinois, supra; TVYtnhergcr v. Wiesenfeld, 420 U.S. 636, 652 (1975)). Meeting such a requirement

would impose a new burden on mothers of illegitimate children, but one which

they should have little difficulty satisfying in the vast majority of cases.

The Department predicts that enactment of this bill would result in Increased

expenses for investigations and adjudications by the Immigration and Naturalization Service where fraud is indicated. However, the precise budgetary impact

cannot presently be determined.

In summary, the Department does not oppose equal treatment of illegitimate

children claiming status through their fathers if sufficient safeguards were

added to the bill to reduce the possibility of fraud in all cases involving

illegitimates.

Thank you, Mr. Chairman. I will be pleased to answer your questions.

Mr. EILBERO. There are no further questions. The subcommittee is

adjourned. We thank you, Mr. Bernsen, for appearing here this

morning.

Mr. BERXSEN. Thank you, Mr. Chairman.

[Whereupon, at 12:02 p.m., the subcommittee adjourned subject

to call of the Chair.]

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