Visa Waiver Program

Summary

Recent Developments

On December 8, 2015, the House passed H.R. 158, the Visa Waiver Program Improvement Act of 2015, by a vote of 407 to 19. In addition, since the Paris attacks on November 13, 2015, Congress has introduced several bills that would modify the Visa Waiver Program (VWP) including H.R. 4122 (Sinema), S. 2337 (Feinstein), and S. 2362 (Johnson). These bills are discussed in detail in "Legislation in the 114th Congress."

Likewise, on November 30, 2015, the Obama Administration announced several new enhancements to the VWP meant to increase the security of the program. The changes include modifying the Electronic System for Travel Authorization (ESTA) to capture information regarding past travel to countries "constituting a terrorist safe haven," as well as requiring reports from the Departments of Homeland Security and Justice to the President on topics ranging from information sharing with VWP countries, to identification of VWP countries who are "deficient in key areas of cooperation," to the delineation of possible pilot programs to collect and use biometric data on VWP travelers. In addition, the Administration will offer assistance to countries to facilitate information sharing and countering terrorist travel. (For a full discussion of the November 30 press release, see "VWP Security Enhancements Since August 2015.")

In the same press release, the Administration proposed enhancements that would require congressional action. The requested legislative changes include creating new requirements for participation in the program such as mandating that travelers under the program use e-passports, and requiring additional information sharing.

The Visa Waiver Program allows nationals from certain countries, many of which are in Europe, to enter the United States as temporary visitors 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 terrorist attacks in Paris in January and November of 2015, and the possible threats posed by VWP-country citizens who have radicalized,¹ have increased congressional focus on the program.² While there tends to be agreement that the VWP benefits the U.S. economy by facilitating legitimate travel, there is disagreement on the VWP's impact on national security.³ Proponents of the program say the VWP strengthens U.S. national security because it sets standards for travel documents, requires information sharing between the member countries and the United States on criminal and security concerns, and mandates reporting of lost and stolen travel documents.⁴ Critics of the program argue the VWP could create a security loophole because VWP travelers do not undergo the screening traditionally required to receive a visa.⁵

In general, temporary foreign visitors for business or pleasure from most countries must obtain a "B" nonimmigrant visa⁶ from Department of State (DOS) offices at a consular post abroad before coming to the United States.⁷ 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 Immigration and Nationality Act (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.⁸

Under the VWP, the Secretary of Homeland Security,⁹ 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). Nationals from participating countries must use the web-based Electronic System for Travel Authorization (ESTA) to get an approved electronic travel authorization before embarking to the United States, and are admitted into the United States for up to 90 days.¹⁰ 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. As of December 2015, there were 38 countries participating in the VWP.¹¹

Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Malta, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom

Although the VWP 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.¹² Additionally, with some limited exceptions, aliens entering through VWP are not permitted to adjust their immigration 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).¹³

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 (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 (all passports issued after October 26, 2006, presented by aliens entering under the VWP have to be machine-readable and contain a biometric identifier);¹⁴
• certify that it is developing a program to issue tamper-resistant, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country's port of entry;
• enter into an agreement with the United States to report or make available through International Criminal Police Organization (INTERPOL)¹⁵ information about the theft or loss of passports;¹⁶
• 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;
• 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; and
• be determined, by the Secretary of Homeland Security, in consultation with the Secretary of State, not to compromise the law enforcement or security interests of the United States by its inclusion in the program.

Countries can be immediately terminated from the VWP if an emergency occurs in the country that the Secretary of Homeland Security in consultation with the Secretary of State determines threatens the law enforcement or security interest of the United States.¹⁷ For example, because of Argentina's economic collapse in December 2001,¹⁸ 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,¹⁹ that country was removed from the VWP in February 2002.²⁰ 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 immigration laws.²¹ No country has been removed from the VWP since 2003.

Additionally, there is a probationary status for VWP countries that do not maintain a low disqualification rate. Countries on probation are determined by a formula based on a disqualification rate of 2% to 3.5%.²² Probationary countries with a disqualification rate less than 2% over a period not to exceed three years may remain VWP countries.²³ 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. For example, in April 2003, Belgium was placed on provisional status because of concerns about the integrity of non-machine-readable Belgian passports and the reporting of lost or stolen passports.²⁴ DHS completed another country review of Belgium in 2005, and removed the country from probationary status. Belgium was the last country that was placed on probation.

• biographical information including name, birth date, country of citizenship, other citizenships, country of residence, telephone number, other names/aliases, parents' names, national identification number (if applicable), employment information (if applicable), and city of birth;³⁴
• passport information including number, issuing country, issuance date, and expiration date; and
• travel information including departure city, flight number, U.S. contact information, and address while in the United States.³⁵

ESTA also screens applicant responses to the same VWP eligibility questions that were collected on the Form I-94W, which aliens arriving in the United States under the VWP were required to complete to be admitted.³⁶ The I-94W form became automated in 2013 and is no longer used.³⁷

While there tends to be agreement that the VWP benefits the U.S. economy by facilitating legitimate travel, there is disagreement on the VWP's impact on national security, with some arguing that the VWP presents a significant security risk. In addition, since terrorism does not have national boundaries, critics of the program contend that the VWP should not be based on particular countries, but should allow visa-free travel for low-risk individuals (e.g., a trusted traveler program).⁵⁶ Furthermore, while the program has reduced the consular workload in program countries since the officers do not have to issue as many B visas, it has increased the workload of immigration inspectors at ports of entry by shifting the noncitizen's first encounter with a U.S. official to ports of entry.

There is significant debate about whether the VWP increases or decreases national security. As discussed, travelers under the VWP do not undergo the screening traditionally required to receive a B nonimmigrant visa. While the ESTA system has increased the security of the VWP, it is a name-based system and cannot be used to run checks against databases that use biometrics such as DHS's Automated Biometric Identification System (IDENT) and FBI's Integrated Automated Fingerprint Identification System (IAFIS).⁵⁷ (Travelers are checked against these systems through US-VISIT when they enter the United States.)⁵⁸ In addition, some contend that the relaxed documentary requirements of the VWP increase immigration fraud and decrease border security.⁵⁹

Nonetheless, others 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.⁶⁰ For example, travelers under the VWP have to present machine-readable passports or e-passports, which are more secure than other types of passports. Eventually, all travelers entering under the VWP will present e-passports, which tend to be more difficult to alter than other types of passports.⁶¹ Furthermore, many B visas are valid for 10 years,⁶² and it is possible that a person's circumstances or allegiances could change during that time. In other words, a person from a non-VWP country could become radicalized and the visa may still be valid.

Another concern about the security of the program centers on DHS's ability to conduct reviews of the current VWP countries. In 2002, Congress mandated that DHS evaluate each VWP country every two years to make sure that their continued participation was in the security, law enforcement, and immigration interests of the United States.⁶³ In a review of the Visa Waiver Program Office's (VWPO) administration of the VWP, the DHS's Office of the Inspector General found that as of July 2012, there were 11 (out of 36) reports that exceeded the congressionally mandated two-year reporting cycle. VWPO cited a number of reasons for the reporting delays, including inadequate staffing of the office to manage the workload, and not receiving intelligence assessments in a timely manner. However, VWPO officials stated that "these delays have not posed any undue risks or threats to U.S. security interests, since any issues within a VWP country that might affect its continued compliance with VWP requirements are continuously monitored."⁶⁴

In August 2015, the Secretary of the Department of Homeland Security, Jeh C. Johnson, announced an intention to implement new security measures in the VWP.⁶⁵ Most significant among them are

• requiring e-passports of all VWP travelers coming to the United States,
• requiring VWP countries to use the INTERPOL Stolen and Lost Travel Document (SLTD) database to screen travelers crossing a VWP country's borders, and
• negotiating for the expanded use of U.S. federal air marshals on international flights from VWP countries to the United States.

The criteria announced in August 2015 will apply to both new and current members of the VWP, and the current VWP members are being consulted about these changes.

Additionally, on November 30 the Administration announced more changes to the VWP meant to enhance security. These changes include

• modifying ESTA to capture information regarding any past travel to countries constituting a terrorist safe haven;
• accelerating the review process for VWP countries;
• requiring, within 60 days, that DHS report to the President on possible pilot programs designed to assess the collection and use of biometrics (fingerprints and/or photographs), and on any countries that are deficient in key areas of cooperation, along with recommended options to engender compliance;
• requiring, within 60 days, that the Federal Bureau of Investigation (FBI) provide an evaluation to the President on the terrorism information sharing that occurs between the United States and VWP countries, and identifying options to mitigate any deficiencies;
• offering assistance to countries to better facilitate terrorism information sharing, specifically to include the use of biometrics,⁶⁶ and deploying "Foreign Fighter Surge Teams" to work with countries to counter terrorist travel;⁶⁷ and
• expanding and promoting the use of the Global Entry program (a trusted traveler program),⁶⁸ which includes biometric checks within VWP countries.

As discussed, the Secretary of DHS's authority to waive the nonimmigrant refusal rate has been suspended until the air exit system is able to match an alien's biometric information with relevant watch lists and manifest information. Some contend that the current biographic system provides suitable data for most security and immigration enforcement activities, and that the cost of implementing a biometric exit system would not justify the small increase in additional security.⁷² In addition, in December 2011, DHS announced an agreement with Canada to share entry records so that an entry into Canada along the land border would be counted as an exit in U.S. records.⁷³ It is not clear whether the shared entry records will be a biographic system or contain biometric identifiers. However, others express concerns about the general security of the program and argue that until more security measures are in place, such as a biometric exit capacity, the program should not be expanded.⁷⁴

Currently, all VWP countries provide data on lost and stolen passports (LASP) to the United States.⁷⁵ However, concerns have been raised about information sharing on LASP, specifically whether countries are reporting data in a timely manner.⁷⁶ The mechanisms to secure data on LASP have differed over time (e.g., reporting to the U.S. Embassy, access to a common database) and by country (e.g., MOUs, Diplomatic Notes). While DHS receives a few countries' LASP data via direct links to those countries' databases, most data on LASP comes from the International Criminal Police Organization's (INTERPOL's) Stolen and Lost Travel Documents (SLTD) database⁷⁷—DHS's preferred method of data sharing.⁷⁸ Notably, ESTA screens passport information using the INTERPOL database. CBP also accesses LASP data via INTERPOL, but it is unclear if this information is checked during primary inspection.⁷⁹

As discussed, all VWP countries are also required to enter into information-sharing agreements with the United States on whether the citizens or nationals of that country travelling to the United States represent a security or criminal threat to the United States. All VWP countries have entered into the required arrangements for the sharing of information on known and suspected terrorists pursuant to Homeland Security Presidential Directive 6 (HSPD-6),⁸⁰ and have also signed Preventing and Combating Serious Crime (PCSC) Agreements or equivalent agreements with the United States for the sharing of information on potential serious criminals and terrorists. DHS and the Departments of Justice and State are working with VWP countries to fully implement HSPD-6 arrangements and PCSC Agreements.⁸¹

Nonetheless, one of the more immediate concerns with the VWP is citizens of VWP countries who have become radicalized. It has been reported that several of the perpetrators of the November 13, 2015, attacks in Paris were citizens of France.⁸⁶ In addition, the alleged mastermind, Abdelhamid Abaaoud, reportedly was a national of Belgium.⁸⁷ As such, these terrorists may have been able to travel to the United States under the VWP if there was no derogatory information about them in U.S. biographic databases. Once citizens of VWP countries arrive in the United States, a Customs and Border Protection (CBP) officer decides on their admissibility. Without having specific classified information, it is unknown whether or not these individuals would have been eligible to travel under the VWP.

In addition, if the assumption is made that these terrorists would have been eligible to travel under the VWP, it is unknown whether or not the requirement to get a visa would have changed their eligibility to travel to the United States. As discussed, individuals who are not eligible to travel under the VWP (either individuals from non-VWP countries or those who do not receive an ESTA authorization) must get a visa before traveling to the United States. Unlike those traveling under the VWP, those who apply for a visa undergo an interview with a consular officer, and provide fingerprints to be used to run checks against databases that use biometrics (e.g., IDENT, IAFIS).

While some view the VWP as a security risk, others contend that the inclusion of countries in the VWP actually increases U.S. security by setting standards for travel documents and information sharing.⁸⁸ In addition, they argue that increasing membership in the VWP could be used as an incentive to get other countries to share intelligence information with the United States.⁸⁹ Since 2008, DHS has admitted 10 new countries into the program, but there are other countries that have expressed a desire to be included in the VWP.⁹⁰ These countries want to be 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.⁹¹

Poland has been one of the most outspoken countries in regards to expressing frustration over their lack of inclusion in the VWP.⁹² Reportedly, President Obama said in December 2010 that he was going to make it a priority to get Poland into the VWP.⁹³ Nonetheless, Poland's FY2014 nonimmigrant visa refusal rate was above 3%, and thus, Congress would have to amend the INA to allow Poland into the program.⁹⁴

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.⁹⁵ 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, using biographic departure information from passenger manifests, DHS can calculate overstay rates and has done so for all VWP countries (as well as other countries).⁹⁶ Nonetheless, this system has limitations because persons entering by air or sea but exiting at a land port of entry may be mischaracterized as overstays.⁹⁷

Importantly, although the refusal rate was seen as a proxy for the overstay rate when the program was conceived, people are denied visas for reasons other than being unable to prove that they will not remain illegally in the United States (i.e., they are "intending immigrants").⁹⁸ During the visa application process, consular officers⁹⁹ must confirm that an alien is not ineligible for a visa under any of the so-called "grounds for inadmissibility" of the INA, such as having a criminal history, engaging in terrorist activity, or having previously violated U.S. immigration law.¹⁰⁰ Although most B visa denials are because the alien cannot prove that they are not an "intending immigrant," there are other reasons a person could be denied a visa that are captured as part of a country's visa refusal rate.

Several bills introduced in the 114^th Congress would change some of the VWP requirements to try to augment the security features of the program. Other bills would propose broad changes to the VWP by, among other things, reinstating the nonimmigrant refusal rate waiver authority, and by allowing DHS to use overstay rates to determine program eligibility. Another proposal would create a new visa waiver program for the U.S. Virgin Islands, and allow the Secretary of DHS to add Poland to the VWP.¹⁰¹ Two bills, H.R. 158 and S. 1619 have received action.

H.R. 158, as passed by House on December 8, 2015, and S. 2362 are similar. H.R. 158 and S. 2362 would require as of April 1, 2016, that all foreign nationals traveling under the VWP present an electronic passport (e-passport) that is fraud resistant, and incorporates biographic and biometric information (as determined by the Secretary of DHS). No later than October 1, 2016, each VWP country would have to certify that it has in place mechanisms to validate machine-readable passports and e-passports at each port of entry. This requirement would not apply to travel between countries within the Schengen Area.¹⁰²

The bills would also prohibit people who were present in certain countries since March 1, 2011, from traveling under the VWP. The specified countries include

• Iraq and Syria;
• any country designated by the Secretary of State as having repeatedly provided support for acts of international terrorism under any provision of law,¹⁰³ or
• any other country or area of concern¹⁰⁴ deemed appropriate by the Secretary of DHS.

In addition, anyone who is a dual national of a VWP country and one of these specified countries would be ineligible to travel under the VWP. However, if the Secretary of DHS determined that the foreign national was in one of the specified countries in order to perform military service in the armed forces of a VWP country, or to perform official duties as an employee of the VWP country, the prohibition on traveling under the VWP would not apply. Similarly, the bills would give the Secretary of DHS the authority to waive the prohibition on travel under the VWP if the Secretary of DHS determines that the waiver would be in law enforcement or national security interests of the United States. The Secretary of DHS would be required to submit an annual report to Congress on each instance where the waiver authority was exercised.

In addition, H.R. 158 and S. 2362 would amend the requirement that countries report lost or stolen passports so that the reporting would have to be done no later than 24 hours after a theft or loss was reported to the VWP country. The bills would also require, no later than 270 days after enactment, that each program country with an international airport certify, to the maximum extend allowed under the laws of the country, that it is screening each foreign national who is admitted to or departs from that country, using relevant INTERPOL databases and notices, or other means designated by the Secretary of DHS. Consequently, a country that failed to screen foreign nationals arriving in or departing from that country would be terminated from the VWP. The country would be redesignated as a program country when it is determined to be conducting the required screening. This screening requirement would not apply to those traveling between countries within the Schengen Area.

The bills would also specify that the HSPD-6 arrangements and PCSC Agreements (discussed in the section "Information Sharing") would not only have to be signed before a country could be designed as a VWP country but would also have to be fully implemented. If the Secretary of DHS and the Secretary of State jointly determine that the VWP country is not sharing information regarding whether a citizen of that country traveling to the United States represents a threat to the security or welfare of the United States or U.S. citizens, the country would be terminated from the program. The country would be redesignated as a program country as soon as it fulfills the information-sharing requirements.

H.R. 158 and S. 2362 would require DHS to report to Congress biennially on the national security threat posed by each program country.¹⁰⁵ The bills would also require the Secretary of DHS, in consultation with the Director of National Intelligence and the Secretary of State, to annually evaluate program countries based on specified criteria¹⁰⁶ and to identify any country for which nationals of that country present a "high risk" to U.S. national security.¹⁰⁷ The Secretary of DHS, in consultation with the Secretary of State, could suspend a program country based on a determination that the country presents a high risk to U.S. national security.

Moreover, H.R. 158 and S. 2362 would allow the Secretary of DHS to shorten the validity period of any ESTA determination, in addition to revoking the determination. The Secretary of DHS would also be required to collect information, through ESTA, on an applicant's previous or multiple citizenships, and to research opportunities to incorporate into ESTA technology to detect and prevent fraud or deception. Only S. 2362 would require that foreign nationals applying for an ESTA approval answer a series of questions, to be determined by the Secretary of DHS, that include questions about the foreign national's physical and mental health, criminal history, recent international travel, former employment in the United States, former visits to the United States, and any other information that the Secretary of DHS deems necessary.

H.R. 158 and S. 2362 would also require DHS to report annually on the number of individuals (identified by citizenship) who were denied eligibility to travel under ESTA or whose eligibility to travel was revoked because they were determined to represent a security threat to the United States.¹⁰⁸ Additionally, under both bills, DHS would be required to report within 30 days on ways to strengthen the ability of ESTA to prevent terrorists and instruments of terrorism from entering the United States. S. 2362 would require the Secretary of DHS to regularly evaluate the questions being asked under ESTA and to report to Congress after the evaluations. S. 2362 would also require the Commissioner of CBP, in consultation with the Secretary of DOS, to constantly assess the data collected through ESTA to verify the accuracy of such data.

Moreover, the bills would require DHS, in consultation with the Department of State, to provide assistance, in a risk-based manner, to non-VWP countries to assist the countries in submitting information on lost or stolen travel documents to INTERPOL, and issuing and validating e-passports at ports of entry. Both bills also contain a sense of Congress that the International Civil Aviation Organization (ICAO)¹⁰⁹ should establish standards for e-passports and obligate the 191 member countries to utilize e-passports as soon as possible.

There are two other provisions that are in S. 2362 but are not in H.R. 158. The Senate bill would require that CBP submit a report to Congress identifying (1) the five airports in Europe that most closely adhere to the requirements for commencing preclearance operations; and (2) the airports that would provide significant national security benefits if CBP officers were deployed at the airports. In addition, under S. 2362 (and S. 2337 discussed in the next section) countries would be required to enter into and comply with an agreement to assist in the "operation of an effective Air Marshal Program."

S. 2337 would prohibit people who traveled to Iraq or Syria during the past five years from traveling under the VWP. The bill would also allow the Secretary of DHS to prohibit a foreign national from traveling under the VWP if during the past five years the foreign national has traveled to a country in which a designated foreign terrorist organization has a significant presence and such prohibition is in the U.S. national security interest. Ninety days after enactment, S. 2337 would require that those traveling under the VWP present a machine-readable passport that incorporates biometric and document authentication identifiers that comply with the applicable standards established by the ICAO.

In addition, S. 2337 would add certain requirements for countries to participate in the program. The bill would specify that the HSPD-6 arrangements and PCSC Agreements (discussed in the section "Information Sharing") would not only have to be signed before a country could be designed as a VWP country but would also have to be fully implemented within a timeframe determined by the Secretary of DHS. In addition, the bill would amend the requirement that countries report lost or stolen passports so that the reporting would have to be done "frequently and promptly." Under the bill, a country that failed to fully comply with the agreements would be terminated from the VWP. In addition, countries would be required to enter into and comply with an agreement to assist in the "operation of an effective Air Marshal Program." The governments of VWP countries would also be required to comply with U.S. aviation and airport security standards, as determined by the Secretary of DHS.

Furthermore, the bill would specify considerations that should be used in determining whether a country should become or remain a VWP country. These considerations include whether the government

• collects, analyzes, and shares with the United States information on passengers traveling by air pertaining to flights not bound for the United States to identify potentially dangerous individuals who may attempt to travel to the United States;
• regularly screens the passports of air travelers against INTERPOL's Stolen and Lost Documents database before allowing such travelers to board a flight arriving in or departing from that country;
• regularly and promptly shares information on lost or stolen travel documents with INTERPOL;
• collects and analyzes biometric and other information about individuals other than U.S. nationals who are applying for asylum, refugee, or other forms of protections from persecution, and shares such information with the United States; and
• collects and shares intelligence on foreign fighters with the United States and multilateral organizations, such as INTERPOL and EUROPOL.¹¹⁰

In addition, the bill would require foreign nationals traveling under the VWP to submit biometric information, including photographs and fingerprints, before boarding a conveyance to the United States. The implementation of this requirement would be prioritized for VWP countries that have a significant number of nationals who have traveled to fight with or assist the Islamic State of Iraq and the Levant (ISIL). The requirement to submit biometric data would take effect no later than one year after enactment, but the Secretary of DHS would have the authority to delay implementation for a total of two more years for countries where an extension of the deadline would not present a significant risk to national security. Under the bill, the Secretary of DHS could determine that a VWP country has met this requirement if the country signs and implements an agreement to

• collect and share biometric information for individuals seeking to travel to the United States through the VWP;
• compare the collected biometric information against the information in the traveler's passport before the traveler boards a conveyance to the United States; and
• share the results of the comparison and any other information indicating that the traveler may pose a threat with DHS before the traveler boards a conveyance bound for the United States.

S. 2337 would mandate that the ESTA fees cover the cost of administering ESTA, as well as the security enhancements under the bill.

H.R. 4122 would prohibit people who traveled to certain countries during the past five years from traveling under the VWP. The specified countries include

• Afghanistan, Egypt, Iraq, Yemen, Somalia, and Nigeria;
• any country designated by the Secretary of State as having repeatedly provided support for acts of international terrorism under any provision of law,¹¹¹ or
• any other country deemed appropriate by the Secretary of State, in consultation with the Secretaries of DHS and Treasury, and the Director of National Intelligence.

H.R. 1401 (§3), S. 2091 (§3), H.R. 2686, and S. 1507 contain almost identical provisions regarding the VWP. The bills would authorize the Secretary of DHS, in consultation with the Secretary of State, to designate a country as a VWP country if the country's overstay rate and/or refusal rate was less than 3% in the previous fiscal year.¹¹² The bills would also allow the Secretary of DHS to waive the refusal rate requirement if certain conditions were met. These conditions are similar to those in current law regarding the nonimmigrant refusal rate waiver. The bills would revise the current probationary period and procedures for terminating a country's participation in the VWP if that country failed to comply with any of the program's requirements. Not later than 180 days after enactment, the bills would require that the Government Accountability Office (GAO) conduct a review of the methods used by DHS to track aliens entering and exiting the United States, and to detect aliens who overstay their authorized period of admission. The bills also would require DHS to submit to Congress an evaluation of the security risks of aliens who enter the United States without an approved Electronic System for Travel Authorization (ESTA) verification and description of improvements. This report would be due no later than 90 days after the date of enactment. The bills would also express a sense of Congress that DHS should prioritize reviews of countries where circumstances indicate that review is necessary or desirable.

S. 1619, as reported by the Senate Appropriations Committee, includes a provision (§567) that would allow the Secretary of DHS to designate Poland as a VWP country regardless of the statutory requirements for participation.

H.R. 2116 would create a visa waiver program for nationals from Caribbean Community (CARICOM) nations entering the U.S. Virgin Islands for a maximum of 30 days. Countries that are members or associate members of the Caribbean Community (CARICOM)¹¹³ would be eligible if their inclusion in the Virgin Islands Visa Waiver Program (VIVWP) would not represent a threat to the welfare, safety, or security of the United States or its territories and commonwealths. The bill would allow the Governor of the U.S. Virgin Islands to request that the Secretaries of the Interior and DHS add a particular country to the VIVWP. In determining whether to allow a nation to participate in the VIVWP, the Secretary of DHS, in consultation with the Secretaries of the Interior and DOS, would have to consider all relevant factors, including electronic travel authorizations, procedures for reporting lost and stolen passports, repatriation of aliens, rates of refusal for nonimmigrant visitor visas, overstays, exit systems, and information exchange.

Visa Waiver Pilot Program

Author Contact Information

Footnotes

For information on the Islamic State and foreign fighters, see CRS Report R43612, The Islamic State and U.S. Policy, by [author name scrubbed] and [author name scrubbed]l; and CRS Insight IN10209, European Security, Islamist Terrorism, and Returning Fighters, by [author name scrubbed] and [author name scrubbed].

For example, see U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, One Flight Away: An Examination of the Threat Posed by ISIS Terrorists with Western Passports, 113^th Cong., 2^nd sess., September 10, 2014; and Jerry Markon, "Visa Waivers Under Scrutiny on Hill," The Washington Post, January 28, 2015, p. A2.

CRS Insight IN10246, Balancing Tourism Against Terrorism: The Visa Waiver Program, by [author name scrubbed] and [author name scrubbed].

For an example of this argument, see David Inserra and Riley Walters, The Visa Waiver Program: Enhancing Security, Promoting Prosperity, The Heritage Foundation, Issue Brief #4273, Washington, DC, September 16, 2014, http://www.heritage.org/research/reports/2014/09/the-visa-waiver-program-enhancing-security-promoting-prosperity.

For an example of this argument, see Amanda Vicinanzo, Visa Waiver Program Faces Scrutiny After Paris Terrorist Attacks, Homeland Security Today, Washington, DC, January 16, 2015, http://www.hstoday.us/briefings/daily-news-analysis/single-article/visa-waiver-program-faces-scrutiny-after-paris-terrorist-attacks/701acf36132277d82b9a3898586baba6.html.

"B" visa refers to the subparagraph in the Immigration and Nationalization Act (INA §101(a)(15)(B)).

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 [author name scrubbed].

For more information on visa issuances, see CRS Report RL31512, Visa Issuances: Policy, Issues, and Legislation, by [author name scrubbed].

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."

ESTA became operational for all VWP countries on January 12, 2009.

Chile was designated a VWP country on February 28, 2014. As of March 31, 2014, Chilean nationals may travel to the United States under the VWP.

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.

Foreign nationals seeking asylum must demonstrate a well-founded fear that if returned home they will be persecuted based on one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. For more on asylum, see CRS Report R41753, Asylum and "Credible Fear" Issues in U.S. Immigration Policy, by [author name scrubbed].

In August 2015, the Secretary of Homeland Security announced that to increase security of the VWP all travelers under the program would have to use an e-passport. This requirement is not in effect yet. Department of Homeland Security, "Statement by Secretary Jeh C. Johnson on Intention to Implement Security Enhancements to the Visa Waiver Program," press release, August 6, 2015, https://www.dhs.gov/news/2015/08/06/statement-secretary-jeh-c-johnson-intention-implement-security-enhancements-visa; and telephone conversation with Emily Hymowitz, DHS Office of Legislative Affairs, November 3, 2015.

Although statute discusses sharing information on lost and stolen passports, the INTERPOL database includes other types of travel documents such as identity documents and visas. INTERPOL is the world's largest international police organization, with 188 member countries. For more information on INTERPOL see, http://www.interpol.int/public/icpo/default.asp.

Prior to P.L. 110-53 (signed into law on August 3, 2007), VWP countries only had to certify that they were reporting thefts of blank passports.

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 [author name scrubbed].

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.

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 (DOJ) in consultation with DOS determined that Argentina's participation in the VWP was inconsistent with the United States' interest in enforcing its 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 DOJ.) Federal Register, February 21, 2002, vol. 67, no. 35, pp. 7943-7945.

Between 2000 and 2003, Uruguay experienced a recession causing its citizens to enter under the VWP to live and work illegally in the United States. In 2002, Uruguayan nationals were two to three times more likely than all nonimmigrants on average to have been denied admission at the border. Uruguayan air arrivals had an apparent overstay rate more than twice the rate of the average apparent overstay rate for all air arrival nonimmigrants. Federal Register, 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. 104-208).

Federal Register, March 7, 2003, vol. 68, no. 45, pp. 10954-10957.

There was disagreement between some critics and DHS regarding exactly what needed to be verified. Some contend that Congressional intent was to have a functional entry-exit system that would be able to match arrival and departure records and know which aliens failed to depart from the United States rather than just matching the entry records with the records of those who were known to have departed from the United States. For example, see S. 203 introduced in the 111^th Congress, which attempted to clarify the language in this provision. U.S. Congress, Senate Committee on Judiciary, Subcommittee on Terrorism, Technology and Homeland Security, The Visa Waiver Program: Mitigating Risks to Ensure Safety to All Americans, 110^th Cong., 2^nd sess., September 24, 2008.

DHS determined that the law permitted it to utilize the waiver when ESTA was functional but before it was mandatory for all VWP travelers. Critics did not agree with this interpretation and thought that ESTA should have been mandatory for all VWP travelers before new countries were admitted to the program. When the new countries entered the program, their citizens were required to use ESTA before travelling to the United States. U.S. Government Accountability Office, Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risks, GAO-08-967, September 2008. (Hereafter GAO, Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risks.)

U.S. Government Accountability Office, Homeland Security: Key US-VISIT Components at Varying Stages of Completion, but Integrated and Reliable Schedule Needed, GAO-10-13, November 19, 2009, p. 1.

Entrants under the VWP from VWP countries that receive a waiver of the nonimmigrant refusal rate (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea) had to use the system starting on the date of their formal admission to the program. For all the countries except Malta, that date was November 17, 2008. Malta was formally admitted to the VWP on December 30, 2008. Department of Homeland Security, "Electronic System for Travel Authorization (ESTA) Advisory Statement," November 6, 2008. Department of Homeland Security, "Electronic System for Travel Authorization: Mandatory Compliance Required for Travel Under the Visa Waiver Program," 73 Federal Register 67354, November 13, 2008.

The fee was instituted on September 8, 2010. The $14 fee includes $4 to cover the costs of administering ESTA and $10 for the travel promotion fee established by Congress in the Travel Promotion Act of 2009 (§9 of P.L. 111-145), and extended by Title VI of P.L. 113-235. The travel promotion fee is set to sunset on September 30, 2020. Department of Homeland Security, Customs and Border Protection, "DHS, CBP Announce Interim Final Rule For ESTA Fee," press release, August 6, 2010.

Prior to the implementation of ESTA, the first time a foreign national traveling to the United States under the VWP was screened was at the airport after the foreign national checked in for the flight.

A person is not required to apply for their own travel authorization under ESTA. Friends, relatives, personnel in the travel industry, and other third parties may apply for the traveler.

In most cases, the approval process is almost instantaneous. Under statute, ESTA determinations are not reviewable by the courts.

In November 2014, DHS added new questions to ESTA in response to security concerns. Department of Homeland Security, Customs and Border Protection, ESTA - New questions to the ESTA application, CBP INFO Center, Washington, DC, November 3, 2014, https://help.cbp.gov/app/answers/detail/a_id/1756/~/esta—new-questions-to-the-esta-application.

Much of the information is the same that was required on the I-94W form. According to DHS, when developing ESTA, the department had to balance the need for biographic information with the requirement that the participating countries did not view applying for an approval under ESTA as equivalent to applying for a visa. If countries had interpreted applying for an authorization under ESTA as having the same burden as applying for a visa, these countries might have required that U.S. citizens traveling to their countries obtain a visa.

These eligibility questions pertain to whether the alien would be inadmissible on health, criminal, or terrorist grounds, or because the alien had previously violated immigration law (e.g., been deported). Other eligibility questions include whether the alien has: (1) violated a child custody agreement with a U.S. citizen; (2) previously been denied a visa to travel to the United States; and (3) asserted immunity from prosecution.

It was the intention that ESTA would eventually replace the paper I-94W form. Department of Homeland Security, "Changes to the Visa Waiver Program To Implement the Electronic System for Travel Authorization (ESTA) Program," Federal Register, June 9, 2008, vol. 73, no. 11, pp. 32440-32453. Department of Homeland Security, Customs and Boarder Protection, "Definition of Form I-94 to Include Electronic Format," 78 Federal Register 18457, March 27, 2013.

U.S. Government Accountability Office, Visa Waiver Program: DHS Has Implemented the Electronic System for Travel Authorization, but Further Steps Needed to Address Potential Program Risks, GAO-11-335, May 5, 2011. (Hereafter, GAO, Visa Waiver Program: DHS Has Implemented the Electronic System for Travel Authorization, but Further Steps Needed to Address Potential Program Risks.)

U.S. Government Accountability Office, Visa Waiver Program: Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement, GAO-12-287T, December 7, 2011. (Hereafter, GAO, Visa Waiver Program: Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement.).

All VWP applicants are issued nonimmigrant visa waiver arrival/departure forms (Form I-94W).

ADIS feeds information to the Interagency Border Inspection System (IBIS). IBIS is a database of suspect individuals, businesses, vehicles, aircraft, and vessels that is used during inspections at the border. 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. Department of Homeland Security, Customs and Border Protection, IBIS- General Information, Washington, DC, July, 31, 2013; https://help.cbp.gov/app/answers/detail/a_id/151/kw/ibis%20fact%20sheet/session/L3RpbWUvMTM5MTAyMTM4NC9zaWQvci04amVDTGw%3D/suggested/1.

For more information on US-VISIT, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by [author name scrubbed].

For more information on the screening process, see CRS Report R43589, Immigration: Visa Security Policies, by [author name scrubbed].

Department of Homeland Security, "Collection of Alien Biometric Data Upon Exit From the United States at Air and Sea Ports of Departure," 73 Federal Register 22065, April 24, 2008.

Personal conversation with Department of Homeland Security Congressional Affairs, September 22, 2008.

P.L. 110-329.

One pilot tested DHS's recommended solution that carriers collect biometrics from passengers; the other pilot tested CBP officers collecting passenger biometrics at the boarding gate.

U.S. Government Accountability Office, Homeland Security: Key US-VISIT Components at Varying Stages of Completion, but Integrated and Reliable Schedule Needed, GAO-10-13, November 19, 2009, p. 1.

Temporary visitors include aliens who entered with B visas, those who entered under the Guam Visa Waiver Program, and those who entered under the VWP.

In FY2013, there were 54.6 million people who entered as temporary visitors. The number of people entering with B visas has more than doubled since 1995. Department of Homeland Security, Office of Immigration Statistics, Yearbook of Immigration Statistics, multiple years.

For information on the Islamic State and foreign fighters, see CRS Report R43612, The Islamic State and U.S. Policy, by [author name scrubbed] and [author name scrubbed]; and CRS Insight IN10209, European Security, Islamist Terrorism, and Returning Fighters, by [author name scrubbed] and [author name scrubbed].

For example, see U.S. Congress, House Committee on Homeland Security, Subcommittee on Border and Maritime Security, One Flight Away: An Examination of the Threat Posed by ISIS Terrorists with Western Passports, 113^th Cong., 2^nd sess., September 10, 2014; and Jerry Markon, "Visa Waivers Under Scrutiny on Hill," The Washington Post, January 28, 2015, p. A2.

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%.

U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, The Visa Waiver Program: Implications for U.S. National Security, Testimony of Edward J Ramotowski, Deputy Assistant Secretary for Visa Services, U.S. Department of State, 114^th Cong., 1^st sess., March 12, 2015.

U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Visa Waiver Program Oversight: Risks and Benefits of the Program, 112^th Cong., 1^st sess., December 7, 2011.

IAFIS is a national fingerprint and criminal history system. IDENT is a DHS-wide system for the storage and processing of biometric and limited biographic information. IDENT is the primary DHS-wide system for the biometric identification and verification of individuals encountered in DHS mission-related processes. For more information on IAFIS, see Federal Bureau of Investigation, "The Integrated Automated Fingerprint Identification System (IAFIS)," press release, http://www.fbi.gov/hq/cjisd/iafis.htm. For more information on IDENT, see Department of Homeland Security, Privacy Impact Assessment for the Automated Biometric Identification System (IDENT), Washington, DC, July 31, 2006, p. 2, http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_usvisit_ident_final.pdf.

CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by [author name scrubbed].

For an example of this argument, see "Congressman Claims Allowing Poland Visa-Free Travel to the US Would Pose Security Threat," workpermit.com, June 20, 2012, http://www.workpermit.com/news/2012-06-20/us/congressman-claims-allowing-poland-visa-free-travel-to-us-would-pose-security-threat.htm.

For an example of this argument, see Heritage Foundation, The Visa Waiver Program: A Security Partnership, Fact Sheet #66, Washington, DC, June 25, 2010.

There is not a specific requirement to present an e-passport when entering under the VWP. Any passports issued after October 26, 2006, and used by VWP travelers to enter the United States are required to have integrated chips with information from the data page (e-passports). Most passports are valid for 10 years, and thus, it is likely that by October 2016, all VWP entrants will have e-passports.

The length of validity of a visa is mostly dependent on reciprocity with the United States (i.e., that visas from that country for U.S. citizens are valid for the same period of time). For a full list of reciprocity schedules, see Department of State, Reciprocity Schedules, at http://travel.state.gov/visa/fees/fees_3272.html.

P.L. 107-53, §711.

Department of Homeland Security, Office of the Inspector General, The Visa Waiver Program, OIG-13-07, Washington, DC, November 2, 2012, p. 12, http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-07_Nov12.pdf.

Department of Homeland Security, "Statement by Secretary Jeh C. Johnson on Intention to Implement Security Enhancements to the Visa Waiver Program," press release, August 6, 2015, https://www.dhs.gov/news/2015/08/06/statement-secretary-jeh-c-johnson-intention-implement-security-enhancements-visa.

One proposed example of this assistance includes having DHS and the FBI's Terrorist Screening Center (TSC) assist interested VWP countries in screening refugees or asylum seekers, utilizing the terrorism information already provided to VWP countries, and by piloting programs to conduct "near real time" biometric checks. The TSC maintains the U.S. government's consolidated Terrorist Screening Database often referred to as the Terrorist Watchlist. Federal Bureau of Investigation, About the Terrorist Screening Center, https://www.fbi.gov/about-us/nsb/tsc/about-the-terrorist-screening-center.

According to the press release, the Departments of Homeland Security and State, the FBI, and the U.S. intelligence community will deploy foreign fighter surge teams to work with countries to counter terrorist travel.

As of December 3, 2015, the Global Entry program is available to citizens of Germany, Mexico, the Netherlands, Panama, South Korea, and the United Kingdom. For a discussion of the Global Entry program, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by [author name scrubbed].

APIS provides CBP officers with pre-arrival and departure manifest data on all passengers and crew members.

For a discussion of this fine, see 19 CFR §122.49.

Preclearance is performed by CBP officers in a foreign country, and includes the same document inspection, interview, and (as necessary) secondary inspection as normally occurs at a U.S. port of entry, including customs and agricultural screening. Since February 2014, appropriators have prohibited funding for Customs and Border Protection to enter into preclearance agreements in new locations unless the Secretary of Homeland Security, in consultation with the Secretary of State, certifies to Congress that preclearance operations at the specified airport provide a "homeland or national security benefit to the United States," among other conditions. (See Section 555 of P.L. 114-4 and Section 564 of P.L. 113-76.) Both the Senate- and House-reported bills for the FY2016 DHS appropriations recommended a similar prohibition. (See Section 551 of S. 1619 and Section 548 of H.R. 3128.) For a discussion of preclearance, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by [author name scrubbed].

Testimony of James Jay Carafano, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Next Steps for the Visa Waiver Program, 112^th Cong., 1^st sess., December 7, 2011.

Testimony of David F. Heyman, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Next Steps for the Visa Waiver Program, 112^th Cong., 1^st sess., December 7, 2011. For more on this agreement, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by [author name scrubbed].

Statement of Chairman Elton Gallegly, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Next Steps for the Visa Waiver Program, 112^th Cong., 1^st sess., December 7, 2011.

GAO, Visa Waiver Program: Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement.

The issue of LASP has been ongoing. VWP passports are supposedly highly valued since the bearer does not need a visa to enter the United States. Most recently see GAO, Visa Waiver Program: Additional Actions Needed to Address Risks and Strengthen Overstay Enforcement, 2011.

The United States began providing information on LASP to the U.S. National Central Bureau of the International Criminal Police Organization (INTERPOL) in May 2004. The INTERPOL Stolen and Lost Travel Document (SLTD) database is available to law enforcement and immigration authorities worldwide. Ibid, and INTERPOL, Border Management: Stolen and Lost Travel Documents database, 2015, http://www.interpol.int/INTERPOL-expertise/Border-management/SLTD-Database.

In the past, before access to and the content of the INTERPOL database was reliable, DHS required countries to submit LASP data to the U.S. Embassies in those countries.

GAO, Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process, and to Assess and Mitigate Program Risks, p.5.

U.S. President (George W. Bush), "Homeland Security Presidential Directive/HSPD–6—Directive on Integration and Use of Screening Information To Protect Against Terrorism," Weekly Compilation of Presidential Documents, September 16, 2003, p. 1174. For a discussion of HSPD-6, see CRS Report R42336, Terrorist Watch List Screening and Background Checks for Firearms, by [author name scrubbed].

E-mail from Department of Homeland Security, Office of Legislative Affairs, November 16, 2015.

Alison Smale and Kimberly Bradley, "Refugees Across Europe Fear Repercussions From Paris Attacks," New York Times, November 18, 2015, http://www.nytimes.com/2015/11/19/world/europe/refugees-paris-attacks.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region&region=top-news&WT.nav=top-news; and "Syrian Passport by Stadium Stolen or Fake, A.F.P. Reports," New York Times, November 17, 2015, http://www.nytimes.com/live/paris-attacks-live-updates/syrian-passport-reportedly-was-stolen-or-fake/#.

A national is a citizen or subject of a particular nation, and is someone who would be eligible for a passport from that nation.

INA §217(a)(2). The situation regarding the position of many countries in regards to acceptance of Syrian refugees is fluid and, as such, it is unclear whether any of these refugees will ever be eligible for citizenship in these countries.

Esxter Zalan, "Juncker: Don't Mix Up Terrorists and Refugees," EU Observer, November 15, 2015, https://euobserver.com/political/131114.

Lonnie Shekhtman, "Abdelhamid Abaaoud: Mastermind of the Paris attacks?," Christian Science Monitor, November 16, 2015, http://www.csmonitor.com/World/Europe/2015/1116/Abdelhamid-Abaaoud-Mastermind-of-the-Paris-attacks-video.

For an example of this argument, see Heritage Foundation, The Visa Waiver Program: A Security Partnership, Fact Sheet #66, Washington, DC, June 25, 2010.

For examples of this argument, 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; and Jena Baker McNeill, Time to Decouple Visa Waiver Program from Biometric Exit, Heritage Foundation, Web Memorandum no. 2867, April 15, 2010.

In 2008, DHS admitted 8 new countries into the program. These eight countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea) received a waiver of the nonimmigrant refusal rate. Greece was admitted in 2010, and Taiwan was admitted in 2012. As the nonimmigrant refusal rate waiver has not been in effect since 2009, both countries had nonimmigrant refusal rates under 3%.

In 2005, the George W. Bush administration began providing countries interested in joining the VWP with "road maps" to aid the countries in meeting the program's criteria. Some of the countries complained that since the "road maps" do not contain milestones or time tables, it was difficult to measure the amount of progress made towards fulfilling the criteria for VWP membership. There were 13 "road map" countries. They were Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, South Korea, Latvia, Lithuania, Malta, Poland, Romania, and Slovakia. Eight of these countries have been admitted to the VWP. The issues surrounding the "road maps," were the focus of an event held by the Heritage Foundation on February 8, 2006. The event was 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.

For examples, see "Polish President to Remind Obama of Visa Promise," Polskie Radio, September 9, 2012, http://www.thenews.pl/1/10/Artykul/113122,Polish-president-to-remind-Obama-of-visa-promise; and Nowy Dziennik Wuem, translated by Aleksangra Slabisz from Polish, "Polish Students Appeal to White House on Visa Waiver," Voices of NY, October 10, 2012.

Josh Rogin, "Obama: Poland will be admitted to the visa waiver program," http://thecable.foreignpolicy.com, December 8, 2010, http://thecable.foreignpolicy.com/posts/2010/12/08/obama_poland_will_be_admitted_to_the_visa_waiver_program.

Poland's FY2014 adjusted B-visa refusal rate was 6.4%. Thus, Poland would not meet the refusal rate requirement if the nonimmigrant refusal rate waiver was reinstated. Department of State, Adjusted Refusal Rate- B-Visas Only by Nationality: Fiscal Year 2014, http://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY14.pdf.

Until FY2012, refusal rates were calculated by application, not by person, so if a person applied for the same visa multiple times and was refused, all the refusals were calculated in the refusal rate. For example, if a person submitted five visa applications in a year and all were denied, they were all counted toward the refusal rate. However, if such a person submitted five applications that were denied and then a sixth application that was approved, none of the previous applications were counted as refusals in the calculation of the adjusted refusal rate that is used in the determination of VWP eligibility. Department of State, Multi-Year B Visa Adjusted Refusal Rates by Nationality, FY2012, http://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/refusalratelanguage.pdf.

Telephone conversation with DHS Office of Legislative Affairs, December 1, 2011.

As mentioned above, in December 2011 DHS announced an agreement with Canada to share biographic entry data as a method to enhance both country's exit records. For more on the limitations of the exit data, see CRS Report RS22446, Nonimmigrant Overstays: Brief Synthesis of the Issue, by [author name scrubbed].

§214(b) of the INA generally presumes that all aliens seeking admission to the United States are coming to live permanently; as a result, aliens seeking to qualify for a B visa (and most other nonimmigrant visas) must demonstrate that they are not coming to reside permanently in the United States. CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by [author name scrubbed].

Determinations of inadmissibility are also made by CBP officers at ports of entry.

The so-called grounds of inadmissibility under INA §212(a) include health-related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligibility for citizenship; and aliens who are illegally present or have previously been removed.

There are two bills, H.R. 4135 and S. 2323, related to the ability of those who enter under the VWP to purchase firearms that are beyond the scope of the report. These bills would expressly prohibit individuals admitted under the VWP from being eligible to possess or acquire a firearm, unless a statutory exception applies. In 1998, Congress amended the Gun Control Act of 1968, adding a provision that makes it generally unlawful for aliens who have been "admitted … under a nonimmigrant visa (as that term is defined in [8 U.S.C. 1101(a)(26)])" from possessing or receiving firearms or ammunition. See 18 U.S.C. § 922(g)(5)(B). Until 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) interpreted this provision to apply to any alien who has the status of "nonimmigrant alien," regardless of whether the alien needed a visa in order to be in the United States. In 2011, ATF was informed by the Department of Justice that its interpretation was too broad and that the prohibition "applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status." See 2011 WL 6260326 (O.L.C) (Oct. 28, 2011). As such, nonimmigrants who enter the country validly without a visa (e.g., under the VWP) are eligible to purchase firearms; however, such individuals must meet a residency requirement, which requires them to demonstrate that they have "the intention of making a home" in the state where they wish to purchase the firearm. See 77 Federal Register 33625-33634 (June 7, 2012). For more information, please contact [author name scrubbed], Legislative Attorney.

The Schengen Area enables citizens of the European Union (EU), as well as many non-EU nationals, to cross select international borders in Europe without being subject to border checks. See European Commission, Migration and Home Affairs: Schengen Area, November 13, 2015, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm.

Examples of acts that use the term "repeatedly provided support for acts of international terrorism," include §6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and §620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

The bill would require the Secretary of DHS, in consultation with the Director of National Intelligence, to make this determination within 60 days of enactment. The criteria to make the determination would include whether the presence of a foreign national in that area or country increases the likelihood that the foreign national is a credible threat to U.S. national security, whether a foreign terrorist organization has a significant presence in the area or country, and whether the country or area is a safe haven for terrorists.

The first of such reports would be due 90 days after the bill is enacted.

The criteria include the number of nationals determined to be ineligible to travel to the United States under the VWP during the previous year; the number of nationals who were identified in U.S. government terrorism databases during the previous year, the estimated number of nationals who traveled to Iraq or Syria since March 1, 2011, to engage in terrorism; the country's capacity to combat passport fraud; the level of cooperation with U.S. counter-terrorism efforts; the adequacy of the country's border and immigration controls; and any other criteria determined by the Secretary of DHS.

The first report would be due 60 days after enactment.

The first report would be due 30 days after enactment.

The International Civil Aviation Organization (ICAO) is a United Nations specialized agency established to manage the administration and governance of the Convention on International Civil Aviation. The ICAO works with Convention Member States and industry groups to reach consensus on international civil aviation standards and practices. International Civil Aviation Organization, About ICAO, http://www.icao.int/about-icao/Pages/default.aspx.

EUROPOL is the European Union's agency that handles criminal intelligence. For more on EUROPOL, see CRS Report RS22030, U.S.-EU Cooperation Against Terrorism, by [author name scrubbed].

Examples of acts that use the term "repeatedly provided support for acts of international terrorism," include §6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and §620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371).

It is not clear whether the requirement would be that both the overstay and refusal rates must be less than 3% or if only one of the rates must be less than 3%.

CARICOM member and associate members include Anguilla, Antigua and Barbuda, The Bahamas, Barbados, Belize, Bermuda, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago, and Turks and Caicos Islands.

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 program.

The 29 countries were: Andorra, Argentina, 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, the United Kingdom, and Uruguay. Argentina was removed from the VWP in February 2002, and Uruguay was removed in April 2003. From April 2003 until November 2008, the VWP included 27 countries. As of March 2014, there are 38 countries participating in the VWP.

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)).

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 Sensenbrenner.

The act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard.

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 system as implemented is known as the Electronic System for Travel Authorization (ESTA).

This exit system is not necessarily the same as the exit system required for the nonimmigrant refusal rate waiver authority. DHS appears to have incorporated this requirement as part of the exit portion of automated entry and exit data system known as US-VISIT.