Visa Waiver Program

Changes from June 29, 2020 to October 12, 2021

This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with ~~red strikethrough~~ and textual matter added in the later version is indicated with blue.

Visa Waiver Program
~~June 29, 2020~~October 12, 2021
The Visa Waiver Program (VWP), originally established in 1986 as a trial program and made The Visa Waiver Program (VWP), originally established in 1986 as a trial program and made
permanent in 2000 (P.L. 106-396),permanent in 2000 (P.L. 106-396), allows nationals from allows nationals from 3940 countries, many of which are in countries, many of which are in
Abigail F. Kolker
Europe, to enter the United States as temporary visitors (nonimmigrants) for business or pleasure Europe, to enter the United States as temporary visitors (nonimmigrants) for business or pleasure
Analyst in Immigration Analyst in Immigration
without first obtaining a visa. Generally, temporary visitors for business or pleasure without first obtaining a visa. Generally, temporary visitors for business or pleasure ~~from non-~~
~~Policy~~
~~VWP countries must obtain a visa from Department of State (DOS) officers at a consula r post~~

~~abroad before traveling to the United States.~~
must obtain a Policy visa from Department of State (DOS) officers at a consular post abroad before traveling to the United States unless they are nationals of one of the countries that participates in the VWP.
Some observers argue that the VWP strengthens national security because it sets standards for Some observers argue that the VWP strengthens national security because it sets standards for
travel documents, requires information sharing between the member countries and the United States on travel documents, requires information sharing between the member countries and the United States on ~~crimina l~~criminal and security and security
concerns, and mandates reporting of lost and stolen travel documents. VWP travelers have to present econcerns, and mandates reporting of lost and stolen travel documents. VWP travelers have to present e -passports (i.e., -passports (i.e.,
passports with a data chip containing biometric information), which tend to be more difficult to alter than other types of passports with a data chip containing biometric information), which tend to be more difficult to alter than other types of
passports. Nevertheless, some observers of the program have raised concerns about the possibility that terrorists will enter the passports. Nevertheless, some observers of the program have raised concerns about the possibility that terrorists will enter the
United States under the VWP because those entering under the VWP undergo a biographicUnited States under the VWP because those entering under the VWP undergo a biographic , rather than a biometric (i.e., , rather than a biometric (i.e.,
fingerprint and digital photograph), security screening and do not need to interview in person with a U.S. consular official fingerprint and digital photograph), security screening and do not need to interview in person with a U.S. consular official
before embarking for the United States.before embarking for the United States.
There is also interest in the VWP as a mechanism to promote tourism and commerce. In There is also interest in the VWP as a mechanism to promote tourism and commerce. In ~~FY2018,~~ FY2019, there were more than 22.there were more than 22.89
million admissions to the United States under this program, constituting nearly a third million admissions to the United States under this program, constituting nearly a third (31%) of all temporary ~~of all~~ visitor admissions. The inclusion visitor admissions. The inclusion
of countries in the VWP indicates a shared approach to national security and eases consular workloads abroad.of countries in the VWP indicates a shared approach to national security and eases consular workloads abroad.
To qualify for the VWP, a country must offer reciprocal travel privileges to U.S. citizens; have had a nonimmigrant visa To qualify for the VWP, a country must offer reciprocal travel privileges to U.S. citizens; have had a nonimmigrant visa
refusal rate of less than 3% for the previous year; issue their nationals machine-readable passports that incorporate biometric refusal rate of less than 3% for the previous year; issue their nationals machine-readable passports that incorporate biometric
identifiers; issue tamper-resistant, machine-readable visa documents that incorporate biometric identifiers which are identifiers; issue tamper-resistant, machine-readable visa documents that incorporate biometric identifiers which are
verifiable at the country’s port of entry; report the loss and theft of passports; share specified information regarding nationals verifiable at the country’s port of entry; report the loss and theft of passports; share specified information regarding nationals
of the country who represent a threat to U.S. security; and not compromise the law enforcement or security interests of the of the country who represent a threat to U.S. security; 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 ifUnited States by its inclusion in the program. Countries can be terminated from the VWP if they fail to meet any of these they fail to meet any of these
conditions or otherwise threaten the United States’ security or immigration interests.conditions or otherwise threaten the United States’ security or immigration interests.
All foreign nationals (i.e., aliens) entering under the VWP must present passports that contain electronic data chips (e- All foreign nationals (i.e., aliens) entering under the VWP must present passports that contain electronic data chips (e-
passports). Under Department of Homeland Security (DHS) regulations, travelers who seek to enter the United States through passports). Under Department of Homeland Security (DHS) regulations, travelers who seek to enter the United States through
the VWP are subject to the biometric requirements of the United States Visitor and Immigrant Status Indicator Technology the VWP are subject to the biometric requirements of the United States Visitor and Immigrant Status Indicator Technology
(US-VISIT)(US-VISIT) program. In addition, aliens seeking to travel to the United States under the VWP must get an approval from the program. In addition, aliens seeking to travel to the United States under the VWP must get an approval from the
Electronic System for Travel Authorization (ESTA), a web-based system that checks the alien’s information against relevant Electronic System for Travel Authorization (ESTA), a web-based system that checks the alien’s information against relevant
law enforcement and security databases, before they can board a plane to the Unitedlaw enforcement and security databases, before they can board a plane to the United States. States.
Under statute, the Secretary of Homeland Security has the authority to waive the nonimmigrant visa refusal rate requirement, Under statute, the Secretary of Homeland Security has the authority to waive the nonimmigrant visa refusal rate requirement,
provided certain conditions are met. However, the waiver authority was suspended on July 1, 2009, because DHS had not provided certain conditions are met. However, the waiver authority was suspended on July 1, 2009, because DHS had not
fully implemented an air-exit system that incorporates biometric identifiers. The waiver will not be available until such a fully implemented an air-exit system that incorporates biometric identifiers. The waiver will not be available until such a
system is implemented, and it is unknown when and if a biometric exit system will be fully implemented.system is implemented, and it is unknown when and if a biometric exit system will be fully implemented.
~~Activity in the 116th Congress related to the VWP seeks to expand the number of countries by changing the criteria or by~~
~~designating specific countries. Other bills would rename the VWP to “Secure Travel Partnership” to reflect one of the~~
~~program’s main goals of securing travel to the United States. Legislation in the 116th Congress would also address the ESTA~~
~~fee paid by VWP applicants. In December 2019, Congress authorized the continued use of the ESTA fee to partially fund~~
~~Brand USA, a national tourism promotion program, through September 30, 2027. Congress also raised the ESTA fee from~~
~~$14 to $21 (Division I, Title 8 of P.L. 116-94). The effective date of the new ESTA fee has not yet been announced.~~
Recent legislative activity is discussed at the end of the report.
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Visa Waiver Program

Introduction
The Visa Waiver Program (VWP) The Visa Waiver Program (VWP) ~~al ows~~allows nationals from certain countries to enter the United nationals from certain countries to enter the United
States as temporary visitors for business or pleasure without first obtaining a visa from a U.S. 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 countries1 must consulate abroad. Temporary visitors for business or pleasure from non-VWP countries1 must
obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to
the United States.the United States.
Two main goals of the VWP are increasing tourism and strengthening national security. While Two main goals of the VWP are increasing tourism and strengthening national security. While
there tends to be agreement that the VWP benefits the U.S. economy by facilitating legitimate 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.2 Proponents of the travel, there is disagreement on the VWP’s impact on national security.2 Proponents of the
program say the VWP strengthens U.S. national security because it sets standards for travel program say the VWP strengthens U.S. national security because it sets standards for travel
documents, requires information sharing between member countries and the United States on documents, requires information sharing between member countries and the United States on
criminal and security concerns, and mandates reporting of lost and stolen travel documents.3 criminal and security concerns, and mandates reporting of lost and stolen travel documents.3
Critics of the program argue the VWP creates a security loophole because VWP travelers do not Critics of the program argue the VWP creates a security loophole because VWP travelers do not
undergo the in-person screening undergo the in-person screening ~~general y~~generally required to receive a visa.4 required to receive a visa.4
Current Policy
In general, temporary foreign visitors for business or pleasure from most countries must obtain a In general, temporary foreign visitors for business or pleasure from most countries must obtain a
B nonimmigrant visa5 from DOS officers at a consular post abroad before coming to the United B nonimmigrant visa5 from DOS officers at a consular post abroad before coming to the United
States.6 Personal interviews are States.6 Personal interviews are ~~general y~~generally required, and consular officers use the Consular required, and consular officers use the Consular
Consolidated Database (CCD) to screen visa applicants. The CCD indicates the outcome of any Consolidated Database (CCD) to screen visa applicants. The CCD indicates the outcome of any
prior visa application of the alienprior visa application of the alien and facilitates the flagging of issues that may make the alien and facilitates the flagging of issues that may make the alien
ineligibleineligible for a visa under the for a visa under the grounds of inadmissibility of the Immigration and Nationality Act of the Immigration and Nationality Act
(INA), which include criminal, terrorist, and public health grounds. Consular officers are required (INA), which include criminal, terrorist, and public health grounds. Consular officers are required
to check the background of to check the background of al all aliens in the “lookout” databases, including the Consular Lookout aliens in the “lookout” databases, including the Consular Lookout
and Support System (CLASS) and TIPOFF databases. and Support System (CLASS) and TIPOFF databases.

~~1 T he~~ 1 The two exceptions are Canada and Bermuda; two exceptions are Canada and Bermuda; they do not participate in the VWP, but their citizens do not need to they do not participate in the VWP, but their citizens do not need to
obtain a nonimmigrant visa except in specified circumstances. For more information, see U.S. State Department, obtain a nonimmigrant visa except in specified circumstances. For more information, see U.S. State Department,
BureauBureau of Consularof Consular Affairs, Affairs, Citizens of Canada and ~~Berm uda~~Bermuda, at https://travel.state.gov/content/travel/en/us-visas/, at https://travel.state.gov/content/travel/en/us-visas/
tourism-visit/citizens-of-canada-and-bermuda.html. tourism-visit/citizens-of-canada-and-bermuda.html.
2 See 2 See ~~CRS~~ CRS Report R46300, Report R46300, Adding Countries to the Visa ~~Waiver~~ Waiver Program: Effects on National Security and Tourism . .
3 For an example of this argument, see Riley Walter, 3 For an example of this argument, see Riley Walter, The Visa ~~Waiver~~ Waiver Program Is Still Great For America, , ~~T he~~The
Heritage Foundation, Issue Brief #4273, March 14, 2017, at https://www.heritage.org/sites/default/files/2017-03/Heritage Foundation, Issue Brief #4273, March 14, 2017, at https://www.heritage.org/sites/default/files/2017-03/
IB4664.pdf. IB4664.pdf.
4 For an example of this argument, see Federation for American Immigration Reform (FAIR), 4 For an example of this argument, see Federation for American Immigration Reform (FAIR), The Visa Waiver
Program : Suspend It or ~~Elim inate~~Eliminate It,, December 2015, at https://www.fairus.org/issue/legal-immigration/visa-waiver-December 2015, at https://www.fairus.org/issue/legal-immigration/visa-waiver-
program-suspend-it-or-eliminate-it. program-suspend-it-or-eliminate-it.
5 5 Nonimmigrants are foreign nationals lawfully admitted to the United States for a specific purpose and limited period are foreign nationals lawfully admitted to the United States for a specific purpose and limited period
of time. Nonimmigrants are often referred to by the letter that denotes their subparagraph in the Immigration and of time. Nonimmigrants are often referred to by the letter that denotes their subparagraph in the Immigration and
Nationality Act (INA §101(a)(15)), such as H-2A agriculturalNationality Act (INA §101(a)(15)), such as H-2A agricultural workers, F-1 foreign students, or J-1 cultural exchange workers, F-1 foreign students, or J-1 cultural exchange
visitors. B nonimmigrant visas are issuedvisitors. B nonimmigrant visas are issued to shortto short -term visitors for business or pleasure. For more information, see CRS -term visitors for business or pleasure. For more information, see CRS
Report R45040, Report R45040, ~~Im m igration: Nonimm igrant (Tem porary) Adm issions~~Immigration: Nonimmigrant (Temporary) Admissions to the United States. .
6 6 ~~T o~~To obtain a nonimmigrant visa, a foreign national must submit an application and undergo a background obtain a nonimmigrant visa, a foreign national must submit an application and undergo a background check and check and
usuallyusually an interview. For more information on temporary admissions, see CRSan interview. For more information on temporary admissions, see CRS Report R45040, Report R45040, ~~Im m igration:~~
~~Nonim m igrant (Tem porary~~Immigration: Nonimmigrant (Temporary) Admissions to the United States. .
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link to page 11 link to page 11 link to page 25 link to page 11 link to page 11 link to page 25 Visa Waiver Program

Eligible Eligible nationals from participating VWP countries must use the web-based Electronic System nationals from participating VWP countries must use the web-based Electronic System
for Travel Authorization (ESTA)7 to get an approved electronic travel authorization before for Travel Authorization (ESTA)7 to get an approved electronic travel authorization before
embarking to the United States. ESTA authorization is embarking to the United States. ESTA authorization is ~~general y~~generally valid valid for two years. VWP for two years. VWP
travelers are admitted into the United States for stays up to 90 days. The VWP constitutes one of travelers are admitted into the United States for stays up to 90 days. The VWP constitutes one of
a few exceptions under the Immigration and Nationality Act (INA) in which foreign nationals a few exceptions under the Immigration and Nationality Act (INA) in which foreign nationals ~~are~~
may be admitted into the United States without a valid visa. As of admitted into the United States without a valid visa. As of ~~June 2020~~October 2021, there were , there were ~~39 countries~~
40 countries participating in the VWP.8 participating in the VWP.8
The large-scale terrorist attacks in Paris in November 2015 and in Belgium The large-scale terrorist attacks in Paris in November 2015 and in Belgium in March 2016, which in March 2016, which
were perpetrated mainly by French and Belgian citizens, increased the focus on potential security were perpetrated mainly by French and Belgian citizens, increased the focus on potential security
risks posed by the VWP. Prior to the December 2015 enactment of the Visa Waiver Improvement risks posed by the VWP. Prior to the December 2015 enactment of the Visa Waiver Improvement
and Terrorist Travel Prevention Act (P.L. 114-113), and Terrorist Travel Prevention Act (P.L. 114-113), al all nationals from a VWP country were nationals from a VWP country were
eligibleeligible to travel under the program—provided they received an ESTA approval. P.L. 114-1139 to travel under the program—provided they received an ESTA approval. P.L. 114-1139
changed eligibilitychanged eligibility for the VWP by prohibiting people who were present in certain countries since for the VWP by prohibiting people who were present in certain countries since
March 1, 2011, with limited exceptions, from traveling under the VWP. The specified countries March 1, 2011, with limited exceptions, from traveling under the VWP. The specified countries
include include
 Iraq and Syria,  Iraq and Syria,
 any country designated by the Secretary of State as having repeatedly provided  any country designated by the Secretary of State as having repeatedly provided
support for acts of international terrorism under any provision of law,10 or support for acts of international terrorism under any provision of law,10 or
 any other country or area of concern11 deemed appropriate by the Secretary of  any other country or area of concern11 deemed appropriate by the Secretary of
Homeland Security.12 Homeland Security.12
Currently, the prohibition affects those who were present in any of the following countries: Currently, the prohibition affects those who were present in any of the following countries:
Democratic People’s Republic of Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Democratic People’s Republic of Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
The statutory exceptions from this restriction apply to foreign nationals who were in one of the The statutory exceptions from this restriction apply to foreign nationals who were in one of the
specified countries in order to perform military service in the armed forces of a VWP country, or 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. In addition, DHS can grant to perform official duties as an employee of the VWP country. In addition, DHS can grant
waivers on a case-by-case basis.13 The following are general categories of travelers to these waivers on a case-by-case basis.13 The following are general categories of travelers to these
~~countries who may be eligible for a waiver: (1) individuals who traveled on behalf of~~

~~7 EST A~~ 7 ESTA became operational for all VWP countries on January 12, 2009; for more information, see became operational for all VWP countries on January 12, 2009; for more information, see “ “Electronic System
for ~~T ravel Authorization,” below.~~
~~8 Poland was designated a VWP country on November 8, 2019. See~~ Travel Authorization,” below. 8 Croatia is the most recent country added to the VWP. It was designated as such on September 28, 2021. See Department of Homeland Security, “Designation of Department of Homeland Security, “Designation of
~~Poland~~Croatia for the Visa for the Visa Waiver Program,” Waiver Program,” 8486 Federal Register ~~60316, November 8, 2019.~~
54029, September 30, 2021. 9 For more details about P.L. 114-113, se9 For more details about P.L. 114-113, see Appendix..
10 Examples of acts that use the term “10 Examples of acts that use the term “ repeatedly provided support for acts of international terrorism,” include §6(j) of 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 Actthe Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and (22 U.S.C. 2780), and
§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan,§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan, and Syria. and Syria.
11 11 ~~T he~~The criteria to make the determination would include criteria to make the determination would include whether the presence of a foreign national in that area or whether the presence of a foreign national in that area or
country increases the likelihood that the foreign national is a crediblecountry increases the likelihood that the foreign national is a credible threat to U.S. national security, whether a foreign 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 terrorist organization has a significant presence in the area or country, and whether the country or area is a safe haven
for terrorists. DHS has designatedfor terrorists. DHS has designated the Democratic People’s Republic of Korea, Libya, Somalia, and Yemen as the Democratic People’s Republic of Korea, Libya, Somalia, and Yemen as
“countries or areas of concern.” “countries or areas of concern.”
12 12 ~~T he~~The Secretary of Homeland Security Secretary of Homeland Security administers the VWP program. Section 402 of the Homeland Security Act of administers the VWP program. Section 402 of the Homeland Security Act of
2002 (HSA;2002 (HSA; P.L. 107-296), signed into law on November 25, 2002, states: P.L. 107-296), signed into law on November 25, 2002, states:
~~T he~~The Secretary [of Homeland Security], acting through the Under Secretary for Border and Secretary [of Homeland Security], acting through the Under Secretary for Border and
~~T ransportation~~Transportation Security, shall be Security, shall be responsible for the following: ... (4) Establishing and responsible for the following: ... (4) Establishing and
administering rules, ... governing the granting of visas or other forms of administering rules, ... governing the granting of visas or other forms of ~~per mission~~permission, including , including
parole, to enter the United States to individualsparole, to enter the United States to individuals who are not a citizen or an alien [sic] lawfully who are not a citizen or an alien [sic] lawfully
admitted for permanent residence in the United States. admitted for permanent residence in the United States.
13 8 U.S.C. 13 8 U.S.C. §1187(a)(12)(C). §1187(a)(12)(C).
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Visa Waiver Program

countries who may be eligible for a waiver: (1) individuals who traveled on behalf of international organizations, regional organizations, and sub-national governments on official international organizations, regional organizations, and sub-national governments on official
duty; (2) individuals who traveled on behalf of a humanitarian non-governmental organization duty; (2) individuals who traveled on behalf of a humanitarian non-governmental organization
(NGO) on official duty; (3) individuals who traveled as journalists for reporting purposes; (4) (NGO) on official duty; (3) individuals who traveled as journalists for reporting purposes; (4)
individualsindividuals who traveled to Iran for legitimate business-related purposes following the conclusion who traveled to Iran for legitimate business-related purposes following the conclusion
of the Joint Comprehensive Plan of Action (July 14, 2015);14 and (5) individuals who have travel of the Joint Comprehensive Plan of Action (July 14, 2015);14 and (5) individuals who have travel
to Iraq for legitimate business-related purposes.15 to Iraq for legitimate business-related purposes.15
In addition, anyone who is a dual national of a VWP country and the Democratic People’s In addition, anyone who is a dual national of a VWP country and the Democratic People’s
Republic of Korea, Iran, Iraq, Sudan, or Syria is ineligibleRepublic of Korea, Iran, Iraq, Sudan, or Syria is ineligible to travel under the VWP. As with the to travel under the VWP. As with the
prohibition against those who were present in certain countries, the Secretary of Homeland prohibition against those who were present in certain countries, the Secretary of Homeland
Security has the authority to waive the prohibition on certain dual nationals if the Secretary Security has the authority to waive the prohibition on certain dual nationals if the Secretary
determines that the waiver would be in the law enforcement or national security interests of the determines that the waiver would be in the law enforcement or national security interests of the
United States. As of the date of this report, DHS has not released any guidance on waivers for United States. As of the date of this report, DHS has not released any guidance on waivers for
dual nationals.16 DHS reports on these waivers to Congress dual nationals.16 DHS reports on these waivers to Congress ~~annual y~~annually, but these reports are not , but these reports are not
~~available~~ available to the public. to the public.

~~14 On July~~ 14 On July 14, 2015, Iran and the six powers14, 2015, Iran and the six powers that have negotiated with Iran about its nuclear program since 2006 (the that have negotiated with Iran about its nuclear program since 2006 (the
United States, the United Kingdom, France, Russia,United States, the United Kingdom, France, Russia, China, and Germany) finalized a Joint Comprehensive Plan of China, and Germany) finalized a Joint Comprehensive Plan of
Action (JCPOA). Action (JCPOA). ~~T he~~The JCPOA is JCPOA is intended to ensure that Iranintended to ensure that Iran ’s nuclear program can be used’s nuclear program can be used for purely peaceful for purely peaceful
purposes, in exchange for a broadpurposes, in exchange for a broad lifting of U.S.,lifting of U.S., European Union (EU), and United Nations (U.N.) sanctions on Iran.European Union (EU), and United Nations (U.N.) sanctions on Iran.
On May 8, 2018, President On May 8, 2018, President ~~T rump~~Trump announced that the United States would announced that the United States would no longer participate in the JCPOAno longer participate in the JCPOA . On . On
January 5, 2020, Iran declared it wouldJanuary 5, 2020, Iran declared it would no longer abideno longer abide by the limitations of the deal. For more on the JCPOA, seeby the limitations of the deal. For more on the JCPOA, see CRS CRS
Report R43333, Report R43333, Iran Nuclear ~~Agreem ent~~Agreement and U.S. Exit. .
15 There~~15 T here~~ is no separate application for a waiver. A foreign national’s eligibility for a waiver is no separate application for a waiver. A foreign national’s eligibility for a waiver is determined duringis determined during the the
~~EST A~~ESTA application process. U.S. Customs and Border Protection, application process. U.S. Customs and Border Protection, Visa Waiver ~~Program Im provem ent~~ Program Improvement and Terrorist
Travel Prevention Act Frequently Asked Questions, at https://www.cbp.gov/travel/international-visitors/visa-waiver-, at https://www.cbp.gov/travel/international-visitors/visa-waiver-
program/visa-waiver-program-improvement-and-terroristprogram/visa-waiver-program-improvement-and-terrorist -travel-prevention-act-faq, accessed November 13, 2019. -travel-prevention-act-faq, accessed November 13, 2019.
16 For a discussion 16 For a discussion of some of the issuesof some of the issues ~~surrounding~~ surrounding implementing the dual national provision, see Nahal implementing the dual national provision, see Nahal ~~T oosi~~Toosi, ,
“Obama Aides“Obama Aides ~~Vexed~~ Vexed by Visaby Visa Crackdown,”Crackdown,” Politico, April 12, 2016, Europe Edition, athttp://www.politico.eu/article/, April 12, 2016, Europe Edition, athttp://www.politico.eu/article/
obama-aides-vexed-by-visa-crackdown/http://www.politico.eu/article/obama-aides-vexed-by-visa-crackdown/. obama-aides-vexed-by-visa-crackdown/http://www.politico.eu/article/obama-aides-vexed-by-visa-crackdown/.
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Visa Waiver Program Countries
(as of ~~June 2020~~October 2021)
Andorra, Australia, Andorra, Australia, Austria,Austria, Belgium,Belgium, Brunei,Brunei, ~~Chile~~ Chile, Croatia, Czech Republic, Denmark,, Czech Republic, Denmark, Estonia, Finland, France, Germany, Estonia, Finland, France, Germany,
Greece,Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein,Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg,Lithuania, Luxembourg, Malta, Monaco, the Malta, Monaco, the
Netherlands, New Zealand, Norway, Poland, Portugal, San Marino, Singapore, Slovakia,Netherlands, New Zealand, Norway, Poland, Portugal, San Marino, Singapore, Slovakia, Slovenia,Slovenia, South Korea,South Korea, Spain, Spain,
Sweden, Switzerland, Taiwan, and the United Kingdom. Sweden, Switzerland, Taiwan, and the United Kingdom.

Source: CRS Although the VWP Although the VWP ~~al ows~~ allows certain nationals from participating countries to enter the United States certain nationals from participating countries to enter the United States
without a visa, it has important restrictions. Aliens entering with a B visa may petition to extend without a visa, 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 their length of stay in the United States or may petition to change to another nonimmigrant or
immigrant status.17 Aliens entering through the VWP are not permitted to extend their stays immigrant status.17 Aliens entering through the VWP are not permitted to extend their stays
except for emergency reasons and then for only 30 days.18 except for emergency reasons and then for only 30 days.18 ~~Additional y~~Additionally, with some limited , with some limited
exceptions, aliens entering through the VWP are not permitted to adjust their immigration status. exceptions, aliens entering through the VWP are not permitted to adjust their immigration status.
An alien entering through the VWP who violates the terms of admission becomes deportable An alien entering through the VWP who violates the terms of admission becomes deportable
without any judicial recourse or review (except in asylum cases).19 without any judicial recourse or review (except in asylum cases).19

17 Noncitizens entering on B visas17 Noncitizens entering on B visas may be admitted for six months, and may apply to extend their stay for another six may be admitted for six months, and may apply to extend their stay for another six
months. months.
18 This~~18 T his~~ provision was amended provision was amended by P.L. 106-406 to provide exceptions for nonimmigrants who enter under the VWP by P.L. 106-406 to provide exceptions for nonimmigrants who enter under the VWP
and requireand require medical treatment. medical treatment.
19 19 ~~T o~~To receive asylum, a foreign national must demonstrate a well-founded receive asylum, a foreign national must demonstrate a well-founded fear of persecution in his or her home fear of persecution in his or her home
country basedcountry based on one of five grounds—race,on one of five grounds—race, religion, nationality, membership in a particular social group, or political religion, nationality, membership in a particular social group, or political
opinion—and meet other requirements. For more on asylum, see CRSopinion—and meet other requirements. For more on asylum, see CRS Report R45539, Report R45539, ~~Im m igration~~Immigration: U.S. Asylum
Policy. .
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VWP Qualifying Criteria
To qualify for the VWP, a country must To qualify for the VWP, a country must
 offer reciprocal privileges to United States citizens;  offer reciprocal privileges to United States citizens;
 have had a nonimmigrant visa refusal rate20 of less than 3% for the previous year  have had a nonimmigrant visa refusal rate20 of less than 3% for the previous year
or a lower average percentage over the previous two fiscal years; or a lower average percentage over the previous two fiscal years;
 issue electronic, machine-readable passports that contain a biometric identifier  issue electronic, machine-readable passports that contain a biometric identifier
(i.e., e-passports);21 (i.e., e-passports);21
 issue tamper-resistant, machine-readable visa documents that incorporate  issue tamper-resistant, machine-readable visa documents that incorporate
biometric identifiers, which are verifiable at the country’s port of entry; biometric identifiers, which are verifiable at the country’s port of entry;
 certify that it has in place mechanisms to validate machine-readable passports  certify that it has in place mechanisms to validate machine-readable passports
and e-passports at each port of entry;22 and e-passports at each port of entry;22
 enter into an agreement with the United States to report or make available  enter into an agreement with the United States to report or make available
through the International Criminal Police Organization (INTERPOL)23 through the International Criminal Police Organization (INTERPOL)23
information about the theft or loss of passports no later than 24 hours after a theft information about the theft or loss of passports no later than 24 hours after a theft
or loss is reported to the VWP country;24 or loss is reported to the VWP country;24
 certify, to the maximum extent  certify, to the maximum extent ~~al owed~~allowed under the laws of the country, that it is under the laws of the country, that it is
screening each foreign national who is admitted to or departs from that country, screening each foreign national who is admitted to or departs from that country,
using relevant INTERPOL databases and notices, or other means designated by using relevant INTERPOL databases and notices, or other means designated by
the Secretary of Homeland Security (this requirement applies only to countries the Secretary of Homeland Security (this requirement applies only to countries
that have an international airport);25 that have an international airport);25
 accept the repatriation of any citizen, former citizen, or national against whom a  accept the repatriation of any citizen, former citizen, or national against whom a
final order of removal from the United States is issued no later than three weeks final order of removal from the United States is issued no later than three weeks
after the order is issued; after the order is issued;

~~20 T his~~ 20 This rate represents the proportion of individuals whose applications for tourist or business rate represents the proportion of individuals whose applications for tourist or business visas have been rejected visas have been rejected
by U.S.by U.S. consular officials in their home countries. consular officials in their home countries.
21 Prior to the enactment of P.L. 114-113 only passports issued after October 26, 2006, had to be machine-readable and 21 Prior to the enactment of P.L. 114-113 only passports issued after October 26, 2006, had to be machine-readable and
contain a biometric identifier. In Augustcontain a biometric identifier. In August 2015, the Secretary of Homeland Security announced that to increase security 2015, the Secretary of Homeland Security announced that to increase security
of the VWP all travelers under the program wouldof the VWP all travelers under the program would have to use an e-passport, but the requirement had not been put into have to use an e-passport, but the requirement had not been put into
effect before the enactment of P.L. 114-113. Department of Homeland Security, “effect before the enactment of P.L. 114-113. Department of Homeland Security, “ Statement by Secretary Jeh C. Statement by Secretary Jeh C.
Johnson on Intention to Implement Security Enhancements to the Visa Waiver Program,” press release, AugustJohnson on Intention to Implement Security Enhancements to the Visa Waiver Program,” press release, August 6, 6,
2015, at https://www.dhs.gov/news/2015/08/06/statement2015, at https://www.dhs.gov/news/2015/08/06/statement -secretary-jeh-c-johnson-intention-implement-security--secretary-jeh-c-johnson-intention-implement-security-
enhancements-visa; and telephone conversation with DHS Office of Legislative Affairs, enhancements-visa; and telephone conversation with DHS Office of Legislative Affairs, ~~Nove mber~~November 3, 2015. 3, 2015.
22 22 ~~T his~~This requirement was requirement was ~~added~~ added by P.L. 114-113, and does not apply to travel between countries within the Schengen by P.L. 114-113, and does not apply to travel between countries within the Schengen
Area, whichArea, which comprises 22 European Union (EU) member states, plus 4 non-EU countries. Within the Schengen Area, comprises 22 European Union (EU) member states, plus 4 non-EU countries. Within the Schengen Area,
internal border controls have been largely eliminated, and individualsinternal border controls have been largely eliminated, and individuals may travel without passport checks among may travel without passport checks among
participating countries. See European Commission, participating countries. See European Commission, Migration and ~~Hom e~~Home Affairs: Schengen Area, at , at
http://ec.europa.eu/dgs/home-affairs/whathttp://ec.europa.eu/dgs/home-affairs/what -we-do/policies/borders-and-visas/schengen/index_en.htm. -we-do/policies/borders-and-visas/schengen/index_en.htm.
23 Although statute discusses 23 Although statute discusses sharing information on lost and stolen passports, the sharing information on lost and stolen passports, the ~~INT ERPOL~~INTERPOL database includes database includes other other
types of travel documents such as identity documents and visas. types of travel documents such as identity documents and visas. ~~INT ERPOL~~ INTERPOL is the world’s largest international police is the world’s largest international police
organization, with 194 member countries. For more information on organization, with 194 member countries. For more information on ~~INT ERPOL~~INTERPOL see, https://www.interpol.int/Who-we- see, https://www.interpol.int/Who-we-
are/Whatare/What ~~-is-INT ERPOL~~-is-INTERPOL. .
24 P.L. 114-113 added the requirement that the reporting occur within 24 hours of the country being notified about the 24 P.L. 114-113 added the requirement that the reporting occur within 24 hours of the country being notified about the
lost/stolen passportlost/stolen passport . .
25 25 ~~T his~~This screening requirement screening requirement ~~was added~~ was added by P.L. 114-113, and does not apply to those traveling between countries by P.L. 114-113, and does not apply to those traveling between countries
within the Schengen Area. within the Schengen Area.
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 enter into and fully implement26 an agreement with the United States to share  enter into and fully implement26 an agreement with the United States to share
information regarding whether a national of that country traveling to the United information regarding whether a national of that country traveling to the United
States represents a threat to U.S. security or welfare; and States represents a threat to U.S. security or welfare; and
 be determined, by the Secretary of Homeland Security, in consultation with the  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 Secretary of State, not to compromise the law enforcement or security interests of
the United States by its inclusion in the program. the United States by its inclusion in the program.
The Secretary of Homeland Security, in consultation with the Secretary of State, can suspend a The Secretary of Homeland Security, in consultation with the Secretary of State, can suspend a
country’s participation in the program based on a determination that the country presents a high country’s participation in the program based on a determination that the country presents a high
risk to U.S. national security.27 In addition, countries can be immediately terminated from the risk to U.S. national security.27 In addition, countries can be immediately terminated from the
VWP if an emergency occurs in the country that the Secretary of Homeland Security in 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 consultation with the Secretary of State determines threatens the law enforcement or security
interest of the United States.28 For example, because of Argentina’s economic collapse in interest of the United States.28 For example, because of Argentina’s economic collapse in
December 2001,29 and the increase in the number of Argentine nationals attempting to use the December 2001,29 and the increase in the number of Argentine nationals attempting to use the
VWP to enter the United States and remain VWP to enter the United States and remain ~~il egal y~~ illegally past the 90-day period of admission,30 past the 90-day period of admission,30
Argentina was removed from the VWP in February 2002.31 Likewise, Uruguay joined in 1999, Argentina was removed from the VWP in February 2002.31 Likewise, Uruguay joined in 1999,
but it was removed from the program in April 2003 because a recession led to an increasing but it was removed from the program in April 2003 because a recession led to an increasing
number of Uruguayan citizens entering the United States under the VWP to live and work number of Uruguayan citizens entering the United States under the VWP to live and work
~~il egal y.32~~ illegally.32 No country has been removed from the VWP since 2003. No country has been removed from the VWP since 2003.
~~Additional y,~~ Additionally, there is a probationary status for VWP countries that do not maintain a low there is a probationary status for VWP countries that do not maintain a low
disqualification rate.33 VWP countries are placed on probation when they have a disqualification disqualification rate.33 VWP countries are placed on probation when they have a disqualification

~~26 T he~~ 26 The requirement to implement the agreement was added requirement to implement the agreement was added by the Visaby the Visa Waiver Improvement and Waiver Improvement and ~~T errorist~~Terrorist Travel Travel
Prevention Act of 2015 (P.L. 114-113), enacted on December 18, 2015. Prevention Act of 2015 (P.L. 114-113), enacted on December 18, 2015.
27 27 ~~T he~~The criteria to determine whether a country poses a “high risk” to national security include criteria to determine whether a country poses a “high risk” to national security include the number of nationals the number of nationals
determined to be ineligibledetermined to be ineligible ~~to t ravel~~ to travel to the United States under the VWP during to the United States under the VWP during the previous year; the number of the previous year; the number of
nationals who were identified in U.S.nationals who were identified in U.S. government terrorism databases duringgovernment terrorism databases during the previous year, the estimated number the previous year, the estimated number
of nationals who traveled to Iraq or Syria since March 1, of nationals who traveled to Iraq or Syria since March 1, ~~2 011~~2011, to engage in terrorism; the country’s capacity to combat , to engage in terrorism; the country’s capacity to combat
passport fraud; the level of cooperation with U.S. counterpassport fraud; the level of cooperation with U.S. counter -terrorism efforts; the adequacy of the country’s border and -terrorism efforts; the adequacy of the country’s border and
immigration controls; and any other criteria determined by the Secretary of Homeland Security. immigration controls; and any other criteria determined by the Secretary of Homeland Security.
28 An emergency is defined as 28 An emergency is defined as (1) the overthrow of a democratically elected government; (2) war; (3) a severe (1) the overthrow of a democratically elected government; (2) war; (3) a severe
breakdownbreakdown in lawin law and order in the country; (4) a severe economic collapse; and (5) any other extraordinary event in the 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 program country where that country’s participation could threaten the law enforcement or security ~~intere sts~~interests of the of the
United States. INA §217(c)(5)(B). United States. INA §217(c)(5)(B).
29 Beginning in December 2001, Argentina experienced a serious29 Beginning in December 2001, Argentina experienced a serious economic crisis, includingeconomic crisis, including defaulting on loans by defaulting on loans by
foreign creditors, devaluation of its currency, and increasedforeign creditors, devaluation of its currency, and increased levels of unemployment and poverty.levels of unemployment and poverty.
30 In addition, many Argentine nationals were trying to use the VWP to obtain entry to the United States solely for the 30 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 pursuingpurpose of proceeding to the Canadian border and pursuing an asylum claim in Canada.an asylum claim in Canada. According to Citizenship and According to Citizenship and
Immigration Canada, betweenImmigration Canada, between 1999 and 2001, more than 2,500 Argentines filed refugee1999 and 2001, more than 2,500 Argentines filed refugee claims in Canadaclaims in Canada after after
transiting the United States under the VWP. transiting the United States under the VWP. Federal Register, February, February 21, 2002, vol. 67, no. 35, p. 7944. 21, 2002, vol. 67, no. 35, p. 7944.
31 While the number of Argentine nonimmigrant travelers to the United States declined between 1998 and 2000, the 31 While the number of Argentine nonimmigrant travelers to the United States declined between 1998 and 2000, the
number of Argentines denied admissionnumber of Argentines denied admission at the port of entry and the number of interior apprehensions increased. at the port of entry and the number of interior apprehensions increased. ~~T h e~~The
Department of Justice (DOJ) in consultation with DOSDepartment of Justice (DOJ) in consultation with DOS determined that Argentina’s participation in the VWP was determined that Argentina’s participation in the VWP was
inconsistent with the United States’ interest in enforcing its immigration laws. (inconsistent with the United States’ interest in enforcing its immigration laws. (~~T he~~The Department of Homeland Security Department of Homeland Security
diddid not exist in February 2002, and authority for the VWP resided with the Attorney General innot exist in February 2002, and authority for the VWP resided with the Attorney General in the DOJ.) the DOJ.) Federal
Register, February February 21, 2002, vol. 67, no. 35, pp. 794321, 2002, vol. 67, no. 35, pp. 7943 -7945. -7945.
32 Between 2000 and 2003, Uruguay 32 Between 2000 and 2003, Uruguay experienced a recession causingexperienced a recession causing its citizens to enter under the VWP to live and its citizens to enter under the VWP to live and
work illegallywork illegally in the United States. In 2002, Uruguayan nationals were two to three times more likely than all in the United States. In 2002, Uruguayan nationals were two to three times more likely than all
nonimmigrants on average to have been deniednonimmigrants on average to have been denied ~~admission~~ admission at the port of entry. Uruguayan air arrivals had an apparent at the port of entry. Uruguayan air arrivals had an apparent
overstay rate more than twice the rate of the average apparent overstay rate for all air arrival nonimmigrants. 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. , March 7, 2003, vol. 68, no. 45, pp. 10954-10957.
33 33 Disqualification rate is defined is defined as the percentage of nationals from a country who either violated the terms of the as the percentage of nationals from a country who either violated the terms of the
nonimmigrant visa, who werenonimmigrant visa, who were ~~excluded~~ excluded from admissionfrom admission to the United States at a port of entry, or who withdrew their to the United States at a port of entry, or who withdrew their
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rate of 2% to 3.5%. Probationary countries with a disqualification rate less than 2% over a period rate of 2% to 3.5%. Probationary countries with a disqualification rate less than 2% over a period
prescribed in regulations (but not to exceed three years)34 are removed from probationary status prescribed in regulations (but not to exceed three years)34 are removed from probationary status
and may remain VWP countries.35 Countries may also be placed on probation if an issue arises and may remain VWP countries.35 Countries may also be placed on probation if an issue arises
and more time is necessary to determine whether the continued participation of the country in the and 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 AprilVWP is in the security interest of the United States. For example, in April 2003, Belgium was 2003, Belgium was
placed on provisional status because of concerns about the integrity of nonmachine-readable placed on provisional status because of concerns about the integrity of nonmachine-readable
~~Belgian~~ Belgian passports and the reporting of lost or stolen passports.36 DHS completed another country passports and the reporting of lost or stolen passports.36 DHS completed another country
review of Belgiumreview of Belgium in 2005 and removed the country from probationary status. Belgium was the in 2005 and removed the country from probationary status. Belgium was the
last country to have been placed on probation. last country to have been placed on probation.
Nonimmigrant Visa Refusal Rate Waiver
Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L.
110-53)37 110-53)37 ~~al ows~~allows the Secretary of Homeland Security, in consultation with the Secretary of State, the Secretary of Homeland Security, in consultation with the Secretary of State,
to waive the nonimmigrant visa refusal rate requirement for admission to the VWP after the to waive the nonimmigrant visa refusal rate requirement for admission to the VWP after the
Secretary of Homeland Security certifies to Congress that Secretary of Homeland Security certifies to Congress that
 an air exit system is in place that can verify the departure of not less than 97% of  an air exit system is in place that can verify the departure of not less than 97% of
foreign nationals who exit through U.S. airports,38 and foreign nationals who exit through U.S. airports,38 and
 the electronic travel authorization system is operational.39  the electronic travel authorization system is operational.39
To participate in the program, a country that receives a visa refusal rate waiver also must To participate in the program, a country that receives a visa refusal rate waiver also must
 meet  meet al all the other requirements of the program; the other requirements of the program;
 be determined by the Secretary of Homeland Security to have a totality of  be determined by the Secretary of Homeland Security to have a totality of
security risk mitigation measures that provide assurances that the country’s security risk mitigation measures that provide assurances that the country’s
participation in the program would not compromise U.S. law enforcement and participation in the program would not compromise U.S. law enforcement and
security interests, or the enforcement of U.S. immigration laws; security interests, or the enforcement of U.S. immigration laws;

application for admission at a U.S.application for admission at a U.S. port of entry (8 U.S.C. §1187(f)(4)). port of entry (8 U.S.C. §1187(f)(4)).
34 8 U.S.C. 34 8 U.S.C. §1187(h)(3)(C). §1187(h)(3)(C).
35 35 ~~T he~~The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208). Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (P.L. 104-208).
36 Department of Justice, Immigration and Naturalization Service, “Attorney General’s Evaluations of the 36 Department of Justice, Immigration and Naturalization Service, “Attorney General’s Evaluations of the
Designations of Belgium,Designations of Belgium, Italy, Portugal, and UruguayItaly, Portugal, and Uruguay as as Participants Under the Visa Waiver Program,” 68 Participants Under the Visa Waiver Program,” 68 Federal
Register, 10954-10957, March 7, 2003, at https://www.govinfo.gov/content/pkg/FR-2003-03-07/pdf/03-5244.pdf. , 10954-10957, March 7, 2003, at https://www.govinfo.gov/content/pkg/FR-2003-03-07/pdf/03-5244.pdf.
37 P.L. 110-53 (H.R. 1), signed into law on August 37 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 3, 2007. For more details on the changes to the VWP in this act, see
Appe ndix, “ Legislative History.”
~~38 T here~~Appendix. 38 There was disagreement between some critics and DHS was disagreement between some critics and DHS ~~regarding~~ regarding what neededwhat needed to be verified. Someto be verified. Some contended that contended that
congressional intent was to have a functional entrycongressional intent was to have a functional entry -exit system that would be-exit system that would be able to match arrival and departure able to match arrival and departure
records and know which aliens failedrecords and know which aliens failed to depart from the United States rather than just matching the entry records with to depart from the United States rather than just matching the entry records with
the records of those who werethe records of those who were known to have departed from the United States. For example, seeknown to have departed from the United States. For example, see S. S. 203 introduced in 203 introduced in
the 111th Congress, which attempted to clarify the language in this the 111th Congress, which attempted to clarify the language in this ~~pro vision~~provision. U.S. Congress,. U.S. Congress, Senate Committee on Senate Committee on
Judiciary,Judiciary, Subcommittee on Subcommittee on ~~T errorism, T echnology~~Terrorism, Technology and Homeland Security, and Homeland Security, The Visa ~~Waiver Program~~ Waiver Program: Mitigating
Risks to Ensure Safety to All ~~Am ericans~~Americans, 110th Cong., 2nd sess., September 24, 2008. , 110th Cong., 2nd sess., September 24, 2008.
39 DHS 39 DHS determined that the law permitted it to utilize the waiver when determined that the law permitted it to utilize the waiver when ~~EST A was~~ ESTA was functional but before it was functional but before it was
mandatory for all VWP travelers. Critics didmandatory for all VWP travelers. Critics did not agree with this interpretation and thought that not agree with this interpretation and thought that ~~EST A~~ESTA should have been should have been
mandatory for all VWP travelers before new countries weremandatory for all VWP travelers before new countries were ~~designated~~ designated into the program. When the new countries into the program. When the new countries
entered the program, their citizens were requiredentered the program, their citizens were required to use to use ~~EST A~~ESTA before travelling to the United States. U.S. Government before travelling to the United States. U.S. Government
Accountability Office, Accountability Office, Visa ~~Waiver Program~~ Waiver Program: Actions Are Needed to ~~Im prove Man agem ent~~Improve Management of the Expansion Process,
and to Assess and Mitigate Program Risks, GAO-08-967, September 2008. GAO-08-967, September 2008.
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 have had a sustained reduction in visa refusal rates, and have existing conditions  have had a sustained reduction in visa refusal rates, and have existing conditions
for the rates to continue to decline; for the rates to continue to decline;
 have cooperated with the United States on counterterrorism initiatives and  have cooperated with the United States on counterterrorism initiatives and
information sharing before the date of its designation, and be expected to information sharing before the date of its designation, and be expected to
continue such cooperation; and continue such cooperation; and
 have had, during the previous fiscal year, a nonimmigrant visa refusal rate of less  have had, during the previous fiscal year, a nonimmigrant visa refusal rate of less
than 10%, or an overstay rate that did not exceed the maximum overstay rate than 10%, or an overstay rate that did not exceed the maximum overstay rate
established by the Secretaries of DHS and DOS for countries receiving waivers established by the Secretaries of DHS and DOS for countries receiving waivers
of the nonimmigrant visa refusal rate to participate in the program. of the nonimmigrant visa refusal rate to participate in the program.
P.L. 110-53 also specified that in determining whether to waive the nonimmigrant visa refusal P.L. 110-53 also specified that in determining whether to waive the nonimmigrant visa refusal
rate requirement, the Secretary of Homeland Security, in consultation with the Secretary of State, rate requirement, the Secretary of Homeland Security, in consultation with the Secretary of State,
may take into consideration other factors affecting U.S. security, such as the country’s airport may take into consideration other factors affecting U.S. security, such as the country’s airport
security standards and whether the country has an effective air marshal program. security standards and whether the country has an effective air marshal program.
The nonimmigrant visa refusal rate waiver became available in October 2008 and was suspended The nonimmigrant visa refusal rate waiver became available in October 2008 and was suspended
on July 1, 2009. Under P.L. 110-53, the Secretary of Homeland Security’s authority to waive the on July 1, 2009. Under P.L. 110-53, the Secretary of Homeland Security’s authority to waive the
nonimmigrant visa refusal rate was suspended on July 1, 2009, and is to remain suspended until nonimmigrant visa refusal rate was suspended on July 1, 2009, and is to remain suspended until
the air exit system is able to match an alien’s biometric information with relevant watch lists and the air exit system is able to match an alien’s biometric information with relevant watch lists and
manifest information.40 U.S. Customs and Border Protection (CBP) is implementing biometric air manifest information.40 U.S. Customs and Border Protection (CBP) is implementing biometric air
exit systems across the country; their goal is to deploy biometric exit at 20 airports by 2022, exit systems across the country; their goal is to deploy biometric exit at 20 airports by 2022,
which would capture 97% of which would capture 97% of al all commercial air travelers departing the United States. 41 commercial air travelers departing the United States. 41
Electronic System for Travel Authorization
P.L. 110-53 mandated that the Secretary of Homeland Security, in consultation with the Secretary P.L. 110-53 mandated that the Secretary of Homeland Security, in consultation with the Secretary
of State, develop and implement an electronic travel authorization system through which each of State, develop and implement an electronic travel authorization system through which each
alien alien ~~electronical y~~electronically provides, in advance of travel, the biographical information necessary to provides, in advance of travel, the biographical information necessary to
determine whether the alien is eligibledetermine whether the alien is eligible to travel to the United States and enter under the VWP. to travel to the United States and enter under the VWP.
The system as implemented is known as the Electronic System for Travel Authorization (ESTA) The system as implemented is known as the Electronic System for Travel Authorization (ESTA)
and became fully operational for and became fully operational for al all VWP visitors traveling to the United States on January 12, VWP visitors traveling to the United States on January 12,

40 Section 110 IIRIRA, as amended, requires40 Section 110 IIRIRA, as amended, requires ~~DHS~~ DHS to implement an automatic, biometric entryto implement an automatic, biometric entry -exit system that covers -exit system that covers
all noncitizen travelers into and outall noncitizen travelers into and out of the United States and that identifies visa overstayers. For more information, see of the United States and that identifies visa overstayers. For more information, see
“Debate over Biometric Exit Capacity,,” below. ” below.
41 Department of Homeland Security, 41 Department of Homeland Security, Transportation Security Administration and U.S. Customs and Border
Protection: ~~Deploym ent of Biom etric~~Deployment of Biometric Technologies, Report to Congress, AugustReport to Congress, August 30, 2019, p. 5, at https://www.tsa.gov/30, 2019, p. 5, at https://www.tsa.gov/
sites/default/files/biometricsreport.pdfsites/default/files/biometricsreport.pdf. For more information, see CRS In Focus IF11634, Biometric Entry-Exit System: Legislative History and Status. .
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2009.42 There is a $14 fee for travelers who use ESTA.43 In 2019, Congress approved raising the 2009.42 There is a $14 fee for travelers who use ESTA.43 In 2019, Congress approved raising the
ESTA fee from $14 to $21, but the effective date of the new fee has not yet been announced.44 ESTA fee from $14 to $21, but the effective date of the new fee has not yet been announced.44
ESTA screens applicants’ biographical information against a number of security databases, ESTA screens applicants’ biographical information against a number of security databases,
including the Terrorist Screening Database, TECS (not an acronym, but a system used by CBP including the Terrorist Screening Database, TECS (not an acronym, but a system used by CBP
officers to screen arriving travelers to the United States),45 the Automated Targeting System, and officers to screen arriving travelers to the United States),45 the Automated Targeting System, and
INTERPOL’s Lost and Stolen Passport database. ESTA alerts the alien whether he or she has INTERPOL’s Lost and Stolen Passport database. ESTA alerts the alien whether he or she has
been approved to travel; 46 if not approved, the alien may been approved to travel; 46 if not approved, the alien may ~~stil~~ still travel to the US but must obtain the travel to the US but must obtain the
relevant visa. The information required by ESTA includes relevant visa. The information required by ESTA includes
  biographical information including name, birth date, country of citizenship, including name, birth date, country of citizenship,
other citizenships (i.e., dual citizenship), previous citizenships, country of other citizenships (i.e., dual citizenship), previous citizenships, country of
residence, telephone number, other names/aliases, parents’ names, national residence, telephone number, other names/aliases, parents’ names, national
identification number (if applicable), employment information (if applicable), identification number (if applicable), employment information (if applicable),
city of birth;47city of birth;47
  passport information including number, issuing country, issuance date, and including number, issuing country, issuance date, and
expiration date; and expiration date; and
  travel information including departure city, flight number, U.S. contact including departure city, flight number, U.S. contact
information, and address while in the United States.48 information, and address while in the United States.48
Eligibility Eligibility to travel, which is determined by ESTA, is valid for two years or until the person’s to travel, which is determined by ESTA, is valid for two years or until the person’s
passport expires (whichever comes first)49 and multiple entries. Throughout this period, the ESTA passport expires (whichever comes first)49 and multiple entries. Throughout this period, the ESTA
system system ~~continual y~~continually vets approved individuals’ information against the aforementioned databases. vets approved individuals’ information against the aforementioned databases.

42 Entrants under the VWP from countries that receive a waiver of the nonimmigrant visa refusal rate (Czech Republic, 42 Entrants under the VWP from countries that receive a waiver of the nonimmigrant visa refusal rate (Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea) hadEstonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea) had to use to use ~~t he~~the system starting on the date of system starting on the date of
their formal admission to the program. For all the countries except Malta, that date was November 17, 2008their formal admission to the program. For all the countries except Malta, that date was November 17, 2008 . Malta was . Malta was
formally designated into the VWP on December 30, 2008. Department of Homeland Security, “formally designated into the VWP on December 30, 2008. Department of Homeland Security, “ Electronic System for Electronic System for
~~T ravel~~Travel Authorization ( Authorization (~~EST A~~ESTA) Advisory Statement,” November 6, 2008. Department of Homeland Security, “) Advisory Statement,” November 6, 2008. Department of Homeland Security, “ Electronic Electronic
System for System for ~~T ravel~~Travel Authorization: Mandatory Compliance Required for Authorization: Mandatory Compliance Required for ~~T ravel~~Travel Under the Visa Under the Visa Waiver Program,” 73Waiver Program,” 73
Federal Register 67354, November 13, 2008. 67354, November 13, 2008.
43 The~~43 T he~~ fee was fee was instituted on September 8, 2010. instituted on September 8, 2010. ~~T he~~The $14 fee includes $4 to cover the costs of administering $14 fee includes $4 to cover the costs of administering ~~EST A~~ESTA and and
$10 for the travel promotion fee established by Congress in the $10 for the travel promotion fee established by Congress in the ~~T ravel~~Travel Promotion Act of 2009 (§9 Promotion Act of 2009 (§9 of P.L. 111-145) and of P.L. 111-145) and
extended until September 30, 2020, by extended until September 30, 2020, by ~~T itle~~Title VI of P.L. 113-235. (Department of Homeland Security, Customs and VI of P.L. 113-235. (Department of Homeland Security, Customs and
Border Protection, “DHS, CBP Announce Interim Final RuleBorder Protection, “DHS, CBP Announce Interim Final Rule ~~For EST A~~ For ESTA Fee,” press release, August Fee,” press release, August 6, 2010). 6, 2010).
44 P.L. 116-94, Division I, 44 P.L. 116-94, Division I, ~~T itle~~Title VIII reduces the amount available for travel promotion to $7 per traveler. Of the VIII reduces the amount available for travel promotion to $7 per traveler. Of the
remainder, $4 willremainder, $4 will continue to go to CBP to cover the costs of administering continue to go to CBP to cover the costs of administering ~~EST A~~ESTA, and $10 will, and $10 will be be directed to the U.S. directed to the U.S.
~~T reasury~~Treasury for the general fund. for the general fund. ~~T it le~~Title VIII of P.L. 116-94 further extended it until September 30, 2027. VIII of P.L. 116-94 further extended it until September 30, 2027.
45 45 ~~T ECS~~TECS, managed by DHS,, managed by DHS, is an updatedis an updated version of the version of the ~~T reasury~~Treasury Enforcement Communications System. Enforcement Communications System.
46 In most cases, the determination process is almost instantaneous. Under statute, 46 In most cases, the determination process is almost instantaneous. Under statute, ~~EST A~~ESTA determinations are not determinations are not
reviewablereviewable by the courts. by the courts.
47 In November 2014, DHS 47 In November 2014, DHS ~~added new~~ added new questions to questions to ~~EST A~~ESTA in response to security concerns. Department of Homeland in response to security concerns. Department of Homeland
Security, Customs and Border Protection, Security, Customs and Border Protection, ESTA - New questions to the ESTA application, CBP INFO Center, , CBP INFO Center,
Washington, DC, November 3, 2014, at https://help.cbp.gov/app/answers/detail/a_id/1756/~/esta—new-questions-to-Washington, DC, November 3, 2014, at https://help.cbp.gov/app/answers/detail/a_id/1756/~/esta—new-questions-to-
the-esta-application. Although the administration was already asking the questions, P.L. 114-113 statutorily added the the-esta-application. Although the administration was already asking the questions, P.L. 114-113 statutorily added the
requirement that nationals be queriedrequirement that nationals be queried about multiple and previous citizenships.about multiple and previous citizenships.
48 Much of the information is the same that is required48 Much of the information is the same that is required on the nonimmigrant visa waiver arrival/departure form (Form I-on the nonimmigrant visa waiver arrival/departure form (Form I-
94W). According to DHS, when developing 94W). According to DHS, when developing ~~EST A~~ESTA, the department had to balance the need for biographic information , 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 with the requirement that the participating countries did not view applying for an approval under ~~EST A~~ESTA as equivalent to as equivalent to
applying for a visa. If countries had interpreted applying for an authorization under applying for a visa. If countries had interpreted applying for an authorization under ~~EST A~~ESTA as having the same burden as having the same burden as as
applying for a visa, these countries might have requiredapplying for a visa, these countries might have required that U.S. citizens traveling to their countries obtain a visa.that U.S. citizens traveling to their countries obtain a visa.
49 Under statute, the maximum period of time is set in regulation by the Secretary of Homeland Security but cannot 49 Under statute, the maximum period of time is set in regulation by the Secretary of Homeland Security but cannot
exceed three years. exceed three years.
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The Secretary of Homeland Security has the authority to shorten or revoke the determination of The Secretary of Homeland Security has the authority to shorten or revoke the determination of
eligibilityeligibility at any time.50 Notably, a determination under ESTA that an alien is eligibleat any time.50 Notably, a determination under ESTA that an alien is eligible to travel to to travel to
the United States does not constitute a determination that the alien is admissible. Admissibility the United States does not constitute a determination that the alien is admissible. Admissibility
determinations are made by CBP inspectors at the ports of entry (the same is true for determinations are made by CBP inspectors at the ports of entry (the same is true for al all visa visa
holders). holders).
Arrival and Departure Inspections
UnlikeUnlike other nonimmigrants, those entering under the VWP do not have to get a visa and thus, are other nonimmigrants, those entering under the VWP do not have to get a visa and thus, are
not inspected by U.S. governmental officials until they arrive at a U.S. port of entry. Nonetheless, not inspected by U.S. governmental officials until they arrive at a U.S. port of entry. Nonetheless,
in addition to getting authorization through ESTA, prior to the alien’s arrival, an electronic in addition to getting authorization through ESTA, prior to the alien’s arrival, an electronic
passenger manifest is sent from the airline or commercial vessel to CBP officials, as is done for passenger manifest is sent from the airline or commercial vessel to CBP officials, as is done for
~~al airline~~ all airline and commercial vessels departing from a foreign country destined for a U.S. port of and commercial vessels departing from a foreign country destined for a U.S. port of
entry. This manifest is checked against security databases. entry. This manifest is checked against security databases.
Since October 1, 2002, passenger arrival and departure information on individuals entering and Since October 1, 2002, passenger arrival and departure information on individuals entering and
leaving the United States under the VWP has been leaving the United States under the VWP has been ~~electronical y~~electronically collected from airlines and collected from airlines and
cruise lines, through CBP’s Advanced Passenger Information System (APIS) system.51 APIS cruise lines, through CBP’s Advanced Passenger Information System (APIS) system.51 APIS
collects carrier information (e.g., flight number, airport of departure, and other information), as collects carrier information (e.g., flight number, airport of departure, and other information), as
~~wel~~ well as travelers’ personal information, including complete name, date of birth, passport number, as travelers’ personal information, including complete name, date of birth, passport number,
country of citizenship, and country of residence.52 APIS sends the data to the DHS’s Arrival and country of citizenship, and country of residence.52 APIS sends the data to the DHS’s Arrival and
Departure Information System (ADIS) for matching arrivals and departures and reporting Departure Information System (ADIS) for matching arrivals and departures and reporting
purposes. If the carrier fails to submit the information, an alien may not enter under the VWP. purposes. If the carrier fails to submit the information, an alien may not enter under the VWP.
At U.S. ports of entry, CBP officers observe and question foreign nationals, examine passports, At U.S. ports of entry, CBP officers observe and question foreign nationals, examine passports,
and conduct checks against a computerized system to determine whether the applicant is and conduct checks against a computerized system to determine whether the applicant is
admissible to the United States. Primary inspection consists of a brief interview with a CBP admissible to the United States. Primary inspection consists of a brief interview with a CBP
officer, a check of the traveler’s documents, and a query of the Interagency Border Inspection officer, a check of the traveler’s documents, and a query of the Interagency Border Inspection
System (IBIS)53 and entry of certain biographic and biometric the information on the travelers System (IBIS)53 and entry of certain biographic and biometric the information on the travelers
into the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) system. into the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) system.
The US-VISIT system uses biographical (e.g., passport information) and biometric identification The US-VISIT system uses biographical (e.g., passport information) and biometric identification
(finger scans and digital photographs) to check identity.54 Officers at the border collect the (finger scans and digital photographs) to check identity.54 Officers at the border collect the

~~50 T he~~ 50 The provision giving the Secretary of Homeland Security the authority to shorten an provision giving the Secretary of Homeland Security the authority to shorten an ~~EST A~~ESTA validity period was validity period was
enacted as part of P.L. 114-113. enacted as part of P.L. 114-113.
51 APIS is required 51 APIS is required pre-departure (i.e., before securingpre-departure (i.e., before securing the doors) for all air carrier flights to and from the United States. the doors) for all air carrier flights to and from the United States.
For inboundFor inbound ~~cruise~~ cruise ships the data must be received 96 hours before arrival at a U.S.ships the data must be received 96 hours before arrival at a U.S. ~~port~~ port, and for cruise ships leaving , and for cruise ships leaving
the United States, the data must bethe United States, the data must be transmitted 60 minutes before departure. For private aircraft, a passenger and crew transmitted 60 minutes before departure. For private aircraft, a passenger and crew
manifest listing allmanifest listing all persons traveling on the aircraft must be sent electronically using the online eAPIS system at least persons traveling on the aircraft must be sent electronically using the online eAPIS system at least
one hour prior to departure for an inboundone hour prior to departure for an inbound or outboundor outbound international flightinternational flight . .
52 52 ~~T he~~The transmission, retention policies, data security, and redress transmission, retention policies, data security, and redress procedures pertaining to APIS data (and other procedures pertaining to APIS data (and other
Passenger Name RecordPassenger Name Record data) received by CBP is to comport with the US/EUdata) received by CBP is to comport with the US/EU Passenger Name RecordPassenger Name Record Agreement. For Agreement. For
more information, see CRSmore information, see CRS Report RS22030, Report RS22030, U.S.-EU Cooperation Against Terrorism . .
53 ADIS 53 ADIS feeds information to the Interagency Border Inspection System (IBIS). IBISfeeds information to the Interagency Border Inspection System (IBIS). IBIS is is a database of suspect a database of suspect
individuals,individuals, businesses,businesses, vehicles, aircraft, and vesselsvehicles, aircraft, and vessels that is usedthat is used ~~during~~ during inspections at the border. IBISinspections at the border. IBIS interfaces with interfaces with
the FBI’s National Crime Information Center (NCIC), the the FBI’s National Crime Information Center (NCIC), the ~~T reasury~~Treasury Enforcement and Communications System ( Enforcement and Communications System (~~T ECS~~TECS
II), National Automated Immigration Lookout System (NAILS), NonII), National Automated Immigration Lookout System (NAILS), Non -immigrant Information System (NIIS), CLASS -immigrant Information System (NIIS), CLASS
and and ~~T IPOFF~~TIPOFF terrorist databases. Because terrorist databases. Because of the numerous systems and databasesof the numerous systems and databases that interface with IBIS, the system is that interface with IBIS, the system is
ableable to obtain such information as an alien’s criminal history and whether an alien isto obtain such information as an alien’s criminal history and whether an alien is wanted by lawwanted by law ~~enforcement~~ enforcement. .
Department of Homeland Security, Customs and Border Protection, Department of Homeland Security, Customs and Border Protection, IBIS- General ~~Inform ation~~Information, Washington, DC, July, , Washington, DC, July,
31, 2013. 31, 2013.
54 For more information on US-VISIT54 For more information on US-VISIT , see CRS, see CRS Report R43356, Report R43356, Border Security: Immigration Inspections at Ports of
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following information on aliens entering under the VWP: name, date of birth, nationality, gender, 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. passport number, country of issuance, a digital photograph, and prints for both index finders.
Primary inspections are Primary inspections are ~~typical y~~typically quick; however, if the CBP officer is suspicious that the traveler quick; however, if the CBP officer 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 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, secondary inspection. Those travelers sent to secondary inspections are questioned extensively,
travel documents are further examined, and additional databases are queried.55 travel documents are further examined, and additional databases are queried.55
~~Additional y,~~ Additionally, the Implementing Recommendations of the 9/11 Commission Act (P.L. 110-53) the Implementing Recommendations of the 9/11 Commission Act (P.L. 110-53)
required that the Secretary of Homeland Security, no later than one year after enactment (i.e., by required that the Secretary of Homeland Security, no later than one year after enactment (i.e., by
August 3, 2008), establish an exit system that records the departure of every alien who entered August 3, 2008), 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 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 biometric information against relevant watch lists and immigration information, and compare
such biographical information against manifest information collected by airlines to confirm that such biographical information against manifest information collected by airlines to confirm that
the alien left the United States. the alien left the United States.
In April In April 2008, DHS published a Notice of Proposed Rulemaking in the 2008, DHS published a Notice of Proposed Rulemaking in the Federal Register that that
would have created biometric exit procedures at airports and seaports for international visitors.56 would have created biometric exit procedures at airports and seaports for international visitors.56
DHS was expected to publish the final rule for this system by October 15, 2008.57 However, in DHS was expected to publish the final rule for this system by October 15, 2008.57 However, in
~~legislation~~ legislation that became law on September 30, 2008,58 Congress required DHS to complete and that became law on September 30, 2008,58 Congress required DHS to complete and
report on at least two studies testing biometric exit procedures at airports.59 After piloting various report on at least two studies testing biometric exit procedures at airports.59 After piloting various
biometric programs, CBP, in partnership with the Transportation Security Administration (TSA), biometric programs, CBP, in partnership with the Transportation Security Administration (TSA),
is currently deploying the Traveler Verification Service (TVS).is currently deploying the Traveler Verification Service (TVS).60 TVS is a private-public TVS is a private-public
~~partnership60~~partnership61 that uses facial recognition technology to verify travelers’ identities. DHS in January that uses facial recognition technology to verify travelers’ identities. DHS in January
2020 reported TVS capturing roughly 60%2020 reported TVS capturing roughly 60%6162 of in-scope travelers. of in-scope travelers.6263 CBP’s goal is to deploy TVS CBP’s goal is to deploy TVS
at 20 airports by 2022, which would capture 97%at 20 airports by 2022, which would capture 97%~~63 of al~~ 64 of all commercial air travelers departing the commercial air travelers departing the
United States.United States.64
65 Another step in implementing an exit system occurred in December 2011, when DHS announced Another step in implementing an exit system occurred in December 2011, when DHS announced
an agreement with Canada to share entry records so that an entry into Canada along the land an agreement with Canada to share entry records so that an entry into Canada along the land

Entry. .
55 For more information on the screening process, see CRS 55 For more information on the screening process, see CRS Report R43356, Report R43356, Border Security: Immigration Inspections
at Ports of Entry. .
56 Department of Homeland Security, “Collection of Alien Biometric Data Upon Exit From the United States at Air and 56 Department of Homeland Security, “Collection of Alien Biometric Data Upon Exit From the United States at Air and
SeaSea Ports of Departure,” 73Ports of Departure,” 73 Federal Register 22065, April 24, 2008. 22065, April 24, 2008.
57 CRS57 CRS analyst conversation with Department of Homeland Security Congressional Affairs, September 22, 2008.analyst conversation with Department of Homeland Security Congressional Affairs, September 22, 2008.
58 P.L. 110-329. 58 P.L. 110-329.
59 One pilot tested DHS’s59 One pilot tested DHS’s recommended solution thatrecommended solution that carriers collect biometrics from passengers; the other pilot tested carriers collect biometrics from passengers; the other pilot tested
CBP officers collecting passengerCBP officers collecting passenger biometrics at the boarding gate. biometrics at the boarding gate.
60 60 For more information, see CRS In Focus IF11634, Biometric Entry-Exit System: Legislative History and Status. 61 Private partners include airports and airlines. Private partners include airports and airlines.
6162 Based Based ~~on CRS discussion~~ on CRS discussion with CBP officials on January 30, 2020. with CBP officials on January 30, 2020.
6263 In-scope travelers include non-U.S. citizens aged In-scope travelers include non-U.S. citizens aged 14-79. 14-79.
~~63 T his~~64 This would would fulfill the final requirement neededfulfill the final requirement needed to reinstate the nonimmigrant visa refusal rate waiver.to reinstate the nonimmigrant visa refusal rate waiver.
64 65 Department of Homeland Security, Department of Homeland Security, Transportation Security Administration and U.S. Customs and Border
Protection: ~~Deploym ent of Biom etric~~Deployment of Biometric Technologies, Report to Congress, AugustReport to Congress, August 30, 2019, p. 5, at https://www.tsa.gov/30, 2019, p. 5, at https://www.tsa.gov/
sites/default/files/biometricsreport.pdf. sites/default/files/biometricsreport.pdf.
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border would be counted as an exit in U.S. records. border would be counted as an exit in U.S. records.6566 This is part of the joint This is part of the joint Beyond the Border
initiative,initiative,66 67 which is currently in Phase III of implementation.which is currently in Phase III of implementation.67
68 Figure 1. Number of Visa Waiver Program (VWP) Admissions, ~~FY2009-FY2018~~FY2010-FY2019, and
Percentage of Visitor Admissions That Were VWP

Source: CRS analysis of data fromCRS analysis of data from Department of Homeland Security,Department of Homeland Security, Yearbook of Immigration Statistics, multiple multiple
years; Table 25. years; Table 25.
Note: Number of countries participating in the VWP at the end of the fiscal year: Number of countries participating in the VWP at the end of the fiscal year:
~~FY2009, 35;~~ FY2010-FY2012, 36; FY2013, 37; FY2014-FY2010-FY2012, 36; FY2013, 37; FY2014-~~FY2018, 38. Visitor~~FY2019, 38. Temporary visitor admissions admissions count those who entered count those who entered
with B visas, those who entered under the Guam Visa Waiverwith B visas, those who entered under the Guam Visa Waiver Program,Program, and those who entered under the VWP.and those who entered under the VWP.
Trends in Use of the VWP
Arrivals of international visitors to the United States have Arrivals of international visitors to the United States have ~~general y~~ generally increased in most years over increased in most years over
the past decade. International visitors to the United States increased from the past decade. International visitors to the United States increased from ~~32.9 mil ion in 2007 to~~
~~73.8 mil ion in 2018.68 The growth during this time has mostly been consistent except for a~~
~~decrease in 2009 caused by the Great Recession. Visitor admissions wil likely fal sharply in~~
~~2020~~40.3 million in FY2010 to 73.9 million in FY2019.69 Although the data have not yet been released for FY2020 and FY2021, visitor admissions likely fell sharply in those fiscal years due to the decline in international travel associated with the due to the decline in international travel associated with the ~~Coronavirus Disease 2019~~
~~(COVID-19)~~COVID-19 pandemic. pandemic.70 Figure 1 shows the number of admissions under the VWP and VWP admissions as a percentage of all temporary visitor admissions.71 Between FY2010 and FY2019, the number of admissions 66 Testimony

~~65 T estimony~~ of David F. Heyman, U.S. of David F. Heyman, U.S. Congress, HouseCongress, House Committee on the Judiciary, Subcommittee on Immigration Committee on the Judiciary, Subcommittee on Immigration
Policy and Enforcement, Policy and Enforcement, Next Steps for the Visa ~~Waiver Program~~ Waiver Program, 112th Cong., 1st sess.,, 112th Cong., 1st sess., December 7, 2011. For more December 7, 2011. For more
on this agreement, see CRSon this agreement, see CRS Report R43356, Report R43356, Border Security: ~~Im m igration~~Immigration Inspections at Ports of Entry . .
~~66 T he~~67 The White House, “ White House, “ Declaration by President Obama and Prime Minister Harper of CanadaDeclaration by President Obama and Prime Minister Harper of Canada - Beyond the Border, - Beyond the Border,
press release, press release, February 4, 2011, atFebruary 4, 2011, at https://obamawhitehouse.archives.gov/the-press-office/2011/02/04/declaration-https://obamawhitehouse.archives.gov/the-press-office/2011/02/04/declaration-
presidentpresident -obama-and-prime-minister-harper-canada-beyond-bord. -obama-and-prime-minister-harper-canada-beyond-bord.
67 68 For more information, see Department of Homeland Security, “ For more information, see Department of Homeland Security, “ ~~U.S. and Canada Continue Commitment to Securing~~
~~our Borders, Begin Phase III of the Entry/Exit Project Under the Beyond the Border Initiative ,” press release, July 11,~~
~~2019, at~~
~~https://www.dhs.gov/news/2019/07/11/us-and-canada-continue-commitment -securing-our-borders-begin-phase-iii-~~
~~entryexit .~~
68Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness” at https://www.dhs.gov/beyond-border. 69 Department of Homeland Security, Department of Homeland Security, Yearbook of Immigration Statistics, multiple years; , multiple years; ~~T able 25.~~
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Figure 1 shows the number of admissions under the VWP and VWP admissions as a percentage
~~of al temporary visitor admissions.69 Since FY2009, the number of admissions~~ Table 25. 70 A sharp decline in international travel associated with the COVID-19 pandemic is expected in the data due to many factors, including travel restrictions, quarantine, testing, and vaccination requirements, among others. 71 Temporary visitors include aliens who entered with B visas, those who entered under the Guam Visa Waiver Congressional Research Service 12 Visa Waiver Program under the VWP ~~under the VWP~~
~~has~~ steadily increased. In steadily increased. In ~~FY2018~~FY2019, there were 22., there were 22.~~8 mil ion~~9 million admissions under the VWP, the largest admissions under the VWP, the largest
number ever under the program. However, from number ever under the program. However, from ~~FY2009~~FY2010 to FY2016, the proportion of total to FY2016, the proportion of total
visitor admissions represented by VWP admissions declined.visitor admissions represented by VWP admissions declined.~~70 In FY2018, VWP admissions~~
~~constituted 31% of al~~ 72 After a small increase from FY2016 to FY2017 in the percentage of all visitor admissions that were made up of VWP admissions, the percentage of all temporary visitor admissions that were VWP admissions continued to decline and in FY2019, VWP admissions constituted 31% of all temporary visitor admissions to the Unitedtemporary visitor admissions to the United States, the States, the ~~smal est~~smallest percentage percentage
in more than 20 years.in more than 20 years.
Policy Issues
The VWP is supported by the U.S. travel and tourism industry and the business community. The The VWP is supported by the U.S. travel and tourism industry and the business community. The
travel and tourism industry views the VWP as a tool to facilitate and encourage foreign visitors 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 for business and pleasure, which results in increased economic growth generated by foreign
tourism and commerce for the United States.tourism and commerce for the United States.71
73 The Department of State also supports the VWP. DOS argues that by waiving the visa The Department of State also supports the VWP. DOS argues that by waiving the visa
requirement for high-volume/low-risk countries, consular workloads are significantly reduced, requirement for high-volume/low-risk countries, consular workloads are significantly reduced,
~~al owing~~allowing for streamlined operations, cost savings, and concentration of resources on greater-risk for streamlined operations, cost savings, and concentration of resources on greater-risk
nations in the visa process.nations in the visa process.7274 The travel industry argues that DOS would have to hire many more The travel industry argues that DOS would have to hire many more
consular officers to meet the demand for B visas from VWP countries absent the program.consular officers to meet the demand for B visas from VWP countries absent the program.7375
While there tends to be agreement that the VWP benefits the U.S. economy by facilitating 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 legitimate travel, there is disagreement on the VWP’s impact on national security, with some
arguing that the VWP presents a significant security risk and others arguing that it enhances arguing that the VWP presents a significant security risk and others arguing that it enhances
national security. national security.
Security
There has been significant debate about whether the VWP increases or decreases national There has been significant debate about whether the VWP increases or decreases national
security. As discussed, travelers under the VWP do not undergo the in-person screening security. As discussed, travelers under the VWP do not undergo the in-person screening ~~general y~~generally
required to receive a B nonimmigrant visa. Moreover, ESTA is a biographical system and cannot required to receive a B nonimmigrant visa. Moreover, ESTA is a biographical system and cannot
be used to run checks against databases that use biometrics as identifiers, such as DHS’s be used to run checks against databases that use biometrics as identifiers, such as DHS’s
Automated Biometric Identification System (IDENT) and FBI’s Next Generation Identification Automated Biometric Identification System (IDENT) and FBI’s Next Generation Identification

~~69 T emporary visitors include aliens who entered with B visas, those who entered under the Guam Visa Waiver~~
(NGI).76 While VWP travelers are not checked against these systems before boarding a plane or Program, and those who entered underProgram, and those who entered under the VWP. the VWP.
70 72 Visitor admissions Visitor admissions from large, non-VWP countries have increased duringfrom large, non-VWP countries have increased during this period, thereby reducingthis period, thereby reducing the the
proportion of VWP visitor admissions to the United States. For example, in 2018, Brazil, China, and India wereproportion of VWP visitor admissions to the United States. For example, in 2018, Brazil, China, and India were among among
the top 10 overseas countries by visitor volume and accounted for 6.5 million visitors to the United States that year. the top 10 overseas countries by visitor volume and accounted for 6.5 million visitors to the United States that year.
((~~NT T O~~NTTO, , Non-Resident Arrivals to the United States: Overseas, Canada, Mexico, and International, Trend Line Data —
Country of Residence, November 2019, at https://travel.trade.gov/view/m-2017-I-001/index.asp). , November 2019, at https://travel.trade.gov/view/m-2017-I-001/index.asp).
7173 For more information, see CRS For more information, see CRS Report R46300, Report R46300, Adding Countries to the Visa ~~Waiver~~ Waiver Program: Effects on National
Security and Tourism . .
72 74 U.S. U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Congress, Senate Committee on Homeland Security and Governmental Affairs, The Visa ~~Waiver~~ Waiver Program:
~~Im plications~~Implications for U.S. National Security, , ~~T estimony~~Testimony of Edward J Ramotowski, Deputy Assistant Secretary for Visa of Edward J Ramotowski, Deputy Assistant Secretary for Visa
Services,Services, U.S.U.S. Department of State, 114th Cong., 1st sess., March 12, 2015. Department of State, 114th Cong., 1st sess., March 12, 2015.
7375 For example, in his testimony before the House Immigration and Claims For example, in his testimony before the House Immigration and Claims Subcommittee on February 28, 2002, Subcommittee on February 28, 2002,
William S.William S. Norman, President and Chief Executive Officer of the Norman, President and Chief Executive Officer of the ~~T ravel~~Travel Industry Association of America, stated that it Industry Association of America, stated that it
wouldwould take hundredstake hundreds of new consular staff and tens of millions of dollars to issueof new consular staff and tens of millions of dollars to issue ~~visas~~ visas to visitors currently entering to visitors currently entering
under the VWP. Since Mr. Norman testified, the number of people entering under the VWP has increasedunder the VWP. Since Mr. Norman testified, the number of people entering under the VWP has increased by more than by more than
5 million entrants per year. 5 million entrants per year.
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~~(NGI).74 While VWP travelers are not checked against these systems before boarding a plane or~~
76 IDENT is the primary DHS-wide system for the biometric identification and verification of individuals encountered Congressional Research Service 13 Visa Waiver Program ship, they are checked against these systems through US-VISIT when they are at a U.S. port of ship, they are checked against these systems through US-VISIT when they are at a U.S. port of
entry.entry.7577 In addition, some contend that the relaxed documentary requirements of the VWP In addition, some contend that the relaxed documentary requirements of the VWP
increase immigration fraud and decrease security.increase immigration fraud and decrease security.7678
Others argue that the VWP enhances security by setting standards for travel documents and Others argue that the VWP enhances security by setting standards for travel documents and
information sharing.information sharing.7779 For example, For example, al all travelers entering under the VWP must present e-travelers entering under the VWP must present e-
passports, which tend to be more difficult to alter than other types of passports.passports, which tend to be more difficult to alter than other types of passports.7880 Unlike ESTA Unlike ESTA
authorization, many B visas are valid for 10 authorization, many B visas are valid for 10 ~~years79~~years81 and are not continuously vetted. and are not continuously vetted.80
82 Another concern about the national security implications of the program centers on DHS’s ability Another concern about the national security implications of the program centers on DHS’s ability
to conduct reviews of the current VWP countries. In 2002, Congress mandated that DHS evaluate 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 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.security, law enforcement, and immigration interests of the United States.8183 In a review of the In a review of the
Visa Waiver Program Office’s (VWPO’s) administration of the VWP, the DHS’s Office of the Visa Waiver Program Office’s (VWPO’s) 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 Inspector General found that as of July 2012, there were 11 (out of 36) reports that exceeded the
~~congressional y~~congressionally mandated two-year reporting cycle. mandated two-year reporting cycle.8284 A Government Accountability Office A Government Accountability Office
(GAO) report found that as of October 31, 2015, approximately 25% of the most recent reports (GAO) report found that as of October 31, 2015, approximately 25% of the most recent reports
were submitted or remained outstanding at least five months past the statutory deadline. Since were submitted or remained outstanding at least five months past the statutory deadline. Since
then, DHS has made progress in meeting the mandated two-year reporting cyclethen, DHS has made progress in meeting the mandated two-year reporting cycle~~, but some gaps~~
~~remain.83~~

~~74 IDENT is the primary DHS-wide system for the biometric identification and verification of individuals encountered~~
~~in DHS~~ .85 in DHS mission-related processes. NGImission-related processes. NGI is a DHS-wideis a DHS-wide system for the storage and processing of biometric and limited system for the storage and processing of biometric and limited
biographic information. For more information on IDENTbiographic information. For more information on IDENT , see Department of Homeland Security, , see Department of Homeland Security, Privacy Impact
~~Assessm ent for the Autom ated Biom etric~~Assessment for the Automated Biometric Identification System (IDENT) , July 31, 2006, p. 2, at http://www.dhs.gov/, July 31, 2006, p. 2, at http://www.dhs.gov/
xlibrary/assets/privacy/privacy_pia_usvisit_ident_final.pdf. For more information on NGI, see Federalxlibrary/assets/privacy/privacy_pia_usvisit_ident_final.pdf. For more information on NGI, see Federal ~~Bureau~~ Bureau of of
Investigation, Investigation, Next Generation Identification (NGI), at https://www.fbi.gov/services/cjis/fingerprints-and-other- at https://www.fbi.gov/services/cjis/fingerprints-and-other-
biometrics/ngi. biometrics/ngi.
7577 CRS CRS Report R43356, Report R43356, Border Security: Immigration Inspections at Ports of Entry. .
7678 For an example of this argument, see “Congressman Claims For an example of this argument, see “Congressman Claims ~~Allowing~~ Allowing Poland Visa-FreePoland Visa-Free ~~T ravel~~ Travel to the US Would to the US Would
Pose Security Pose Security ~~T hreat~~Threat,” workpermit.com, June 20, 2012, at http://www.workpermit.com/news/2012-06-20/us/,” workpermit.com, June 20, 2012, at http://www.workpermit.com/news/2012-06-20/us/
congressman-claims-allowing-poland-visa-free-travel-to-us-would-pose-security-threat.htm. congressman-claims-allowing-poland-visa-free-travel-to-us-would-pose-security-threat.htm.
77 79 For an example of this argument, see Heritage Foundation, For an example of this argument, see Heritage Foundation, The Visa ~~Waiver~~ Waiver Program: A Security Partnership, Fact , Fact
Sheet #66, Washington, DC, June 25, 2010. Sheet #66, Washington, DC, June 25, 2010.
~~78 T here~~80 There is not a specific requirement to present an e-passport when entering under the VWP. Any passports issued is not a specific requirement to present an e-passport when entering under the VWP. Any passports issued after after
October 26, 2006, and usedOctober 26, 2006, and used by VWP travelers to enter the United States are requiredby VWP travelers to enter the United States are required to have integrated chips with to have integrated chips with
information from the information from the ~~dat a~~data page (i.e., e-passports). Most passports are valid for 10 years, and thus, it is page (i.e., e-passports). Most passports are valid for 10 years, and thus, it is likely that by likely that by
October 2016, all VWP entrants had e-passports. October 2016, all VWP entrants had e-passports.
~~79 T he~~ 81 The length of validity of a visa is length of validity of a visa is mostly dependent on reciprocity with the United States (i.e., that visas from that 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 country for U.S. citizens are valid for the same period of time). For a full list of reciprocity schedules, see Department
of State, of State, U.S. Visa: Reciprocity and Civil ~~Docum ents~~Documents by Country, at https://travel.state.gov/content/travel/en/us-visas/, at https://travel.state.gov/content/travel/en/us-visas/
Visa-Reciprocity-and-Civil-Documents-by-Country.html. Visa-Reciprocity-and-Civil-Documents-by-Country.html.
8082 CBP screens travelers on nonimmigrant visitor visas at ports of entry each time they enter the United States. CBP screens travelers on nonimmigrant visitor visas at ports of entry each time they enter the United States.
8183 P.L. 107-53, §711. P.L. 107-53, §711.
8284 VWPO cited a number of reasons for the reporting delays, including VWPO cited a number of reasons for the reporting delays, including ~~inadequate~~ inadequate staffing of the office to manage the staffing of the office to manage the
workload, and not receiving intelligence assessments in a timely manner. However, VWPO officials stated that “these workload, and not receiving intelligence assessments in a timely manner. However, VWPO officials stated that “these
delaysdelays have not posed any unduehave not posed any undue risks or threats to U.S. security interests, since any issuesrisks or threats to U.S. security interests, since any issues within a VWP country that within a VWP country that
might affect its continued compliance with VWP requirements are continuously monitored.” Department of Homeland might affect its continued compliance with VWP requirements are continuously monitored.” Department of Homeland
Security, Office of the Inspector General, Security, Office of the Inspector General, The Visa ~~Waiver Program~~ Waiver Program, OIG-13-07, Washington, DC, November 2, 2012, , OIG-13-07, Washington, DC, November 2, 2012,
p. 12, http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-07_Nov12.pdf. p. 12, http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-07_Nov12.pdf.
~~83 According to GAO,~~
~~In 2018, DHS completed a strategic review of the reporting process to better distribute the~~
85 U.S. Government Accountability Office (GAO), “Recommendations for Executive Action.” in Visa Waiver Program: DHS Should Take Steps to Ensure Timeliness of Information Needed to Protect U.S. National Security, GAO-16-498, for the May 5, 2016, at https://www.gao.gov/products/GAO-16-498. Congressional Research Service Congressional Research Service
14 14

Visa Waiver Program

Debate over Biometric Exit Capacity
As discussed, the Secretary of Homeland Security’s authority to waive the nonimmigrant visa As discussed, the Secretary of Homeland Security’s authority to waive the nonimmigrant visa
refusal rate has been suspended until the air exit system is able to match an alien’s biometric 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.information with relevant watch lists and manifest information.8486 Some contend that the current Some contend that the current
biographic system provides suitable data for most security and immigration enforcement 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 activities, and that the cost of implementing a biometric exit system would not justify the ~~smal~~
small increase in additional security.increase in additional security.8587 However, others express concerns about the general security of 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 the program and argue that until more security measures are in place, such as a biometric exit
capacity, more countries should not be designated into the program.capacity, more countries should not be designated into the program.8688
Information Sharing
According to GAO, According to GAO, al all VWP countries provide data on lost and stolen passports (LASP) to the VWP countries provide data on lost and stolen passports (LASP) to the
United States.United States.8789 However, concerns have been raised about information sharing on LASP, However, concerns have been raised about information sharing on LASP,
~~specifical y~~specifically whether countries are reporting data in a timely manner. whether countries are reporting data in a timely manner.8890 The mechanisms to obtain The mechanisms to obtain
data on LASP have differed over time (e.g., reporting to the U.S. Embassy, access to a common 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).database) and by country (e.g., MOUs, Diplomatic Notes).8991 While DHS receives a few countries’ While DHS receives a few countries’
LASP data via direct links to those countries’ databases, most data on LASP come from the LASP data via direct links to those countries’ databases, most data on LASP come from the
International Criminal Police Organization’s (INTERPOL’s) Stolen and Lost Travel Documents International Criminal Police Organization’s (INTERPOL’s) Stolen and Lost Travel Documents
(SLTD) (SLTD) ~~database90~~database92—DHS’s preferred method of data sharing. 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.93 P.L. 114-113 amended the provision mandating that the reporting of lost or stolen passports be done no later than 24 hours after a theft or loss was reported to the VWP country. 86 The suspension can be lifted once the biometric exit system captures 97% of in~~—DHS’s preferred method of data sharing. Notably, ESTA screens passport~~

~~workload and adding staff in the Visa Waiver P rogram Office. As of October 2019, DHS reported~~
~~taking several steps that should address prior delays in meeting the report deadlines, such as~~
~~refining their request for information and modifying the report clearance process. T o fully address~~
~~this recommendation, DHS needs to demonstrate these steps have addressed the delays by issuing a~~
~~report to Congress on each VWP country within the last two years. GAO will continue to monitor~~
~~DHS efforts.~~
~~U.S. Government Accountability Office (GAO), “Recommendations for Executive Action.” in~~ ~~Visa Waiver Program:~~
~~DHS Should Take Steps to Ensure Tim eliness of Inform ation Needed to Protect U.S. National Security~~ ~~, GAO-16-498,~~
~~for the May 5, 2016, at https://www.gao.gov/products/GAO-16-498.~~
~~84 T he suspension can be lifted once the biometric exit system captures 97% of in~~ -scope travelers (P.L. 110-53; Section -scope travelers (P.L. 110-53; Section
110 IIRIRA, as amended). Currently, the system captures 60% of in-scope travelers. (Based on CRS110 IIRIRA, as amended). Currently, the system captures 60% of in-scope travelers. (Based on CRS ~~discussion~~ discussion with with
CBP officials on January 30, 2020.) CBP officials on January 30, 2020.)
~~85 T estimony~~87 Testimony of James Jay Carafano, U.S. of James Jay Carafano, U.S. Congress, HouseCongress, House Committee on the Judiciary, Subcommittee on Immigration Committee on the Judiciary, Subcommittee on Immigration
Policy and Enforcement, Policy and Enforcement, Next Steps for the Visa ~~Waiver Program~~ Waiver Program, 112th Cong., 1st sess.,, 112th Cong., 1st sess., December 7, 2011. December 7, 2011.
86 88 Statement of Chairman Elton Gallegly, U.S. Congress, Statement of Chairman Elton Gallegly, U.S. Congress, House Committee on the Judiciary, Subcommittee on House Committee on the Judiciary, Subcommittee on
Immigration Policy and Enforcement, Immigration Policy and Enforcement, Next Steps for the Visa ~~Waiver Program~~ Waiver Program, 112th Cong., 1st sess.,, 112th Cong., 1st sess., December 7, December 7,
2011. 2011.
8789 U.S. U.S. Government Accountability Office, Government Accountability Office, Visa Waiver Program: Additional Actions Needed to Address Risks and
Strengthen Overstay ~~Enforcem ent~~Enforcement, GAO-12-287TGAO-12-287T , December 7, 2011; U.S. Government Accountability Office, , December 7, 2011; U.S. Government Accountability Office, Visa
Waiver ~~Program~~ Program: DHS Should Take Steps to Ensure ~~Tim eliness of Inform ation~~Timeliness of Information Needed to Protect U.S. National
Security, GAO-16-498, May 2016, p. 11. , GAO-16-498, May 2016, p. 11.
88 90 VWP passports are supposedly highly valued VWP passports are supposedly highly valued since the bearer does not need a visa to enter the United States. For since the bearer does not need a visa to enter the United States. For
example, see U.S.example, see U.S. Government Accountability Office, Government Accountability Office, Visa Waiver ~~Program~~ Program: Additional Actions Needed to Address
Risks and Strengthen Overstay ~~Enforcem ent~~Enforcement, GAO-12-287T, GAO-12-287T , December 7, 2011. See also, Giulia, December 7, 2011. See also, Giulia Paravicini, “Paravicini, “ EU’s EU’s
Passport Fraud ‘Epidemic’,” Passport Fraud ‘Epidemic’,” Politico, January 28, 2016, Europe Edition, at http://www.politico.eu/article/europes-fake-, January 28, 2016, Europe Edition, at http://www.politico.eu/article/europes-fake-
forged-stolen-passportforged-stolen-passport -epidemic-visa-free-travel-rights/. -epidemic-visa-free-travel-rights/.
8991 In the past, before access to and the content of the In the past, before access to and the content of the ~~INT ERPOL~~INTERPOL database were reliable, DHS database were reliable, DHS ~~required~~ required countries to countries to
submit LASPsubmit LASP data to the U.S. embassiesdata to the U.S. embassies in those countries. in those countries.
~~90 T he~~ 92 The United States began United States began providing information on LASP to the U.S. National Central Bureau of the International providing information on LASP to the U.S. National Central Bureau of the International
Criminal Police Organization (Criminal Police Organization (~~INT ERPOL~~INTERPOL) in May 2004. ) in May 2004. ~~T he~~The INTERPOL Stolen and Lost INTERPOL Stolen and Lost ~~T ravel~~Travel Document ( Document (~~SLT D~~SLTD) )
databasedatabase is available to lawis available to law ~~enforcement~~ enforcement and immigration authorities worldwide.and immigration authorities worldwide. ~~INT ERPOL~~ INTERPOL, , Border ~~Managem ent~~~~, at~~
~~Congressional Research Service~~
15

~~Visa Waiver Program~~

~~information using the INTERPOL database. CBP also accesses LASP data via INTERPOL, but it~~
~~is unclear if this information is checked during primary inspection.91 P.L. 114-113 amended the~~
~~provision mandating that the reporting of lost or stolen passports be done no later than 24 hours~~
~~after a theft or loss was reported to the VWP country.~~
~~As discussed, al~~ Management, at https://www.interpol.int/How-we-work/Border-management. 93 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-08-1142T, September 24, 2008, p.5. Congressional Research Service 15 Visa Waiver Program As discussed, all VWP countries are also required to enter into information-sharing agreements VWP countries are also required to enter into information-sharing agreements
with the United States on whether the citizens or nationals of that country with the United States on whether the citizens or nationals of that country ~~travel ing~~travelling to the United to the United
States represent a security or criminal threat to the United States. States represent a security or criminal threat to the United States. Al All VWP countries have entered VWP countries have entered
into the required arrangements for the sharing of information on known and suspected terrorists into the required arrangements for the sharing of information on known and suspected terrorists
pursuant to Homeland Security Presidential Directive 6 (HSPD-6),pursuant to Homeland Security Presidential Directive 6 (HSPD-6),9294 and have also signed and have also signed
Preventing and Combating Serious Crime (PCSC) Agreements or equivalent agreements with the 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, United States for the sharing of information on potential serious criminals and terrorists. DHS,
DOJ, and DOS worked with VWP countries to fully implement HSPD-6 arrangements and PCSC DOJ, and DOS worked with VWP countries to fully implement HSPD-6 arrangements and PCSC
Agreements.Agreements.9395 P.L. 114-113 requires that the HSPD-6 arrangements and PCSC Agreements not P.L. 114-113 requires that the HSPD-6 arrangements and PCSC Agreements not
only be signed but be fully implemented before a country can be designated into the VWP. A only be signed but be fully implemented before a country can be designated into the VWP. A
GAO report released in May 2016 found that, as of that date, more than oneGAO report released in May 2016 found that, as of that date, more than one -third of VWP third of VWP
countries had not shared terrorist identity information through the HSPD-6 agreements, and a countries had not shared terrorist identity information through the HSPD-6 agreements, and a
similar percentage of VWP countries had not shared criminal history information through the similar percentage of VWP countries had not shared criminal history information through the
PCSC agreements.PCSC agreements.9496 No countries were removed from the program, but No countries were removed from the program, but
DHS has reported progress towards DHS has reported progress towards implementing the required agreements and, in cases implementing the required agreements and, in cases
wherewhere ~~agreements are not fully implemented, time frames and steps for bringing~~ agreements are not fully implemented, time frames and steps for bringing VWP VWP
countries into compliance with the informationcountries into compliance with the information -sharing requirements. As a result, -sharing requirements. As a result,
information sharing under the required agreements has improved.information sharing under the required agreements has improved.9597
Terrorism, Foreign Fighters, and the VWP
Since 9/11, significant national security concerns about the VWP came from fears that terrorists Since 9/11, significant national security concerns about the VWP came from fears that terrorists
could enter the United States under the VWP. In recent years, U.S. concerns have focused on could enter the United States under the VWP. In recent years, U.S. concerns have focused on
citizens from VWP countries who are aligned with the Islamic State terrorist group (also known citizens from VWP countries who are aligned with the Islamic State terrorist group (also known
as ISIS or ISIL). Many perpetrators of recent terrorist attacks were European citizens who trained as ISIS or ISIL). Many perpetrators of recent terrorist attacks were European citizens who trained
and/or fought with the Islamic State in the Syria-Iraq region.and/or fought with the Islamic State in the Syria-Iraq region.9698
For example, several of the perpetrators of the November 2015 attacks in Paris were citizens of For example, several of the perpetrators of the November 2015 attacks in Paris were citizens of
France.France.9799 In addition, the In addition, the ~~al eged~~alleged mastermind, Abdelhamid Abaaoud, was a national of mastermind, Abdelhamid Abaaoud, was a national of Belgium.100 Most of the perpetrators of these attacks had trained and/or fought with the Islamic State in Syria and/or Iraq.101 These terrorists may have been able to travel to the United States under the VWP, if ESTA did not find any derogatory information about them in U.S. biographic databases. Once citizens of VWP countries arrive in the United States, a CBP officer is to decide on their admissibility and check their information in biometric and biographic databases. Without 94 U.S. President (George W. Bush), ~~Belgium.98~~

~~https://www.interpol.int/How-we-work/Border-management .~~
~~91 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-08-1142T , September 24, 2008, p.5.~~
~~92 U.S. President (George W. Bush),~~ “Homeland Security Presidential Directive/HSPD–6—Directive on Integration “Homeland Security Presidential Directive/HSPD–6—Directive on Integration
and Use of Screening Information and Use of Screening Information ~~T o~~To Protect Against Protect Against ~~T errorism~~Terrorism,”,” Weekly Compilation of Presidential Documents, ,
September 16, 2003, p. 1174. For a discussionSeptember 16, 2003, p. 1174. For a discussion of HSPD-6, see CRSof HSPD-6, see CRS Report R42336, Report R42336, Terrorist Watch List Screening
and Background Checks for ~~Firearm s~~Firearms. .
9395 E-mail from Department of Homeland Security, Office of Legislative Affairs, November 16, 2015. E-mail from Department of Homeland Security, Office of Legislative Affairs, November 16, 2015.
94 96 U.S. U.S. Government Accountability Office, Government Accountability Office, Visa Waiver Program: DHS Should Take Steps to Ensure Timeliness of
~~Inform ation~~Information Needed to Protect U.S. National Security, GAO-16-498, May 2016. , GAO-16-498, May 2016.
95 97 U.S. U.S. Government Accountability Office, “Government Accountability Office, “ Recommendations for Executive Action,” inRecommendations for Executive Action,” in Visa Waiver Program: DHS
Should Take Steps to Ensure ~~Tim eliness of Inform ation~~Timeliness of Information Needed to Protect U.S. National Security , GAO-16-498, May 5, , GAO-16-498, May 5,
2016, at https://www.gao.gov/products/GAO-16-498. 2016, at https://www.gao.gov/products/GAO-16-498.
9698 For more information, see CRS For more information, see CRS In FocusIn Focus IF10561, IF10561, Terrorism in Europe. .
9799 BBC BBC News,News, “Paris attacks: Who were the attackers?,” April 27, 2016, at ews/world-europe-34832512. “Paris attacks: Who were the attackers?,” April 27, 2016, at ews/world-europe-34832512.
98100 Lonnie Shekhtman, “Abdelhamid Abaaoud: Lonnie Shekhtman, “Abdelhamid Abaaoud: Mastermind of the Paris attacks?,” Christian Science Monitor, November 16, 2015, at http://www.csmonitor.com/World/Europe/2015/1116/Abdelhamid-Abaaoud-Mastermind-of-the-Paris-attacks-video. 101 For more information, see CRS In Focus IF10561, Terrorism in Europe. Congressional Research Service 16 Visa Waiver Program having ~~Mastermind of the Paris attacks?,” Christian Science Monitor,~~
~~Congressional Research Service~~
16

~~Visa Waiver Program~~

~~Most of the perpetrators of these attacks had trained and/or fought with the Islamic State in Syria~~
~~and/or Iraq.99 These terrorists may have been able to travel to the United States under the VWP, if~~
~~ESTA did not find any derogatory information about them in U.S. biographic databases. Once~~
~~citizens of VWP countries arrive in the United States, a CBP officer is to decide on their~~
~~admissibility and check their information in biometric and biographic databases. Without having~~
specific classified information, it is unknown whether or not these individuals would have specific classified information, it is unknown whether or not these individuals would have been eligible ~~been~~
~~eligible~~ to travel under the VWP and/or been admitted into the U.S. at a port of entry. to travel under the VWP and/or been admitted into the U.S. at a port of entry.
In addition, if the assumption is made that these terrorists would have been eligible to travel 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 under the VWP, it is unknown whether or not the requirement to get a visa would have changed
their eligibilitytheir eligibility to travel to the United States. As discussed, individuals who are not eligibleto travel to the United States. As discussed, individuals who are not eligible to to
travel under the VWP (either individualstravel under the VWP (either individuals from non-VWP countries or those who do not receive an 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 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 under the VWP, those who apply for a visa undergo an interview with a consular officer, and
provide fingerprints and a digital photograph to be used to run checks against databases that use provide fingerprints and a digital photograph to be used to run checks against databases that use
biometrics (e.g., IDENT, NGI).biometrics (e.g., IDENT, NGI).
Authorities also remain concerned that terrorists could exploit refugee and migrant flows into Authorities also remain concerned that terrorists could exploit refugee and migrant flows into
Europe, Europe, ~~especial y~~especially given press reports that two of the terrorists involved in the November 2015 given press reports that two of the terrorists involved in the November 2015
attacks in Paris may have entered Greece by posing as refugees with fake or stolen Syrian attacks in Paris may have entered Greece by posing as refugees with fake or stolen Syrian
passports before making their way to Paris.passports before making their way to Paris.~~100~~102 For a foreign national to travel under the VWP he For a foreign national to travel under the VWP he
or she must possess a passport from a VWP country. Thus, unless refugees or migrants who settle or she must possess a passport from a VWP country. Thus, unless refugees or migrants who settle
in VWP countries receive citizenship or in VWP countries receive citizenship or ~~nationality101~~nationality103 from those countries and are issued from those countries and are issued
passports from the VWP country, they are ineligible to travel to the United States under the passports from the VWP country, they are ineligible to travel to the United States under the
VWP.VWP.~~102~~104
Adding Countries to the VWP
While some view the VWP as a security risk, others contend that the inclusion of countries in the While some view the VWP as a security risk, others contend that the inclusion of countries in the
VWP increases U.S. national security by setting standards for travel documents and information VWP increases U.S. national security by setting standards for travel documents and information
sharing.sharing.~~103~~105 In addition, supporters of the VWP argue that increasing membership in the VWP In addition, supporters of the VWP argue that increasing membership in the VWP
could be used as an incentive to get additional countries to share could be used as an incentive to get additional countries to share ~~intel igence~~intelligence information with the United States.106 Since 2010, DHS has designated five new countries—Chile, Croatia, Greece, Poland, and Taiwan—into the program; Poland and Croatia were designated in the last two years. 102 Alison Smale and Kimberly Bradley, “Refugees Across ~~information with the~~

~~November 16, 2015, at http://www.csmonitor.com/World/Europe/2015/1116/Abdelhamid-Abaaoud-Mastermind-of-~~
~~the-Paris-attacks-video.~~
~~99 For more information, see CRS In Focus IF10561, Terrorism in Europe.~~
~~100 Alison Smale and Kimberly Bradley, “ Refugees Across~~ Europe Fear Repercussions From Paris Attacks,” Europe Fear Repercussions From Paris Attacks,” New York
~~Tim es~~Times, November 18, 2015, at http://www.nytimes.com/2015/11/19/world/europe/refugees-paris-attacks.html?hp&November 18, 2015, at 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&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region®ion=top-news&
WTWT .nav=top-news; and “.nav=top-news; and “ At least two Paris attackers ‘traveled through Greece,’” At least two Paris attackers ‘traveled through Greece,’” France 24, November 21, 2015, at November 21, 2015, at
https://www.france24.com/en/20151121-least-two-paris-attackers-travelled-through-greece-refugees-syria-migrants. https://www.france24.com/en/20151121-least-two-paris-attackers-travelled-through-greece-refugees-syria-migrants.
~~101~~103 A national is a citizen or subject A national is a citizen or subject of a particular nation and is someone who wouldof a particular nation and is someone who would be eligiblebe eligible for a passport from that for a passport from that
nation. nation.
~~102~~ 104 INA §217(a)(2). INA §217(a)(2). ~~T he~~The situation regarding the position of many countries in regard to acceptance of Syrian refugees situation regarding the position of many countries in regard to acceptance of Syrian refugees is is
fluidfluid and, as such, it isand, as such, it is unclear whether any of these refugeesunclear whether any of these refugees ~~would~~ would ever be eligibleever be eligible for citizenship in these countries.for citizenship in these countries.
~~103~~ 105 For an example of this argument, see For an example of this argument, see ~~T estimony~~Testimony of Hillary Batjer Johnson, Deputy Coordinator for Homeland of Hillary Batjer Johnson, Deputy Coordinator for Homeland
Security, Screening,Security, Screening, and Designations Bureauand Designations Bureau of Counterterrorism, in U.S. Department of State, U.S. Congress,of Counterterrorism, in U.S. Department of State, U.S. Congress, House House
Committee on Oversight and Government Reform, Subcommittees on National Security and Government Operations, Committee on Oversight and Government Reform, Subcommittees on National Security and Government Operations,
The President’s Waiver of Restrictions on the Visa ~~Waiver~~ Waiver Program, hearings, 114th Cong., 2nd sess.,hearings, 114th Cong., 2nd sess., February 10, 2016, H.Hrg. 114-104 (Washington, DC: GPO, 2017). 106 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. Congressional Research Service 17 link to page 22 link to page 8 link to page 8 link to page 8 Visa Waiver Program On November 8, 2019, DHS designated Poland into the VWP.107 Poland had been working with DHS for more than a decade to meet the VWP criteria. 108 ~~February 10,~~
~~2016, H.Hrg. 114-104 (Washington, DC: GPO, 2017).~~
~~Congressional Research Service~~
17

~~link to page 8~~ ~~Visa Waiver Program~~

~~United States.104 Since 2010, DHS has designated four new countries—Chile, Greece, Poland,~~
~~and Taiwan—into the program.~~
~~Most recently, on November 8, 2019, DHS designated Poland into the VWP.105 Poland had been~~
~~working with DHS for more than a decade to meet the VWP criteria.106 Prior to Poland’s~~
~~inclusion in the VWP, the Polish government had been outspoken in expressing frustration over~~
~~the failure to include the country in the VWP.107 Reportedly, President Barack Obama said in~~
~~2010 that he was going to make it a priority to get Poland into the VWP.108 President Donald~~
~~Trump, in public remarks before a September 2018 meeting with Poland’s President Andrezej~~
~~Duda, said in reference to Poland’s designation into the VWP that his administration was~~
~~“looking at that very strongly.”109~~
In FY2019, Poland met the requirement of having a nonimmigrant visitor visa refusal rate below In FY2019, Poland met the requirement of having a nonimmigrant visitor visa refusal rate below
~~3%.110~~3%.109 On October 4, 2019, President Trump announced that DOS had On October 4, 2019, President Trump announced that DOS had ~~formal y~~formally nominated nominated
Poland for the VWP, Poland for the VWP, ~~111~~110 and the following month, DHS announced Poland’s designation into the and the following month, DHS announced Poland’s designation into the
program.program.~~112~~111 As of November 11, 2019, Polish nationals, like other visitors from VWP countries, As of November 11, 2019, Polish nationals, like other visitors from VWP countries,
are able to apply online for ESTA, which authorizes travel to the United States without a visa. are able to apply online for ESTA, which authorizes travel to the United States without a visa.
According to DHS, from November 11, 2019, through January 2020, approximately 40,000 According to DHS, from November 11, 2019, through January 2020, approximately 40,000
Polish ESTA applications were Polish ESTA applications were approved.112 All EU countries that are not yet VWP members have been working to join the program (see the “EU and Reciprocity” section below.) In FY2020, Croatia’s nonimmigrant visa refusal rate was 2.69%,113 down from 4.02% in FY2019.114 On August 2, 2021, Secretary of State Anthony Blinken formally nominated Croatia to the VWP.115 Secretary of Homeland Security Alejandro Mayorkas designated Croatia as a VWP member on September 28, 2021. Croatian nationals will be able to apply online for ESTA starting on December 1, 2021. Other countries outside the EU have also~~approved.113~~
~~Other countries have~~ expressed a desire to be included in the VWP because of the possible expressed a desire to be included in the VWP because of the possible
economic benefits (e.g., increasing commerce and tourism), the benefits to their populace of economic benefits (e.g., increasing commerce and tourism), the benefits to their populace of
easier and cheaper travel to the United States (i.e., since their citizens do not have to easier and cheaper travel to the United States (i.e., since their citizens do not have to apply for and pay for a visa), and because membership in the program is often perceived as evidence of close ties with the United States.116 107~~apply for~~

~~104 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, Tim e to Decouple Visa Waiver Program from Biom etric Exit, Heritage Foundation, Web~~
~~Memorandum no. 2867, April 15, 2010.~~
~~105~~ Department of Homeland Security, “Designation of Poland for the Visa Waiver Program,” 84 Department of Homeland Security, “Designation of Poland for the Visa Waiver Program,” 84 Federal Register
60316, November 8, 2019. 60316, November 8, 2019.
~~106~~108 For more information, see CRS For more information, see CRS Report R45784, Report R45784, Poland: Background and U.S. Relations. .
~~107 For examples, see “Polish President to Remind Obama of Visa Promise,” Polskie Radio, September 9, 2012, at~~
~~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.
~~108 For examples, see “Polish President to Remind Obama of Visa Promise,” Polskie Radio, September 9, 2012, at~~
~~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.
~~109 T he White House, “Remarks by President T rump and President Duda of the Republic of Poland Before Bilateral~~
~~Meeting,” September 18, 2018, at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-~~
~~president -duda-republic-poland-bilateral-meeting/.~~
~~110 Department of State, “Adjusted Refusal Rate—B-Visas~~ 109 Department of State, “Adjusted Refusal Rate—B-Visas Only by Nationality Fiscal Year 2019,” at https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY19.pdf; also, see full list of criteria in the section, “VWP Qualifying Criteria.” 110 The White House, “Statement from the Press Secretary Regarding the Nomination of Poland for Entry into the Visa Waiver Program,” press release, October 4, 2019, at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-regarding-nomination-poland-entry-visa-waiver-program/. 111 Department of Homeland Security, “Acting Secretary McAleenan Announces Designation of Poland into the Visa Waiver Program,” press release, November 6, 2019, at https://www.dhs.gov/news/2019/11/06/acting-secretary-mcaleenan-announces-designation-poland-visa-waiver-program. 112 Based on CRS discussion with DHS representatives about the VWP, January 30, 2020. 113 Department of State, “Adjusted Refusal Rate—B-Visas Only by Nationality Fiscal Year 2020,” at https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY20.pdf; also, see full list of criteria in the “VWP Qualifying Criteria” section of this CRS report. 114 Department of State, “Adjusted Refusal Rate—B-Visas Only by Nationality Fiscal Year 2019,” at Only by Nationality Fiscal Year 2019,” at
https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY19.pdf; also, see fullhttps://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY19.pdf; also, see full ~~list~~
list of criteria in the of criteria in the ~~section,~~ “ “VWP Qualifying Criteria.”
~~111 T he White House, “Statement from the Press Secretary Regarding the Nomination of Poland for Entry into the~~” section of this CRS report. 115 U.S. Embassy in Croatia, “Croatia formally nominated to join the U.S. Visa Visa
Waiver Program,” Waiver Program,” ~~press release, October 4, 2019, at https://www.whitehouse.gov/briefings-statements/statement-press-~~
~~secretary-regarding-nomination-poland-entry-visa-waiver-program/.~~
~~112 Department of Homeland Security, “Acting Secretary McAleenan Announces Designation of Poland into the Visa~~
~~Waiver Program,” press release, November 6, 2019, at https://www.dhs.gov/news/2019/11/06/acting-secretary-~~
~~mcaleenan-announces-designation-poland-visa-waiver-program.~~
~~113 Based on CRS discussion with DHS representatives about the VWP, January 30, 2020.~~
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18

~~Visa Waiver Program~~

~~and pay for a visa), and because membership in the program is often perceived as evidence of~~
~~close ties with the United States.114~~
~~EU and Reciprocity~~
~~Of the European Union’s 27 member states, 4 are not VWP countries (Bulgaria, Croatia, Cyprus,~~
~~and Romania). A visa is required for citizens from non-VWP EU countries wishing to travel to the~~
~~United States, whereas, under EU law, no EU country requires visas of U.S. citizens for stays up~~
~~to 90 days. 115~~at https://hr.usembassy.gov/croatia-formally-nominated-to-join-the-u-s-visa-waiver-program/. 116 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” did not contain milestones or time tables, it was difficult to measure the amount of progress made toward fulfilling the criteria for VWP membership. There were 13 “road map” countries: 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. For a discussion of the current “road map,” or “aspiring” VWP countries, see CRS Report R46300, Adding Countries to the Visa Waiver Program: Effects on National Security and Tourism. Congressional Research Service 18 Visa Waiver Program EU and Reciprocity Of the European Union’s 27 member states, 3 are not VWP countries (Bulgaria, Cyprus, and Romania). A visa is required for citizens from non-VWP EU countries wishing to travel to the United States, whereas, under EU law, no EU country requires visas for U.S. citizens for stays up to 90 days. 117 The EU contends that “visa reciprocity is a fundamental principle of the European The EU contends that “visa reciprocity is a fundamental principle of the European
Union’s common visa policy” and has long urged the United States to admit Union’s common visa policy” and has long urged the United States to admit al all EU member EU member
states to the VWP.states to the VWP.~~116~~118 The lack of short-term, visa-free privileges for The lack of short-term, visa-free privileges for al all EU member states has EU member states has
been a point of contention between the United States and the EU for many years. been a point of contention between the United States and the EU for many years.
In January 2014, a revised EU visa reciprocity mechanism entered into force, aimed at injecting In January 2014, a revised EU visa reciprocity mechanism entered into force, aimed at injecting
greater momentum into EU efforts to achieve full visa reciprocity with countries, such as the greater momentum into EU efforts to achieve full visa reciprocity with countries, such as the
United States, whose citizens can travel to the EU for short-term business or tourism without a United States, whose citizens can travel to the EU for short-term business or tourism without a
visa.visa.119 The EU considered suspending its visa waiver for U.S. nationals in 2017 but decided not to The EU considered suspending its visa waiver for U.S. nationals in 2017 but decided not to
do so.do so.~~117~~120 The United States remains the only country on the EU’s visa-free list that does not fully The United States remains the only country on the EU’s visa-free list that does not fully
reciprocate.reciprocate.~~118~~121
Overstays
Some maintain that the nonimmigrant visa refusal rate is “not sufficiently probative” of a Some maintain that the nonimmigrant visa refusal rate is “not sufficiently probative” of a
country’s eligibilitycountry’s eligibility because it is based on decisions made by consular officers rather than on the because it is based on decisions made by consular officers rather than on the
behavior of nonimmigrants.behavior of nonimmigrants.~~119~~122 When the program was conceived, planners expected that the When the program was conceived, planners expected that the
number of nonimmigrants who overstay the terms of their entry under this program would be a number of nonimmigrants who overstay the terms of their entry under this program would be a
better standard for future program participation, but it was not used at the time because of the lack better standard for future program participation, but it was not used at the time because of the lack
of reliableof reliable data on overstays. Using biographic departure information from passenger manifests, DHS has calculated overstay rates for all VWP countries (as well as other countries). 117 For a discussion of EU visa policy, see European Commission, Visa Policy, at https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/visa-policy_en. 118 European Commission, “Visa non-reciprocity: Commission takes stock of progress and developments,” press release, December 18, 2018, at https://ec.europa.eu/commission/presscorner/detail/en/IP_18_6821. 119 In 2018, the European Union (EU) announced that before travel, visitors from all visa-free countries will need to complete an online application similar to the U.S. ESTA system, and they will be required to pay a fee of €7 to use the European Travel Information and Authorization System (ETIAS). ETIAS will apply to people traveling to Europe’s Schengen Zone, an area comprising 26 countries, the majority of which are EU member states, including France, Germany, and Spain. The United Kingdom will not be part of this new European visa system. ETIAS is expected to be operational in late 2022. An approved ETIAS will be valid for three years or the date of passport expiration (whichever happens first), and it can be used for stays of up to 90 days. 120 European Commission, “Visa ~~data on overstays. Using biographic departure information from passenger manifests,~~

~~114 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” did not contain milestones or time tables, it was difficult to measure the amount of progress made toward~~
~~fulfilling the criteria for VWP membership. T here were 13 “ road map” countries: 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. For a discussion of the current “ road map,” or “ aspiring” VWP countries,~~
~~see CRS Report R46300, Adding Countries to the Visa Waiver Program : Effects on National Security and Tourism .~~
~~115 For a discussion of EU visa policy, see European Commission, Visa Policy, at https://ec.europa.eu/home-affairs/~~
~~what -we-do/policies/borders-and-visas/visa-policy_en.~~
~~116 European Commission, “Visa non-reciprocity: Commission takes stock of progress and developments,” press~~
~~release, December 18, 2018, at https://ec.europa.eu/commission/presscorner/detail/en/IP_18_6821.~~
~~117 European Commission, “Visa~~ Reciprocity: Commission responds to Parliament,” press release, May 1, 2017, at Reciprocity: Commission responds to Parliament,” press release, May 1, 2017, at
https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1148. However, in 2018, the European Union (EU) https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1148. However, in 2018, the European Union (EU)
announced that before travel, visitors to the Schengen Area from all visa-free countries wouldannounced that before travel, visitors to the Schengen Area from all visa-free countries would need to complete an need to complete an
online application similar to the U.S. online application similar to the U.S. ~~EST A~~ESTA system, and they will be system, and they will be ~~required~~ required to pay a fee of €7 to use the European to pay a fee of €7 to use the European
~~T ravel~~Travel Information and Authorization System ( Information and Authorization System (~~ET IAS). ET IAS will~~ ETIAS). ETIAS will apply to people traveling to all 26 countries apply to people traveling to all 26 countries
currently in the Schengen Area (the majority of which are EU member states) and EU countries Croatia, Cyprus, currently in the Schengen Area (the majority of which are EU member states) and EU countries Croatia, Cyprus,
Bulgaria,Bulgaria, and Romania, which are expected to join the Schengen Area in the future.and Romania, which are expected to join the Schengen Area in the future. ~~ET IAS is~~ ETIAS is expected to be expected to be
operational in early 2021. An approved operational in early 2021. An approved ~~ET IAS~~ETIAS will will be valid for three be valid for three ~~year s~~years or the date of passport expiration or the date of passport expiration
(whichever happens first), and it can be(whichever happens first), and it can be ~~used~~ used for stays for up to 90 days.for stays for up to 90 days.
~~118~~ 121 For more background, For more background, see CRSsee CRS Report RS22030, Report RS22030, U.S.-EU Cooperation Against Terrorism . .
~~119~~122 U.S. U.S. Congress, HouseCongress, House Committee on the Judiciary, Committee on the Judiciary, Visa ~~Waiver~~ Waiver Permanent Program Act,, report together with report together with
additional viewsadditional views to accompany H.R. 3767, 106th Cong., 2nd sess., H.Rept. 106-564 (Washington, DC: GPO, 2000), p. to accompany H.R. 3767, 106th Cong., 2nd sess., H.Rept. 106-564 (Washington, DC: GPO, 2000), p.
32.32.
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~~DHS has calculated overstay rates for al VWP countries (as wel as other countries).~~
Nonetheless, this method of measuring overstays has limitations because persons entering by air Nonetheless, this method of measuring overstays has limitations because persons entering by air
or sea but exiting at a land port of entry may be mischaracterized as overstays.or sea but exiting at a land port of entry may be mischaracterized as overstays.~~120~~
123 In January 2016, DHS released its first report on overstay rates. In January 2016, DHS released its first report on overstay rates.~~121 In a subsequent report on~~
~~FY2018 overstays~~124 In the most recent overstay report, all the VWP countries had , all the VWP countries had estimated overstay rates of less than 0.overstay rates of less than 0.5%39% in FY2019. In contrast, the . In contrast, the
~~worldwide~~ overstay rate for non-VWP countries in overstay rate for non-VWP countries in ~~FY2018 was 2%.122~~
FY2019 was 1.9%.125 Although the refusal rate was seen as an alternative to the overstay rate when the program was Although the refusal rate was seen as an alternative to the overstay rate when the program was
conceived, people are denied visas for reasons other than being unable to prove that they conceived, people are denied visas for reasons other than being unable to prove that they ~~wil~~ will not not
remain remain ~~il egal y~~ illegally in the United States (i.e., they are in the United States (i.e., they are intending immigrants).).~~123~~126 During the visa During the visa
application process, consular application process, consular ~~officers124~~officers127 must confirm that an alien is not ineligible must confirm that an alien is not ineligible for a visa for a visa
under any of the under any of the grounds of inadmissibility of the INA, such as having a criminal history, of the INA, such as having a criminal history,
engaging in terrorist activity, or having previously violated U.S. immigration law.engaging in terrorist activity, or having previously violated U.S. immigration law.~~125~~128 Although Although
most B visa denials are because the alien cannot prove that he or she is not an intending most B visa denials are because the alien cannot prove that he or she is not an intending
immigrant, there are other reasons a person could be denied a visa that are captured as part of a immigrant, there are other reasons a person could be denied a visa that are captured as part of a
~~country’s visa refusal rate.~~
~~Legislation in the 116th Congress~~
~~The Further Consolidated Appropriations Act of 2020 (P.L. 116-94) extended the authority for~~
~~Brand USA, a public-private travel promotion entity, to receive fees from the VWP through the~~
~~end of September 2027 and raises the ESTA fee, as described above in “Electronic System for~~
~~Travel Authorization (ESTA).” The private sector stil must provide at least $100 mil ion per year~~
~~in in-kind contributions and cash to the Brand USA program in order for it to receive these~~
~~federal funds. The effective date of the new ESTA fee has not yet been announced.~~
~~Multiple proposals introduced in the 116th Congress aim to give DHS greater flexibility to~~
~~designate countries that do not meet the criteria discussed above into the VWP. Representative~~
~~Mike Quigley introduced the Jobs Originated through Launching Travel (JOLT) Act (H.R. 2187),~~
~~which would reinstate DHS’s authority to grant a waiver for the nonimmigrant visitor visa refusal~~
~~rate. The bil would also change the name of the VWP to “Secure Travel Partnership.”126 H.R.~~

~~120~~country’s visa refusal rate. Selected Legislative Activity In recent Congresses, legislative proposals related to the VWP have sought to expand the number of countries by changing the criteria129 or giving DHS greater flexibility to designate countries into the VWP that do not meet the existing criteria.130 Some bills proposed directly designating 123 For example, a 2019 GAO report says there are “existing limitations in collecting departure data in the land For example, a 2019 GAO report says there are “existing limitations in collecting departure data in the land
environment.” See GAO,environment.” See GAO, ~~Departm ent of Hom eland~~ Department of Homeland Security: Review of the Fiscal Year 2017 Entry/Exit Overstay
Report, GAO-19-298R, February, GAO-19-298R, February 22, 2019, p. 3, at https://www.gao.gov/products/GAO-19-298R. 22, 2019, p. 3, at https://www.gao.gov/products/GAO-19-298R.
~~121~~124 See, See, Department of Homeland Security, Department of Homeland Security, Entry/Exit Overstay Report, Fiscal Year 2015, January 19, 2016, at , January 19, 2016, at
http://www.dhs.gov/publication/entryexithttp://www.dhs.gov/publication/entryexit -overstay-report. An annual report on overstays was originally mandated by -overstay-report. An annual report on overstays was originally mandated by
CongressCongress in 1998 (P.L. 105-173, codified at 8 U.S.C.in 1998 (P.L. 105-173, codified at 8 U.S.C. §1376), and Congress required§1376), and Congress required the report again in P.L. 114-113. the report again in P.L. 114-113.
~~122~~125 Department of Homeland Security, Department of Homeland Security, Fiscal Year ~~2018~~2019 Entry/Exit Overstay Report, at https://www.dhs.gov/sites/at https://www.dhs.gov/sites/
default/files/publications/default/files/publications/~~19_0417_fy18~~20_0513_fy19-entry-and-exit-overstay-report.pdf. -entry-and-exit-overstay-report.pdf.
~~123~~126 INA §214(b) generally presumes that all aliens seeking admission to the United States are coming to live INA §214(b) 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 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 permanentlythat they are not coming to reside permanently in the United States. CRSin the United States. CRS Report R45040, Report R45040, ~~Im migration: Nonim migrant~~
~~(Tem porary) Adm issions~~Immigration: Nonimmigrant (Temporary) Admissions to the United States. .
~~124~~ 127 Determinations of inadmissibility are also made Determinations of inadmissibility are also made by CBP officers at ports of entry. by CBP officers at ports of entry.
~~125 T he~~128 The so-called grounds so-called grounds of inadmissibility underof inadmissibility under INA §212(a) include health-related grounds; criminal history; INA §212(a) include health-related grounds; criminal history;
security and terrorist concerns; public charge (e.g., indigence);security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; seeking to work without proper labor certification;
illegalillegal entrants and immigration law violations; ineligibility for citizenship; and aliens who are illegallyentrants and immigration law violations; ineligibility for citizenship; and aliens who are illegally present or have previously been removed. 129 For example, the Allied ~~present or have~~
~~previously been removed.~~
~~126 Unrelated to the VWP, H.R. 2187 would also allow Canadians over age 50 entering on tourist visas who own or~~
~~have rented property in the United States to be admitted for up to 240 days. Currently, the maximum duration of stay~~
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~~Visa Waiver Program~~

~~1996, also introduced by Representative Quigley, would solely rename the VWP to “Secure~~
~~Travel Partnership.” Representative Dan Lipinski introduced the Al ied~~ Nations Travel Nations Travel
Modernization Act (H.R. 2946)Modernization Act (H.R. 2946)~~, which would al ow~~ in the 116th Congress would have allowed countries to be designated into the VWP if, countries to be designated into the VWP if,
instead of a low nonimmigrant visitor visa refusal rate, they have a low visa overstay rate and instead of a low nonimmigrant visitor visa refusal rate, they have a low visa overstay rate and
agree to spend 2% of their gross domestic product on defenseagree to spend 2% of their gross domestic product on defense~~;127 according~~. According to Representative to Representative Dan
Lipinski, Lipinski, ~~the bil~~ who introduced the legislation, the bill was drafted “to create an alternative pathway into the program for was drafted “to create an alternative pathway into the program for ~~NATO~~
North Atlantic Treaty Organization (NATO) nations like Poland.”nations like Poland.”~~128~~ As noted above, Poland was designated into the VWP on November 6, As noted above, Poland was designated into the VWP on November 6,
~~2019. Both bil s were referred to the Subcommittee on Immigration and Citizenship.~~
~~One proposal in the 116th Congress seeks to deter VWP overstays. Senator John Cornyn~~
~~introduced the Humanitarian Upgrades to Manage and Assist our Nation’s Enforcement~~
~~(HUMANE) Act of 2019 (S. 1303). Among other provisions, the bil endeavors to reduce VWP~~
~~overstays by amending the INA’s terms and conditions of admission for VWP travelers, the VWP~~
~~waiver of rights, and the detention and repatriation of visa waiver violators. This bil was referred~~
~~to the Committee on the Judiciary.~~
~~Another proposal would address~~2019. Congressman Dan Lipinski, “Lipinski Praises Step Forward Towards Admitting Poland to the Visa Waiver Program as Polish President Visits U.S.,” press release, June 13, 2019, at https://lipinski.house.gov/press-releases/lipinski-praises-step-forward-towards-admitting-poland-to-the-visa-waiver-program-as-polish-president-visits-us/. 130 For example, in the 116th Congress, Jobs Originated through Launching Travel (JOLT) Act (H.R. 2187), sought to reinstate DHS’s authority to grant a waiver for the nonimmigrant visitor visa refusal rate. Congressional Research Service 20 Visa Waiver Program specific countries.131 Others sought to rename the VWP “the Secure Travel Partnership” to reflect one of the program’s main goals of securing travel to the United States.132 Previous legislation has also sought to deter VWP overstays.133 Finally, some proposals have addressed the spending the spending of funds generated from ESTA fees.134 131 For example, in the 114th Congress, multiple bills sought to designate Poland into the VWP (e.g., S. 2534, S. 1619, and S. 2131). In the 113th Congress, some bills sought to designate Hong Kong into the program (e.g., S. 703 and H.R. 1923) and others sought to designate Israel (e.g., S. 266, H.R. 300, and S.Amdt. 3933). 132 For example, H.R. 2187 and H.R. 1996 in the 116th Congress. 133 For example, the Humanitarian Upgrades to Manage and Assist our Nation’s Enforcement (HUMANE) Act of 2019 (S. 1303) in the 116th Congress sought to reduce VWP overstays by amending the INA’s terms and conditions of admission for VWP travelers, the VWP waiver of rights, and the detention and repatriation of visa waiver violators. 134 For example, the Responsibly Enhancing America’s Landscapes Act (S. 2783) from the 116th Congress would have established the National Park Service Legacy Restoration Fund to help with the backlog of maintenance projects in national parks. This fund would be paid for by a $16 ESTA fee along with a $25 nonimmigrant visitor visa fee and a $5 park entrance fee. ~~of funds generated from ESTA fees. Senator Mike~~
~~Enzi introduced the Responsibly Enhancing America’s Landscapes Act (S. 2783), which would~~
~~establish the National Park Service Legacy Restoration Fund to help with the backlog of~~
~~maintenance projects in national parks. This fund would be paid for by a $16 ESTA fee along~~
~~with a $25 nonimmigrant visitor visa fee and a $5 park entrance fee. This bil was referred to the~~
~~Committee on the Judiciary.~~

~~on a tourist visa is 180 days. Additionally, H.R. 2187 includes sections related to visa processing, such as developing a~~
~~secure remote videoconferencing program for visa interviews.~~
~~127 For more information, see North Atlantic T reaty Organization, “Wales Summit Declaration,” press release,~~
~~September 5, 2014, at https://www.nato.int/cps/en/natohq/official_texts_112964.htm?selectedLocale=en.~~
~~128 Congressman Dan Lipinski, “Lipinski Praises Step Forward T owards Admitting Poland to the Visa Waiver Program~~
~~as Polish President Visits U.S.,” press release, June 13, 2019, at https://lipinski.house.gov/press-releases/lipinski-~~
~~praises-step-forward-towards-admitting-poland-to-the-visa-waiver-program-as-polish-president-visits-us/.~~
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Appendix. Legislative History and Selected
Administrative Action
Visa Waiver Pilot Program
The Visa Waiver Program was established The Visa Waiver Program was established ~~initial y~~initially as a temporary program (Visa Waiver Pilot as a temporary program (Visa Waiver Pilot
Program) by the Immigration Reform and Control Act of 1986 (P.L. 99-603). To become a Program) by the Immigration Reform and Control Act of 1986 (P.L. 99-603). To become a
program country under the pilot program, a country must have offered reciprocal privileges to program country under the pilot program, a country must have offered reciprocal privileges to
U.S. citizens and have had an average nonimmigrant visa refusal rate of 2% or less for the U.S. citizens and have had an average nonimmigrant visa refusal rate of 2% or less for the
previous two years with neither year’s refusal rate exceeding 2.5%. Participation in the pilot previous two years with neither year’s refusal rate exceeding 2.5%. Participation in the pilot
program was program was ~~original y~~originally limited to up to eight countries. limited to up to eight countries.~~129~~135 Since the establishment of the pilot Since the establishment of the pilot
program, Congress has program, Congress has ~~periodical y~~periodically passed legislation to extend the program’s authorization, passed legislation to extend the program’s authorization,
expand the number of countries expand the number of countries ~~al owed~~allowed to participate in the program, and modify the qualifying to participate in the program, and modify the qualifying
criteria. Between 1986 and 1997, Congress passed five criteria. Between 1986 and 1997, Congress passed five ~~bil s~~bills that were subsequently signed into that were subsequently signed into
law that made changes to the Visa Waiver Pilot Program: law that made changes to the Visa Waiver Pilot Program:
 the Immigration Technical Corrections Act of 1988 (P.L. 100-525);  the Immigration Technical Corrections Act of 1988 (P.L. 100-525);
 the Immigration Act of 1990 (P.L. 101-649), which inserted further qualifying  the Immigration Act of 1990 (P.L. 101-649), which inserted further qualifying
criteria and reporting requirements for the program and removed the limit on the criteria and reporting requirements for the program and removed the limit on the
number of countries that could participate in the program; number of countries that could participate in the program;
 the  the ~~Miscel aneous~~Miscellaneous and Technical Immigration and Naturalization Amendments of and Technical Immigration and Naturalization Amendments of
1991 (P.L. 102-232); 1991 (P.L. 102-232);
 the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103-  the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103-
416), which created a probationary status to 416), which created a probationary status to ~~al ow~~allow countries whose nonimmigrant countries whose nonimmigrant
visa refusal rates were higher than 2% but less than 3.5% to enter the program on visa refusal rates were higher than 2% but less than 3.5% to enter the program on
a probationary basis if other qualifying criteria are met; and a probationary basis if other qualifying criteria are met; and
 the  the ~~Il egal~~ Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (P.L. Immigrant Reform and Immigrant Responsibility Act of 1996 (P.L.
104-208), which created a new type of probationary status for countries in the 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 program that failed to meet certain criteria, and removed the probationary status
that had that had ~~al owed~~allowed countries with nonimmigrant visa refusal rates higher than 2% countries with nonimmigrant visa refusal rates higher than 2%
but less than 3.5% to enter the program. but less than 3.5% to enter the program.
The pilot visa waiver program was scheduled to expire on September 30, 1997, but short-term The pilot visa waiver program was scheduled to expire on September 30, 1997, but short-term
extensions were included in the Continuing Resolutions passed in the 105th Congress.extensions were included in the Continuing Resolutions passed in the 105th Congress.~~130~~136 The The
Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations
Act, 1998 (P.L. 105-119) contained an extension of the program through April 30, 1998. In 1998, Act, 1998 (P.L. 105-119) contained an extension of the program through April 30, 1998. In 1998,
Congress passed legislation (P.L. 105-173) that not only extended the program through April 30, Congress passed legislation (P.L. 105-173) that not only extended the program through April 30,

~~129 8 U.S.C.~~ 135 8 U.S.C. §1187, amendments. §1187, amendments.
~~130~~136 An extension of the pilot program was included An extension of the pilot program was included in the first Continuing Resolution (P.L. 105-56 §117) for FY1998. in the first Continuing Resolution (P.L. 105-56 §117) for FY1998.
~~T he~~The five subsequent 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—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). simply extended the expiration date of the provisions in the first Continuing Resolution for FY1998 (P.L. 105-56).
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2000, but made other changes to the standard by which countries are selected (designated) to 2000, but made other changes to the standard by which countries are selected (designated) to
participate in the VWP.participate in the VWP.~~131~~137 By 1999, program participation had grown to include 29 countries. By 1999, program participation had grown to include 29 countries.~~132~~138
Visa Waiver Permanent Program Act
On October 30, 2000, the Visa Waiver Permanent Program Act was signed into law (P.L. 106-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, 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 but in the interim, the Commissioner of the former Immigration and Naturalization Service
(INS)(INS)~~133~~139 exercised the Attorney General’s parole authority to extend the program temporarily. exercised the Attorney General’s parole authority to extend the program temporarily.~~134~~
140 Besides making this program’s authorization permanent, the Visa Waiver Permanent Program Act Besides making this program’s authorization permanent, the Visa Waiver Permanent Program Act
included provisions designed to strengthen documentary and reporting requirements. P.L. 106-included provisions designed to strengthen documentary and reporting requirements. P.L. 106-
396 included provisions that 396 included provisions that
 mandated that by October 1, 2007,  mandated that by October 1, 2007, al all entrants under the VWP must have entrants under the VWP must have
machine-readable passports; machine-readable passports;
 required that  required that al all VWP applicants be checked against lookout systems; VWP applicants be checked against lookout systems;
 required ongoing evaluations of participating countries (not less than once every  required ongoing evaluations of participating countries (not less than once every
five years); five years);
 required the collection of VWP arrival/departure data at air and sea ports of  required the collection of VWP arrival/departure data at air and sea ports of
entry; and entry; and
 required that the calculation of visa refusal rates for determining country  required that the calculation of visa refusal rates for determining country
eligibility eligibility ~~shal~~ shall not include any refusals based on race, sex, or disability.not include any refusals based on race, sex, or disability.~~135~~141
At the time, many maintained that P.L. 106-396 balanced the competing concerns of facilitating At the time, many maintained that P.L. 106-396 balanced the competing concerns of facilitating
travel and tightening immigration controls. 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, shortened the time The USA PATRIOT Act (P.L. 107-56), signed into law on October 26, 2001, shortened the time
frame for frame for al all entrants under the VWP to have machine-readable passports to October 1, 2003, but entrants under the VWP to have machine-readable passports to October 1, 2003, but
~~al owed~~allowed the Secretary of State to waive this requirement until October 1, 2007, if the VWP the Secretary of State to waive this requirement until October 1, 2007, if the VWP
country could show that it was making progress toward issuing machine-readable passports. In country could show that it was making progress toward issuing machine-readable passports. In

~~131~~ 137 Originally, to qualify for the Visa Originally, to qualify for the Visa Waiver Pilot Program countries needed to have had an average nonimmigrant visa Waiver Pilot Program countries needed to have had an average nonimmigrant visa
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 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 visa refusal rate of lessthe criteria that a country could have a nonimmigrant visa refusal rate of less than 3% for the previous year and qualify than 3% for the previous year and qualify
for the program. for the program.
~~132 T he~~138 The 29 countries were: Andorra, Argentina, Australia, Austria, Belgium, 29 countries were: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Brunei, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, ~~Luxembo urg~~Luxembourg, Monaco, the Netherlands, New Zealand, Norway, , Monaco, the Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovenia, Spain,Portugal, San Marino, Singapore, Slovenia, Spain, Sweden,Sweden, Switzerland,Switzerland, the United Kingdom, and Uruguay.the United Kingdom, and Uruguay. Argentina Argentina
waswas removed from the VWP in Februaryremoved from the VWP in February 2002, and Uruguay2002, and Uruguay ~~was~~ was removed in April 2003. From April 2003 until removed in April 2003. From April 2003 until
November 2008, the VWP includedNovember 2008, the VWP included 27 countries. As27 countries. As ~~of March 2020~~ of October 2021, there are , there are 3940 countries participating in the VWP. countries participating in the VWP.
~~133 T he~~139 The Homeland Security Act of 2002 (P.L. 107-296) abolished the Immigration and Naturalization Service (INS) Homeland Security Act of 2002 (P.L. 107-296) abolished the Immigration and Naturalization Service (INS) and and
effective March 1, 2003, transferred most of its functions to three bureaus in the neweffective March 1, 2003, transferred most of its functions to three bureaus in the new Department of Homeland Security Department of Homeland Security
(DHS):(DHS): Citizenship and Immigration Services (USCIS);Citizenship and Immigration Services (USCIS); Immigration and CustomsImmigration and Customs Enforcement (ICE); and, Customs Enforcement (ICE); and, Customs
and Border Protection (CBP). and Border Protection (CBP).
~~134~~140 Parole is a temporary authorization to enter the United States and is Parole is a temporary authorization to enter the United States and is normally granted when the alien’s entry is normally granted when the alien’s entry is
determined to be in the public interest (INA §212(d)(5)(A)). determined to be in the public interest (INA §212(d)(5)(A)).
~~135~~141 Many of these requirements were included Many of these requirements were included to addressto address shortcomings in the program, as identified by the Inspectors shortcomings in the program, as identified by the Inspectors
General of both the Departments of Justice and State. General of both the Departments of Justice and State.
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addition, the USA PATRIOT Act directed the Secretary of State to ascertain, each year until 2007, addition, the USA PATRIOT Act directed the Secretary of State to ascertain, each year until 2007,
that VWP countries had established programs to develop tamper-resistant passports. that VWP countries had established programs to develop tamper-resistant passports.
On September 24, 2003, the Secretary of State extended the deadline for visitors from 21 VWP 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.countries to present a machine-readable passport at the ports of entry until October 26, 2004.~~136~~
142 Enhanced Border Security and Visa Entry Reform Act of 2002
The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act),The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act),~~137~~143
signed into law on May 14, 2002, required signed into law on May 14, 2002, required al all VWP countries to certify that they report in a VWP countries to certify that they report in a
timely manner the theft of blank passports, and required, prior to admission to the United States, timely manner the theft of blank passports, and required, prior to admission to the United States,
that that al all aliens, including those who enter under the VWP, are checked against a lookout system. aliens, including those who enter under the VWP, are checked against a lookout system.
The act also mandated that by October 26, 2004, the government of each VWP country needed to The 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 certify that it has established a program to issue to its nationals machine-readable passports that
are tamper-resistant and incorporate a biometric identifier.are tamper-resistant and incorporate a biometric identifier.~~138~~144 The act specified that any person The act specified that any person
applying for admission to the United States under the VWP must have a tamper-resistant, 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 machine-readable passport with a biometric identifier unless the passport was issued prior to
October 26, 2004. The USA PATRIOT Act established the deadline for October 26, 2004. The USA PATRIOT Act established the deadline for al all foreign nationals foreign nationals
entering under the VWP to have machine-readable, tamper-resistant passports, and the new 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 USArequirement of biometrics in the passports did not change the deadline in the USA PATRIOT Act PATRIOT Act
for the presentation of machine-readable, tamper-resistant passports. The biometric passport for the presentation of machine-readable, tamper-resistant passports. The biometric passport
requirement deadline was extended to October 26, 2005, by P.L. 108-299.requirement deadline was extended to October 26, 2005, by P.L. 108-299.~~139~~145 Thus, as of October Thus, as of October
27, 2005 (the day after the new deadline), 27, 2005 (the day after the new deadline), al all entrants under the VWP were required to present entrants under the VWP were required to present
machine-readable, tamper-resistant passports (as required by the USA PATRIOT Act, and P.L. 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 108-299), but only passports issued after October 26, 2005, were required to have a biometric
identifier. identifier.
Although Congress extended the deadline for VWP countries to certify that they had a program to 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 issue machine-readable passports with biometric identifiers, most VWP countries would have
been unable to meet the new, October 26, 2005, deadline, been unable to meet the new, October 26, 2005, deadline, ~~especial y~~especially if the biometric requirement if the biometric requirement
could only have been could only have been ~~fulfil ed~~fulfilled by countries who had electronic data chips in their passports (e- 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 passports). In addition, there was resistance in Congress to grant another extension of the
biometric deadline.biometric deadline.~~140~~146 As a result, the U.S. government clarified that a digitized photograph 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, printed on a data page in the passport would count as a biometric for the October 26, 2005,
requirement. Only France and Italy were unable to meet the new deadline, but have since come requirement. Only France and Italy were unable to meet the new deadline, but have since come

~~136 T he~~ 142 The 21 countries granted a postponement were: Australia, Austria, Denmark, Finland, France, 21 countries granted a postponement were: Australia, Austria, Denmark, Finland, France, ~~Germ any~~Germany, Iceland, , Iceland,
Ireland, Italy, Japan, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Ireland, Italy, Japan, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain,
Sweden,Sweden, Switzerland,Switzerland, and the United Kingdom. On November 11, 2003, Luxembourg wasand the United Kingdom. On November 11, 2003, Luxembourg was granted an extension of the granted an extension of the
deadline.deadline. Five VWP countries (Andorra, Brunei,Five VWP countries (Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia) wereLiechtenstein, Luxembourg, and Slovenia) were ~~eligible~~ eligible to receive to receive
and extension but didand extension but did not request one becausenot request one because “ “all of their citizens already have machine-readable passports.” Belgium all of their citizens already have machine-readable passports.” Belgium
waswas not eligiblenot eligible to receive an extension, as DOJto receive an extension, as DOJ had already requiredhad already required their citizens to present machine-readable their citizens to present machine-readable
passports as of May 15, 2003 (see passports as of May 15, 2003 (see ~~footnote 36~~).footnote 36). U.S. Department of State, “ U.S. Department of State, “ Machine-Readable Passports for Visa Machine-Readable Passports for Visa
Waiver Program Waiver Program ~~T ravel~~Travel Postponed,” press release, September 23, 2003, at https://2001-2009.state.gov/r/pa/prs/ps/2003/ Postponed,” press release, September 23, 2003, at https://2001-2009.state.gov/r/pa/prs/ps/2003/
24407.htm. 24407.htm.
~~137~~143 P.L. 107-173. The original bill, H.R. 3525, was P.L. 107-173. The original bill, H.R. 3525, was sponsored by Representative F. James Sensenbrenner. sponsored by Representative F. James Sensenbrenner.
~~138 T he~~144 The act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard. act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard.
~~139~~ 145 Signed Signed into law on Augustinto law on August 9, 2004. 9, 2004.
~~140~~146 For example, see letter from Rep. F. James For example, see letter from Rep. F. James Sensenbrenner, Jr., to Luc Frieden, President of the European Counsel of Sensenbrenner, Jr., to Luc Frieden, President of the European Counsel of
Ministers, and Franco Frattini, Vice-President of the European Commission, April 7, 2005. Ministers, and Franco Frattini, Vice-President of the European Commission, April 7, 2005.
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into compliance. In addition, any passports used by VWP travelers issued after October 26, 2006, into compliance. In addition, any passports used by VWP travelers issued after October 26, 2006,
requires integrated chips with information from the data page (e-passports). requires integrated chips with information from the data page (e-passports).
The Intelligence Reform and Terrorism Prevention Act of 2004
P.L. 108-458,P.L. 108-458,~~141 the Intel igence~~147 the Intelligence Reform and Terrorism Prevention Act of 2004, added the 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 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 tamper-resistant, machine-readable visa must 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 documents that incorporate biometric identifiers which are verifiable at the country’s port of
entry. entry.
Implementing the 9/11 Commission Recommendations Act of 2007
Signed into law on August 3, 2007, Section 711 of P.L. 110-53 (H.R. 1) required the Secretary of Signed into law on August 3, 2007, Section 711 of P.L. 110-53 (H.R. 1) required the Secretary of
Homeland Security, no later than one year after enactment, to establish an exit system that records Homeland Security, 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 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 system is required to match the alien’s biometric information against relevant watch lists and
immigration information, and compare such biographical information against manifest immigration information, and compare such biographical information against manifest
information collected by airlines to confirm that the alien left the United States.information collected by airlines to confirm that the alien left the United States.~~142~~148
P.L. 110-53 also P.L. 110-53 also ~~al ows~~allows the Secretary of Homeland Security, in consultation with the Secretary of the Secretary of Homeland Security, in consultation with the Secretary of
State, to waive the nonimmigrant visa refusal rate requirement for admission to the VWP on the State, to waive the nonimmigrant visa refusal rate requirement for admission to the VWP on the
date on which the Secretary of Homeland Security certifies to Congress that an air exit system is date on which the Secretary of Homeland Security certifies to Congress that an air exit system is
in place that can verify the departure of not less than 97% of foreign nationals who exit through in place that can verify the departure of not less than 97% of foreign nationals who exit through
U.S. airports. In addition, the Secretary of Homeland Security also had to certify to Congress that U.S. airports. In addition, the Secretary of Homeland Security also had to certify to Congress that
the electronic travel authorization system (discussed below) was operational, prior to being able the electronic travel authorization system (discussed below) was operational, prior to being able
to waive the nonimmigrant visa refusal rate requirement. to waive the nonimmigrant visa refusal rate requirement.
When P.L. 110-53 took effect, the Secretary of Homeland Security could waive the nonimmigrant When P.L. 110-53 took effect, the Secretary of Homeland Security could waive the nonimmigrant
refusal rate even if the air exit system did not yet incorporate biometric identifiers. However, if refusal rate even if the air exit system did not yet incorporate biometric identifiers. However, if
after June 30, 2009, the air exit system was unable to match an alien’s biometric information with after June 30, 2009, the air exit system was unable to match an alien’s biometric information with
relevant watch lists and manifest information, the Secretary of Homeland Security’s authority to relevant watch lists and manifest information, the Secretary of Homeland Security’s authority to
waive the nonimmigrant visa refusal rate would be suspended until the air exit system had the waive the nonimmigrant visa refusal rate would be suspended until the air exit system had the
specified biometric capacity. specified biometric capacity.
For admission to the VWP, a country who receives a refusal rate waiver also has to For admission to the VWP, a country who receives a refusal rate waiver also has to
 meet  meet al all the security requirements of the program; the security requirements of the program;
 be determined by the Secretary of Homeland Security to have a totality of  be determined by the Secretary of Homeland Security to have a totality of
security risk mitigation measures that provide assurances that the country’s security risk mitigation measures that provide assurances that the country’s
participation in the program would not compromise U.S. law enforcement and participation in the program would not compromise U.S. law enforcement and
security interests, or the enforcement of U.S. immigration laws; security interests, or the enforcement of U.S. immigration laws;
 have had a sustained reduction in visa refusal rates and have existing conditions  have had a sustained reduction in visa refusal rates and have existing conditions
for the rates to continue to decline; for the rates to continue to decline;

~~141 T he original bill,~~ 147 The original bill, H.R. 2845, was sponsored byH.R. 2845, was sponsored by Senator SusanSenator Susan M. Collins and signedM. Collins and signed into law on December 17, into law on December 17,
2004. 2004.
~~142 T his~~ 148 This exit system is not necessarily the same as the exit system required exit system is not necessarily the same as the exit system required for the nonimmigrant visa refusal rate waiver for the nonimmigrant visa refusal rate waiver
authority. DHS appears to have incorporated this requirement as part of the exit portion of automated entry and exit authority. DHS appears to have incorporated this requirement as part of the exit portion of automated entry and exit
data system known as US-VISITdata system known as US-VISIT . .
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 have cooperated with the United States on counterterrorism initiatives and  have cooperated with the United States on counterterrorism initiatives and
information sharing before the date of its designation and be expected to continue information sharing before the date of its designation and be expected to continue
such cooperation; and such cooperation; and
 have, during the previous fiscal year, a nonimmigrant visa refusal rate of not  have, during the previous fiscal year, a nonimmigrant visa refusal rate of not
more than 10%, or an overstay rate that did not exceed the maximum overstay more than 10%, or an overstay rate that did not exceed the maximum overstay
rate established by the Secretaries of Homeland Security and State for countries rate established by the Secretaries of Homeland Security and State for countries
receiving waivers of the nonimmigrant visa refusal rate to participate in the VWP receiving waivers of the nonimmigrant visa refusal rate to participate in the VWP
the program. the program.
P.L. 110-53 also specified that in determining whether to waive the nonimmigrant visa refusal P.L. 110-53 also specified that in determining whether to waive the nonimmigrant visa refusal
rate requirement, the Secretary of Homeland Security, in consultation with the Secretary of State, rate requirement, the Secretary of Homeland Security, in consultation with the Secretary of State,
may take into consideration other factors affecting U.S. security, such as the country’s airport 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 air marshal program, and the security and passport standards, whether the country has an effective air marshal program, and the
estimated overstay rate for nationals from the country. estimated overstay rate for nationals from the country.
In addition, P.L. 110-53 made several changes to the criteria to qualify as a VWP country, which In addition, P.L. 110-53 made several changes to the criteria to qualify as a VWP country, which
were intended to enhance the security of the program. As previously mentioned, the act mandated were intended to enhance the security of the program. As previously mentioned, the act mandated
that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and
implement an electronic travel authorization system,implement an electronic travel authorization system,~~143~~149 through which each alien through which each alien ~~electronical y~~electronically
provides, in advance of travel, the biographical information necessary to determine whether the provides, in advance of travel, the biographical information necessary to determine whether the
alien is eligiblealien is eligible to travel to the United States and enter under the VWP. Aliens using the system to travel to the United States and enter under the VWP. Aliens using the system
are charged a fee that is required to be set at a level so that the cost of creating and administering are charged a fee that is required to be set at a level so that the cost of creating and administering
the system is covered by those fees.the system is covered by those fees.
Furthermore, under P.L. 110-53, to participate in the VWP, countries are required to enter into an 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 agreement with the United States to report or make available through INTERPOL information
about the theft or loss of passports. The agreements must specify strict time limits for the about the theft or loss of passports. The agreements must specify strict time limits for the
reporting of this information. In addition, to be part of the VWP, countries have to accept 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 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 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 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 country traveling to the United States represents a threat to U.S. security or welfare. The act
requires the Secretary of Homeland Security to provide technical assistance to VWP countries to requires the Secretary of Homeland Security to provide technical assistance to VWP countries to
assist the countries in assist the countries in ~~fulfil ing~~ fulfilling the requirements of the program. the requirements of the program.
In addition, P.L. 110-53 requires the Director of National In addition, P.L. 110-53 requires the Director of National ~~Intel igence~~Intelligence to conduct to conduct ~~intel igence~~intelligence
assessments of countries. For new VWP countries, the reviews must occur prior to their assessments of countries. For new VWP countries, the reviews must occur prior to their
designation into the VWP. For existing VWP countries, the reviews should be done in conjunction designation into the VWP. For existing VWP countries, the reviews should be done in conjunction
with the biannual country reviews. with the biannual country reviews.
The act also requires the Director of National The act also requires the Director of National ~~Intel igence~~Intelligence to immediately inform the Secretary of to immediately inform the Secretary of
Homeland Security of any current and credible threat of imminent danger to the United States or Homeland Security 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 its citizens that originates from a VWP country. Upon receiving such notification, the Secretary of
Homeland Security, in consultation with the Secretary of State, may suspend a country from the Homeland Security, in consultation with the Secretary of State, may suspend a country from the
VWP without any prior notice. Once the country’s participation in the VWP no longer poses a VWP without any prior notice. Once the country’s participation in the VWP no longer poses a
security threat, the Secretary of Homeland Security security threat, the Secretary of Homeland Security ~~shal~~ shall reinstate the country in the VWP. reinstate the country in the VWP.

~~143 T he~~ 149 The system as implemented is known as the Electronic System for system as implemented is known as the Electronic System for ~~T ravel~~Travel Authorization ( Authorization (~~EST A~~ESTA). ).
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Obama Administration Initiated VWP Security Enhancements
In August and November 2015, the Obama Administration announced a series of changes to the In August and November 2015, the Obama Administration announced a series of changes to the
VWP to enhance security. Some of the Administration’s changes were codified by the Visa VWP to enhance security. Some of the Administration’s changes were codified by the Visa
Waiver Program Improvement and Terrorist Travel Prevention Act (P.L. 114-113). See below for Waiver Program Improvement and Terrorist Travel Prevention Act (P.L. 114-113). See below for
a full discussion of the legislation. a full discussion of the legislation.
In August 2015, the then-Secretary of Homeland Security Jeh C. Johnson announced an intention In August 2015, the then-Secretary of Homeland Security Jeh C. Johnson announced an intention
to implement new security measures in the VWP.to implement new security measures in the VWP.~~144~~150 Most significant among them were Most significant among them were
 requiring e-passports of  requiring e-passports of al all VWP travelers coming to the United States, VWP travelers coming to the United States,
 requiring VWP countries to use the INTERPOL Stolen and Lost Travel  requiring VWP countries to use the INTERPOL Stolen and Lost Travel
Document (SLTD) database to screen travelers crossing a VWP country’s Document (SLTD) database to screen travelers crossing a VWP country’s
borders, and borders, and
 negotiating for the expanded use of U.S. air marshals on flights from VWP  negotiating for the expanded use of U.S. air marshals on flights from VWP
countries to the United States. countries to the United States.
In November 2015, the Obama Administration announced more changes to the VWP meant to In November 2015, the Obama Administration announced more changes to the VWP meant to
enhance national security. These changes included enhance national security. These changes included
 modifying ESTA to capture information regarding any past travel to countries  modifying ESTA to capture information regarding any past travel to countries
constituting a terrorist safe haven; constituting a terrorist safe haven;
 accelerating the review process for VWP countries;  accelerating the review process for VWP countries;
 requiring, within 60 days, that DHS report to the President on possible pilot  requiring, within 60 days, that DHS report to the President on possible pilot
programs designed to assess the collection and use of biometrics (fingerprints, programs designed to assess the collection and use of biometrics (fingerprints,
photographs, or both) and on any countries that are deficient in key areas of photographs, or both) and on any countries that are deficient in key areas of
cooperation, along with recommended options to engender compliance; cooperation, along with recommended options to engender compliance;
 requiring, within 60 days, that the Federal Bureau of Investigation (FBI) provide  requiring, within 60 days, that the Federal Bureau of Investigation (FBI) provide
an evaluation to the President on the terrorism information sharing that occurs an evaluation to the President on the terrorism information sharing that occurs
between the United States and VWP countries and identify options to mitigate between the United States and VWP countries and identify options to mitigate
any deficiencies; any deficiencies;
 offering assistance to countries to better facilitate terrorism information sharing,  offering assistance to countries to better facilitate terrorism information sharing,
~~specifical y~~specifically to include the use of to include the use of ~~biometrics145~~biometrics151 and deploying “Foreign Fighter and deploying “Foreign Fighter
Surge Teams” to work with countries to counter terrorist travel; and Surge Teams” to work with countries to counter terrorist travel; and
 expanding and promoting the use of the Global Entry program (a trusted traveler  expanding and promoting the use of the Global Entry program (a trusted traveler
program), program),~~146~~152 which includes biometric checks within VWP countries. which includes biometric checks within VWP countries.

~~144~~ 150 Department of Homeland Security, “Statement by Secretary Jeh C. Johnson on Intention to Implement Security Department of Homeland Security, “Statement by Secretary Jeh C. Johnson on Intention to Implement Security
Enhancements to the Visa Waiver Program,” press release, AugustEnhancements to the Visa Waiver Program,” press release, August 6, 2015, https://www.dhs.gov/news/2015/08/06/6, 2015, https://www.dhs.gov/news/2015/08/06/
statementstatement -secretary-jeh-c-johnson-intention-implement-security-enhancements-visa. -secretary-jeh-c-johnson-intention-implement-security-enhancements-visa.
~~145~~ 151 One proposed example of this assistance includes One proposed example of this assistance includes having DHShaving DHS and the FBI’s and the FBI’s ~~T errorist~~Terrorist Screening Center ( Screening Center (~~T SC~~TSC) )
assist interested VWP countries in screening refugeesassist interested VWP countries in screening refugees or asylum seekers, utilizingor asylum seekers, utilizing the terrorism information already the terrorism information already
provided to VWP countries, and by piloting programs to conduct “provided to VWP countries, and by piloting programs to conduct “ near real time” biometric checks. near real time” biometric checks. ~~T he T SC~~The TSC maintains maintains
the U.S. government’s consolidated the U.S. government’s consolidated ~~T errorist~~Terrorist Screening Database often referred to as the Screening Database often referred to as the ~~T errorist~~Terrorist Watchlist. Federal Watchlist. Federal
BureauBureau of Investigation, of Investigation, About the Terrorist Screening Center, https://www.fbi.gov/about-us/nsb/tsc/about, https://www.fbi.gov/about-us/nsb/tsc/about -the--the-
terroristterrorist -screening-center. -screening-center.
~~146~~152 As of July As of July ~~11, 2019~~ 6, 2020, the Global Entry program is available to citizens of Argentina, Australia, Canada, Colombia, , the Global Entry program is available to citizens of Argentina, Australia, Canada, Colombia,
Germany, India, Mexico, NewGermany, India, Mexico, New Zealand, Panama, RepublicZealand, Panama, Republic of Korea (South Korea), Singapore, Switzerland,of Korea (South Korea), Singapore, Switzerland, ~~and~~
~~T aiwan~~ Taiwan, and the United Kingdom (see CBP, (see CBP, Global Entry: International ~~Arrangem ents~~Arrangements, at https://www.cbp.gov/travel/trusted-traveler-programs/, at https://www.cbp.gov/travel/trusted-traveler-programs/
global-entry/international-arrangements). For a discussionglobal-entry/international-arrangements). For a discussion of the Globalof the Global Entry program, see CRSEntry program, see CRS ~~Report R43356,~~
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The Visa Waiver Program Improvement and Terrorist Travel
Prevention Act of 2015
The Visa Waiver Program Improvement and Terrorist Travel Prevention Act (H.R. 158) was The Visa Waiver Program Improvement and Terrorist Travel Prevention Act (H.R. 158) was
passed by the House on December 8, 2015, and enacted as part of the Consolidated passed by the House on December 8, 2015, and enacted as part of the Consolidated
Appropriations Act of 2016 (P.L. 114-113) on December 18, 2015. Appropriations Act of 2016 (P.L. 114-113) on December 18, 2015.
P.L. 114-113 requires, as of April 1, 2016, that P.L. 114-113 requires, as of April 1, 2016, that al all foreign nationals traveling under the VWP foreign nationals traveling under the VWP
present an electronic passport (e-passport) that is fraud resistant and incorporates biographic and present an electronic passport (e-passport) that is fraud resistant and incorporates biographic and
biometric information (as determined by the Secretary of Homeland Security). No later than biometric information (as determined by the Secretary of Homeland Security). No later than
October 1, 2016, each VWP country had to certify that it had in place mechanisms to validate October 1, 2016, each VWP country had to certify that it had in place mechanisms to validate
machine-readable passports and e-passports at each port of entry. This requirement does not apply machine-readable passports and e-passports at each port of entry. This requirement does not apply
to travel between countries within the Schengen Area.to travel between countries within the Schengen Area.~~147~~153
The act also prohibited people who were present in certain countries on or after March 1, 2011, The act also prohibited people who were present in certain countries on or after March 1, 2011,
from traveling under the VWP. The specified countries include from traveling under the VWP. The specified countries include
 Iraq and Syria;  Iraq and Syria;
 any country designated by the Secretary of State as having repeatedly provided  any country designated by the Secretary of State as having repeatedly provided
support for acts of international terrorism under any provision of law, support for acts of international terrorism under any provision of law,~~148~~154 or or
 any other country or area of  any other country or area of ~~concern149~~concern155 deemed appropriate by the Secretary of deemed appropriate by the Secretary of
Homeland Security. Homeland Security.
In addition, anyone who is a dual national of a VWP country and one of these specified countries In addition, anyone who is a dual national of a VWP country and one of these specified countries
is ineligibleis ineligible to travel under the VWP. Importantly, the VWP only applies to foreign nationals to travel under the VWP. Importantly, the VWP only applies to foreign nationals
coming to the United States; it does not impact U.S. citizens, even those with dual nationality. In coming to the United States; it does not impact U.S. citizens, even those with dual nationality. In
other words, dual U.S.-Iranian, U.S.-Iraqi, U.S.-Sudanese, or U.S.-Syrian citizens other words, dual U.S.-Iranian, U.S.-Iraqi, U.S.-Sudanese, or U.S.-Syrian citizens ~~stil~~ still do not do not
need a visa to travel to the United States. If the Secretary of Homeland Security determines that need a visa to travel to the United States. If the Secretary of Homeland Security determines that
the foreign national was in one of the specified countries in order to perform military service in 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 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 does not apply. Similarly,country, the prohibition on traveling under the VWP does not apply. Similarly, P.L. 114-113 gives P.L. 114-113 gives
the Secretary of Homeland Security the authority to waive the prohibition on travel under the the Secretary of Homeland Security the authority to waive the prohibition on travel under the
VWP if the Secretary determines that the waiver would be in the law enforcement or national VWP if the Secretary determines that the waiver would be in the law enforcement or national
security interests of the United States. The Secretary of Homeland Security is required to submit security interests of the United States. The Secretary of Homeland Security is required to submit
an annual report to Congress on each instance where the waiver authority was exercised. an annual report to Congress on each instance where the waiver authority was exercised.
Likewise, P.L. 114-113 amended the lost or stolen passports reporting requirement to require Likewise, P.L. 114-113 amended the lost or stolen passports reporting requirement to require
countries to report lost or stolen passports to the United States or make the information available countries to report lost or stolen passports to the United States or make the information available

Border Security: Im m igration Inspections at Ports of Entry.
~~147 T he Schengen Area enables~~ Report R46783, Trusted Traveler Programs. 153 The Schengen Area enables citizens of the European Union (EU), as wellcitizens of the European Union (EU), as well as many nonas many non -EU nationals, to cross select -EU nationals, to cross select
international borders in Europe without beinginternational borders in Europe without being ~~subject~~ subject to border checks. Seeto border checks. See European Commission, European Commission, Migration and
~~Hom e~~Home Affairs: Schengen Area, November 13, 2015, http://ec.europa.eu/dgs/home-affairs/what, November 13, 2015, http://ec.europa.eu/dgs/home-affairs/what -we-do/policies/borders--we-do/policies/borders-
and-visas/schengen/index_en.htm. and-visas/schengen/index_en.htm.
~~148~~ 154 Examples of acts that use the term “ Examples of acts that use the term “ repeatedly provided support for acts of international terrorism,” include §6(j) of 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 Actthe Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and (22 U.S.C. 2780), and
§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan,§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan, and Syria. and Syria.
~~149 T he~~155 The Secretary of Homeland Security, in consultation with the Director of National Intelligence, is required to make Secretary of Homeland Security, in consultation with the Director of National Intelligence, is required to make
this determination within 60 days of enactment. The criteria to make the determination would includethis determination within 60 days of enactment. The criteria to make the determination would include whether the whether the
presence of a foreign national in that area or country increases the likelihood that the foreign national is a credible 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 threat to U.S. national security, whether a foreign terrorist organization ~~h as~~has a significant presence in the area or country, a significant presence in the area or country,
and whether the country or area is a safe haven for terrorists. and whether the country or area is a safe haven for terrorists.
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through INTERPOL no later than 24 hours after a theft or loss is reported to the VWP country. through INTERPOL no later than 24 hours after a theft or loss is reported to the VWP country.
The act also required, no later than September 13, 2016,The act also required, no later than September 13, 2016,~~150~~156 that each program country with an that each program country with an
international airport certify, to the maximum extend international airport certify, to the maximum extend ~~al owed~~allowed under the under the ~~law s~~laws of the country, that it of the country, that it
is screening each foreign national who is admitted to or departs from that country, using relevant 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 Homeland INTERPOL databases and notices or other means designated by the Secretary of Homeland
Security. Consequently, a country that fails to screen foreign nationals arriving in or departing Security. Consequently, a country that fails to screen foreign nationals arriving in or departing
from that country from that country ~~wil~~ will be terminated from the VWP. This screening requirement does not apply to be terminated from the VWP. This screening requirement does not apply to
those traveling between countries within the Schengen Area. those traveling between countries within the Schengen Area.
P.L. 114-113 also specifies that the HSPD-6 arrangements and PCSC Agreements (discussed in P.L. 114-113 also specifies that the HSPD-6 arrangements and PCSC Agreements (discussed in
“Information Sharing”)) not only have to be signed before a country can be designated as a VWP not only have to be signed before a country can be designated as a VWP
country but have to be fully implemented. If the Secretary of Homeland Security and the country but have to be fully implemented. If the Secretary of Homeland Security and the
Secretary of State jointly determine that the VWP country is not sharing information regarding 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 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 or welfare of the United States or U.S. citizens, the country ~~wil~~ will be terminated from the program. be terminated from the program.
The country The country ~~wil~~ will be redesignated as a program country as soon as it be redesignated as a program country as soon as it ~~fulfil s~~fulfills the information- the information-
sharing requirements. sharing requirements.
The act also requires that DHS report The act also requires that DHS report ~~biennial y~~biennially to Congress on the national security threat posed to Congress on the national security threat posed
by each program country.by each program country.~~151~~157 The Secretary of Homeland Security, in consultation with the The Secretary of Homeland Security, in consultation with the
Director of National Director of National ~~Intel igence~~Intelligence and the Secretary of State, is also required to and the Secretary of State, is also required to ~~annual y~~annually evaluate evaluate
program countries based on specified program countries based on specified ~~criteria152~~criteria158 and to identify any country for which nationals of and to identify any country for which nationals of
that country present a “high risk” to U.S. national security.that country present a “high risk” to U.S. national security.~~153~~159 The Secretary of Homeland The Secretary of Homeland
Security, in consultation with the Secretary of State, can suspend a program country based on a Security, in consultation with the Secretary of State, can suspend a program country based on a
determination that the country presents a high risk to U.S. national security. determination that the country presents a high risk to U.S. national security.
P.L. 114-113 P.L. 114-113 ~~al ows~~allows the Secretary of Homeland Security to shorten the validity period of any the Secretary of Homeland Security to shorten the validity period of any
ESTA determination, in addition to revoking the determination. The Secretary of Homeland ESTA determination, in addition to revoking the determination. The Secretary of Homeland
Security is also required to collect information, through ESTA, on an applicant’s previous or Security is also 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 multiple citizenships and to research opportunities to incorporate into ESTA technology to detect
and prevent fraud or deception.and prevent fraud or deception.
The act also requires DHS to report The act also requires DHS to report ~~annual y~~annually on the number of individuals (identified by on the number of individuals (identified by
citizenship) who were denied eligibilitycitizenship) who were denied eligibility to travel under ESTA or whose eligibilityto travel under ESTA or whose eligibility to travel was to travel was
revoked because they were determined to represent a security threat to the United States.revoked because they were determined to represent a security threat to the United States.~~154~~
~~Additional y,~~ 160 Additionally, DHS was required to report within 30 days from December 18, 2015, on ways to DHS was required to report within 30 days from December 18, 2015, on ways to
strengthen the ability of ESTA to prevent terrorists and instruments of terrorism from entering the strengthen the ability of ESTA to prevent terrorists and instruments of terrorism from entering the
United States. United States.
The act requires DHS, in consultation with the Department of State, to provide assistance, in a The act requires 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 risk-based manner, to non-VWP countries to assist the countries in submitting information on lost

~~150 T his~~ 156 This is 270 days after the enactment of P.L. 114-113. is 270 days after the enactment of P.L. 114-113.
~~151 T he~~157 The first of such reports would first of such reports would be duebe due 90 days90 days after the bill isafter the bill is enacted. enacted.
~~152 T he~~158 The criteria include the number of nationals determined to be ineligible criteria include the number of nationals determined to be ineligible to travel to the United States under the VWP to travel to the United States under the VWP
duringduring the previous year; the number of nationals who werethe previous year; the number of nationals who were identified in U.S.identified in U.S. government terrorism databases during government terrorism databases during
the previous year, the estimated number of nationals who traveled to Iraq or Syriathe previous year, the estimated number of nationals who traveled to Iraq or Syria since March 1, 2011since March 1, 2011 , to engage in , to engage in
terrorism; the country’s capacity to combat passport fraud; the level of cooperationterrorism; the country’s capacity to combat passport fraud; the level of cooperation with U.S. counter-terrorism efforts; with U.S. counter-terrorism efforts;
the adequacythe adequacy of the country’s border and immigration controls; and any other criteria determined by the Secretary of the country’s border and immigration controls; and any other criteria determined by the Secretary ~~o f~~of
Homeland Security. Homeland Security.
~~153 T he~~159 The first report would be due first report would be due 60 days60 days after enactment. after enactment.
~~154 T he~~160 The first report would be due first report would be due 30 days30 days after enactment. after enactment.
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or stolen travel documents to INTERPOL and issuing and validating e-passports at ports of entry. or stolen travel documents to INTERPOL and issuing and validating e-passports at ports of entry.
The act also contained Sense of Congress language that the International Civil Aviation The act also contained Sense of Congress language that the International Civil Aviation
Organization (ICAO)Organization (ICAO)~~155~~161 is expected to establish standards for e-passports and obligate the 191 is expected to establish standards for e-passports and obligate the 191
~~member countries to utilize e-passports as soon as possible.~~
member countries to utilize e-passports as soon as possible. Further Consolidated Appropriations Act of 2020 The Further Consolidated Appropriations Act of 2020 (P.L. 116-94) extended the authority for Brand USA, a public-private travel promotion entity, to receive fees from the VWP through the end of September 2027 and raises the ESTA fee, as described above in “Electronic System for Travel Authorization (ESTA).” The private sector still must provide at least $100 million per year in in-kind contributions and cash to the Brand USA program in order for it to receive these federal funds. The effective date of the new ESTA fee has not yet been announced.
Author Information

Abigail F. Kolker Abigail F. Kolker

Analyst in Immigration Policy Analyst in Immigration Policy

Acknowledgments
This report was previously authored by former CRS analyst Alison Siskin. This report was previously authored by former CRS analyst Alison Siskin.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should under the direction of Congress. Information in a CRS Report should ~~n ot~~not be relied upon for purposes other be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material. copy or otherwise use copyrighted material.

~~155 T he~~ 161 The International Civil Aviation Organization (ICAO) is a United Nations specialized agency established International Civil Aviation Organization (ICAO) is a United Nations specialized agency established to manage to manage
the administration and governance of the Convention on International Civil Aviation.the administration and governance of the Convention on International Civil Aviation. ~~T he~~ The ICAO works with ICAO works with
Convention Member States and industry groups to reach consensus Convention Member States and industry groups to reach consensus ~~o n~~on international civil aviation standards and international civil aviation standards and
practices. International Civil Aviation Organization, practices. International Civil Aviation Organization, About ICAO, at https://www.icao.int/about-icao/Pages/, at https://www.icao.int/about-icao/Pages/
default.aspx. default.aspx.
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