DHS OIG, OIG-24-33, Management Alert - CBP Has Limited Information to Assess Interview-Waived Nonimmigrant Visa Holders - (REDACTED) (2024)

LAW ENFORCEMENT SENSITIVE OIG-24-33 June 25, 2024 FINAL MANAGEMENT ALERT Management Alert - CBP Has Limited Information to Assess Interview-Waived Nonimmigrant Visa Holders (REDACTED) WARNING: This document is Law Enforcement Sensitive (LES). Do not distribute or copy this report without the expressed written consent of the Office of Inspector General. LAW ENFORCEMENT SENSITIVE LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security Washington, DC 20528 | www.oig.dhs.gov June 25, 2024 MEMORANDUM FOR: Troy Miller Senior Official Performing the Duties of the Commissioner U.S. Customs and Border Protection FROM: SUBJECT: Glenn Sklar Principal Deputy Inspector General Management Alert - CBP Has Limited Information to Assess Interview-Waived Nonimmigrant Visa Holders - Law Enforcement Sensitive Attached is our final management alert, CBP Has Limited Information to Assess Interview- Waived Nonimmigrant Visa Holders – Law Enforcement Sensitive. This alert informs you of an urgent issue we discovered during an ongoing audit and the actions CBP has taken to address the issue.

Specifically, we found that CBP has limited information on whether nonimmigrant visa holders have been interviewed by Department of State. Your office concurred with the two recommendations in the draft management alert. Based on information in your office’s response to the draft management alert, we consider recommendation 1 open and resolved and recommendation 2 open and unresolved. As appropriate, we incorporated your technical comments.

We have appended your office’s response verbatim to this final management alert. As prescribed by Department of Homeland Security Directive 077-01, Follow-Up and Resolutions for the Office of Inspector General Report Recommendations, within 90 days of the date of this memorandum, please provide our office with a written response that includes, for each recommendation, any update to your concurrence or nonconcurrence and any planned corrective action with a targeted completion date or completed corrective action. Also, please include information on responsible parties and any other supporting documentation necessary to inform us about the current status of the recommendation. Please send your response or closure request to [email protected].

Consistent with our responsibility under the Inspector General Act of 1978, we will provide copies of our alert to congressional committees with oversight and appropriation responsibility over the Department of Homeland Security. We will post a redacted version of the alert on our website for public dissemination. OIG Project No. 24-011-AUD-CBP (a) LAW ENFORCEMENT SENSITIVE LAW ENFORCEMENT SENSITIVE Please contact me with any questions, or your staff may contact Kristen Bernard, Deputy Inspector General for Audits, at (202) 981-6000. Attachment Office of Inspector General U.S. Department of Homeland Security | Washington, DC 20528 | www.oig.dhs.gov LAW ENFORCEMENT SENSITIVE 2 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security Summary of Issues The Department of State (DoS) issues nonimmigrant visas to individuals seeking entry into the United States on a temporary basis for tourism, medical treatment, business, temporary work, study, or other reasons.

In 2020, due to the COVID-19 pandemic, and to address staffing limitations and visa backlogs, Dos and the Department of Homeland Security agreed to expand DoS' authorities to waive requirements to conduct consular interviews and collect fingerprints for some individuals seeking nonimmigrant visas. According to Dos, from calendar years 2020 through 2023, it granted nonimmigrant visas to approximately 7.1 million individuals w ithout conducting in-person consular interviews. Dos also did not collect fingerprints for an unknown number of visas during the same period. In December 2023, Dos and OHS agreed to expand the categories of visas and applicants whose consular interviews could be waived beginning on January 1, 2024.

The fingerprint waiver program ended in December 2023. During our ongoing audit of U.S. Customs and Border Protection's (CBP} Screening of Visa Holders That Received Waivers from Department of State (24-011-AU D-CBP), we found that CBP Office of Field Operations (OFO) port directors at some U.S. ports of entry had not been aware of the interview and fingerprint waiver program. In March 2024, Dos began providing OHS and CBP with information on visa holders who did not receive interviews. CBP OFO alerted the port directors at the ports of entry that the inspection information technology systems now include an individual's record.

However, only CBP officers conducting these records; officers conducting these records. Because consular interviews can be an important mechanism for collecting information from visa applicants to verify identity and determine admissibility before they arrive in the United States, having knowledge of who was waived and who was not could allow CBP officers to make more informed decisions Moreover, having the monitoring and evaluation. have access to at the ports of entry do not have access to would also allow CBP to track trends for effective as part of an Background CBP, one of OHS' 22 components, is one of the world 's largest law enforcement organizations and is charged with protecting the Homeland against illegal entry, illicit activity, or other threats to promote national and economic security. CBP OFO is responsible for verifying identification documents, collecting biometrics, and confirming biographic information of travelers arriving at U.S. ports of entry. CBP officers use these data elements, as well as a traveler's criminal and immigration history, to determine adm issibility into the United States.

Both Dos and OHS have responsibilities for ensuring the security of the American people. DoS' Bureau of Consular Affairs is responsible for screening and vetting foreign nationals who wish to www.oig.dhs.gov 1 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security enter the United States on a temporary basis for tourism, medical treatment, business, temporary work, study, or other reasons before issuing them visas. 1 When app lying for a nonimmigrant visa, applicants must submit biographic (such as name and date of birth) and biometric (such as fingerprints and photographs} data for review by a consular officer. According to the Immigration and Nationality Actof2023(1NA), as amended, nonimmigrant visa applicants aged 14 through 79 generally must be interviewed by a consu lar officer.

2 The Secretary of State may wa ive this requirement fo r travelers in certain visa categories. 3 DoS' processes for reviewing visa applications helps assure CBP that an individual's identity, background, and biographic information have been verified before they arrive in the United States. It is important for CBP to maintain awareness of exceptions to this process, such as who was waived and who was not, so that CBP officers can make informed decisions on admissibility into the United States. CB P's screening process is multi-layered and consists of- and 4 CBP Officers Received Limited Information on whether Non immigrant Visa Holders Had Been Interviewed Dos, in concurrence with OHS, waived in-person interviews for approximately 7.1 million applicants for nonimmigrant visas from FY 2020 through FY 2023.

Dos and OHS also agreed to wa ive fingerprint collection for certain categories of visas during the same period. The temporary expanded authorities to waive in-person interviews and fingerprint collection for certain visa applicants were init ially put in place for unusual or emergent circumstances associated with the COVID-19 pandemic, including protecting critical elements of the food supply chain, and to assist Dos w ith the large volume of visa applications, which outweighed its resources. The most recent temporary authorities, which are reviewed on a yearly basis, expired on December 31, 2023. However, Dos argued that these temporary authorities should be renewed 1 The classes of nonimmigrant visas are generally defined in Section lOl (a)(l S) of the Immigration Nationality Act (INA).

8 United States Code (U.S.C.) §ll0l (a)(lS). 2 8 U.S.C. §1202(h)(l ); INA §222(h); 22 Code of Federal Regulations §41.102. 3 8 U.S.C. §1202(h)( l)(C)(i) authorizes the Secretary of State to waive the in-person interview requirement when such a waiver is in t he national interest. See 22 Code of Federal Regulations §§41.102(b)-(c) for the Secretary of State's aut hority to waive in-person interviews in the national interest.

4 All t ravelers seeki ng to enter t he United States must present themselves and their belongings for inspection at the border. The initial inspection by a CBP officer at the port of entry is called a During t he , a CBP officer may review identity documents such as passports, visas, and/ or driver's licenses and ask general questions about the purpose of the ind ividual's visit. During a CBP offi cer may also review other relevant information about the traveler, including pertinent law enforcement information. If the officer determines that t he traveler warrants additional inspection, the officer will refer the traveler for additional scrut iny, or www.oig.dhs.gov 2 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security and expanded to address the growing worldwide demand for visas moving forward into 2024.

Thus, in the months preceding the expiration deadline, Dos sought concurrence from OHS on its proposal to broaden the set of visa categories eligible for interview waivers as well as eliminate the fingerprint requirement for certain visa applicants. 6 5 • • • • , OHS agreed to support DoS' proposal to expand the categories7 of visas for which interviews can be waived contingent on several conditions. One main condition was that Dos must inform OHS which visa applicants were not interviewed. This would come in the form of a in CBP's information technology systems used for 5 The Homeland Security Act of 2002, Section 428 divides visa issuance responsibilities between Dos and DHS.

On September 28, 2003, then-Secretary of State Colin Powell and then-Secretary of Homeland Security Thomas Ridge signed a memorandum of understanding (MOU) implementing Section 428 of the Homeland Security Act. The MOU describes each department's responsibilities in the area of visa issuance. Among its major elements, and with certain exceptions, the MOU states that Dos may propose and issue visa regulations subject to DHS consultation and final approval. The MOU also states that the Secretary of Homeland Security has final responsibility over visa guidance prescribing w hen a consular officer may waive a visa applicant's personal appearance.

6 Dos requested DHS' concurrence on eliminating the fingerprint requirement under Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. No.107-173 (codified as 8 U.S.C. §1732) for first-time nonimmigrant visa applicants from countries participating in the Visa Waiver Program; and for first-time and returning H-2 visa applicants who qualify for interview waivers. H-2 visas allow applicants to work in temporary j obs in agriculture, construction, forestry, and other industries. The H-2A visa is for temporary agricultural jobs, while the H-28 visa is for temporary non-agricultura l jobs.

7 In response to DHS' opposition, Dos agreed to stop waiving fingerprint collection for H-2 visa applicants (i.e., applicants seeking to work in temporary jobs in agriculture, construction, forestry, and other industries). www.oig.dhs.gov 3 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security inspections at ports of entry. Other conditions include Dos providing OHS a security and terrorism risk assessment of the proposed expansion of interview waivers, a list of fiscal year 2024 nonimmigrant visa processing goals for DoS' Bureau of Consular Affairs, and DoS' current and planned efforts to increase consular capacity- staffing, policy, and technology- to meet the growing worldwide demand for visas. Having an officers conducting for a consular interview had been waived for individuals they encounter. Based on that knowledge, the officers could According to OHS, having the monitoring and evaluation. at the ports of entry to know whether t he requirement also allows CBP to track trends for effective if deemed appropriate. would allow CBP Even though the agreed-upon expanded authorities took effect on January 1, 2024, OHS and CBP did not receive interviewed until March 29, 2024.

To provide the , Dos established a feed into CBP's information technology systems for screening and vetting so that CBP officers would be able to see an to show CBP officers which visa holders had not been in a visa holder's record. 8 CBP Officers Conducting Do Not Have Full Visibility of Visa Interview Waivers CBP officers conducting information since 2020. Though CBP notified its port directors at ports of entry that the have not had access to the was available beginning in March 2024, it only provided access to this information to officers conducting and not to officers conducting- . According to CBP officials, they did not want officers conducting- to send all individuals whose req uirement for consular interviews had been waived and "inundate" that process until they have had the time to assess the information and determine the level of risks, if any.

CBP OFO officials told us that no formal notification was provided to the Field Offices and frontline officers because CBP did not want to overload the officers with information. Further, they added that CBP receives hundreds of alerts each day, but officials must prioritize what information is shared with frontline officers. In lieu of provid ing officers conducting information, CBP OFO officials stated they plan to work with the National Targeting Center to with access to t he to identify risks, if any, posed by visa holders who had their interviews waived. Although this proposed action differs from CBP's prior statements that it needed the , we encourage CBP to use all for its officers conducting 8 In November 2023, senior representa tives from DHS; DoS; Justice; Commerce; the Federal Bureau of Investigations; the Office of the Director of National Int elligence; the Office of Management and Budget; and other Government agencies, offices, and departments met at the White House with t he National Security Council to discuss visa int erview waiver authorities. www.oig.dhs.gov 4 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security available resources to evaluate potential risk.

Because of the importance of this issue, we will continue to monitor CBP's progress in working with the National Targeting Center or in establishing ot her means to manage risks. is now available at , CBP does not have the While the system capability to gather information on individuals who were granted visa interview and fingerprint waivers prior to March 2024. As a result, more than 4 years after the waiver expansion began, CBP has no assurance that individuals with waivers who arrived at U.S. ports of entry from 2020 through 2023 were identified at for further screening. Prior to March 2024, CBP OFO did not inform its port directors that Dos had been waiving certain requirements for interviews and fingerprints. We spoke with CBP OFO port directors at 16 land ports of entry.

Of the 16 we spoke with, all reported that they were unaware that some visa holders had not received consular interviews nor had their fingerprints collected before being issued their visas. In our discussions, half (eight) of the port directors told us that even if they had known, they would not have altered their inspection process. These port directors emphasized that visa holders w ith waivers are subjected to the other visa holder. However, the other eight port directors stated that knowing certain visa categories were exempt from interview and fingerprint requirements may have been beneficial in alerting CBP officers that an individual may require additional screening and vetting. as any Because Dos interviews can be an important mechanism for collecting information from visa applicants to verify identity, background, and biographic information before they arrive in the United States, having knowledge of who was waived and who was not could allow CBP officers to make more informed decisions Moreover, having the also allows CBP to track trends for effective monitoring and evaluation.

While CBP begins to evaluate the data on which individuals received interview waivers, it can still take actions to mit igate potential risks. Developing strategies to address potential risks would better position CBP to carry out its mission of keeping the homeland safe. Recommendations Recommendation 1: We recommend the Senior Official Performing the Duties of the Commissioner of CBP work with the National Targeting Center to establish other means to manage risks, if any, posed by visa holders who received interview waivers from the Department of State. Recommendation 2: We recommend the Senior Official Performing the Duties of the Commissioner of CBP develop and implement a comprehensive plan to perform trend analyses to analyze risks posed by individuals whose consular interviews were waived by the Department www.oig.dhs.gov 5 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security of State with data captured at implement mitigation plans. , and using the resu lts, develop and Management Comments and OIG Analysis CBP provided written comments in response to the draft management alert.

Appendix B conta ins CBP's management comments in their entirety. We also received technical comments from CBP and the Dos and revised the management alert, as approp riate. CBP concurred with both recommendations. Based on the information received, we consider recommendation 1 open and resolved, and recommendation 2 open and unresolved.

A summary of CB P's response and our analysis follows. CBP leadership disagreed with our conclusions. CBP stated that DoS' decision to waive a visa applicant's interview or biometrics during t he visa issuance process does not change how CBP officers conduct . CBP also stated that all travelers, regardless of whether they received a waiver, are inspected by CBP when they reach a U.S. port of entry to include an interview, biographic, and biometric vetting.

The presence of an supplemental information, but not critical to the is CBP also disagreed that the scope and conclusions of our aud it work rises to the posted definition of a " Management Alert" on OIG's website. OIG updated the policy on October 28, 2021, and agreed that the website should be updated to reflect that change. OIG leadership updated the language on June 21, 2024 to better align with our current policy on Management Alerts. Recommendation 1: Work with the National Targeting Center to establish other means to manage risks, if any, posed by visa holders who received interview waivers from the Dos.

Response: Concur. CBP OFO and its National Targeting Center will identify a role for - - existing protocols. Estimated Completion Date (ECO): June 30, 2025. information in the targeting environment, as supported by analysis, intelligence, and OIG Analysis: We appreciate CB P's planned efforts to work with the National Targeting Center to assess risk going forward. We consider these actions responsive to the recommendation, which we consider open and resolved.

We will close this recommendation when CBP provides documentation supporting how they identified and implemented a role for information in the targeting environment, as supported by analysis, intelligence, and existing protocols. Recommendation 2: Develop and implement a comprehensive plan to perform t rend analyses and analyze risks posed by individuals whose consular interviews were waived by the Dos with www.oig.dhs.gov 6 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security data captured at mitigation plans. , and using the results, develop and implement Response: Concur. In collaboration with DHS and Operational Components, as appropriate, CBP OFO and its National Targeting Center will identify a role for information in the targeting environment, as supported by analysis, intelligence, and existing protocols. ECD: June 30, 2025.

OIG Analysis: We appreciate CBP’s planned efforts to work with the National Targeting Center to identify risk going forward. However, this action is not responsive to the intent of this recommendation, which is to perform a trend analysis and analyze risk posed by individuals whose interviews were previously waived. Therefore, we consider this recommendation open and unresolved. We will close the recommendation when CBP provides a comprehensive plan to perform trend analyses and analyze risks posed by individuals whose consular interviews were and use the results to develop and waived by DoS with data captured at implement mitigation plans. www.oig.dhs.gov 7 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security Appendix A Objective, Scope, and Methodology The Department of Homeland Security Office of Inspector General was established by the Homeland Security Act of 2002 (Pub.

L. No. 107−296) by amendment to the Inspector General Act of 1978. We issued this management alert as part of an ongoing audit: 24-011-AUD-CBP – “CBP’s Screening of Visa Holders That Received Waivers from Department of State.” The objective of our ongoing audit is to determine (1) the extent to which CBP was aware of DoS’ policy changes to grant certain categories of visas without in-person interviews and biometrics; and (2) the extent to which CBP can identify and fully screen visa holders with waivers upon arrival at U.S. ports of entry. As part of our audit, from January 30, 2024, to May 16, 2024, we: • Conducted site visits at four different ports of entry in Texas and New Mexico in CBP’s El Paso, Texas, Field Office area of responsibility. We observed the pedestrian and vehicle and processes, interviewed CBP officers, and met with field • • office and port leadership.

Interviewed 16 port directors at land ports of entry across the United States representing each CBP field office with land border crossing responsibilities. Interviewed officials from CBP OFO; DHS’ Office of Strategy, Policy, and Plans; and CBP’s Office of Planning, Program Analysis, and Evaluation. • Reviewed interagency correspondence between DHS and DoS; DoS visa application policies; and CBP OFO operational policies, directives, and training documents. We analyzed aggregate data obtained from DoS regarding visa populations and interview and fingerprint waivers. We conducted this work pursuant to the Inspector General Act of 1978, 5 U.S.C. §§ 401-424, and in connection with an ongoing audit being performed according to generally accepted government auditing standards.

Those standards require we plan and perform our audit work to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. Additional information and recommendations related to the issue addressed in this management alert may be included in the report resulting from our audit. DHS OIG’s Access to DHS Information During this audit, CBP provided responses to our requests for information and did not delay or deny access to information we requested. www.oig.dhs.gov 8 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security Appendix B: CBP Comments on the Draft Alert www.oig.dhs.gov 9 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security www.oig.dhs.gov 10 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security www.oig.dhs.gov 11 LAW ENFORCEMENT SENSITIVE OIG-24-33 LAW ENFORCEMENT SENSITIVE OFFICE OF INSPECTOR GENERAL U.S. Department of Homeland Security Appendix C: Alert Distribution Department of Homeland Security Secretary Deputy Secretary Chief of Staff Deputy Chiefs of Staff General Counsel Executive Secretary Director, GAO/OIG Liaison Office Under Secretary, Office of Strategy, Policy, and Plans Assistant Secretary for Office of Public Affairs Assistant Secretary for Office of Legislative Affairs Acting Executive Assistant Commissioner, CBP-Office of Field Operations DHS Component Liaison Office of Management and Budget Chief, Homeland Security Branch DHS OIG Budget Examiner Congress Congressional Oversight and Appropriations Committees External Department of State www.oig.dhs.gov 12 LAW ENFORCEMENT SENSITIVE OIG-24-33 To view this and any other DHS OIG reports, Please visit our website: www.oig.dhs.gov Additional Information For further information or questions, please contact the DHS OIG Office of Public Affairs via email: [email protected] DHS OIG Hotline To report fraud, waste, abuse, or criminal misconduct involving U.S. Department of Homeland Security programs, personnel, and funds, please visit: www.oig.dhs.gov/hotline If you cannot access our website, please contact the hotline by phone or mail: Call: 1-800-323-8603 U.S. Mail: Department of Homeland Security Office of Inspector General, Mail Stop 0305 Attention: Hotline 245 Murray Drive SW Washington, DC 20528-0305