Order Code RL32221
Visa Waiver Program
January 31, 2008
Specialist in Immigration Policy
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 FY2006, 15.3 million visitors entered the United States under this
program, constituting 51% 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.
Current Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
VWP Qualifying Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
VWP Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trends in Use of the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Visa Waiver Pilot Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Visa Waiver Permanent Program Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
USA Patriot Act of 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Enhanced Border Security and Visa Entry Reform Act of 2002 . . . . . . . . . . 9
The Intelligence Reform and Terrorism Prevention Act of 2004 . . . . . . . . 10
Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Adding Countries to the VWP (Road map Countries) . . . . . . . . . . . . . . . . . 12
Process for Adding Countries to the VWP . . . . . . . . . . . . . . . . . . . . . 12
EU Countries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Management and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Lost and Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Number of Lost/Stolen Passports . . . . . . . . . . . . . . . . . . . . . . . . . 16
Overstays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Increasing Security Measures and Expanding the VWP . . . . . . . . . . . . . . . 17
Implementing the 9/11 Commission Recommendations Act of 2007
(P.L. 110-53) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
S. 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
H.R. 561/S. 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
H.R. 1465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
H.R. 1543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
H.R. 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
H.R. 2526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Suspending the VWP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
H.R. 1342/H.R. 3064/H.R. 4192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
List of Figures
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 . . . . . . . . . . . . . . . . . . . . . . . . 6
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 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.
“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).
In 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
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.
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.”
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.12
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 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.
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.
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.
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
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
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)16 for
matching arrivals and departures and reporting purposes. APIS collects carrier
information such as flight number, airport of departure and other data.17
At port of entry, immigration inspectors observe and question applicants,
examine passports, and conduct checks against a computerized system to determine
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.
“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, March 7, 2003, vol. 68, no. 45, pp. 10954-10957.
ADIS feeds information to the Interagency Border Inspection System (IBIS).
whether the applicant is admissible to the United States.18 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),19 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.20 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
travelers sent to secondary inspections are questioned extensively, travel documents
are further examined, and additional databases are queried.21
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
Lookout databases such as TIPOFF, which is integrated with CLASS, contain information
on aliens who are inadmissible for entry into the United States. NSEERS and SEVIS are
also used during secondary inspections. Immigration inspectors may access NAILS II,
which is a text-based system that interfaces with IBIS and CLASS. For more information,
see CRS Report RL31381, U.S. Immigration Policy on Temporary Admissions, by Ruth
Figure 1. Number of Entrants under the VWP for FY1998-FY2006,
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: Department of Homeland Security, FY2006: 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 —
FY1998: 26; FY1999-FY2001: 29; FY2002: 28; and FY2003-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
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 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
FY2002 and FY2003, from 27.9 to 27.8 million, and then increased from 27.8 to 33.7
million (21.1%) between FY2003 and FY2006. The number of aliens entering as
temporary visitors for business or pleasure increased 14.6% from 24.3 to 29.9 million
between FY2002 and FY2006. In FY2006, visitors entering under the VWP
constituted 45.4% of all nonimmigrant admissions, and 51.1% of all temporary
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
FY2006, 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
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 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.24 By 1999, program
participation had grown to include 29 countries.25
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)26 exercised the Attorney General’s
parole authority to extend the program temporarily.27 Besides making this program’s
authorization permanent, the Visa Waiver Permanent Program Act included
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);
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 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.
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).
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)).
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, 2004.29 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),30 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
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
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 November 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
The act tasked the International Civil Aviation Organization (ICAO) with developing the
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. 108-299.32 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.33 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. 108-458,34 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.
Signed into law on August 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, April 7, 2005.
The original bill, H.R. 2845, was sponsored by Senator Susan M. Collins and signed into
law on December 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.35 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.36
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. 37 Another concern has been the lack of
information on aliens from VWP countries who overstay the terms of their
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.38
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.
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.
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
Testimony of Jess T. Ford, Director International Affairs and Trade, General Accounting
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. 39
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.40 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.41 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.42 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
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.
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.
There are currently 13 “road map” countries. They are Bulgaria, Cyprus, Czech Republic,
Estonia, Greece, Hungary, South Korea, Latvia, Lithuania, Malta, Poland, Romania, and
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].
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.)
criteria for visa waiver designation.43 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.44
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 clause45 and visa reciprocity clause,46 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. 47 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. 48 Notably, Greece,
a full member of the EU that is not a VWP country (but who was nominated in 2007
by DOS to become a VWP country), has not filed a complaint about unequal
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
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.
GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa
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,
April 18, 2005.
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.
schengen2000], visited January 23, 2006.
DHS began its review of Greece for participation in the VWP in late 2007.
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.50
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. 51 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. 52 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. 53
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.
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.
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.
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.)
GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa
Waiver Program, p. 4.
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. 54 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. 55
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
General56 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. 57 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 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
GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa
Waiver Program, p. 5.
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.
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
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. 58 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. 59
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. 60
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. 61
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
United States, p. 8.
GAO, Border Security: Stronger Actions Needed to Assess and Mitigate Risks of the Visa
Waiver Program, p. 3.
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.
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
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.
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
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.
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
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
participation in the VWP no longer poses a security threat, the Secretary of DHS shall
reinstate the country in the VWP.
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
the feasibility of instituting an electronic authorization travel system, additional
passenger exchanges, and enhanced airport security standards.
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.
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
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.