Order Code RL32221
CRS Report for Congress
Received through the CRS Web
Visa Waiver Program
February 10Updated April 6, 2004
Alison Siskin
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Visa Waiver Program
Summary
Since the events of September 11, 2001, concerns have been raised about the
ability of terrorists to enter the United States under the visa waiver program. The
visa waiver program (VWP) allows nationals from certain countries to enter the
United States as temporary visitors (nonimmigrants) for business or pleasure without
first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business
or pleasure from non-VWP countries must obtain a visa from Department of State
(DOS) officers at a consular post abroad before coming to the United States. The
VWP constitutes one of a few exceptions under the Immigration and Nationality Act
(INA) in which foreign nationals are admitted into the United States without a valid
visa. Under Department of Homeland Security (DHS) regulations, at this time
travelers who
seek to enter the United States through the VWP are not subject to the biometric
biometric requirements of the US-VISIT program; however, as of September 30,
2004, VWP participants arriving at airports and seaports will be subject to US-VISIT.
By eliminating the visa requirement, this program facilitates international travel
and commerce and eases consular office workloads abroad, but it also bypasses the
first step by which foreign visitors are screened for admissibility to enter the United
States. In 2003, 13.5 million visitors entered the United States under this program,
constituting 49% of all overseas visitors.
To qualify for the VWP, the INA specifies
that a country must: offer reciprocal
privileges to United States citizens; have had
a nonimmigrant refusal rate of less than
3% for the previous year or an average of no
more than 2% over the past two fiscal
years with neither year going above 2.5%;
certify that the country issues, or will issue
machine-readable passports; and be
determined not to compromise the law
enforcement or security interests of the United
States by its inclusion in the program.
Countries can be immediately terminated from
the VWP if an emergency occurs that
threatens the law enforcement or security
interest of the United States.
The USA PATRIOT Act enacted a requirement that by October 1, 2003, all
aliens applying for admission under the VWP must have machine-readable passports;
however, the Act allows the Secretary of State to waive the requirement until
September 30, 2007 and the requirement was waived for 2122 of the 27 countries
participating in the VWP. In addition, the Enhanced Border Security and Visa
Reform Act of 2002 requires that by October 26, 2004, all VWP countries must
issue issue
their nationals machine-readable passports which incorporate biometric
identifiers.
DOS and DHS have stated that few if any countriesno country will be able to meet
the biometric deadline.
Under the law, there is no mechanism other than
congressional action to extend the
deadline. If the deadline is not extended, all
participating countries that cannot
certify that they have a program to issue machinereadablemachine-readable passports with biometric
identifiers will be ineligible for the VWP, placing
the VWP on hiatus for those countries for an unspecified period of time. Concerns
. Concerns have been raised that DOS does
not have enough consular staff to process all the B
visas which would have to be
issued. Nonetheless, some note that the VWP is a
security risk and the program
should be suspended until passport security can be
improved. This report will be improved. Three bills introduced
in the 108th Congress would suspend the VWP (H.R. 2235, H.R. 3522, and H.R.
3534), while H.R. 3956 would add Poland to the program. This report will be
updated if legislative action occurs.
Contents
Current Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
VWP Qualifying Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
VWP Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trends in Use of the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Visa Waiver Pilot Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Visa Waiver Permanent Program Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
USA Patriot Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Enhanced Border Security and Visa Entry Reform Act of 2002 . . . . . . . . . . 7
Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Linkage with US-VISIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Biometric DeadlineBiometric Deadline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Linkage with US-VISIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Overstays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Suspending the VWP . . . . . . . 9
Overstays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
H.R. 3534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1111
H.R. 2235 and H.R. 3522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Adding Countries to the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 3956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
List of Figures
Figure 1. Number of Entrants Under the VWP for FY1995-FY2003,
Percent Percent
of All Nonimmigrant Entrants who are VWP Entrants, and
Percent Percent
of All B Visa Entrants who are VWP Entrants . . . . . . . . . . . . . . . . . . . . . . . 5
Visa Waiver Program
Current Policy
Under the visa waiver program (VWP), the Secretary of the Department of
Homeland Security,1 in consultation with the Secretary of State, may waive the “B”
nonimmigrant visa requirement for aliens traveling from certain countries as
temporary visitors for business or pleasure (tourists).2 Nationals from participating
countries simply complete an admission form (I-94) before their arrival and are
admitted for up to 90 days. The VWP constitutes one of a few exceptions under the
Immigration and Nationality Act (INA) in which foreign nationals are admitted into
the United States without a valid visa.
Temporary foreign visitors for business or pleasure from most countries must
obtain a visa from Department of State (DOS) offices at a consular post abroad
before coming to the United States.3 Personal interviews are generally required, and
consular officers use the Consular Consolidated Database (CCD) to screen visa
applicants. In addition to indicating the outcome of any prior visa application of the
alien in the CCD, the system links with other databases to flag problems that may
make the alien ineligible for a visa under the so-called “grounds for inadmissibility”
of the INA, which include criminal, terrorist, and public health grounds for exclusion.
Consular officers are required to check the background of all aliens in the “lookout”
databases, including the Consular Lookout and Support System (CLASS) and
TIPOFF databases.4
1
The Secretary of Homeland Security is administering the VWP program. Section 402 of
Section 402 of the Homeland Security Act of 2002 (HSA; P.L. 107-296), signed into law on Nov.
25, 2002,
states: “The Secretary [of the Department of Homeland Security], acting through
the Under
Secretary for Border and Transportation Security, shall be responsible for the
following:
... (4) Establishing and administering rules, ... governing the granting of visas
or other forms
of permission, including parole, to enter the United States to individuals who
are not a
citizen or an alien lawfully admitted for permanent residence in the United States.”
Prior to
Mar. 1, 2003, the Attorney General in consultation with the Secretary of State was
responsible for designating the VWP countries.
2
“B” visa refers to the subparagraph in the Immigration and Nationalization Act (INA
§101(a)(15)(B)).
3
To obtain a nonimmigrant visa, individuals submit written applications and undergo
interviews and background checks. For more information on temporary admissions see CRS
Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen
Wasem.
4
For more information on visa issuances see CRS Report RL31512, Visa Issuances: Policy,
Issues, and Legislation, by Ruth Ellen Wasem.
CRS-2
Although the VWP greatly eases the documentary requirements for nationals
from participating countries, it has important restrictions. Aliens entering with a B
visa may petition to extend their length of stay in the United States or may petition
to change to another nonimmigrant or immigrant status. Aliens entering through the
VWP are not permitted to extend their stays except for emergency reasons and then
for only 30 days.5 Additionally, with some limited exceptions, aliens entering
through VWP are not permitted to adjust status. An alien entering through the VWP
who violates the terms of admission becomes deportable without any judicial
recourse or review (except in asylum cases).
VWP Qualifying Criteria
To qualify for the VWP a country must:
!
!
!
!
offer reciprocal privileges to United States citizens;
have had a nonimmigrant refusal rate of less than 3% for the
previous year or an average of no more than 2% over the past two
fiscal years with neither year going above 2.5%;
certify that the country issues, or will issue machine-readable
passports; and
be determined, by the Secretary of Homeland Security, in
consultation with the Secretary of State, not to compromise the law
enforcement or security interests of the United States by its inclusion
in the program.
Countries can be immediately terminated from the VWP if an emergency occurs
in the country that the Secretary of Homeland Security in consultation with the
Secretary of State determines threatens the law enforcement or security interest of the
United States.6 For example, because of the economic collapse in Argentina in
December 2001, and the increase in the number of Argentine nationals attempting to
use the VWP to enter the United States and remain illegally past the 90-day period
of admission, that country was removed from the VWP in February 2002. Similarly,
on April 15, 2003, Uruguay was terminated from the VWP because of the high rates
of Uruguayan nationals who over-stay their visas, and the high rate of nationals who
have been denied admission at the border.7
Additionally, there is probationary status for VWP countries that do not
maintain a low visa refusal rate. Countries on probation are determined by a formula
5
This provision was amended by P.L. 106-406 to provide extended voluntary departure to
nonimmigrants who enter under the VWP and require medical treatment.
6
An emergency is defined as: (1) the overthrow of a democratically elected government;
(2) war; (3) a severe breakdown in law and order in the country; (4) a severe economic
collapse; and (5) any other extraordinary event in the program country where that country’s
participation could threaten the law enforcement or security interests of the United States.
INA §217(c)(5)(B).
7
Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957.
CRS-3
Additionally, there is probationary status for VWP countries that do not
maintain a low visa refusal rate. Countries on probation are determined by a formula
based on a disqualification rate of 2%-3.5%.8 Probationary countries with a
disqualification rate less than 2% over a period not to exceed three years may remain
VWP countries.9 Countries may also be placed on probation if more time is
necessary to determine whether the continued participation of the country in the
VWP is in the security interest of the United States. In April 2003, Belgium was
placed on provisional status because of concerns about the integrity of nonmachinereadable Belgian passports and the reporting of lost or stolen passports. Belgium’s
participation in the VWP will be re-evaluated in 2004.10
VWP Inspections
Unlike other nonimmigrants, no background checks are done on travelers under
the VWP prior to their departure for the United States. This expedited process allows
only one opportunity — immigration inspectors at port of entry — to identify
inadmissable aliens. Prior to the alien’s arrival, an electronic passenger manifest is
sent from the airline or commercial vessel to immigration inspectors at the port of
entry which is checked against security databases.
Since October 1, 2002, passenger arrival and departure information on
individuals entering and leaving the U.S. under the VWP has been electronically
collected from airlines and cruise lines, through DHS’ Bureau of Customs and Border
Protection’s (CBP) Advanced Passenger Information System (APIS) system. If the
carrier fails to submit the information, an alien may not enter under the VWP. APIS
sends the data to the DHS’ Bureau of Immigration and Customs Enforcement’s (ICE)
Arrival and Departure Information System (ADIS)11 for matching arrivals and
departures and reporting purposes. APIS collects carrier information such as flight
number, airport of departure and other data.12
At port of entry, immigration inspectors observe and question applicants,
examine passports, and conduct checks against a computerized system to determine
whether the applicant is admissible to the United States.13 DHS’ CBP inspects aliens
who seek to enter the United States. Primary inspection consists of a brief interview
with an immigration inspector, a cursory check of the traveler’s documents, and a
query of the Interagency Border Inspection System (IBIS).14 At 115 airports and 14
8
“Disqualification rate” is defined as the percentage of nationals from a country who
applied for admission as a nonimmigrant who either violated the terms of the nonimmigrant
visa, who were excluded from admission or who withdrew their application for admission
as a nonimmigrant.
9
The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208).
10
Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957.
11
ADIS feeds information to the Interagency Border Inspection System (IBIS).
12
[http://www.dhs.gov/dhspublic/display?theme=43&content=736&print=true].
13
Although aliens who enter under the VWP do not need a visa, all visa waiver program
applicants are issued nonimmigrant visa waiver arrival/departure forms (Form I-94W).
CRS-4
query of the Interagency Border Inspection System (IBIS).14 At 115 airports and 14
14
IBIS interfaces with the FBI’s National Crime Information Center (NCIC), the Treasury
(continued...)
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seaports, many nonimmigrants are entered into the new US-VISIT system that uses
biometric identification (finger scans) to check identity and track presence in the
United States; however, at this time, entrants under the VWP are not subject to USVISIT. Currently, inspectors at the border collect the following information on aliens
entering under the VWP from the passport: name, date of birth, nationality, gender,
passport number, country of issuance. Primary inspections are quick (usually lasting
no longer than a minute); however, if the inspector is suspicious that the traveler may
be inadmissible under the INA or in violation of other U.S. laws, the traveler is
referred to a secondary inspection. Those travelers sent to secondary inspections are
questioned extensively, travel documents are further examined, and additional
databases are queried.15
Trends in Use of the VWP
The number of people entering under the VWP grew steadily as countries were
added to the program, and reached a peak of 17.7 million in FY2000. The number
of visitors entering under the VWP declined by 3.4 million or 20% between FY2001
and FY2002. The number of all nonimmigrants entering the United States declined
by 4.9 million or 14.9% during the same period, but the number of nonimmigrants
who were not from VWP countries declined by 1.6 million (9.6%). Similarly, the
number of foreign nationals entering the United States with B visas between FY2001
and FY2002 declined by 13.4% or 1.7 million, which is a smaller decline than the
decline in the percent of visitors entering under the VWP. Between FY2002 and
FY2003, the number of people entering under the VWP increased slightly from 13.2
to 13.5 million, while the number of people entering as nonimmigrants decreased
slightly from 27.9 to 27.8 million. Importantly, the decrease in the total number of
nonimmigrant entrants for FY2003 may actually be an increase, as the data for
FY2003 are prelimarypreliminary and are likely to increase.
14
IBIS interfaces with the FBI’s National Crime Information Center (NCIC), the Treasury(...continued)
Enforcement and Communications System (TECS II), National Automated Immigration
Lookout System (NAILS), Non-immigrant Information System (NIIS), CLASS and TIPOFF
terrorist databases. Because of the numerous systems and databases that interface with IBIS,
the system is able to obtain such information as whether an alien is admissible, an alien’s
criminal information, and whether an alien is wanted by law enforcement.
15
Lookout databases such as TIPOFF, which is integrated with CLASS, contain information
on aliens who are inadmissible for entry into the United States. NSEERS and SEVIS are
also used during secondary inspections. Immigration inspectors may access NAILS II,
which is a text-based system that interfaces with IBIS and CLASS. For more information
see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth
Ellen Wasem.
CRS-5
Figure 1. Number of Entrants Under the VWP for FY1995-FY2003,
Percent of All Nonimmigrant Entrants who are VWP Entrants, and
Percent of All B Visa Entrants who are VWP Entrants
20
Millions
VWP
Percent of Total
% of all Nonimmigrants
100
% of B Visas
90
80
15
70
60
50
10
40
30
5
20
10
0
0
1995
1996
1997
1998
1999
2000
2001
2002
2003
Source: Data for Fiscal Years 1995-2001 from the Statistical Yearbook of the Immigration and
Naturalization Service. Data for FY2002 from the Department of Homeland Security,
2002 Yearbook of Immigration Statistics. Statistics for FY2003 are preliminary and are
unpublished data from DHS. Data are not available for FY1997.
Note: Number of countries participating in the VWP at the end of the Fiscal Year: FY1995-23;
FY1996- 25; FY1998-26; FY1999 through FY2001- 29; FY2002-28; and, FY2003- 27.
Legislative Action
Visa Waiver Pilot Program
The Visa Waiver Program (VWP) was established as a temporary program (Visa
Waiver Pilot Program) by the Immigration Reform and Control Act of 1986 (P.L. 99603). Congress periodically enacted legislation to extend the program’s
authorization, and program participation grew to include 29 countries.16 The pilot
program was scheduled to expire on September 30, 1997, but temporary extensions
were included in both Continuing Resolutions passed in the 105th Congress. The
Commerce, Justice, State, and Judiciary (CJS) FY1998 Appropriations Act (P.L.
105-119) also contained an extension through April 30, 1998. In 1998, Congress
enacted legislation (P.L. 105-173) that not only extended the program through April
16
As of Apr. 2003, 27 countries were eligible to participate in the VWP: Andorra,
Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland,
Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and United
Kingdom. Argentina was removed from the VWP in February 2002, and Uruguay was
removed in Apr. 2003.
CRS-6
30, 2000, but made other changes to the standard by which countries are selected
(designated) to participate in the VWP.17
Visa Waiver Permanent Program Act
On October 30, 2000, the Visa Waiver Permanent Program Act was signed into
law (P.L. 106-396). The statutory authority for the Visa Waiver Pilot Program had
expired on April 30, 2000, but in the interim, the Commissioner of the former
Immigration and Naturalization Service (INS)18 exercised the Attorney General’s
parole authority to extend the program temporarily.19 Besides making this program’s
authorization permanent, the Visa Waiver Permanent Program Act included
provisions designed to strengthen documentary and reporting requirements. P.L.
106-396 included provisions that:
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!
!
!
!
mandate that by October 1, 2007 all entrants under the VWP must
have machine-readable passports;
require that all visa waiver program applicants be checked against
lookout systems;
require ongoing evaluations of participating countries (not less than
once every five years);
require the collection of visa waiver program arrival/departure data
at air and sea ports of entry; and
require that the calculation of visa refusal rates for determining
country eligibility shall not include any refusals based on race, sex,
or disability.20
At the time, many maintained that P.L. 106-396 balanced the competing concerns of
facilitating travel and tightening immigration controls.
17
For further information, see CRS Report 97-309, Immigration: Visa Waiver Pilot
Program, by Ruth Ellen Wasem. Report available on request from the author.
18
The Homeland Security Act of 2002 (P.L. 107-296) abolished the Immigration and
Naturalization Service (INS) and effective Mar. 1, 2003, transferred most of its functions
to three bureaus in the new Department of Homeland Security (DHS): Citizenship and
Immigration Services (USCIS); Bureau of Immigration and Customs Enforcement (ICE);
and, Bureau of Customs and Border Protection (CBP).
19
Parole is a temporary authorization to enter the United States and is normally granted
when the alien’s entry is determined to be in the public interest (Immigration and
Nationality Act §212(d)(5)(A)).
20
Many of these requirements were included to address shortcomings in the program, as
identified by the Inspectors General of both the Departments of Justice and State.
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USA Patriot Act of 2001
The USA Patriot Act (P.L. 107-56), signed into law on October 26, 2001,
advanced the deadline for all entrants under the VWP to have machine-readable
passports to October 1, 2003, but allowed the Secretary of State to waive this
requirement until October 1, 2007 if the VWP country can show that it is making
progress toward issuing machine-readable passports. In addition, the USA Patriot
Act directed the Secretary of State each year until 2007 to ascertain that designated
VWP countries have established programs to develop tamper-resistant passports.
On September 24, 2003 the Secretary of State extended the deadline for visitors
from 21 VWP countries to present a machine-readable passport at the ports of entry
until October 26, 2004.21 Each country granted a postponement formally requested
that the deadline be extended and certified that the country is making progress toward
ensuring that its nationals have machine-readable passports, and is taking steps to
prevent the misuse of non-machine-readable passports.
Five countries, Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia, did
not request an extension of the effective date because virtually all their citizens have
machine-readable passports. However, on November 11, 2003, Luxembourg was
granted an extension of the deadline.22 As a result of being placed on probation,
Belgium was
not eligible to receive an extension of the effective date. Since
February 2003,
Belgian citizens have been required to have machine-readable
passports as an
element of their continued participation in the program.
Enhanced Border Security and Visa Entry Reform Act of 2002
The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border
Security Act),2223 signed into law on May 14, 2002, mandated that by October 26, 2004
the government of each VWP country needs to certify that it has established a
program to issue to its nationals machine-readable passports that are tamper-resistant
and incorporate a biometric identifier.2324 The Border Security Act specified that any
person applying for admission to the United States under the VWP must have a
tamper-resistant, machine-readable passport with a biometric identifier unless the
passport was issued prior to October 26, 2004. The USA Patriot Act established the
deadline for all foreign nationals entering under the VWP to have machine-readable,
tamper-resistant passports, and the Border Security Act stated that the new
requirement of biometrics in the passports does not change the deadline in the USA
Patriot Act for the presentation of machine-readable, tamper-resistant passports.
Thus, as of October 27, 2004 (the day after the deadline) all entrants under the VWP
21
The 21 countries granted a postponement are: Australia, Austria, Denmark, Finland,
France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and United
Kingdom.
22
22
Virtually all Luxembourg passports are machine-readable, but Luxembourg diplomatic
passports are not.
23
P.L. 107-173.
Sensenbrenner.
2324
The original bill, H.R. 3525, was sponsored by Rep. F. James
The Act tasked the International Civil Aviation OrganzationOrganization (ICAO) with developing the
biometric standard.
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requirement of biometrics in the passports does not change the deadline in the USA
Patriot Act for the presentation of machine-readable, tamper-resistant passports.
Thus, as of October 27, 2004 (the day after the deadline) all entrants under the VWP
must present machine-readable, tamper-resistant passports (as required by the USA
Patriot Act), but only passports issued after October 26, 2004 must have a biometric
identifier. The Border Security Act also required all VWP countries to certify that
they report in a timely manner the theft of blank passports, and required, prior to
admission in the United States, that all aliens who enter under the VWP are checked
against a lookout system.
Policy Issues
The VWP is supported by the U.S. travel and tourism industry, the business
community, and DOS. The travel and tourism industry views the VWP as a tool to
facilitate and encourage foreign visitors for business and pleasure, which results in
increased economic growth generated by foreign tourism and commerce for the
United States.2425 DOS argues that by waiving the visa requirement for high
volume/low risk countries, consular workloads are significantly reduced, allowing
for streamlined operations, cost savings, and concentration of resources on greaterrisk nations in the visa process. Additionally, some contend that currently DOS does
not have the resources to resume issuing visas to all the visitors from VWP
countries.2526
Nonetheless, while the program has significantly reduced the consular workload
and facilitated travel to the United States, it has increased the workload of
immigration inspectors at ports of entry by shifting background checks to ports of
entry. Furthermore, others contend that the relaxed documentary requirements of the
VWP increase immigration fraud and decrease border security. Immigration
inspectors have stated that terrorists and criminals believed they would receive less
scrutiny during the immigration inspection process if they applied for admission into
the United States under the VWP.2627 On February 28, 2002, the House Judiciary
Committee’s Immigration and Claims Subcommittee held a hearing on the VWP.
Testimony by the Inspector General of the Department of Justice pointed out several
shortcomings in the current program. Of particular concern were the former INS’s
inability to account for nonimmigrant overstays, stolen passports from VWP
24
25
The example of Argentina was frequently used to illustrate this relationship; during the
first year Argentina was in the VWP, tourism from that country to the United States grew
by 11.5%. Some cite Korea as a country that should be participating in VWP because of the
trade and tourism growth it could generate, and contend that this factor should be added to
the criteria used to select participating countries. Other proponents of the VWP, however,
contend that the criteria should not be broadened to include tourism potential if the
thresholds of refusal rates and visa overstay violations are weakened, arguing that these
provisions are essential to safeguard and control our borders.
2526
In his testimony before the House Immigration and Claims Subcommittee on February 28,
2002, William S. Norman, President and Chief Executive Officer of the Travel Industry
Association of America, stated that it would take hundreds of new consular staff and tens
of millions of dollars to issue visas to visitors currently entering under the VWP.
2627
U.S. Department of Justice, Office of Inspector General Report I-2002-002, Follow-Up
Report on the Visa Waiver Program, Dec. 2001. (Hereafter cited as DOJ, Follow-Up
Report.)
CRS-9
countries, and INS’s ability to correctly and consistently check applicants against the
lookout system.
Linkage with US-VISIT
The United States Visitor and Immigrant Status Indicator Technology (USVISIT) program was established in accordance with several Congressional mandates
that required DHS to create an integrated, automated entry and exit data system.27
The first increment of US-VISIT became operational on January 5, 2004, at 114
airports and 15 seaports requiring nonimmigrants who apply for admission pursuant
to a nonimmigrant visa to provide biometric information (a digital photograph and
two fingerprints) at time of arrival.28 Under DHS’ regulations, biometric identifiers
are not required for travelers who seek to enter the United States through the VWP.29
Thus, at this time, entrants under the VWP are not included in US-VISIT.
Reportedly, at some future time, foreign nationals entering under the VWP will be
included in the program.30
Biometric Deadline
The DOS and the DHS both have stated that few if any countries will be able
to meet the October 26, 2004 deadline for establishing a program to issue to its
nationals machine-readable passports that are tamper-resistant and incorporate a
biometric identifier.31 DOS contends that countries are trying to meet the deadline,
but that the timetable is too quick since the International Civil Aviation Organization
(ICAO) finalized the standards for the biometric identifier in May 2003.32 DOS also
maintains that research, development and testing of new passports usually takes
several years.33 Under the law, there is no mechanism other than Congressional
action to extend the deadline.
27
See generally, 8 U.S.C. §§1187, 1365a and note, 1379, 1731-31.
28
Implementation of the United States Visitor and Immigrant Status Indicator Technology
System (“US-VISIT”); Biometric Requirements, 69 Federal Register, p. 468 (Jan. 5, 2004).
29
Notice to Nonimmigrant Aliens Subject to Be Enrolled in the United States Visitor and
Immigrant Status Indicator Technology System, 69 Federal Register, p. 482 (Jan. 5, 2004).
30
Robert Mocny, US-VISIT Deputy Director, Department of Homeland Security,
Presentation, Day One of the US-VISIT Program, Migration Policy Institute, Washington,
D.C., Jan. 6, 2004. (Hereafter cited as Mocny, Day One of the US-VISIT Program.)
31
Testimony of Maura Harty, in U.S. Congress, House Select Committee on Homeland
Security, Infrastructure and Border Subcommittee, Hearing to Evaluate the US-VISIT
Program, hearings, 108th Cong., 2nd sess., Jan. 28, 2004. (Hereafter cited as Testimony,
Maura Harty). Mocny, Day One of the US-VISIT Program.
32
Department of Homeland Security, DMIA Task Force, Data Management Improvement
Act (DMIA) Task Force Second Annual Report to Congress, Dec. 2003, p. D-6.
33
Testimony, Maura Harty.
CRS-10Testimony by the Inspector General of the Department of Justice pointed out several
shortcomings in the current program. Of particular concern were the former INS’s
inability to account for nonimmigrant overstays, stolen passports from VWP
countries, and INS’s ability to correctly and consistently check applicants against the
lookout system.
Biometric Deadline
On March 17, 2004, the Secretary of Homeland Security, Thomas Ridge, and
the Secretary of State, Colin Powell, sent a letter to Representative James
Sensenbrenner stating that none of the VWP countries will be able to meet the
October 26, 2004 deadline for establishing a program to issue to its nationals
machine-readable passports that are tamper-resistant and incorporate a biometric
identifier.28 The letter states that countries are trying to meet the deadline, but are
unable due to “interoperability issues, privacy issues, chip durability concerns, as
well as production and procurement delays.”29 Secretary Ridge and Secretary Powell
asked Representative Sensenbrenner to extend or waive the deadline for two years,
as they contend, by 2006, the majority of VWP countries will be issuing biometric
passports. Under the law, there is no mechanism other than Congressional action to
extend the deadline.
If the deadline is not extended, all participating countries that cannot certify that
they have a program to issue machine-readable passports with biometric identifiers
will be ineligible for the VWP, effectively ending the VWP for an unspecified period
of time for those countries. Concerns have been raised that DOS does not have
enough consular staff to process all the B visas which would have to be issued. In
The
letter sent by Secretary Ridge and Secretary Powell states that DOS would have to
process an additional 5 million visas. In Japan alone, some estimate that the number
of issued visas would increase more than
1,000% from 110,000 a year to 1.2
million.3430 Some question whether it is a good use
of resources to hire more consular
officers and create the space which would be
needed to issue the B1/B2 visas to
nationals from VWP countries who missed the
biometric deadline, especially since
eventually the countries would comply and the
extra staff and space would no longer
be necessary.3531 In addition, as discussed above,
others are concerned about the effect
that the end of the program would have on the
tourist industry. tourist industry.
28
The letter is available at [http://www.house.gov/judiciary/ridge031704.pdf].
29
Previously, DOS has stated that the timetable for the biometric requirement is too quick
since the International Civil Aviation Organization (ICAO) finalized the standards for the
biometric identifier in May 2003. DOS also maintains that research, development and
testing of new passports usually takes several years. Testimony of Maura Harty, in U.S.
Congress, House Select Committee on Homeland Security, Infrastructure and Border
Subcommittee, Hearing to Evaluate the US-VISIT Program, hearings, 108th Cong., 2nd
sess., Jan. 28, 2004. (Hereafter cited as Testimony, Maura Harty.) Department of
Homeland Security, DMIA Task Force, Data Management Improvement Act (DMIA) Task
Force Second Annual Report to Congress, Dec. 2003, p. D-6.
30
Cecil Scott, Department of State, Telephone Conversation, Jan. 16, 2004.
31
Testimony, Maura Harty.
CRS-10
Nonetheless, some note that the VWP is a security risk and the program should
be suspended until passport security can be improved. Document vendors and alien
smugglers have reportedly targeted the passports of visa waiver countries.3632 The
DOS system that keeps track of stolen blank passport reports contains approximately
260,000 reports of stolen passports, of which approximately 44,500 are from VWP
countries.3733 Many were not machine-readable. Coupled with the fact that Justice’s
Inspector General reported that immigration inspectors, who have less than a minute
to complete most inspections, were not entering the non-machine-readable VWP
passport numbers into lookout systems, it is possible that an inadmissible person with
such a fraudulent VWP country passport could enter into the country. Indeed, the
DOJ documented that a terrorist associated with the World Trade Center bombing
in the 1993 conspiracy entered into the United States as a VWP applicant using a
photo-substituted Swedish passport.3834 In addition, the “Shoe Bomber” Richard Reid
attempted to enter the country under the VWP. It is possible that had Mr. Reed been
screened by a consular officer, he would have been denied a visa and never been
allowed to board the flight to the United States.
34
Cecil Scott, Department of State, Telephone Conversation, Jan. 16, 2004.
35
Testimony, Maura Harty.
36Linkage with US-VISIT
The United States Visitor and Immigrant Status Indicator Technology (USVISIT) program was established in accordance with several Congressional mandates
that required DHS to create an integrated, automated entry and exit data system.35
The first increment of US-VISIT became operational on January 5, 2004, at 114
airports and 15 seaports requiring nonimmigrants who apply for admission pursuant
to a nonimmigrant visa to provide biometric information (a digital photograph and
two fingerprints) at time of arrival.36 Under DHS’ regulations, biometric identifiers
are not required for travelers who seek to enter the United States through the VWP.37
Thus, at this time, entrants under the VWP are not included in US-VISIT. On April
2, 2004, DHS released a press statement announcing that since DHS and DOS asked
Congress to extend the biometric passport requirement, beginning September 30,
32
Testimony of Deputy Commissioner Immigration and Naturalization Service, Peter M.
Becraft, in the U.S. Congress, House Committee on the Judiciary, Immigration and Claims
Subcommittee, Oversight hearing on The Implications of Transnational Terrorism for the
Visa Waiver Program, hearings, 107th Cong., 2nd sess,. Feb. 28, 2002 (Washington: GPO,
2002).
3733
Information provided in a telephone conversation with John Brennon at the Department
of State, Apr. 16, 2002.
38
34
For further information, see U.S. Department of Justice, Office of Inspector General
Report I-99-10, The Potential for Fraud and INS’s Efforts to Reduce Risks of the Visa
Waiver Pilot Program, Mar. 1999.
CRS-11
35
See generally, 8 U.S.C. §§1187, 1365a and note, 1379, 1731-31.
36
Implementation of the United States Visitor and Immigrant Status Indicator Technology
System (“US-VISIT”); Biometric Requirements, 69 Federal Register, p. 468 (Jan. 5, 2004).
37
Notice to Nonimmigrant Aliens Subject to Be Enrolled in the United States Visitor and
Immigrant Status Indicator Technology System, 69 Federal Register, p. 482 (Jan. 5, 2004).
CRS-11
2004, entrants under the VWP at airports and seaports would be processed in USVISIT.38
Overstays
Some maintain that the nonimmigrant visa refusal rate is an unobjective and
arbitrary standard, because it is based on decisions made by consular officers rather
than the actual behavior of nonimmigrants. When the program was conceived, it was
expected that the number of nonimmigrants who overstay the terms of their entry
under this program would be a better standard for future program participation.
Reportedly, since December 2002, DHS has been matching the entry and exit
portions of the I-94 forms for participants in the VWP to create an entry/exit system
for VWP nationals. Some question whether this system can produce accurate counts
of those who overstay the terms of their entry. Until an automated entry-exit system
is fully operational and the data produced are trusted and easily accessableaccessible, it is
difficult for immigration agents to identify those who have overstayed their 90-day
admission periods. Thus, aliens could enter under the VWP and stay indefinitely.39
39
For further information, see CRS Report RL31019, Terrorism: Automated Lookout
Systems and Border Security Options and Issues, by William J. Krouse and Raphael F. Perl;
and CRS Report 98-89, Immigration: Visa Entry/Exit Control System, by William J. Krouse
and Ruth Ellen WasemLegislation in the 108th Congress
Suspending the VWP
H.R. 3534. On November 19, 2003, Representative Thomas G. Tancredo
introduced H.R. 3534 which would suspend the VWP until the Secretary of
Homeland Security determines and certifies to Congress that:
!
!
!
the automated entry-exit system authorized under Section 110 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 is fully implemented and functional,40
all United States ports of entry have functional biometric machine
readers, and
all countries which participate in the VWP issue their nationals
machine-readable biometric passports.
H.R. 2235 and H.R. 3522. H.R. 2235 introduced by Representative Sam
Graves on May 22, 2003, and H.R. 3522 introduced by Representative J. Gresham
Barrett on November 19, 2003, contain similar provisions and would suspend the
38
Press release available at [http://www.state.gov/r/pa/prs/ps/2004/31103.htm].
39
For further information, see CRS Report RL31019, Terrorism: Automated Lookout
Systems and Border Security Options and Issues, by William J. Krouse and Raphael F. Perl;
and CRS Report 98-89, Immigration: Visa Entry/Exit Control System, by William J. Krouse
and Ruth Ellen Wasem.
40
The automated entry and exit system has been administratively named the United States
Visitor and Immigrant Status Indicator Technology (US-VISIT) program. For more
information on US-VISIT see CRS Report RL32234, U.S. Visitor and Immigrant Status
Indicator Technology Program (US-VISIT), by Lisa M. Seghetti and Stephen R. Vina.
CRS-12
VWP until the Secretary of Homeland Security certifies to Congress that 13 different
requirements (11 requirements for H.R. 3522) have been met including:
!
!
!
!
!
the integrated entry and exit data system is fully operational at all
ports of entry;
the system of machine-readable tamper-resistant visas and other
travel and entry documents and the technology standard for visa
waiver program participants required by the Enhanced Border
Security and Visa Entry Reform Act of 2002 are fully operational at
all ports of entry and, where applicable, at consular posts abroad;
DHS has the operational capability to take into custody and remove
from the United States any deportable alien who has been brought
to the attention of the DHS by a state or local law enforcement
agency;
the backlog of immigration benefit applications has been eliminated,
as required in the HSA; and
the number of aliens removed from the United States, during each
of four months preceding the month in which the certification under
this section is executed, was at least 25% higher than in the
comparable months of the previous year.
In addition, H.R. 3522 would extend until October 1, 2005 the requirement that VWP
countries issue tamper-resident passports which include biometric identifiers.
Adding Countries to the VWP
H.R. 3956. On March 11, 2004 Representative Nancy L. Johnson introduced
a bill, H.R. 3956, which would designate Poland as a VWP country.41 It is not clear
that Poland meets the criteria to be a VWP country. Additionally, there are
indications that a formal determination of Poland’s B1/B2 visa refusal rate would
reveal a refusal rate which is significantly higher than what is required for
participation in the program. Nonetheless, as discussed above, some contend that the
nonimmigrant visa refusal rate is an unobjective and arbitrary standard, because it is
based on decisions made by consular officers and does not reflect the propensity of
nationals from that country to overstay their visas.
41
Bills have been introduced in previous Congress to legislate countries into the VWP;
however, none of the bills were enacted.