Order Code RL32221
Visa Waiver Program
January 24, 2007
Specialist in Immigration Legislation
Domestic Social Policy Division
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 (VWP).
Nonetheless, the inclusion of countries in the VWP may help foster positive relations
between the United States and those countries, and promote tourism and commerce.
The 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.
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 FY2005, 15.8 million visitors entered the United States under this
program, constituting 56% of all overseas visitors. To qualify for the VWP, the INA
specifies that a country must: offer reciprocal privileges to U.S. 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%;
issue their nationals machine-readable passports that incorporate biometric
identifiers; certify that it is developing a program to issue tamper-resident, machinereadable visa documents that incorporate biometric identifiers which are verifiable
at the country’s port of entry; 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’
All aliens entering under the VWP must present machine-readable passports.
In addition, passports issued between October 26, 2005, and October 25, 2006, must
have a digitized photo on the data page, while passports issued after October 25,
2006, must contained electronic data chips (e-passports). Under Department of
Homeland Security (DHS) regulations, travelers who seek to enter the United States
through the VWP are subject to the biometric requirements of the US-VISIT
Numerous countries, including Poland, Estonia, Israel, and South Korea, have
expressed interest in being a part of the VWP. DHS and DOS have provided these
countries with “road maps” to help them meet the requirements of the program.
However, some of the countries have complained that the “road maps” do not contain
milestones or time tables. In addition, others contend that since U.S. consular
officers are the ones that approve or disapprove applications for visas, it is extremely
difficult for countries to affect their visa refusal rates and meet the requirements of
This report will be updated if legislative action occurs.
Current Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
VWP Qualifying Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
VWP Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trends in Use of the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Visa Waiver Pilot Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Visa Waiver Permanent Program Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
USA Patriot Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Enhanced Border Security and Visa Entry Reform Act of 2002 . . . . . . . . . . 8
The Intelligence Reform and Terrorism Prevention Act of 2004 . . . . . . . . . 9
Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Adding Countries to the VWP (Road map Countries) . . . . . . . . . . . . . . . . . 10
EU Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Management and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lost and Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Number of Lost/Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Overstays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Enacted Legislation in the 108th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
P.L. 108-299/H.R. 4417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
P.L. 108-458/S. 2845 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Suspending the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
H.R. 688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
New Program Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
H.R. 1320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Adding Poland to the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
H.R. 634 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
H.R. 635/S. 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
List of Figures
Figure 1. Number of Entrants under the VWP for FY1995-FY2005,
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 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 administers 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 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
Currently, 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%;
issue machine-readable passports (and all aliens entering under the
VWP must possess a machine-readable passport);
certify that it has established a program to issue to its nationals
machine-readable passports that are tamper-resistant and incorporate
a biometric identifier (deadline October 26, 2005);6
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; and
certify that it is developing a program to issue tamper-resident,
machine-readable visa documents that incorporate biometric
identifiers which are verifiable at the country’s port of entry
(deadline October 26, 2006).
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.7 For example, because of Argentina’s economic collapse in December
2001,8 and the increase in the number of Argentine nationals attempting to use the
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.
All passports issued after October 26, 2005 presented by aliens entering under the VWP
have to be machine-readable and contain a biometric identifier.
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).
Beginning in Dec. 2001, Argentina experienced a serious economic crisis, including
VWP to enter the United States and remain illegally past the 90-day period of
admission,9 that country was removed from the VWP in February 2002.10 Similarly,
on April 15, 2003, Uruguay was terminated from the VWP because Uruguay’s
participation in the VWP was determined to be inconsistent with the U.S. interest in
enforcing the immigration laws.11
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%.12 Probationary countries with a
disqualification rate less than 2% over a period not to exceed three years may remain
VWP countries.13 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 was to be re-evaluated in 2004.14
defaulting on loans by foreign creditors, devaluation of its currency, and increased levels
of unemployment and poverty. For more information on the financial collapse in Argentina
see CRS Report RS21072, The Financial Crisis in Argentina, by J. F. Hornbeck.
In addition, many Argentine nationals were trying to use the VWP to obtain entry to the
United States solely for the purpose of proceeding to the Canadian border and pursuing an
asylum claim in Canada. According to Citizenship and Immigration Canada, between 1999
and 2001, more than 2,500 Argentines filed refugee claims in Canada after transiting the
United States under the VWP. Federal Register, Feb. 21, 2002, vol. 67, no. 35, p. 7944.
While the number of Argentine nonimmigrant travelers to the United States declined
between 1998 and 2000, the number of Argentines denied admission at the border and the
number of interior apprehensions increased. The Department of Justice in consultation with
DOS determined that Argentina’s participation in the VWP was inconsistent with the United
States’ interest in enforcing it’s immigration laws.The Department of Homeland Security
did not exist in Feb. 2002, and authority for the VWP resided with the Attorney General in
the Department of Justice. Federal Register, Feb. 21, 2002, vol. 67, no. 35, pp. 7943-7945.
Between 2000 and 2003 Uruguay experienced a recession causing its citizens to enter
under the VWP to live and work illegally in the United States. In 2002, Uruguayan
nationals were two to three times more likely than all nonimmigrants on average to have
been denied admission at the border. Uruguayan air arrivals had an apparent overstay rate
more than twice the rate of the average apparent overstay rate for all air arrival
nonimmigrants. Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957.
“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. 104208).
Federal Register, Mar. 7, 2003, vol. 68, no. 45, pp. 10954-10957. It is not clear that this
re-evaluation was competed.
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’s 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’s Bureau of Immigration and Customs
Enforcement’s (ICE) Arrival and Departure Information System (ADIS)15 for
matching arrivals and departures and reporting purposes. APIS collects carrier
information such as flight number, airport of departure and other data.16
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.17 DHS’s 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),18 and entry of the
traveler into the US-VISIT system. The US-VISIT system uses biometric
identification (finger scans) to check identity and track presence in the United
States.19 Currently, inspectors at the border collect the following information on
aliens entering under the VWP: name, date of birth, nationality, gender, passport
number, country of issuance, a digital photograph, and prints for both index finders.
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
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
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.
For more information on US-VISIT see, CRS Report RL32234, U.S. Visitor and
Immigrant Status Indicator Technology (US-VISIT) Program, by Lisa M. Seghetti, Stephen
travelers sent to secondary inspections are questioned extensively, travel documents
are further examined, and additional databases are queried.20
Figure 1. Number of Entrants under the VWP for FY1995-FY2005,
Percent of All Nonimmigrant Entrants Who Are VWP Entrants, and
Percent of All B Visa Entrants Who Are VWP Entrants
Percent of Total
VWP & % of all Nonimmigrants ' % of B Visas
Source: Data for FY1995-FY2001 from the Statistical Yearbook of the Immigration and
Naturalization Service. Data for FY2002-FY2005 from the Department of Homeland
Security, Yearbook of Immigration Statistics. 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 FY2003FY2005: 27.
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
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
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 FY2005, the number of people entering under the VWP
increased 16.4%, from 13.2 to 15.8 million. The number of people entering as
nonimmigrants decreased slightly between FY2002 and FY2003, from 27.9 to 27.8
million, and then increased from 27.8 to 32 million (13%) between FY2003 and
FY2005. The number of aliens entering as temporary visitors for business or pleasure
increased 14.6% from 24.3 to 28.5 million between FY2002 and FY2005. In FY2005,
visitors entering under the VWP constituted 49.5% of all nonimmigrant admissions,
and 55.5% of all temporary visitors.21
Notably, between FY2002 and FY2004, the percent increase of the number of
aliens entering under the VWP was larger than the increase in both the number of
nonimmigrant and temporary visitor entrants. However, between FY2004 and
FY2005, the increase in the number of aliens entering under the VWP was smaller
than the increase in both the number of nonimmigrant and temporary visitor entrants.
In other words, during this period, the majority of the growth in nonimmigrant and
temporary visitor admittances came from aliens from countries not in the VWP.
Visa Waiver Pilot Program
The Visa Waiver Program was established as a temporary program (Visa Waiver
Pilot Program) by the Immigration Reform and Control Act of 1986 (P.L. 99-603).
Participation in the pilot program was originally limited to eight countries. Congress
periodically passed legislation to extend the program’s authorization, expand the
number of countries allowed to participate in the program, and modify the qualifying
criteria. Between 1986 and 1997, Congress passed the following five laws that made
changes to the Visa Waiver Pilot Program:
the Immigration Technical Corrections Act of 1988 (P.L. 100-525);
the Immigration Act of 1990 (P.L. 101-649), which inserted further
requirements for the program and removed the limit on the number
of countries that could participate in the program;
the Miscellaneous and Technical Immigration and Naturalization
Amendments of 1991 (P.L. 102-232);
the Immigration and Nationality Technical Corrections Act of 1994
(P.L. 103-416), which created a probationary status to allow countries
Temporary visitors include aliens who entered with B visas and those who entered under
whose nonimmigrant visa refusal rates were higher than 2% but less
than 3.5% to enter the program on a probationary basis; and
the Illegal Immigrant Reform and Immigrant Responsibility Act of
1996 (P.L. 104-208), which created a new type of probationary status
for countries in the program that failed to meet certain criteria, and
removed the probationary status that had allowed countries with
nonimmigrant visa refusal rates higher than 2% but less than 3.5% to
enter the program.
The pilot program was scheduled to expire on September 30, 1997, but
temporary extensions were included in the Continuing Resolutions passed in the 105th
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 passed 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.23 By 1999, program
participation had grown to include 29 countries.24
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)25 exercised the Attorney General’s
parole authority to extend the program temporarily.26 Besides making this program’s
authorization permanent, the Visa Waiver Permanent Program Act included
An extension of the pilot program was included in the first Continuing Resolution (P.L
105-56 §117) for FY1998. The five subsequent Continuing Resolutions — P.L. 105-64,
P.L. 105-68, P.L. 105-69, P.L. 105-71, and P.L. 105-84 — simply extended the expiration
date of the provisions in the first Continuing Resolution for FY1998 (P.L. 105-56).
Originally, to qualify for the Visa Waiver Pilot Program countries needed to have had an
average nonimmigrant refusal rate of no more than 2% over the past two fiscal years with
neither year going above 2.5%. P.L. 105-173 added the criteria that a country could have
a nonimmigrant refusal rate of less than 3% for the previous year and qualify for the
As of Jan. 2007, 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, the Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United
Kingdom. Argentina was removed from the VWP in February 2002, and Uruguay was
removed in Apr. 2003.
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)).
provisions designed to strengthen documentary and reporting requirements. P.L. 106396 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,
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, 2004.28 At this time, an entrant under the VWP with a passport
which is not machine-readable must obtain a visa to travel to the United States.
Enhanced Border Security and Visa Entry Reform Act of 2002
The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border
Security Act),29 signed into law on May 14, 2002, 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
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.
The 21 countries granted a postponement were: Australia, Austria, Denmark, Finland,
France, Germany, Iceland, Ireland, Italy, Japan, Monaco, the Netherlands, New Zealand,
Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland, and the United
Kingdom. On Nov. 11, 2003, Luxembourg was granted an extension of the deadline.
P.L. 107-173. The original bill, H.R. 3525, was sponsored by Representative F. James
checked against a lookout system. The Border Security Act also mandated that by
October 26, 2004 the government of each VWP country needed 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.30 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 new requirement of biometrics
in the passports did not change the deadline in the USA Patriot Act for the
presentation of machine-readable, tamper-resistant passports. The biometric passport
requirement deadline was extended to October 27, 2005 by P.L. 108-299.31 Thus, as
of October 27, 2005 (the day after the new deadline) all entrants under the VWP were
required to present machine-readable, tamper-resistant passports (as required by the
USA Patriot Act, and P.L. 108-299), but only passports issued after October 26, 2005
were required to have a biometric identifier.
Although Congress extended the deadline for VWP countries to certify that they
had a program to issue machine-readable passports with biometric identifiers, most
VWP countries would have been unable to meet the new, October 26, 2005, deadline,
especially if the biometric requirement could only have been fulfilled by countries
who had electronic data chips in their passports (e-passports). In addition, there was
resistance in Congress to grant another extension of the biometric deadline.32 As a
result, the U.S. government clarified that a digitized photograph printed on a data page
in the passport would count as a biometric for the October 26, 2005, requirement.
Thus, only France and Italy were unable to meet the new deadline, but have since
come into compliance. In addition, any passports used by VWP travelers issued after
October 26, 2006, requires integrated chips with information from the data page (epassports).
The Intelligence Reform and Terrorism Prevention Act of 2004
P.L. 108-458,33 the Intelligence Reform and Terrorism Prevention Act of 2004,
added the requirement that by October 26, 2006, as a condition of being in the VWP,
each VWP country must certify that it is developing a program to issue tamperresistant, machine-readable visa documents that incorporate biometric identifiers
which are verifiable at the country’s port of entry.
The act tasked the International Civil Aviation Organization (ICAO) with developing the
Signed into law on Aug. 9, 2004.
For example, see letter from Rep. F. James Sensenbrenner, Jr., to Luc Frieden, President
of the European Counsel of Ministers, and Franco Frattini, Vice-President of the European
Commission, Apr. 7, 2005.
The original bill, H.R. 2845, was sponsored by Senator Susan M. Collins and signed into
law on Dec. 17, 2004.
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.34 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 greater-risk 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.35
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.36 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
Adding Countries to the VWP (Road map Countries)
Although some view the VWP as a security risk since travelers under the
program do not undergo the screening required to receive a visa, others contend that
the inclusion of countries in the VWP actually increases U.S. security. They argue
that the VWP enhances security by setting standards for travel documents and
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.
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
information sharing, and that the program promotes economic growth and cultural
ties. In addition, membership in the VWP could be used as an incentive to get other
countries to share information with the United States. 37
There are countries that have expressed a desire to be included in the VWP
because of the possible economic benefits (e.g., increasing commerce and tourism),
making it easier and cheaper for their populace to travel to the United States (i.e.,
since their citizens do not have to get a visa before traveling temporarily to the United
States), and because membership in the program is often perceived as evidence of
close ties with the United States. In 2005, the administration began providing
countries interested in joining the VWP with “road maps” to aid the countries in
meeting the program’s criteria. 38 However, some of the countries have complained
that since the “road maps” do not contain milestones or time tables, it is difficult to
measure the amount of progress made towards fulfilling the criteria for VWP
membership. 39 Moreover, others contend that since U.S. consular officers are the ones
that approve or disapprove applications for visas, it is extremely difficult for countries
to affect their visa refusal rates, limiting the ability of a country to follow a defined set
of steps to meet the required VWP criteria.
EU Countries. Ten of the road map countries are members in the EU, which
may also raise another issue concerning the VWP. EU rules require that all member
states be treated equally (solidarity clause). In addition, a visa is required for all
citizens from non-VWP EU countries wishing to travel to the United States, whereas
under EU law, these countries do not require visas of US citizens for stays up to 90
days. Presently any of the 10 EU Member States not participating in the VWP could
invoke the EU solidarity clause40 and visa reciprocity clause, 41 with the result that the
other EU countries may have to decline to be members of the VWP, or place visa
requirements on United States citizens traveling to EU countries unless the other
countries are allowed to enter the VWP. 42 Nonetheless, the other EU countries may
put pressure on the non-VWP EU countries not to file a formal complaint which could
For an example of this agreement, see James Jay Carafano, With a Little Help from Our
Friends: Enhancing Security by Expanding the Visa Waiver Program, Heritage Foundation,
Executive Memorandum no. 991, Feb. 3, 2006.
Currently there are 19 “road map” countries. They are Argentina, Brazil, Bulgaria,
Cyprus, Czech Republic, Estonia, Greece, Hungary, Israel, South Korea, Latvia, Lithuania,
Malta, Poland, Romania, Slovakia, Taiwan, Turkey, and Uruguay.
For example, on Feb. 8, 2006, the Heritage Foundation held an event entitled Fighting a
More Effective War on Terrorism: Expanding the Visa Waiver Program. The featured
speakers were Ambassadors Petr Kolar of the Czech Republic, John Bruton of the EU,
Janusz Reiter of Poland, and András Simonyi of Hungary. A recording of the event is
available at [http://www.heritage.org/Press/Events/ev020806a.cfm].
Non-VWP EU countries could contend that the fact that other countries in the EU are part
of the VWP constitutes unequal treatment.
The same visa rules do not apply to U.S. citizens traveling to the Non-VWP EU countries,
and Non-VWP EU citizens traveling to the United States.
Conversation with Telmo Baltazar, Justice and Home Affairs Counselor, European Union,
Apr. 18, 2005.
strain EU-U.S. relations. Also, some of the countries may not have raised this issue
yet because they are not full members of the Schengen area.43 Notably, Greece, a full
member of the EU that is not a VWP country (but is a road map country), has not
filed a complaint about unequal treatment.
Management and Oversight
In April 2004, the Inspector General (IG) for the DHS released a report entitled
An Evaluation of the Security Implications of the Visa Waiver Program. 44 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’s 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.
Lost and Stolen Passports
The IG April 2004 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 noted that
collection of data on lost and stolen passports is not proactive, uniform, nor
disseminated in an organized manner. In addition, the report observed that the lack
of international standardization in passport numbering systems complicates the ability
to identify people using stolen VWP country passports.
The April 2004 report also noted that the U.S. lacked a centralized mechanism
for foreign governments to report lost and stolen passports. In May 2004, the United
States joined 40 other countries in providing information on lost and stolen passports
to the U.S. National Central Bureau of the International Criminal Police Organization
(INTERPOL). The INTERPOL lost and stolen passport database is available to law
The Schengen area comprises the EU countries which have signed the convention
implementing the Schengen Agreements of 1985 and 1990 on the free movement of persons
and the standardization of border controls. See [http://mondediplo.com/maps/
schengen2000], visited Jan. 23, 2006.
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.
enforcement and immigration authorities worldwide.45 Seven of the 27 VWP
countries provide data to the INTERPOL database.
Due to the findings in the April 2004 report detailing deficiencies in the
reporting of lost and stolen passports, in December 2004 DHS’ Office of the Inspector
General46 released a follow up report entitled, A Review of the Use of Stolen Passports
from Visa Waiver Countries to Enter the United States which found that the majority
of aliens applying for admission to the United States using stolen passports are
admitted, and that the likelihood of being admitted only slightly declined if the
passport was posted in the lookout system. 47 The study reviewed two groups of aliens
who used stolen passports to attempt to enter the United States. One group did not
have lookouts posted for the stolen passports, and 79 out of 98 aliens were admitted
(81%). The other group had lookouts posted for the stolen passports, and 57 out of
78 aliens were admitted (73%), of which 33 of the admissions occurred after
September 11, 2001.
The Number of Lost/Stolen Passports. Currently, DOS receives most
of the stolen passport reports from foreign governments. Based on DOS reports from
January 2002 to June 2004, 28 foreign governments reported 56,943 stolen blank
foreign passports.48 In June 2004, the Director of the U.S. National Central Bureau
of INTERPOL said that for 55 of the 181 INTERPOL countries, there probably were
over 10 million lost and stolen passports that might be in circulation. In August 2004,
according to CBP, their database contains 1.2 million records of stolen passports.49
The INTERPOL lost and stolen passport database became operational in July, 2002. The
United States agreed to transfer 320,000 records of lost or stolen U.S. passports reported
since 2002. INTERPOL’s database presently contains approximately 1.6 million records
reported by the 41 countries. Of the 1.6 million records, approximately 60% are passports,
predominantly lost or stolen from the bearer, while 40% are national identification
documents. U.S. Department of Homeland Security, Office of Inspections, Evaluations, and
Special Reviews OIG-05-07, A Review of the Use of Stolen Passports from Visa Waiver
Countries to Enter the United States, Dec. 2004, pp. 7-8. (Hereafter cited as DHS, Review
of the Use of Stolen Passports from Visa Waiver Countries to Enter the United States.)
U.S. Department of Homeland Security, Office of Inspections, Evaluations, and Special
Reviews OIG-05-07, A Review of the Use of Stolen Passports from Visa Waiver Countries
to Enter the United States, Dec. 2004.
A lookout system contains information on aliens who are or may be inadmissable to the
United States, or who may be of interest to law enforcement for reasons such as immigration
violations, alien smuggling, suspected or actual criminal activity, and suspected ties to
There are two types of lost or stolen passports: passports stolen from individuals, and
stolen blank passports. Since passports stolen from individuals are modified by replacing
the existing photographs and biographical data with that of the intended users, these changes
are usually easier for an inspector to detect, unlike forged stolen blank passports which are
often modified with high quality photographs and biographic data and are very difficult to
DHS, Review of the Use of Stolen Passports from Visa Waiver Countries to Enter the
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. 50
Enacted 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. 108299). P.L. 108-299 provided a one-year extension of the deadline for VWP countries
to certify that they have a program to issue machine-readable passports with biometric
identifiers. The new biometric deadline was October 26, 2005. The bill also amended
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 26, 2005.
P.L. 108-458/S. 2845
The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108458), introduced by Senator Susan Collins on September 23 2004, as H.R. 2845,
requires that by October 26, 2006, each VWP country, as a condition of being in the
VWP, certify that it is developing a program to issue tamper-resident, machinereadable visa documents that incorporate biometric identifiers which are verifiable at
the country’s port of entry. The original provision in S. 2845, as passed by the Senate,
would have required 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
United States, p. 8.
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.
used in the US-VISIT program. The House-passed version of S. 2845 did not contain
a similar provision.
Legislation in the 109th Congress
Suspending the VWP
H.R. 688. On February 9, 2005, Representative J. Gresham Barrett
introduced H.R. 688, which would have suspend the VWP until the Secretary of
Homeland Security determined and certified to Congress that 11 different criteria have
been met including that:
the automated entry-exit system authorized under Section 110 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 was fully implemented and functional ,51
all United States ports of entry had functional biometric machine
readers , and
all countries that participated in the VWP issued their nationals
machine-readable biometric passports .
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 were fully operational
at all ports of entry and, where applicable, at consular posts abroad;
DHS had 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 had 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 was executed, was at least 25% higher than in the comparable
months of the previous year.
New Program Requirements
H.R. 1320. Similar to H.R. 4550 introduced in the 108th Congress, H.R.
1320, introduced by Representative Silvestre Reyes on March 15, 2005, would have
established, as part of the entry/exit system, an electronic system that used
biographical data to determine eligibility for admission to the United States. The bill
would have required that prior to embarkation, those entering under the VWP
electronically submit biographical information through the system. Airlines and other
carriers would have had to perform an electronic check through the system to
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.
determine whether the alien passenger entering under the VWP had been determined
to be eligible for admission. In addition, H.R. 1320 would have directed the Secretary
of Homeland Security to create a Visa Waiver Program Office which would be tasked
with several security-related duties including developing the protocols for country
reviews, and to collect and analyze lost and stolen passport data.
Adding Poland to the VWP
H.R. 634. Introduced on February 8, 2005, by Representative Sheila JacksonLee, H.R. 634 would have temporarily designated Poland as a VWP country for 18
months after enactment. The bill would have required one year after enactment that
the Secretary of DHS determine the overstay rate of aliens from Poland entering under
the VWP, and use the rate to determine whether Poland should permanently but
conditionally be designated as a VWP country. The bill would have allowed Poland
to be a VWP country as long as the annual overstay rate remained below 3%.
H.R. 635/S. 348. H.R. 635, introduced on February 8, 2005, by
Representative Nancy L. Johnson, and S. 348, introduced by Senator Rick Santorum
on February 10, 2005, would have designated Poland as a VWP country. 52
Bills were introduced in previous Congresses to legislate countries into the VWP;
however, none of the bills were enacted.