Order Code RL32221
CRS Report for Congress
Received through the CRS Web
Visa Waiver Program
October 18, 2004
Analyst in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress
Visa Waiver Program
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 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 not
compromise the law enforcement or security interests of the United States by its
inclusion in the program. Countries can be terminated from the VWP if an
emergency occurs that threatens the United States’ security interests.
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 22 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 countries participating in
the VWP must issue their nationals machine-readable passports that incorporate
biometric identifiers; however, the deadline was extended until October 26, 2004 by
P.L. 108-299. Notably, The 9/11 Commission Report recommends that DHS
complete as quickly as possible a biometric entry-exit screening system. S. 2845 as
passed by the Senate, would require that each VWP country, as a condition of being
in the VWP, have a program to issue tamper-resident, machine-readable visa
documents that incorporate biometric identifiers which are compatible with the
biometric identifiers used in the US-VISIT program. There is no comparable
provision in the House-passed version of S. 2845. Additional legislation, H.R. 4550,
would require those entering under the VWP to undergo an electronic verification of
admissibility before embarkation. Other bills would suspend the VWP (H.R. 2235,
H.R. 3522, and H.R. 3534). H.R. 3956/S. 2844 would add Poland to the program.
This report will be updated if legislative action occurs.
Current Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
VWP Qualifying Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
VWP Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Trends in Use of the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
Biometric Deadline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Linkage with US-VISIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Management and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Overstays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Biometrics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
P.L. 108-299/H.R. 4417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
S. 2845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
H.R. 4550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
S. 2324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Suspending the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 3534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
H.R. 2235 and H.R. 3522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Adding Countries to the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
H.R. 3956/S. 2844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
List of Figures
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 . . . . . . . . . . . . 5
Visa Waiver Program
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
The Secretary of Homeland Security is administering the VWP program. 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.
“B” visa refers to the subparagraph in the Immigration and Nationalization Act (INA
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
For more information on visa issuances, see CRS Report RL31512, Visa Issuances: Policy,
Issues, and Legislation, by Ruth Ellen Wasem.
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
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
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.
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).
Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957.
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
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
“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.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208).
Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957.
ADIS feeds information to the Interagency Border Inspection System (IBIS).
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).
IBIS interfaces with the FBI’s National Crime Information Center (NCIC), the Treasury
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 preliminary and are likely to increase.
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.
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
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
Percent of Total
% of all Nonimmigrants
% of B Visas
Source: Data for FY1995-FY2001 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-FY2001: 29; FY2002:
28; and, FY2003: 27.
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
As of Apr. 2003, 27 countries were eligible to participate in the VWP: Andorra,
Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland,
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
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:
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
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,
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.
For further information, see CRS Report 97-309, Immigration: Visa Waiver Pilot
Program, by Ruth Ellen Wasem. Report available on request from the author.
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).
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 (INA § 212(d)(5)(A)).
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.
At the time, many maintained that P.L. 106-396 balanced the competing concerns of
facilitating travel and tightening immigration controls.
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), 23 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. 24 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
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
Virtually all Luxembourg passports are machine-readable, but Luxembourg diplomatic
passports are not.
The original bill, H.R. 3525, was sponsored by Rep. F. James
The act tasked the International Civil Aviation Organization (ICAO) with developing 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
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.
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.25 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
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 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.
In his testimony before the House Immigration and Claims Subcommittee on Feb. 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.
the United States under the VWP.27 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
countries, and INS’s ability to correctly and consistently check applicants against the
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. On April 21, 2004, the House Judiciary Committee held an oversight
hearing entitled “Should the Congress extend the October, 2004 Statutory Deadline
for Requiring Foreign Visitors to Present Biometric Passports?” Secretary Ridge and
Secretary Powell testified at the hearing.30 Under the law, there is no mechanism
other than Congressional action to extend the deadline. P.L. 108-299, signed into
law on August 9, 2004, extends the deadline for VWP countries to certify that they
have a program to issue machine-readable passports with biometric identifiers until
October 26, 2005.
Linkage with US-VISIT
The United States Visitor and Immigrant Status Indicator Technology (USVISIT) program was established in accordance with several Congressional mandates
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
The letter is available at [http://www.house.gov/judiciary/ridge031704.pdf].
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, 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.
The hearing testimony is available at [http:// www.house.gov/judiciary/full.htm].
that required DHS to create an integrated, automated entry and exit data system.31
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.32 Under DHS’ regulations, biometric identifiers
are not required for travelers who seek to enter the United States through the VWP.33
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,
2004, entrants under the VWP at airports and seaports would be processed in USVISIT.34 Notably, The 9/11 Commission Report recommends that DHS complete as
quickly as possible a biometric entry-exit screening system.35
Management and Oversight
In April 2004, the Inspector General for the DHS released a report entitled An
Evaluation of the Security Implications of the Visa Waiver Program.36 The report
details security concerns with the VWP, some of which result from establishment of
DHS in March 2003, and the transfer of the VWP’s administration to DHS’ Border
and Transportation Security Directorate (BTS). The report found that since the
abolishment of the Immigration and Naturalization Service (INS), the VWP has had
a series of acting managers and officials, and that many within DHS and other federal
agencies were unsure who was in charge of the program. The report also stated that
due to several issues, including lack of funding and trained personnel, BTS is unable
to perform the Congressionally mandated reviews of each VWP country to see if the
countries should continue to be included in the program. In addition the report found
that there was no process for re-evaluating Belgium’s probationary status to
determine whether Belgium should continue to be a VWP country. This review was
supposed to be completed by May 15, 2004.
The report also found that due to lack of country reviews, BTS is unable to
assess the information provided by the countries on lost and stolen passports. The
information provided by VWP governments on lost and stolen passports has not been
checked against United States’ entry/exit data to determine whether the passports
have been used to enter the United States. The report also found that collection of
data on lost and stolen passports is not proactive, uniform, nor disseminated in an
See generally, 8 U.S.C. §§ 1187, 1365a and note, 1379, 1731-31.
Implementation of the United States Visitor and Immigrant Status Indicator Technology
System (“US-VISIT”); Biometric Requirements, 69 Federal Register, p. 468 (Jan. 5, 2004).
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).
Press release available at [http://www.state.gov/r/pa/prs/ps/2004/31103.htm].
The 9/11 Commission Report, p.389.
U.S. Department of Homeland Security, Office of Inspections, Evaluations, and Special
Reviews OIG-04-26, An Evaluation of the Security Implications of the Visa Waiver
Program, Apr. 2004.
organized manner. The report also noted that the lack of international
standardization in passport numbering systems complicates the ability to identify
people using stolen VWP country passports.
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 accessible, 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.37
Legislation in the 108th Congress
P.L. 108-299/H.R. 4417. On June 14, 2004 the House passed H.R. 4417.
The Senate passed the bill without any amendments on July 22, 2004. H.R. 4417,
which was introduced by Representative F. James Sensenbrenner, was enacted on
August 9, 2004 (P.L. 108-299). P.L. 108-299 provides a one-year extension of the
deadline for VWP countries to certify that they have a program to issue machinereadable passports with biometric identifiers. The new biometric deadline is October
26, 2005. The bill also amends the law so 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
S. 2845. S. 2845, the “National Intelligence Reform Act of 2004, ” as passed
by the Senate, would require that each VWP country, as a condition of being in the
VWP, have a program to issue tamper-resident, machine-readable visa documents
that incorporate biometric identifiers which are compatible with the biometric
identifiers used in the US-VISIT program. The House-passed version of S. 2845
does not contain a similar provision.
As discussed above, on October 26, 2005, all foreign nationals from VWP
countries seeking entrance to the United States will be required to present a machine37
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.
readable, tamper-resistant passport with a biometric identifier. However, there is no
requirement for nationals from other countries to present such a passport. S. 2845,
as passed by the House, contains a provision that would require the Comptroller
General, the Secretary of State, and the Secretary of Homeland Security each no later
than May 31, 2005 to submit two studies. The studies shall examine the feasibility,
cost, potential benefits, and relative importance to tracking and apprehending
terrorists of: (1) requiring all foreign nationals to present machine-readable, tamperresistant passports that incorporate biometric and document authentication
identifiers; and (2) creating a database containing information on the lifetime travel
history of each foreign national or U.S. citizen who seeks to enter the United States
or another country, so that border and consular officers may determine a person’s
travel history by means other than a passport. The studies should also make
recommendations on incentives that could be offered to foreign nations to participate
in the initiatives. S. 2845 as passed by the Senate contains a similar provision
requiring the Secretary of State to explore expanding the use of biometric passports.
Unlike the provision in the S. 2845 as passed by the House, the provision in the
Senate-passed version of S. 2845 requires implementation of a plan obligating U.S.
citizens and aliens from contiguous territories to present biometric passports for
travel into the United States.
H.R. 4550. H.R. 4550, introduced by Representative Turner on June 14, 2004
would extend the deadline for VWP countries to certify that they have a program to
issue machine-readable passports with biometric identifiers until October 26, 2005,
and would allow the Secretary of Homeland Security, in consultation with the
Secretary of State, to grant two six-month extensions to countries who have made a
good faith effort to meet the deadline.
In addition, H.R. 4550 would establish, as part of the entry/exit system, an
electronic system that uses biographical data to determine eligibility for admission
to the United States. The bill would require that prior to embarkation, those entering
under the VWP electronically submit biographical information through the system.
Airlines and other carriers would have to perform an electronic check through the
system to determine whether the alien passenger entering under the VWP has been
determined to be eligible for admission. H.R. 4550 would mandate that the system
be deployed as soon as possible, and would require a fee from the aliens using the
system to cover the cost of establishing and operating the system.
S. 2324. Introduced by Senator Saxby Chambliss on April 20, 2004, S. 2324
would extend the deadline for VWP countries to certify that they have a program to
issue machine-readable passports with biometric identifiers until November 30, 2006.
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,38
all United States ports of entry have functional biometric machine
all countries that 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
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
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 that include biometric identifiers.
Adding Countries to the VWP
H.R. 3956/S. 2844. H.R. 3956, introduced on March 11, 2004 by
Representative Nancy L. Johnson, and S. 2844, introduced by Senator Rick Santorum
on September 23, 2004, would designate Poland as a VWP country.39 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
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. Viña.
Bills were introduced in previous Congresses to legislate countries into the VWP;
however, none of the bills were enacted.
reveal a refusal rate that 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.