Visa Waiver Program

Order Code RL32221 Visa Waiver Program Updated August 8, 2007January 31, 2008 Alison Siskin Specialist in Immigration Policy Domestic Social Policy Division Visa Waiver Program Summary Since the events of September 11, 2001, concerns have been raised about the ability of terrorists to enter the United States under the visa waiver program (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 FY2005FY2006, 15.83 million visitors entered the United States under this program, constituting 5651% 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’ security interests. P.L. 110-53 adds new requirements to participate in the VWP, and provides the Secretary of the Department of Homeland Security (DHS) the authority to waive the nonimmigrant refusal rate requirement, but this waiver will only be available after certain conditions are met. 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 DHS regulations, travelers who seek to enter the United States through the VWP are subject to the biometric requirements of the US-VISIT program. Numerous countries, including Poland, Estonia, Israel, and South Korea, have expressed interest in being a part of the VWP. DHS and DOS have provided selected 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 the program. This report will be updated if legislative action occurs. Contents Current Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 VWP Qualifying Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 VWP Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Trends in Use of the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Visa Waiver Pilot Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Visa Waiver Permanent Program Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 USA Patriot Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Enhanced Border Security and Visa Entry Reform Act of 2002 . . . . . . . . . . 89 The Intelligence Reform and Terrorism Prevention Act of 2004 . . . . . . . . . 910 Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Adding Countries to the VWP (Road map Countries) . . . . . . . . . . . . . . . . . 1112 Process for Adding Countries to the VWP . . . . . . . . . . . . . . . . . . . . . 1112 EU Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213 Management and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1314 Lost and Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1314 The Number of Lost/Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . 1516 Overstays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Enacted 16 Legislation in the 108th110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 P.L. 108-299/H.R. 4417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 P.L. 108-458/S. 2845 .. . . . . . . 17 Increasing Security Measures and Expanding the VWP . . . . . . . . . . . . . . . 17 Implementing the 9/11 Commission Recommendations Act of 2007 (P.L. 110-53) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . .17 S. 653 . . . . . . . . . . . 16 Suspending the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 H.R. 688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 H.R. 561/S. 342 . . . . . . . . . . . . . . . . 16 New Program Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1719 H.R. 13201465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Adding Poland to the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1719 H.R. 6341543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 H.R. 635/S. 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Increasing Security Measures and Expanding the VWP . . . . . . . . . . . . . . . 18 Implementing the 9/11 Commission Recommendations Act of 2007 (P.L. 110-53) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 S. 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H.R. 561/S. 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H.R. 1465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H.R. 1543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2120 H.R. 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 H.R. 2526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Suspending the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2120 H.R. 1342 . . . . . . . . ./H.R. 3064/H.R. 4192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 20 List of Figures Figure 1. Number of Entrants under the VWP for FY1995-FY2005, Percent of FY1998-FY2006, Percent of All Nonimmigrant Entrants Who Are VWP Entrants, and Percent of All B Visa Entrants Who Are VWP Entrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Visa Waiver Program Current Policy 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 TIPOFF databases.4 1 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 November 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 March 1, 2003, the Attorney General in consultation with the Secretary of State was responsible for designating the VWP countries. 2 “B” visa refers to the subparagraph in the Immigration and Nationalization Act (INA § 101(a)(15)(B)). 3 To obtain a nonimmigrant visa, individuals submit written applications and undergo interviews and background checks. For more information on temporary admissions, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem. 4 For more information on visa issuances, see CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem. CRS-2 Although the VWP greatly eases the documentary requirements for nationals from participating countries, it has important restrictions. Aliens entering with a B visa may petition to extend their length of stay in the United States or may petition to change to another nonimmigrant or immigrant status. Aliens entering through the VWP are not permitted to extend their stays except for emergency reasons and then for only 30 days.5 Additionally, with some limited exceptions, aliens entering through VWP are not permitted to adjust status. An alien entering through the VWP who violates the terms of admission becomes deportable without any judicial recourse or review (except in asylum cases). VWP Qualifying Criteria 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 5 This provision was amended by P.L. 106-406 to provide extended voluntary departure to nonimmigrants who enter under the VWP and require medical treatment. 6 All passports issued after October 26, 2005 presented by aliens entering under the VWP have to be machine-readable and contain a biometric identifier. 7 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). 8 Beginning in December 2001, Argentina experienced a serious economic crisis, including (continued...) CRS-3 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 2002.10In addition, §711 of the Implementing the 9/11 Commission Recommendations Act of 20077 (P.L. 110-53) added new criteria for participating in the VWP. (The Act also created a waiver allowing the Secretary of DHS to admit countries with refusal rates under 10% to the VWP. However, certain currently unmet conditions must be fulfilled before the waiver is available.) The new requirements include requiring VWP countries to ! enter into an agreement with the United States to report or make available through INTERPOL information about the theft or loss of 5 This provision was amended by P.L. 106-406 to provide extended voluntary departure to nonimmigrants who enter under the VWP and require medical treatment. 6 All passports issued after October 26, 2005 presented by aliens entering under the VWP have to be machine-readable and contain a biometric identifier. 7 P.L. 110-53 (H.R 1), signed into law on August 3, 2007. For more details on the changes to the VWP in this Act, see below section “Legislation in the 110th Congress.” CRS-3 passports (previously, VWP countries only had to certify that they were reporting thefts of blank passports); ! accept the repatriation of any citizen, former citizen, or national against whom a final order of removal is issued no later than three weeks after the order is issued; and ! enter into an agreement with the United States to share information regarding whether a national of that country traveling to the United States represents a threat to U.S. security or welfare. 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.8 For example, because of Argentina’s economic collapse in December 2001,9 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,10 that country was removed from the VWP in February 2002.11 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.14 DHS completed another country review of Belgium in 2005, and removed the country from probationary status. 8 (...continued)12 8 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). 9 Beginning in December 2001, Argentina experienced a serious economic crisis, including 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. 910 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, February 21, 2002, vol. 67, no. 35, p. 7944. 10 11 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 February 2002, and authority for the VWP resided with the Attorney General in the Department of Justice. Federal Register, February 21, 2002, vol. 67, no. 35, pp. 7943-7945. 1112 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, March 7, 2003, vol. 68, no. 45, pp. 10954-10957. 12 “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. 13 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104208). 14 Federal Register, March 7, 2003, vol. 68, no. 45, pp. 10954-10957. CRS-4(continued...) CRS-4 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%.13 Probationary countries with a disqualification rate less than 2% over a period not to exceed three years may remain VWP countries.14 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.15 DHS completed another country review of Belgium in 2005, and removed the country from probationary status. VWP Inspections Unlike other nonimmigrants, no background checks are done on travelers under the VWP prior to their departure for the United States. This expedited process allows only one opportunity — immigration inspectors at port of entry — to identify inadmissable aliens. Prior to the alien’s arrival, an electronic passenger manifest is sent from the airline or commercial vessel to immigration inspectors at the port of entry which is checked against security databases. Since October 1, 2002, passenger arrival and departure information on individuals entering and leaving the U.S. under the VWP has been electronically collected from airlines and cruise lines, through DHS’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)1516 for matching arrivals and departures and reporting purposes. APIS collects carrier information such as flight number, airport of departure and other data.1617 At port of entry, immigration inspectors observe and question applicants, examine passports, and conduct checks against a computerized system to determine 12 (...continued) 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, March 7, 2003, vol. 68, no. 45, pp. 10954-10957. 13 “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. 14 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104208). 15 Federal Register, March 7, 2003, vol. 68, no. 45, pp. 10954-10957. 16 ADIS feeds information to the Interagency Border Inspection System (IBIS). 17 [http://www.dhs.gov/dhspublic/display?theme=43&content=736&print=true]. CRS-5 whether the applicant is admissible to the United States.18 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),1819 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.1920 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 15 ADIS feeds information to the Interagency Border Inspection System (IBIS). 16 [http://www.dhs.gov/dhspublic/display?theme=43&content=736&print=true]. 17 travelers sent to secondary inspections are questioned extensively, travel documents are further examined, and additional databases are queried.21 18 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). 18 19 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. 1920 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 R. Vina. CRS-5 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 21 Lookout databases such as TIPOFF, which is integrated with CLASS, contain information on aliens who are inadmissible for entry into the United States. NSEERS and SEVIS are also used during secondary inspections. Immigration inspectors may access NAILS II, which is a text-based system that interfaces with IBIS and CLASS. For more information, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem. CRS-6 Figure 1. Number of Entrants under the VWP for FY1998-FY2006, Percent of All Nonimmigrant Entrants Who Are VWP Entrants, and Percent of All B Visa Entrants Who Are VWP Entrants 20 Millions Percent of Total Millions VWP & % of all Nonimmigrants ' % of B Visas 15 10 ' & ' & ' & ' & ' & ' & ' ' ' & & 2002 2003 ' & ' & 2004 2005 ' & 5 0 5 0 1995 1996 1997 1998 1999 2000 2001 100 95 90 85 80 75 70 65 60 55 50 45 40 35 30 25 20 15 10 5 0 2006 Source: Department of Homeland Security, FY2006: 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 FY2003FY2005FY2003-FY2006: 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 20 Lookout databases such as TIPOFF, which is integrated with CLASS, contain information on aliens who are inadmissible for entry into the United States. NSEERS and SEVIS are also used during secondary inspections. Immigration inspectors may access NAILS II, which is a text-based system that interfaces with IBIS and CLASS. For more information, see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth Ellen Wasem. CRS-6 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 under the VWP declined slightly between FY2005 and FY2006, from 15.8 million to 15.3 million. The number of people entering as nonimmigrants decreased slightly between CRS-7 FY2002 and FY2003, from 27.9 to 27.8 million, and then increased from 27.8 to 32 million (1333.7 million (21.1%) between FY2003 and FY2005 FY2006. The number of aliens entering as temporary visitors for business or pleasure increased 14.6% from 24.3 to 28.529.9 million between FY2002 and FY2005. In FY2005, FY2006. In FY2006, visitors entering under the VWP constituted 49.545.4% of all nonimmigrant admissions, and 55.551.1% of all temporary visitors.2122 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 FY2005FY2006, 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. Legislative History 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: ! ! ! ! 21! 22 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 the VWP. CRS-7 ! 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. Temporary visitors include aliens who entered with B visas and those who entered under the VWP. CRS-8 The pilot program was scheduled to expire on September 30, 1997, but temporary extensions were included in the Continuing Resolutions passed in the 105th Congress.2223 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.2324 By 1999, program participation had grown to include 29 countries.2425 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)2526 exercised the Attorney General’s parole authority to extend the program temporarily.2627 Besides making this program’s authorization permanent, the Visa Waiver Permanent Program Act included 22 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 lookout systems; require ongoing evaluations of participating countries (not less than once every five years); 23 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). 2324 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 program. 2425 As of January 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 April 2003. 2526 The Homeland Security Act of 2002 (P.L. 107-296) abolished the Immigration and Naturalization Service (INS) and effective March 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). 2627 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)). CRS-8 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 lookout systems; require ongoing evaluations of participating countries (not less than once every five years); 9 ! ! require the collection of visa waiver program arrival/departure data at air and sea ports of entry; and require that the calculation of visa refusal rates for determining country eligibility shall not include any refusals based on race, sex, or disability.2728 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, 2004.2829 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),2930 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 27 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.31 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 28 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. 2829 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 November 11, 2003, Luxembourg was granted an extension of the deadline. 2930 P.L. 107-173. The original bill, H.R. 3525, was sponsored by Representative F. James Sensenbrenner. CRS-9 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 31 The act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard. CRS-10 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. 108-299.3132 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.3233 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. 108-458,3334 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. 30 The act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard. 3132 Signed into law on August 9, 2004. 3233 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, April 7, 2005. 3334 The original bill, H.R. 2845, was sponsored by Senator Susan M. Collins and signed into law on December 17, 2004. CRS-1011 Policy Issues The VWP is supported by the U.S. travel and tourism industry, the business community, and DOS. The travel and tourism industry views the VWP as a tool to facilitate and encourage foreign visitors for business and pleasure, which results in increased economic growth generated by foreign tourism and commerce for the United States.3435 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.3536 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.3637 Another concern has been the lack of information on aliens from VWP countries who overstay the terms of their admittance. On September 6, 2006, the Senate Judiciary Committee’s Terrorism, Technology, and Homeland Security Subcommittee held a hearing entitled “Keeping Terrorists Off The Plane: Strategies For Pre-Screening International Passengers Before Takeoff.” During that hearing, testimony by Jess T. Ford of the Government Accountability Office (GAO) noted that the VWP has many benefits as well as some inherent risks. Of particular concern are the stolen passports from VWP countries especially since they are prized travel documents among those attempting to illegally enter the United States; and problems with the two-year reviews of participating VWP countries.37 3438 35 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 South 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. 3536 In his testimony before the House Immigration and Claims Subcommittee on February 28, 2002, William S. Norman, President and Chief Executive Officer of the Travel Industry Association of America, stated that it would take hundreds of new consular staff and tens of millions of dollars to issue visas to visitors currently entering under the VWP. 3637 U.S. Department of Justice, Office of Inspector General Report I-2002-002, Follow-Up Report on the Visa Waiver Program, December 2001. (Hereafter cited as DOJ, Follow-Up Report.) 3738 Testimony of Jess T. Ford, Director International Affairs and Trade, General Accounting (continued...) CRS-1112 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 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.3839 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.3940 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.4041 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. Process for Adding Countries to the VWP.4142 The first step in the process is that the Department of State (DOS) advises DHS of its intent to nominate a country for inclusion in the program only after State has determined that the country meets key 3738 (...continued) Office, in U.S. Congress, Senate Committee on the Judiciary Committee, Subcommittee on Terrorism, Technology, and Homeland Security, Keeping Terrorists Off The Plane: Strategies For Pre-Screening International Passengers Before Takeoff, hearings, 109th Cong., 2nd sess., September 7, 2006. 3839 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, February 3, 2006. 3940 There are currently 13 “road map” countries. They are Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, South Korea, Latvia, Lithuania, Malta, Poland, Romania, and Slovakia. 4041 For example, on February 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]. 4142 Note that this section is based on U.S. Government Accountability Office, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program, GAO-06-854, July, 2006, p. 51. (Hereafter GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program.) CRS-1213 criteria for visa waiver designation.4243 Then DHS and DOS may engage in a prenomination consultation process to ensure that all parties are in agreement before DOS submits its formal nomination. After receiving the formal nomination from DOS, DHS, through an interagency working group, evaluates the effect that the country’s designation would have on U.S. law enforcement, security, and immigration interests. On the basis of the review, the interagency working group submits a recommendation to the Secretary of DHS, who, in consultation with the Secretary DOS, decides whether to admit the country into the program.4344 EU Countries. Twelve 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 12 EU Member States not participating in the VWP could invoke the EU solidarity clause44clause45 and visa reciprocity clause,4546 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.4647 Nonetheless, the other EU countries may put pressure on the non-VWP EU countries not to file a formal complaint which could 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.4748 Notably, Greece, a full member of the EU that is not a VWP country (but is a road map country), has who was nominated in 2007 by DOS to become a VWP country), has not filed a complaint about unequal treatment.49 The Commission on European Communities has stated that it believes that the road map process could be “an adequate means for ensuring visa exemption for all EU citizens in the medium term...” However, the Commission noted that to make the process fully effective there needs to be more consistency in setting the goals and measures for road map countries. The Commission also stated that the United States had not shown any willingness to consider interim facilitation measures such as 4243 Note, this paragraph describes the interim process for adding a country to the VWP. In July 2006, GAO reported that DHS was drafting procedures on the process by which additional countries are admitted into the VWP. CRS was unable to confirm whether the new procedures have been finalized. 4344 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program. 44 45 Non-VWP EU countries could contend that the fact that other countries in the EU are part of the VWP constitutes unequal treatment. 4546 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. 4647 Conversation with Telmo Baltazar, Justice and Home Affairs Counselor, European Union, April 18, 2005. 47 48 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 January 23, 2006. CRS-13 49 DHS began its review of Greece for participation in the VWP in late 2007. CRS-14 measures for road map countries. The Commission also stated that the United States had not shown any willingness to consider interim facilitation measures such as providing a fee exemption for tourist visas, and that the EU should continue to press the United States to streamline at least some aspects of the visa application process.4850 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.4951 The report detailed security concerns with the VWP, some of which resulted 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 after the abolishment of the Immigration and Naturalization Service (INS), the VWP 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. Many of these management issues were resolved with the establishment of the Visa Waiver Program Oversight Unit within DHS’ Office of International Enforcement (OIE) in July, 2004. Nonetheless, GAO has reported on-going issues with the country review process noting that stakeholders (e.g., overseas embassies, DOS regional bureaus, and document analysts) continue to express concerns about the lack of clear, consistent, and transparent protocols for the biennial reviews.5052 In addition, GAO noted that DHS has not provided sufficient resources to OIE and the VWP Oversight Unit to effectively and continuously monitor the risks posed by existing VWP countries.5153 Lost and Stolen Passports The July 2006 GAO report also noted that DHS has not established time frames and operating procedures for the requirement that VWP countries report information on lost and stolen passports in a timely manner. The issues with lost and stolen passports are similar to those documented in the IG April 2004 report which found that information provided by VWP governments on lost and stolen passports was not been checked against United States’ entry/exit data to determine whether the passports have been used to enter the United States, and noted that collection of data on lost and stolen passports is not proactive, uniform, nor disseminated in an organized manner. In addition, the IG report observed that the lack of international standardization in 48 50 Commission of the European Communities, Report from the Commission to the Council on Visa Waiver Reciprocity with Certain Third Countries, October 1, 2006, pp.11-12. 4951 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, April 2004. 5052 U.S. Government Accountability Office, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program, GAO-06-854, July, 2006, p. 51. (Hereafter GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program.) 5153 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program, p. 4. CRS-1415 In addition, the IG report observed that the lack of international standardization in passport numbering systems complicates the ability to identify people using stolen VWP country passports. As in the April 2004 IG report, the July 2006 GAO report also noted that the U.S. lacks 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 enforcement and immigration authorities worldwide.5254 Although all but four of the VWP countries provide data to the Interpol database, DHS is not using Interpol’s database to its full potential because DHS does not automatically access the information at primary inspection. According to the Secretary General of Interpol, the United States will not have an effective screening tool for checking passports until Interpol’s data can be automatically queried during primary inspections.5355 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 General54General56 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.5557 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. 5254 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, December 2004, pp. 7-8. (Hereafter cited as DHS, Review of the Use of Stolen Passports from Visa Waiver Countries to Enter the United States.) 5355 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program, p. 5. 5456 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, December 2004. 5557 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 terrorists. CRS-1516 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.5658 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.5759 Notably, between January and June 2005, DHS confiscated 298 passports issued by VWP countries that travelers were attempting to use at ports of entry to fraudulently enter the United States.5860 Overstays Some maintain that the nonimmigrant visa refusal rate is an unobjective and arbitrary standard, because it is based on decisions made by consular officers rather than the actual behavior of nonimmigrants. When the program was conceived, it was expected that the number of nonimmigrants who overstay the terms of their entry under this program would be a better standard for future program participation. Reportedly, since December 2002, DHS has been matching the entry and exit portions of the I-94 forms for participants in the VWP to create an entry/exit system for VWP nationals. Some question whether this system can produce accurate counts of those who overstay the terms of their entry. Until an automated entry-exit system is fully operational and the data produced are trusted and easily 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.59 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 5661 58 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 detect. 5759 DHS, Review of the Use of Stolen Passports from Visa Waiver Countries to Enter the United States, p. 8. 5860 GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program, p. 3. 59 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. CRS-16 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 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: ! ! ! ! 60 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;60 all United States ports of entry had functional biometric machine readers; 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; 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. CRS-17 ! ! ! 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 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.61 61 Bills were introduced in previous Congresses to legislate countries into the VWP; however, none of the bills were enacted. CRS-1861 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. CRS-17 Legislation in the 110th Congress Increasing Security Measures and Expanding the VWP Implementing the 9/11 Commission Recommendations Act of 2007 (P.L. 110-53). Signed into law on August 3, 2007, §711 of P.L. 110-53 (H.R. 1) allows the Secretary of DHS, in consultation with the Secretary of DOS, to waive the nonimmigrant refusal rate requirement for admission to the VWP on the date on which the Secretary of DHS certifies to Congress that an air exit system is in place that can verify the departure of not less than 97% of foreign nationals that exit through U.S. airports. In addition, the Secretary of DHS must also certify to Congress that the electronic travel authorization system (discussed below) is operational, prior to being able to waive the nonimmigrant refusal rate requirement.62 Initially, the air exit system does not need to incorporate biometric identifiers; however, after June 30, 2009, if the air exit system is unable to match an alien’s biometric information with relevant watch lists and manifest information, the Secretary of DHS’ authority to waive the nonimmigrant refusal rate will be suspended until the air exit system has the specified biometric capacity. Once the Secretary of DHS has the authority to waive the nonimmigrant refusal rate requirement for admission to the VWP, to participate in the program a country who receives a refusal rate waiver will also have to: ! ! ! ! ! meet all the security requirements of the program (including the new requirements created by P.L. 110-53); be determined by the Secretary of DHS to have a totality of security risk mitigation measures which provide assurances that the country’s participation in the program would not compromise U.S. law enforcement and security interests, or the enforcement of U.S. immigration laws; have had a sustained reduction in visa refusal rates, and have existing conditions for the rates to continue to decline; have cooperated with the United States on counterterrorism initiatives and information sharing before the date of its designation, and be expected to continue such cooperation; and during the previous fiscal year, the nonimmigrant visas refusal rate was not more than 10% or the overstay rate did not exceed the maximum overstay rate established by the Secretaries of DHS and DOS for countries receiving waivers of the nonimmigrant refusal rate to participate in the VWP the program. P.L. 110-53 also specifies that in determining whether to waive the nonimmigrant refusal rate requirement, the Secretary of DHS, in consultation with the Secretary of DOS, may take into consideration other factors affecting U.S. security such as the country’s airport security and passport standards, whether the country has an effective 62 This provision is similar to the provision in S. 4 which was the Senate version of H.R. 1. H.R. 1, as passed by the House, would not have modified the VWP. CRS-1918 air marshal program, and the estimated overstay rate for nationals from the country. In addition, P.L. 110-53 makes several changes to the criteria to qualify as a VWP country which are intended to enhance the security of the program. As previously mentioned, the Act mandates that the Secretary of DHS, in consultation with the Secretary of State, develop and implement an electronic travel authorization system (the system), through which each alien electronically provides, in advance of travel, the biographical information necessary to determine whether the alien is eligible to travel to the United States and enter under the VWP. Aliens using the system will be charged a fee that will be set at a level so that the cost of creating and administering the system is covered by the fees. Eligibility to travel determined by the system is valid for no more than three years, and eligibility can be revoked at any time. Notably, a determination under the system that an alien is eligible to travel to the United States does not constitute a determination that the alien is admissible. The system will become operational 60 days after the Secretary of DHS publishes a notice in the Federal Register. P.L. 110-53 also requires the Secretary of DHS, no later than one year after enactment, to establish an exit system that records the departure of every alien who entered under the VWP and left the United States by air. The exit system is required to match the alien’s biometric information against relevant watch lists and immigration information, and compare such biographical information against manifest information collected by airlines to confirm that the alien left the United States. Furthermore, under P.L. 110-53, to participate in the VWP, countries are required to enter into an agreement with the United States to report or make available through INTERPOL information about the theft or loss of passports. (Currently, VWP countries only have to certify that they are reporting thefts of blank passports.) The agreements have to specify strict time limits for the reporting of this information. In addition, to be part of the VWP, countries have to accept the repatriation of any citizen, former citizen, or national against whom a final order of removal is issued no later than three weeks after the order is issued. Also, the countries are required to enter into an agreement with the United States to share information regarding whether a national of that country traveling to the United States represents a threat to U.S. security or welfare. The Act requires the Secretary of DHS to provide technical assistance to VWP countries to assist the countries in fulfilling the requirements of the program. In addition, P.L. 110-53 requires the Director of National Intelligence to conduct intelligence assessments of countries. For new VWP countries, the reviews must occur prior to their admittance into the VWP. For existing VWP countries, the reviews should be done in conjunction with the biannual country reviews. The Act also requires the Director of National Intelligence to immediately inform the Secretary of DHS of any current and credible threat of imminent danger to the United States or its citizens that originates from a VWP country. Upon receiving such notification, the Secretary of DHS, in consultation with the Secretary of DHS, may suspend a country from the VWP without any prior notice. Once the country’s CRS-20 participation in the VWP no longer poses a security threat, the Secretary of DHS shall reinstate the country in the VWP. CRS-19 P.L. 110-53 requires a report on the progress made on the new exit system and the procedures to calculate and increase the accuracy of overstay rates is due 180 days after enactment. P.L. 110-53 also authorizes such sums as necessary to carry out the provisions of the act. S. 653. Introduced by Senator George Voinvich on February 15, 2007, S. 653 is similar to P.L. 110-53, but S. 653 would not require DHS certification of an exit system for air travelers prior to providing the Secretary of DHS with the authority to waive the nonimmigrant refusal rate requirement for certain countries under the VWP. Unlike P.L. 110-53, the bill would not require the Secretaries of DHS and DOS to establish a maximum overstay rate for countries who receive a waiver of the nonimmigrant refusal rate, and also would not specify that during the previous fiscal year, countries receiving the nonimmigrant refusal rate waiver must have had a nonimmigrant visas refusal rate of not more than 10%. H.R. 561/S. 342. H.R. 561, introduced by Representative Phil English, and S. 342, introduced by Senator George Voinovich, would require the Secretary of DHS in consultation with the Secretary of DOS to establish a pilot program for not more than five countries to participate in the VWP as probationary program countries. A country would be eligible for the pilot program if: (1) the country’s participation would not compromise U.S. security and law enforcement interests; (2) the country is close to meeting the requirements of the VWP and has a feasible strategy to meet all requirements within three years; (3) the country meets the requirements determined by the Secretary of DHS to ensure the security of travel documents; (4) the country cooperated with the United States on counterterrorism initiatives and information sharing before the date of enactment; and (5) the country enters into an agreement with the United States to further advance U.S. security interests by implementing additional counterterrorism and information sharing initiatives. A country would be eligible to participate in the pilot program for three years. Participation could be extended for two years if the country demonstrates significant progress towards meeting the VWP requirements, submits a plan to meet the requirements, and whose continued participation is determined to be in U.S. law enforcement and security interests. A country’s participation could be terminated at any time if the country is not in compliance with the requirements of the pilot program, or is not able to demonstrate quantifiable progress towards meeting the VWP requirements. H.R. 1465. Introduced by Representative Robert Wexler on March 9, 2007, H.R. 1465 would allow the Secretary of DHS to waive the nonimmigrant refusal rate requirement for countries participating in the VWP if the country (1) has developed a viable plan to meet the nonimmigrant refusal rate requirement within three years; (2) during the previous two years has made significant progress in reducing their nonimmigrant refusal rate; (3) would not compromise the security or welfare of the United States by having the rate waived and being included in the VWP; and (4) has fully cooperated in counterterrorism and information sharing initiatives. The bill would also require that no later than one year after enactment, that the Secretary of DHS, in consultation with the Secretary of State, submit a report to Congress that describes plans for enhancing secure travel standards for VWP countries, including CRS-21 the feasibility of instituting an electronic authorization travel system, additional passenger exchanges, and enhanced airport security standards. CRS-20 H.R. 1543. Introduced by Representative Rahm Emanuel on March 15, 2007, H.R. 1543 is almost identical to S. 653, but would specify that the nonimmigrant refusal rate requirement for admission to the VWP could only be waived on or after the date on which the Secretary of DHS certifies to Congress that an air exit system is in place that can verify the departure of not less than 97% of foreign nationals that exit through U.S. airports. Suspending the VWP H.R. 1342. Representative Phil Gingrey introduced H.R. 1342 on March 6, 2007. The bill would immediately suspend the VWP until the Secretary of DHS certifies to Congress that (1) the automated entry-exit system (commonly called USVISIT) is fully implemented and functional; (2) all ports of entry have functional biometric readers; and (3) all nonimmigrants, including Border Crossing Card holders, are processed through the entry-exit system. H.R. 2006. H.R. 2006 was introduced by Representative Bernie Thompson on April 23, 2007. The bill is similar to H.R. 1543, but would specify that countries receiving the nonimmigrant refusal rate waiver must have had during the previous fiscal year (1) a nonimmigrant visa refusal rate of not more than 6% or (2) a rate of less than 2% for the total number of nationals who were denied or withdrew admission or overstayed the terms of their nonimmigrant visas compared with all the nationals who applied for admission as nonimmigrants. H.R. 2526. H.R. 2526, introduced by Representative Carolyn Maloney on May 24, 2007, would designate Greece as a VWP country. As discussed above, DOS nominated Greece to the VWP in late 2007, and DHS is currently conducting the country review to establish that Greece meets the program requirements. Suspending the VWP H.R. 1342/H.R. 3064/H.R. 4192. Representative Phil Gingrey introduced H.R. 1342 on March 6, 2007, and Representative Sam Graves introduced H.R. 3064 on July 17, 2007. H.R. 4192 was introduced by Representative Thomas Tancredo on November 15, 2007. All the bills would immediately suspend the VWP until the Secretary of DHS certifies to Congress that certain conditions regarding immigration enforcement have been met. Nonetheless, the conditions in these three bills are not identical. H.R. 1342 and H.R. 4192 would require that (1) the automated entry-exit system (commonly called US-VISIT) is fully implemented and functional; (2) all ports of entry have functional biometric readers; and (3) all nonimmigrants, including Border Crossing Card holders, are processed through the entry-exit system. H.R. 3064 contains the same requirement regarding the implementation of the entry-exit system, but would also require among other conditions that ! the system of machine-readable, tamper-resistant visas and other travel and entry documents, and the technology standard for visa waiver program participants required by the Enhanced Border Security and Visa Entry Reform Act of 2002 are fully operational at all ports of entry and, where applicable, at consular posts abroad; ! DHS has the operational capability to take into custody and remove from the United States any deportable alien who has been brought to the attention of the DHS by a state or local law enforcement agency; ! the backlog of immigration benefit applications has been eliminated, as required in the HSA; and ! the number of aliens removed from the United States, during each of four months preceding the month in which the certification under this CRS-21 section is executed, is at least 25% higher than in the comparable months of the previous year. These requirements are similar to those in H.R. 688 in the 109th Congress.