Visa Waiver Program

Visa Waiver Program
October 12, 2021
The Visa Waiver Program (VWP), originally established in 1986 as a trial program and made
permanent in 2000 (P.L. 106-396), allows nationals from 40 countries, many of which are in
Abigail F. Kolker
Europe, to enter the United States as temporary visitors (nonimmigrants) for business or pleasure
Analyst in Immigration
without first obtaining a visa. Generally, temporary visitors for business or pleasure 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
travel documents, requires information sharing between the member countries and the United States on criminal and security
concerns, and mandates reporting of lost and stolen travel documents. VWP travelers have to present 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. 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 biographic, 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
before embarking for the United States.
There is also interest in the VWP as a mechanism to promote tourism and commerce. In FY2019, there were more than 22.9
million admissions to the United States under this program, constituting nearly a third (31%) of all temporary visitor
admissions. The inclusion 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
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
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
United States by its inclusion in the program. Countries can be terminated from the VWP if they fail to meet any of these
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-
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
(US-VISIT) 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
law enforcement and security databases, before they can board a plane to the United States.
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
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.
Recent legislative activity is discussed at the end of the report.

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Contents
Introduction ..................................................................................................................................... 1
Current Policy .................................................................................................................................. 1

VWP Qualifying Criteria........................................................................................................... 5
Nonimmigrant Visa Refusal Rate Waiver ................................................................................. 7
Electronic System for Travel Authorization .............................................................................. 8
Arrival and Departure Inspections .......................................................................................... 10
Trends in Use of the VWP ...................................................................................................... 12
Policy Issues .................................................................................................................................. 13
Security ................................................................................................................................... 13
Debate over Biometric Exit Capacity ............................................................................... 15
Information Sharing .......................................................................................................... 15
Terrorism, Foreign Fighters, and the VWP ....................................................................... 16
Adding Countries to the VWP ................................................................................................ 17
EU and Reciprocity ........................................................................................................... 19
Overstays ................................................................................................................................. 19
Selected Legislative Activity ......................................................................................................... 20

Figures
Figure 1. Number of Visa Waiver Program (VWP) Admissions, FY2010-FY2019, and
Percentage of Visitor Admissions That Were VWP ................................................................... 12

Appendixes
Appendix. Legislative History and Selected Administrative Action ............................................. 22

Contacts
Author Information ........................................................................................................................ 30


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Introduction
The Visa Waiver Program (VWP) allows 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.
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
the United States.
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
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
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
Critics of the program argue the VWP creates a security loophole because VWP travelers do not
undergo the in-person screening generally required to receive a visa.4
Current Policy
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
States.6 Personal interviews are generally required, and consular officers use the Consular
Consolidated Database (CCD) to screen visa applicants. The CCD indicates the outcome of any
prior visa application of the alien and facilitates the flagging of issues that may make the alien
ineligible for a visa under the grounds of inadmissibility of the Immigration and Nationality Act
(INA), which include criminal, terrorist, and public health grounds. Consular officers are required
to check the background of all aliens in the “lookout” databases, including the Consular Lookout
and Support System (CLASS) and TIPOFF databases.

1 The two exceptions are Canada and Bermuda; 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,
Bureau of Consular Affairs, Citizens of Canada and Bermuda, at https://travel.state.gov/content/travel/en/us-visas/
tourism-visit/citizens-of-canada-and-bermuda.html.
2 See CRS Report R46300, Adding Countries to the Visa Waiver Program: Effects on National Security and Tourism.
3 For an example of this argument, see Riley Walter, The Visa Waiver Program Is Still Great For America, The
Heritage Foundation, Issue Brief #4273, March 14, 2017, at https://www.heritage.org/sites/default/files/2017-03/
IB4664.pdf.
4 For an example of this argument, see Federation for American Immigration Reform (FAIR), The Visa Waiver
Program: Suspend It or Eliminate It
, December 2015, at https://www.fairus.org/issue/legal-immigration/visa-waiver-
program-suspend-it-or-eliminate-it.
5 Nonimmigrants 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
Nationality Act (INA §101(a)(15)), such as H-2A agricultural workers, F-1 foreign students, or J-1 cultural exchange
visitors. B nonimmigrant visas are issued to short-term visitors for business or pleasure. For more information, see CRS
Report R45040, Immigration: Nonimmigrant (Temporary) Admissions to the United States.
6 To obtain a nonimmigrant visa, a foreign national must submit an application and undergo a background check and
usually an interview. For more information on temporary admissions, see CRS Report R45040, Immigration:
Nonimmigrant (Temporary) Admissions to the United States
.
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Eligible 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
embarking to the United States. ESTA authorization is generally valid for two years. VWP
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
may be admitted into the United States without a valid visa. As of October 2021, there were 40
countries participating in the VWP.8
The large-scale terrorist attacks in Paris in November 2015 and in Belgium in March 2016, which
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
and Terrorist Travel Prevention Act (P.L. 114-113), all nationals from a VWP country were
eligible to travel under the program—provided they received an ESTA approval. P.L. 114-1139
changed eligibility 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
include
 Iraq and Syria,
 any country designated by the Secretary of State as having repeatedly provided
support for acts of international terrorism under any provision of law,10 or
 any other country or area of concern11 deemed appropriate by the Secretary of
Homeland Security.12
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.
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
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

7 ESTA became operational for all VWP countries on January 12, 2009; for more information, see “Electronic System
for 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 Croatia for the Visa Waiver Program,” 86 Federal Register 54029,
September 30, 2021.
9 For more details about P.L. 114-113, see Appendix.
10 Examples of acts that use the term “repeatedly provided support for acts of international terrorism,” include §6(j) of
the Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and
§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan, and Syria.
11 The criteria to make the determination would include whether the presence of a foreign national in that area or
country increases the likelihood that the foreign national is a credible threat to U.S. national security, whether a foreign
terrorist organization has a significant presence in the area or country, and whether the country or area is a safe haven
for terrorists. DHS has designated the Democratic People’s Republic of Korea, Libya, Somalia, and Yemen as
“countries or areas of concern.”
12 The Secretary of Homeland Security administers the VWP program. Section 402 of the Homeland Security Act of
2002 (HSA; P.L. 107-296), signed into law on November 25, 2002, states:
The Secretary [of Homeland Security], acting through the Under Secretary for Border and
Transportation Security, shall be responsible for the following: ... (4) Establishing and
administering rules, ... governing the granting of visas or other forms of permission, including
parole, to enter the United States to individuals who are not a citizen or an alien [sic] lawfully
admitted for permanent residence in the United States.
13 8 U.S.C. §1187(a)(12)(C).
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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
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)
individuals 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
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
Republic of Korea, Iran, Iraq, Sudan, or Syria is ineligible to travel under the VWP. As with the
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
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
dual nationals.16 DHS reports on these waivers to Congress annually, but these reports are not
available to the public.

14 On July 14, 2015, Iran and the six powers that have negotiated with Iran about its nuclear program since 2006 (the
United States, the United Kingdom, France, Russia, China, and Germany) finalized a Joint Comprehensive Plan of
Action (JCPOA). The JCPOA is intended to ensure that Iran’s nuclear program can be used for purely peaceful
purposes, in exchange for a broad lifting of U.S., European Union (EU), and United Nations (U.N.) sanctions on Iran.
On May 8, 2018, President Trump announced that the United States would no longer participate in the JCPOA. On
January 5, 2020, Iran declared it would no longer abide by the limitations of the deal. For more on the JCPOA, see CRS
Report R43333, Iran Nuclear Agreement and U.S. Exit.
15 There is no separate application for a waiver. A foreign national’s eligibility for a waiver is determined during the
ESTA application process. U.S. Customs and Border Protection, Visa Waiver Program Improvement and Terrorist
Travel Prevention Act Frequently Asked Questions
, at https://www.cbp.gov/travel/international-visitors/visa-waiver-
program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq, accessed November 13, 2019.
16 For a discussion of some of the issues surrounding implementing the dual national provision, see Nahal Toosi,
“Obama Aides Vexed by Visa Crackdown,” Politico, 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/.
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Visa Waiver Program Countries
(as of October 2021)
Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco,
the Netherlands, New Zealand, Norway, Poland, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea,
Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

Source: CRS
Although the VWP allows 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
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
except for emergency reasons and then for only 30 days.18 Additionally, with some limited
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
without any judicial recourse or review (except in asylum cases).19

17 Noncitizens entering on B visas may be admitted for six months, and may apply to extend their stay for another six
months.
18 This provision was amended by P.L. 106-406 to provide exceptions for nonimmigrants who enter under the VWP
and require medical treatment.
19 To receive asylum, a foreign national must demonstrate a well-founded fear of persecution in his or her home
country based on one of five grounds—race, religion, nationality, membership in a particular social group, or political
opinion—and meet other requirements. For more on asylum, see CRS Report R45539, Immigration: U.S. Asylum
Policy
.
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VWP Qualifying Criteria
To qualify for the VWP, a country must
 offer reciprocal privileges to United States citizens;
 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;
 issue electronic, machine-readable passports that contain a biometric identifier
(i.e., e-passports);21
 issue tamper-resistant, machine-readable visa documents that incorporate
biometric identifiers, which are verifiable at the country’s port of entry;
 certify that it has in place mechanisms to validate machine-readable passports
and e-passports at each port of entry;22
 enter into an agreement with the United States to report or make available
through the International Criminal Police Organization (INTERPOL)23
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
 certify, to the maximum extent allowed under the laws of the country, that it is
screening each foreign national who is admitted to or departs from that country,
using relevant INTERPOL databases and notices, or other means designated by
the Secretary of Homeland Security (this requirement applies only to countries
that have an international airport);25
 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
after the order is issued;

20 This rate represents the proportion of individuals whose applications for tourist or business visas have been rejected
by U.S. 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
contain a biometric identifier. In August 2015, the Secretary of Homeland Security announced that to increase security
of the VWP all travelers under the program would have to use an e-passport, but the requirement had not been put into
effect before the enactment of P.L. 114-113. Department of Homeland Security, “Statement by Secretary Jeh C.
Johnson on Intention to Implement Security Enhancements to the Visa Waiver Program,” press release, August 6,
2015, at https://www.dhs.gov/news/2015/08/06/statement-secretary-jeh-c-johnson-intention-implement-security-
enhancements-visa; and telephone conversation with DHS Office of Legislative Affairs, November 3, 2015.
22 This requirement was added by P.L. 114-113, and does not apply to travel between countries within the Schengen
Area, which comprises 22 European Union (EU) member states, plus 4 non-EU countries. Within the Schengen Area,
internal border controls have been largely eliminated, and individuals may travel without passport checks among
participating countries. See European Commission, Migration and Home Affairs: Schengen Area, at
http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm.
23 Although statute discusses sharing information on lost and stolen passports, the INTERPOL database includes other
types of travel documents such as identity documents and visas. INTERPOL is the world’s largest international police
organization, with 194 member countries. For more information on INTERPOL see, https://www.interpol.int/Who-we-
are/What-is-INTERPOL.
24 P.L. 114-113 added the requirement that the reporting occur within 24 hours of the country being notified about the
lost/stolen passport.
25 This screening requirement was added by P.L. 114-113, and does not apply to those traveling between countries
within the Schengen Area.
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 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
States represents a threat to U.S. security or welfare; and
 be determined, by the Secretary of Homeland Security, in consultation with the
Secretary of State, not to compromise the law enforcement or security interests of
the United States by its inclusion in the program.
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
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
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
December 2001,29 and the increase in the number of Argentine nationals attempting to use the
VWP to enter the United States and remain illegally past the 90-day period of admission,30
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
number of Uruguayan citizens entering the United States under the VWP to live and work
illegally.32 No country has been removed from the VWP since 2003.
Additionally, there is a probationary status for VWP countries that do not maintain a low
disqualification rate.33 VWP countries are placed on probation when they have a disqualification

26 The requirement to implement the agreement was added by the Visa Waiver Improvement and Terrorist Travel
Prevention Act of 2015 (P.L. 114-113), enacted on December 18, 2015.
27 The criteria to determine whether a country poses a “high risk” to national security include the number of nationals
determined to be ineligible to travel to the United States under the VWP during the previous year; the number of
nationals who were identified in U.S. government terrorism databases during the previous year, the estimated number
of nationals who traveled to Iraq or Syria since March 1, 2011, to engage in terrorism; the country’s capacity to combat
passport fraud; the level of cooperation with U.S. counter-terrorism efforts; the adequacy of the country’s border and
immigration controls; and any other criteria determined by the Secretary of Homeland Security.
28 An emergency is defined as (1) the overthrow of a democratically elected government; (2) war; (3) a severe
breakdown in law and order in the country; (4) a severe economic collapse; and (5) any other extraordinary event in the
program country where that country’s participation could threaten the law enforcement or security interests of the
United States. INA §217(c)(5)(B).
29 Beginning in December 2001, Argentina experienced a serious economic crisis, including defaulting on loans by
foreign creditors, devaluation of its currency, and increased levels of unemployment and poverty.
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 pursuing an asylum claim in Canada. According to Citizenship and
Immigration Canada, between 1999 and 2001, more than 2,500 Argentines filed refugee claims in Canada after
transiting the United States under the VWP. Federal Register, February 21, 2002, vol. 67, no. 35, p. 7944.
31 While the number of Argentine nonimmigrant travelers to the United States declined between 1998 and 2000, the
number of Argentines denied admission at the port of entry and the number of interior apprehensions increased. The
Department of Justice (DOJ) in consultation with DOS determined that Argentina’s participation in the VWP was
inconsistent with the United States’ interest in enforcing its immigration laws. (The Department of Homeland Security
did not exist in February 2002, and authority for the VWP resided with the Attorney General in the DOJ.) Federal
Register,
February 21, 2002, vol. 67, no. 35, pp. 7943-7945.
32 Between 2000 and 2003, Uruguay experienced a recession causing its citizens to enter under the VWP to live and
work illegally in the United States. In 2002, Uruguayan nationals were two to three times more likely than all
nonimmigrants on average to have been denied admission at the 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. Federal
Register
, March 7, 2003, vol. 68, no. 45, pp. 10954-10957.
33 Disqualification rate is defined as the percentage of nationals from a country who either violated the terms of the
nonimmigrant visa, who were excluded from admission 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
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 more time is necessary to determine whether the continued participation of the country in the
VWP is in the security interest of the United States. For example, in April 2003, Belgium was
placed on provisional status because of concerns about the integrity of nonmachine-readable
Belgian passports and the reporting of lost or stolen passports.36 DHS completed another country
review of Belgium in 2005 and removed the country from probationary status. Belgium was the
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.
110-53)37 allows 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
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 U.S. airports,38 and
 the electronic travel authorization system is operational.39
To participate in the program, a country that receives a visa refusal rate waiver also must
 meet all the other requirements of the program;
 be determined by the Secretary of Homeland Security to have a totality of
security risk mitigation measures that provide assurances that the country’s
participation in the program would not compromise U.S. law enforcement and
security interests, or the enforcement of U.S. immigration laws;

application for admission at a U.S. port of entry (8 U.S.C. §1187(f)(4)).
34 8 U.S.C. §1187(h)(3)(C).
35 The 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
Designations of Belgium, Italy, Portugal, and Uruguay as 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.
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
Appendix.
38 There was disagreement between some critics and DHS regarding what needed to be verified. Some contended that
congressional intent was to have a functional entry-exit system that would be able to match arrival and departure
records and know which aliens failed to depart from the United States rather than just matching the entry records with
the records of those who were known to have departed from the United States. For example, see S. 203 introduced in
the 111th Congress, which attempted to clarify the language in this provision. U.S. Congress, Senate Committee on
Judiciary, Subcommittee on Terrorism, Technology and Homeland Security, The Visa Waiver Program: Mitigating
Risks to Ensure Safety to All Americans
, 110th Cong., 2nd sess., September 24, 2008.
39 DHS determined that the law permitted it to utilize the waiver when ESTA was functional but before it was
mandatory for all VWP travelers. Critics did not agree with this interpretation and thought that ESTA should have been
mandatory for all VWP travelers before new countries were designated into the program. When the new countries
entered the program, their citizens were required to use ESTA before travelling to the United States. U.S. Government
Accountability Office, Visa Waiver Program: Actions Are Needed to Improve Management of the Expansion Process,
and to Assess and Mitigate Program Risks,
GAO-08-967, September 2008.
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 have had a sustained reduction in visa refusal rates, and have existing conditions
for the rates to continue to decline;
 have cooperated with the United States on counterterrorism initiatives and
information sharing before the date of its designation, and be expected to
continue such cooperation; and
 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
established by the Secretaries of DHS and DOS for countries receiving waivers
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
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
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
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
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
exit systems across the country; their goal is to deploy biometric exit at 20 airports by 2022,
which would capture 97% of all 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
of State, develop and implement an electronic travel authorization system through which each
alien electronically provides, in advance of travel, the biographical information necessary to
determine whether the alien is eligible to travel to the United States and enter under the VWP.
The system as implemented is known as the Electronic System for Travel Authorization (ESTA)
and became fully operational for all VWP visitors traveling to the United States on January 12,

40 Section 110 IIRIRA, as amended, requires DHS to implement an automatic, biometric entry-exit system that covers
all noncitizen travelers into and out of the United States and that identifies visa overstayers. For more information, see
“Debate over Biometric Exit Capacity,” below.
41 Department of Homeland Security, Transportation Security Administration and U.S. Customs and Border
Protection: Deployment of Biometric Technologies,
Report to Congress, August 30, 2019, p. 5, at https://www.tsa.gov/
sites/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
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,
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
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 still travel to the US but must obtain the
relevant visa. The information required by ESTA includes
biographical information including name, birth date, country of citizenship,
other citizenships (i.e., dual citizenship), previous citizenships, country of
residence, telephone number, other names/aliases, parents’ names, national
identification number (if applicable), employment information (if applicable),
city of birth;47
passport information including number, issuing country, issuance date, and
expiration date; and
travel information including departure city, flight number, U.S. contact
information, and address while in the United States.48
Eligibility 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
system continually 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,
Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea) had to use the system starting on the date of
their formal admission to the program. For all the countries except Malta, that date was November 17, 2008. Malta was
formally designated into the VWP on December 30, 2008. Department of Homeland Security, “Electronic System for
Travel Authorization (ESTA) Advisory Statement,” November 6, 2008. Department of Homeland Security, “Electronic
System for Travel Authorization: Mandatory Compliance Required for Travel Under the Visa Waiver Program,” 73
Federal Register 67354, November 13, 2008.
43 The fee was instituted on September 8, 2010. The $14 fee includes $4 to cover the costs of administering ESTA and
$10 for the travel promotion fee established by Congress in the Travel Promotion Act of 2009 (§9 of P.L. 111-145) and
extended until September 30, 2020, by Title VI of P.L. 113-235. (Department of Homeland Security, Customs and
Border Protection, “DHS, CBP Announce Interim Final Rule For ESTA Fee,” press release, August 6, 2010).
44 P.L. 116-94, Division I, Title VIII reduces the amount available for travel promotion to $7 per traveler. Of the
remainder, $4 will continue to go to CBP to cover the costs of administering ESTA, and $10 will be directed to the U.S.
Treasury for the general fund. Title VIII of P.L. 116-94 further extended it until September 30, 2027.
45 TECS, managed by DHS, is an updated version of the Treasury Enforcement Communications System.
46 In most cases, the determination process is almost instantaneous. Under statute, ESTA determinations are not
reviewable by the courts.
47 In November 2014, DHS added new questions to ESTA in response to security concerns. Department of Homeland
Security, Customs and Border Protection, ESTA - New questions to the ESTA application, CBP INFO Center,
Washington, DC, November 3, 2014, 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
requirement that nationals be queried about multiple and previous citizenships.
48 Much of the information is the same that is required on the nonimmigrant visa waiver arrival/departure form (Form I-
94W). According to DHS, when developing ESTA, the department had to balance the need for biographic information
with the requirement that the participating countries did not view applying for an approval under ESTA as equivalent to
applying for a visa. If countries had interpreted applying for an authorization under ESTA as having the same burden as
applying for a visa, these countries might have required that U.S. citizens traveling to their countries obtain a visa.
49 Under statute, the maximum period of time is set in regulation by the Secretary of Homeland Security but cannot
exceed three years.
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The Secretary of Homeland Security has the authority to shorten or revoke the determination of
eligibility at any time.50 Notably, a determination under ESTA that an alien is eligible to travel to
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 all visa
holders).
Arrival and Departure Inspections
Unlike 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,
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
all airline and commercial vessels departing from a foreign country destined for a U.S. port of
entry. This manifest is checked against security databases.
Since October 1, 2002, passenger arrival and departure information on individuals entering and
leaving the United States under the VWP has been electronically collected from airlines and
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
well 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
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.
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
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
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.
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

50 The provision giving the Secretary of Homeland Security the authority to shorten an ESTA validity period was
enacted as part of P.L. 114-113.
51 APIS is required pre-departure (i.e., before securing the doors) for all air carrier flights to and from the United States.
For inbound cruise ships the data must be received 96 hours before arrival at a U.S. port, and for cruise ships leaving
the United States, the data must be transmitted 60 minutes before departure. For private aircraft, a passenger and crew
manifest listing all persons traveling on the aircraft must be sent electronically using the online eAPIS system at least
one hour prior to departure for an inbound or outbound international flight.
52 The transmission, retention policies, data security, and redress procedures pertaining to APIS data (and other
Passenger Name Record data) received by CBP is to comport with the US/EU Passenger Name Record Agreement. For
more information, see CRS Report RS22030, U.S.-EU Cooperation Against Terrorism.
53 ADIS feeds information to the Interagency Border Inspection System (IBIS). IBIS is a database of suspect
individuals, businesses, vehicles, aircraft, and vessels that is used during inspections at the border. IBIS interfaces with
the FBI’s National Crime Information Center (NCIC), the Treasury Enforcement and Communications System (TECS
II), National Automated Immigration Lookout System (NAILS), Non-immigrant Information System (NIIS), CLASS
and TIPOFF terrorist databases. Because of the numerous systems and databases that interface with IBIS, the system is
able to obtain such information as an alien’s criminal history and whether an alien is wanted by law enforcement.
Department of Homeland Security, Customs and Border Protection, IBIS- General Information, Washington, DC, July,
31, 2013.
54 For more information on US-VISIT, see CRS 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,
passport number, country of issuance, a digital photograph, and prints for both index finders.
Primary inspections are typically 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
secondary inspection. Those travelers sent to secondary inspections are questioned extensively,
travel documents are further examined, and additional databases are queried.55
Additionally, 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
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
biometric information against relevant watch lists and immigration information, and compare
such biographical information against manifest information collected by airlines to confirm that
the alien left the United States.
In April 2008, DHS published a Notice of Proposed Rulemaking in the Federal Register that
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
legislation 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
biometric programs, CBP, in partnership with the Transportation Security Administration (TSA),
is currently deploying the Traveler Verification Service (TVS).60 TVS is a private-public
partnership61 that uses facial recognition technology to verify travelers’ identities. DHS in January
2020 reported TVS capturing roughly 60%62 of in-scope travelers.63 CBP’s goal is to deploy TVS
at 20 airports by 2022, which would capture 97%64 of all commercial air travelers departing the
United States.65
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

Entry.
55 For more information on the screening process, see CRS 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
Sea Ports of Departure,” 73 Federal Register 22065, April 24, 2008.
57 CRS analyst conversation with Department of Homeland Security Congressional Affairs, September 22, 2008.
58 P.L. 110-329.
59 One pilot tested DHS’s recommended solution that carriers collect biometrics from passengers; the other pilot tested
CBP officers collecting passenger biometrics at the boarding gate.
60 For more information, see CRS In Focus IF11634, Biometric Entry-Exit System: Legislative History and Status.
61 Private partners include airports and airlines.
62 Based on CRS discussion with CBP officials on January 30, 2020.
63 In-scope travelers include non-U.S. citizens aged 14-79.
64 This would fulfill the final requirement needed to reinstate the nonimmigrant visa refusal rate waiver.
65 Department of Homeland Security, Transportation Security Administration and U.S. Customs and Border
Protection: Deployment of Biometric Technologies,
Report to Congress, August 30, 2019, p. 5, at https://www.tsa.gov/
sites/default/files/biometricsreport.pdf.
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border would be counted as an exit in U.S. records.66 This is part of the joint Beyond the Border
initiative,67 which is currently in Phase III of implementation.68
Figure 1. Number of Visa Waiver Program (VWP) Admissions, FY2010-FY2019, and
Percentage of Visitor Admissions That Were VWP

Source: CRS analysis of data from Department of Homeland Security, Yearbook of Immigration Statistics, multiple
years; Table 25.
Note: Number of countries participating in the VWP at the end of the fiscal year:
FY2010-FY2012, 36; FY2013, 37; FY2014-FY2019, 38. Temporary visitor admissions count those who entered
with B visas, those who entered under the Guam Visa Waiver Program, and those who entered under the VWP.
Trends in Use of the VWP
Arrivals of international visitors to the United States have generally increased in most years over
the past decade. International visitors to the United States increased from 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 COVID-19 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 of David F. Heyman, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration
Policy and Enforcement, Next Steps for the Visa Waiver Program, 112th Cong., 1st sess., December 7, 2011. For more
on this agreement, see CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry .
67 The White House, “Declaration by President Obama and Prime Minister Harper of Canada - Beyond the Border,
press release, February 4, 2011, at https://obamawhitehouse.archives.gov/the-press-office/2011/02/04/declaration-
president-obama-and-prime-minister-harper-canada-beyond-bord.
68 For more information, see Department of Homeland Security, “Beyond the Border: A Shared Vision for Perimeter
Security and Economic Competitiveness” at https://www.dhs.gov/beyond-border.
69 Department of Homeland Security, Yearbook of Immigration Statistics, multiple years; 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
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under the VWP steadily increased. In FY2019, there were 22.9 million admissions under the
VWP, the largest number ever under the program. However, from FY2010 to FY2016, the
proportion of total visitor admissions represented by VWP admissions declined.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 United States, the smallest percentage in more than 20 years.
Policy Issues
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
for business and pleasure, which results in increased economic growth generated by foreign
tourism and commerce for the United States.73
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,
allowing for streamlined operations, cost savings, and concentration of resources on greater-risk
nations in the visa process.74 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.75
While there tends to be agreement that the VWP benefits the U.S. economy by facilitating
legitimate travel, there is disagreement on the VWP’s impact on national security, with some
arguing that the VWP presents a significant security risk and others arguing that it enhances
national security.
Security
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 generally
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
Automated Biometric Identification System (IDENT) and FBI’s Next Generation Identification
(NGI).76 While VWP travelers are not checked against these systems before boarding a plane or

Program, and those who entered under the VWP.
72 Visitor admissions from large, non-VWP countries have increased during this period, thereby reducing the
proportion of VWP visitor admissions to the United States. For example, in 2018, Brazil, China, and India were among
the top 10 overseas countries by visitor volume and accounted for 6.5 million visitors to the United States that year.
(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).
73 For more information, see CRS Report R46300, Adding Countries to the Visa Waiver Program: Effects on National
Security and Tourism
.
74 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, The Visa Waiver Program:
Implications for U.S. National Security
, Testimony of Edward J Ramotowski, Deputy Assistant Secretary for Visa
Services, U.S. Department of State, 114th Cong., 1st sess., March 12, 2015.
75 For example, in his testimony before the House Immigration and Claims Subcommittee on February 28, 2002,
William S. Norman, President and Chief Executive Officer of the Travel Industry Association of America, stated that it
would take hundreds of new consular staff and tens of millions of dollars to issue visas to visitors currently entering
under the VWP. Since Mr. Norman testified, the number of people entering under the VWP has increased by more than
5 million entrants per year.
76 IDENT is the primary DHS-wide system for the biometric identification and verification of individuals encountered
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ship, they are checked against these systems through US-VISIT when they are at a U.S. port of
entry.77 In addition, some contend that the relaxed documentary requirements of the VWP
increase immigration fraud and decrease security.78
Others argue that the VWP enhances security by setting standards for travel documents and
information sharing.79 For example, all travelers entering under the VWP must present e-
passports, which tend to be more difficult to alter than other types of passports.80 Unlike ESTA
authorization, many B visas are valid for 10 years81 and are not continuously vetted.82
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
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.83 In a review 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
congressionally mandated two-year reporting cycle.84 A Government Accountability Office
(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
then, DHS has made progress in meeting the mandated two-year reporting cycle.85

in DHS mission-related processes. NGI is a DHS-wide system for the storage and processing of biometric and limited
biographic information. For more information on IDENT, see Department of Homeland Security, Privacy Impact
Assessment for the Automated Biometric Identification System (IDENT)
, 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 Federal Bureau of
Investigation, Next Generation Identification (NGI), at https://www.fbi.gov/services/cjis/fingerprints-and-other-
biometrics/ngi.
77 CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry.
78 For an example of this argument, see “Congressman Claims Allowing Poland Visa-Free Travel to the US Would
Pose Security Threat,” workpermit.com, June 20, 2012, at http://www.workpermit.com/news/2012-06-20/us/
congressman-claims-allowing-poland-visa-free-travel-to-us-would-pose-security-threat.htm.
79 For an example of this argument, see Heritage Foundation, The Visa Waiver Program: A Security Partnership, Fact
Sheet #66, Washington, DC, June 25, 2010.
80 There is not a specific requirement to present an e-passport when entering under the VWP. Any passports issued after
October 26, 2006, and used by VWP travelers to enter the United States are required to have integrated chips with
information from the data page (i.e., e-passports). Most passports are valid for 10 years, and thus, it is likely that by
October 2016, all VWP entrants had e-passports.
81 The length of validity of a visa is mostly dependent on reciprocity with the United States (i.e., that visas from that
country for U.S. citizens are valid for the same period of time). For a full list of reciprocity schedules, see Department
of State, U.S. Visa: Reciprocity and Civil Documents by Country, at https://travel.state.gov/content/travel/en/us-visas/
Visa-Reciprocity-and-Civil-Documents-by-Country.html.
82 CBP screens travelers on nonimmigrant visitor visas at ports of entry each time they enter the United States.
83 P.L. 107-53, §711.
84 VWPO cited a number of reasons for the reporting delays, including inadequate staffing of the office to manage the
workload, and not receiving intelligence assessments in a timely manner. However, VWPO officials stated that “these
delays have not posed any undue risks or threats to U.S. security interests, since any issues within a VWP country that
might affect its continued compliance with VWP requirements are continuously monitored.” Department of Homeland
Security, Office of the Inspector General, The Visa Waiver Program, OIG-13-07, Washington, DC, November 2, 2012,
p. 12, http://www.oig.dhs.gov/assets/Mgmt/2013/OIG_13-07_Nov12.pdf.
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.
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Debate over Biometric Exit Capacity
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
information with relevant watch lists and manifest information.86 Some contend that the current
biographic system provides suitable data for most security and immigration enforcement
activities, and that the cost of implementing a biometric exit system would not justify the small
increase in additional security.87 However, others express concerns about the general security of
the program and argue that until more security measures are in place, such as a biometric exit
capacity, more countries should not be designated into the program.88
Information Sharing
According to GAO, all VWP countries provide data on lost and stolen passports (LASP) to the
United States.89 However, concerns have been raised about information sharing on LASP,
specifically whether countries are reporting data in a timely manner.90 The mechanisms to obtain
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).91 While DHS receives a few countries’
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
(SLTD) 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-scope travelers (P.L. 110-53; Section
110 IIRIRA, as amended). Currently, the system captures 60% of in-scope travelers. (Based on CRS discussion with
CBP officials on January 30, 2020.)
87 Testimony of James Jay Carafano, U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration
Policy and Enforcement, Next Steps for the Visa Waiver Program, 112th Cong., 1st sess., December 7, 2011.
88 Statement of Chairman Elton Gallegly, U.S. Congress, House Committee on the Judiciary, Subcommittee on
Immigration Policy and Enforcement, Next Steps for the Visa Waiver Program, 112th Cong., 1st sess., December 7,
2011.
89 U.S. Government Accountability Office, Visa Waiver Program: Additional Actions Needed to Address Risks and
Strengthen Overstay Enforcement,
GAO-12-287T, December 7, 2011; U.S. Government Accountability Office, Visa
Waiver Program: DHS Should Take Steps to Ensure Timeliness of Information Needed to Protect U.S. National
Security
, GAO-16-498, May 2016, p. 11.
90 VWP passports are supposedly highly valued since the bearer does not need a visa to enter the United States. For
example, see U.S. Government Accountability Office, Visa Waiver Program: Additional Actions Needed to Address
Risks and Strengthen Overstay Enforcement
, GAO-12-287T, December 7, 2011. See also, Giulia Paravicini, “EU’s
Passport Fraud ‘Epidemic’,” Politico, January 28, 2016, Europe Edition, at http://www.politico.eu/article/europes-fake-
forged-stolen-passport-epidemic-visa-free-travel-rights/.
91 In the past, before access to and the content of the INTERPOL database were reliable, DHS required countries to
submit LASP data to the U.S. embassies in those countries.
92 The United States began providing information on LASP to the U.S. National Central Bureau of the International
Criminal Police Organization (INTERPOL) in May 2004. The INTERPOL Stolen and Lost Travel Document (SLTD)
database is available to law enforcement and immigration authorities worldwide. INTERPOL, Border 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.
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As discussed, all VWP countries are also required to enter into information-sharing agreements
with the United States on whether the citizens or nationals of that country travelling to the United
States represent a security or criminal threat to the United States. All VWP countries have entered
into the required arrangements for the sharing of information on known and suspected terrorists
pursuant to Homeland Security Presidential Directive 6 (HSPD-6),94 and have also signed
Preventing and Combating Serious Crime (PCSC) Agreements or equivalent agreements with the
United States for the sharing of information on potential serious criminals and terrorists. DHS,
DOJ, and DOS worked with VWP countries to fully implement HSPD-6 arrangements and PCSC
Agreements.95 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
GAO report released in May 2016 found that, as of that date, more than one-third of VWP
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
PCSC agreements.96 No countries were removed from the program, but
DHS has reported progress towards implementing the required agreements and, in cases
where agreements are not fully implemented, time frames and steps for bringing VWP
countries into compliance with the information-sharing requirements. As a result,
information sharing under the required agreements has improved.97
Terrorism, Foreign Fighters, and the VWP
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
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
and/or fought with the Islamic State in the Syria-Iraq region.98
For example, several of the perpetrators of the November 2015 attacks in Paris were citizens of
France.99 In addition, the alleged 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), “Homeland Security Presidential Directive/HSPD–6—Directive on Integration
and Use of Screening Information To Protect Against Terrorism,” Weekly Compilation of Presidential Documents,
September 16, 2003, p. 1174. For a discussion of HSPD-6, see CRS Report R42336, Terrorist Watch List Screening
and Background Checks for Firearms
.
95 E-mail from Department of Homeland Security, Office of Legislative Affairs, November 16, 2015.
96 U.S. Government Accountability Office, Visa Waiver Program: DHS Should Take Steps to Ensure Timeliness of
Information Needed to Protect U.S. National Security
, GAO-16-498, May 2016.
97 U.S. Government Accountability Office, “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, May 5,
2016, at https://www.gao.gov/products/GAO-16-498.
98 For more information, see CRS In Focus IF10561, Terrorism in Europe.
99 BBC News, “Paris attacks: Who were the attackers?,” April 27, 2016, at ews/world-europe-34832512.
100 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.
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having specific classified information, it is unknown whether or not these individuals would have
been eligible 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
under the VWP, it is unknown whether or not the requirement to get a visa would have changed
their eligibility to travel to the United States. As discussed, individuals who are not eligible to
travel under the VWP (either individuals from non-VWP countries or those who do not receive an
ESTA authorization) must get a visa before traveling to the United States. Unlike those traveling
under the VWP, those who apply for a visa undergo an interview with a consular officer, and
provide fingerprints and a digital photograph to be used to run checks against databases that use
biometrics (e.g., IDENT, NGI).
Authorities also remain concerned that terrorists could exploit refugee and migrant flows into
Europe, especially 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
passports before making their way to Paris.102 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
in VWP countries receive citizenship or nationality103 from those countries and are issued
passports from the VWP country, they are ineligible to travel to the United States under the
VWP.104
Adding Countries to the VWP
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
sharing.105 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 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 Europe Fear Repercussions From Paris Attacks,” New York
Times,
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&
WT.nav=top-news; and “At least two Paris attackers ‘traveled through Greece,’” France 24, November 21, 2015, at
https://www.france24.com/en/20151121-least-two-paris-attackers-travelled-through-greece-refugees-syria-migrants.
103 A national is a citizen or subject of a particular nation and is someone who would be eligible for a passport from that
nation.
104 INA §217(a)(2). The situation regarding the position of many countries in regard to acceptance of Syrian refugees is
fluid and, as such, it is unclear whether any of these refugees would ever be eligible for citizenship in these countries.
105 For an example of this argument, see Testimony of Hillary Batjer Johnson, Deputy Coordinator for Homeland
Security, Screening, and Designations Bureau of Counterterrorism, in U.S. Department of State, U.S. Congress, House
Committee on Oversight and Government Reform, Subcommittees on National Security and Government Operations,
The President’s Waiver of Restrictions on the Visa Waiver Program, 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.
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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 In FY2019, Poland met the
requirement of having a nonimmigrant visitor visa refusal rate below 3%.109 On October 4, 2019,
President Trump announced that DOS had formally nominated Poland for the VWP, 110 and the
following month, DHS announced Poland’s designation into the program.111 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. According to DHS, from November
11, 2019, through January 2020, approximately 40,000 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 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 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 Department of Homeland Security, “Designation of Poland for the Visa Waiver Program,” 84 Federal Register
60316, November 8, 2019.
108 For more information, see CRS Report R45784, Poland: Background and U.S. Relations.
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
https://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY19.pdf; also, see full list
of criteria in the “VWP Qualifying Criteria” section of this CRS report.
115 U.S. Embassy in Croatia, “Croatia formally nominated to join the U.S. Visa Waiver Program,” 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.
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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
Union’s common visa policy” and has long urged the United States to admit all EU member
states to the VWP.118 The lack of short-term, visa-free privileges for all EU member states has
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
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
visa.119 The EU considered suspending its visa waiver for U.S. nationals in 2017 but decided not
to do so.120 The United States remains the only country on the EU’s visa-free list that does not
fully reciprocate.121
Overstays
Some maintain that the nonimmigrant visa refusal rate is “not sufficiently probative” of a
country’s eligibility because it is based on decisions made by consular officers rather than on the
behavior of nonimmigrants.122 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
better standard for future program participation, but it was not used at the time because of the lack
of 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 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)
announced that before travel, visitors to the Schengen Area from all visa-free countries would 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 all 26 countries
currently in the Schengen Area (the majority of which are EU member states) and EU countries Croatia, Cyprus,
Bulgaria, and Romania, which are expected to join the Schengen Area in the future. ETIAS is expected to be
operational in early 2021. 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 for up to 90 days.
121 For more background, see CRS Report RS22030, U.S.-EU Cooperation Against Terrorism.
122 U.S. Congress, House Committee on the Judiciary, Visa Waiver Permanent Program Act, report together with
additional views to accompany H.R. 3767, 106th Cong., 2nd sess., H.Rept. 106-564 (Washington, DC: GPO, 2000), p.
32.
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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.123
In January 2016, DHS released its first report on overstay rates.124 In the most recent overstay
report, all the VWP countries had estimated overstay rates of less than 0.39% in FY2019. In
contrast, the overstay rate for non-VWP countries in FY2019 was 1.9%.125
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 will not
remain illegally in the United States (i.e., they are intending immigrants).126 During the visa
application process, consular officers127 must confirm that an alien is not ineligible for a visa
under any of the grounds of inadmissibility of the INA, such as having a criminal history,
engaging in terrorist activity, or having previously violated U.S. immigration law.128 Although
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
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
environment.” See GAO, Department of Homeland Security: Review of the Fiscal Year 2017 Entry/Exit Overstay
Report
, GAO-19-298R, February 22, 2019, p. 3, at https://www.gao.gov/products/GAO-19-298R.
124 See, Department of Homeland Security, Entry/Exit Overstay Report, Fiscal Year 2015, January 19, 2016, at
http://www.dhs.gov/publication/entryexit-overstay-report. An annual report on overstays was originally mandated by
Congress in 1998 (P.L. 105-173, codified at 8 U.S.C. §1376), and Congress required the report again in P.L. 114-113.
125 Department of Homeland Security, Fiscal Year 2019 Entry/Exit Overstay Report, at https://www.dhs.gov/sites/
default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf.
126 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
that they are not coming to reside permanently in the United States. CRS Report R45040, Immigration: Nonimmigrant
(Temporary) Admissions to the United States
.
127 Determinations of inadmissibility are also made by CBP officers at ports of entry.
128 The so-called grounds of inadmissibility under INA §212(a) include health-related grounds; criminal history;
security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification;
illegal entrants and immigration law violations; ineligibility for citizenship; and aliens who are illegally present or have
previously been removed.
129 For example, the Allied Nations Travel Modernization Act (H.R. 2946) in the 116th Congress would have allowed
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 agree to spend 2% of their gross domestic product on defense. According to Representative Dan
Lipinski, who introduced the legislation, the bill was drafted “to create an alternative pathway into the program for
North Atlantic Treaty Organization (NATO) nations like Poland.” As noted above, Poland was designated into the
VWP on November 6, 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.
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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
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.
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Appendix. Legislative History and Selected
Administrative Action

Visa Waiver Pilot Program
The Visa Waiver Program was established initially 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 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
previous two years with neither year’s refusal rate exceeding 2.5%. Participation in the pilot
program was originally limited to up to eight countries.135 Since the establishment of the pilot
program, Congress has periodically passed legislation to extend the program’s authorization,
expand the number of countries allowed to participate in the program, and modify the qualifying
criteria. Between 1986 and 1997, Congress passed five bills that were subsequently signed into
law that made changes to the Visa Waiver Pilot Program:
 the Immigration Technical Corrections Act of 1988 (P.L. 100-525);
 the Immigration Act of 1990 (P.L. 101-649), which inserted further qualifying
criteria and reporting requirements for the program and removed the limit on the
number of countries that could participate in the program;
 the Miscellaneous and Technical Immigration and Naturalization Amendments of
1991 (P.L. 102-232);
 the Immigration and Nationality Technical Corrections Act of 1994 (P.L. 103-
416), which created a probationary status to allow countries whose nonimmigrant
visa refusal rates were higher than 2% but less than 3.5% to enter the program on
a probationary basis if other qualifying criteria are met; and
 the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (P.L.
104-208), which created a new type of probationary status for countries in the
program that failed to meet certain criteria, and removed the probationary status
that had allowed countries with nonimmigrant visa refusal rates higher than 2%
but less than 3.5% to enter the program.
The pilot 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.136 The
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,
Congress passed legislation (P.L. 105-173) that not only extended the program through April 30,

135 8 U.S.C. §1187, amendments.
136 An extension of the pilot program was included in the first Continuing Resolution (P.L. 105-56 §117) for FY1998.
The five subsequent Continuing Resolutions—P.L. 105-64, P.L. 105-68, P.L. 105-69, P.L. 105-71, and P.L. 105-84—
simply extended the expiration date of the provisions in the first Continuing Resolution for FY1998 (P.L. 105-56).
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2000, but made other changes to the standard by which countries are selected (designated) to
participate in the VWP.137 By 1999, program participation had grown to include 29 countries.138
Visa Waiver Permanent Program Act
On October 30, 2000, the Visa Waiver Permanent Program Act was signed into law (P.L. 106-
396). The statutory authority for the Visa Waiver Pilot Program had expired on April 30, 2000,
but in the interim, the Commissioner of the former Immigration and Naturalization Service
(INS)139 exercised the Attorney General’s parole authority to extend the program temporarily.140
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-
396 included provisions that
 mandated that by October 1, 2007, all entrants under the VWP must have
machine-readable passports;
 required that all VWP applicants be checked against lookout systems;
 required ongoing evaluations of participating countries (not less than once every
five years);
 required the collection of VWP arrival/departure data at air and sea ports of
entry; and
 required that the calculation of visa refusal rates for determining country
eligibility shall not include any refusals based on race, sex, or disability.141
At the time, many maintained that P.L. 106-396 balanced the competing concerns of facilitating
travel and tightening immigration controls.
USA PATRIOT Act of 2001
The USA PATRIOT Act (P.L. 107-56), signed into law on October 26, 2001, shortened the time
frame for all entrants under the VWP to have machine-readable passports to October 1, 2003, but
allowed the Secretary of State to waive this requirement until October 1, 2007, if the VWP
country could show that it was making progress toward issuing machine-readable passports. In

137 Originally, to qualify for the 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
the criteria that a country could have a nonimmigrant visa refusal rate of less than 3% for the previous year and qualify
for the program.
138 The 29 countries were: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France,
Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay. Argentina
was removed from the VWP in February 2002, and Uruguay was removed in April 2003. From April 2003 until
November 2008, the VWP included 27 countries. As of October 2021, there are 40 countries participating in the VWP.
139 The Homeland Security Act of 2002 (P.L. 107-296) abolished the Immigration and Naturalization Service (INS) and
effective March 1, 2003, transferred most of its functions to three bureaus in the new Department of Homeland Security
(DHS): Citizenship and Immigration Services (USCIS); Immigration and Customs Enforcement (ICE); and, Customs
and Border Protection (CBP).
140 Parole is a temporary authorization to enter the United States and is normally granted when the alien’s entry is
determined to be in the public interest (INA §212(d)(5)(A)).
141 Many of these requirements were included to address shortcomings in the program, as identified by the Inspectors
General of both the Departments of Justice and State.
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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.
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, 2004.142
Enhanced Border Security and Visa Entry Reform Act of 2002
The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act),143
signed into law on May 14, 2002, required all VWP countries to certify that they report in a
timely manner the theft of blank passports, and required, prior to admission to the United States,
that all 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
certify that it has established a program to issue to its nationals machine-readable passports that
are tamper-resistant and incorporate a biometric identifier.144 The act specified that any person
applying for admission to the United States under the VWP must have a tamper-resistant,
machine-readable passport with a biometric identifier unless the passport was issued prior to
October 26, 2004. The USA PATRIOT Act established the deadline for all foreign nationals
entering under the VWP to have machine-readable, tamper-resistant passports, and the new
requirement of biometrics in the passports did not change the deadline in the USA PATRIOT Act
for the presentation of machine-readable, tamper-resistant passports. The biometric passport
requirement deadline was extended to October 26, 2005, by P.L. 108-299.145 Thus, as of October
27, 2005 (the day after the new deadline), all entrants under the VWP were required to present
machine-readable, tamper-resistant passports (as required by the USA PATRIOT Act, and P.L.
108-299), but only passports issued after October 26, 2005, were required to have a biometric
identifier.
Although Congress extended the deadline for VWP countries to certify that they had a program to
issue machine-readable passports with biometric identifiers, most VWP countries would have
been unable to meet the new, October 26, 2005, deadline, especially if the biometric requirement
could only have been fulfilled by countries who had electronic data chips in their passports (e-
passports). In addition, there was resistance in Congress to grant another extension of the
biometric deadline.146 As a result, the U.S. government clarified that a digitized photograph
printed on a data page in the passport would count as a biometric for the October 26, 2005,
requirement. Only France and Italy were unable to meet the new deadline, but have since come

142 The 21 countries granted a postponement were: Australia, Austria, Denmark, Finland, France, Germany, Iceland,
Ireland, Italy, Japan, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain,
Sweden, Switzerland, and the United Kingdom. On November 11, 2003, Luxembourg was granted an extension of the
deadline. Five VWP countries (Andorra, Brunei, Liechtenstein, Luxembourg, and Slovenia) were eligible to receive
and extension but did not request one because “all of their citizens already have machine-readable passports.” Belgium
was not eligible to receive an extension, as DOJ had already required their citizens to present machine-readable
passports as of May 15, 2003 (see footnote 36). U.S. Department of State, “Machine-Readable Passports for Visa
Waiver Program Travel Postponed,” press release, September 23, 2003, at https://2001-2009.state.gov/r/pa/prs/ps/2003/
24407.htm.
143 P.L. 107-173. The original bill, H.R. 3525, was sponsored by Representative F. James Sensenbrenner.
144 The act tasked the International Civil Aviation Organization (ICAO) with developing the biometric standard.
145 Signed into law on August 9, 2004.
146 For example, see letter from Rep. F. James Sensenbrenner, Jr., to Luc Frieden, President of the European Counsel of
Ministers, and Franco Frattini, Vice-President of the European Commission, April 7, 2005.
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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).
The Intelligence Reform and Terrorism Prevention Act of 2004
P.L. 108-458,147 the Intelligence Reform and Terrorism Prevention Act of 2004, added the
requirement that by October 26, 2006, as a condition of being in the VWP, each VWP country
must certify that it is developing a program to issue tamper-resistant, machine-readable visa
documents that incorporate biometric identifiers which are verifiable at the country’s port of
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
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
system is required to match the alien’s biometric information against relevant watch lists and
immigration information, and compare such biographical information against manifest
information collected by airlines to confirm that the alien left the United States.148
P.L. 110-53 also allows 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
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
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
to waive the nonimmigrant visa refusal rate requirement.
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
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
waive the nonimmigrant visa refusal rate would be suspended until the air exit system had the
specified biometric capacity.
For admission to the VWP, a country who receives a refusal rate waiver also has to
 meet all the security requirements of the program;
 be determined by the Secretary of Homeland Security to have a totality of
security risk mitigation measures that provide assurances that the country’s
participation in the program would not compromise U.S. law enforcement and
security interests, or the enforcement of U.S. immigration laws;
 have had a sustained reduction in visa refusal rates and have existing conditions
for the rates to continue to decline;

147 The original bill, H.R. 2845, was sponsored by Senator Susan M. Collins and signed into law on December 17,
2004.
148 This exit system is not necessarily the same as the exit system required 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
data system known as US-VISIT.
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 have cooperated with the United States on counterterrorism initiatives and
information sharing before the date of its designation and be expected to continue
such cooperation; and
 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
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
the program.
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,
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
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
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
implement an electronic travel authorization system,149 through which each alien electronically
provides, in advance of travel, the biographical information necessary to determine whether the
alien is eligible to travel to the United States and enter under the VWP. Aliens using the system
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.
Furthermore, under P.L. 110-53, to participate in the VWP, countries are required to enter into an
agreement with the United States to report or make available through INTERPOL information
about the theft or loss of passports. 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
repatriation of any citizen, former citizen, or national against whom a final order of removal is
issued no later than three weeks after the order is issued. Also, the countries are required to enter
into an agreement with the United States to share information regarding whether a national of that
country traveling to the United States represents a threat to U.S. security or welfare. The act
requires the Secretary of Homeland Security to provide technical assistance to VWP countries to
assist the countries in fulfilling the requirements of the program.
In addition, P.L. 110-53 requires the Director of National Intelligence to conduct intelligence
assessments of countries. For new VWP countries, the reviews must occur prior to their
designation into the VWP. For existing VWP countries, the reviews should be done in conjunction
with the biannual country reviews.
The act also requires the Director of National Intelligence to immediately inform the Secretary of
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
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
security threat, the Secretary of Homeland Security shall reinstate the country in the VWP.

149 The system as implemented is known as the Electronic System for Travel Authorization (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
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
a full discussion of the legislation.
In August 2015, the then-Secretary of Homeland Security Jeh C. Johnson announced an intention
to implement new security measures in the VWP.150 Most significant among them were
 requiring e-passports of all VWP travelers coming to the United States,
 requiring VWP countries to use the INTERPOL Stolen and Lost Travel
Document (SLTD) database to screen travelers crossing a VWP country’s
borders, and
 negotiating for the expanded use of U.S. air marshals on flights from VWP
countries to the United States.
In November 2015, the Obama Administration announced more changes to the VWP meant to
enhance national security. These changes included
 modifying ESTA to capture information regarding any past travel to countries
constituting a terrorist safe haven;
 accelerating the review process for VWP countries;
 requiring, within 60 days, that DHS report to the President on possible pilot
programs designed to assess the collection and use of biometrics (fingerprints,
photographs, or both) and on any countries that are deficient in key areas of
cooperation, along with recommended options to engender compliance;
 requiring, within 60 days, that the Federal Bureau of Investigation (FBI) provide
an evaluation to the President on the terrorism information sharing that occurs
between the United States and VWP countries and identify options to mitigate
any deficiencies;
 offering assistance to countries to better facilitate terrorism information sharing,
specifically to include the use of biometrics151 and deploying “Foreign Fighter
Surge Teams” to work with countries to counter terrorist travel; and
 expanding and promoting the use of the Global Entry program (a trusted traveler
program),152 which includes biometric checks within VWP countries.

150 Department of Homeland Security, “Statement by Secretary Jeh C. Johnson on Intention to Implement Security
Enhancements to the Visa Waiver Program,” press release, August 6, 2015, https://www.dhs.gov/news/2015/08/06/
statement-secretary-jeh-c-johnson-intention-implement-security-enhancements-visa.
151 One proposed example of this assistance includes having DHS and the FBI’s Terrorist Screening Center (TSC)
assist interested VWP countries in screening refugees or asylum seekers, utilizing the terrorism information already
provided to VWP countries, and by piloting programs to conduct “near real time” biometric checks. The TSC maintains
the U.S. government’s consolidated Terrorist Screening Database often referred to as the Terrorist Watchlist. Federal
Bureau of Investigation, About the Terrorist Screening Center, https://www.fbi.gov/about-us/nsb/tsc/about-the-
terrorist-screening-center.
152 As of July 6, 2020, the Global Entry program is available to citizens of Argentina, Australia, Canada, Colombia,
Germany, India, Mexico, New Zealand, Panama, Republic of Korea (South Korea), Singapore, Switzerland, Taiwan,
and the United Kingdom (see CBP, Global Entry: International Arrangements, at https://www.cbp.gov/travel/trusted-
traveler-programs/global-entry/international-arrangements). For a discussion of the Global Entry program, see CRS
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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
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.
P.L. 114-113 requires, as of April 1, 2016, that all foreign nationals traveling under the VWP
present an electronic passport (e-passport) that is fraud resistant and incorporates biographic and
biometric information (as determined by the Secretary of Homeland Security). No later than
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
to travel between countries within the Schengen Area.153
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
 Iraq and Syria;
 any country designated by the Secretary of State as having repeatedly provided
support for acts of international terrorism under any provision of law,154 or
 any other country or area of concern155 deemed appropriate by the Secretary of
Homeland Security.
In addition, anyone who is a dual national of a VWP country and one of these specified countries
is ineligible 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
other words, dual U.S.-Iranian, U.S.-Iraqi, U.S.-Sudanese, or U.S.-Syrian citizens still do not
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 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, P.L. 114-113 gives
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
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.
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

Report R46783, Trusted Traveler Programs.
153 The Schengen Area enables citizens of the European Union (EU), as well as many non-EU nationals, to cross select
international borders in Europe without being subject to border checks. See European Commission, Migration and
Home Affairs: Schengen Area
, November 13, 2015, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-
and-visas/schengen/index_en.htm.
154 Examples of acts that use the term “repeatedly provided support for acts of international terrorism,” include §6(j) of
the Export Administration Act of 1979 (50 U.S.C. 2405), §40 of the Arms Export Control Act (22 U.S.C. 2780), and
§620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371). Currently, these countries are Iran, Sudan, and Syria.
155 The 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 include whether the
presence of a foreign national in that area or country increases the likelihood that the foreign national is a credible
threat to U.S. national security, whether a foreign terrorist organization has a significant presence in the area or country,
and whether the country or area is a safe haven for terrorists.
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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, 2016,156 that each program country with an
international airport certify, to the maximum extend allowed under the laws of the country, that it
is screening each foreign national who is admitted to or departs from that country, using relevant
INTERPOL databases and notices or other means designated by the Secretary of Homeland
Security. Consequently, a country that fails to screen foreign nationals arriving in or departing
from that country will be terminated from the VWP. This screening requirement does not apply to
those traveling between countries within the Schengen Area.
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
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
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 will be terminated from the program.
The country will be redesignated as a program country as soon as it fulfills the information-
sharing requirements.
The act also requires that DHS report biennially to Congress on the national security threat posed
by each program country.157 The Secretary of Homeland Security, in consultation with the
Director of National Intelligence and the Secretary of State, is also required to annually evaluate
program countries based on specified criteria158 and to identify any country for which nationals of
that country present a “high risk” to U.S. national security.159 The Secretary of Homeland
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.
P.L. 114-113 allows the Secretary of Homeland Security to shorten the validity period of any
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
multiple citizenships and to research opportunities to incorporate into ESTA technology to detect
and prevent fraud or deception.
The act also requires DHS to report annually on the number of individuals (identified by
citizenship) who were denied eligibility to travel under ESTA or whose eligibility to travel was
revoked because they were determined to represent a security threat to the United States.160
Additionally, 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
United States.
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

156 This is 270 days after the enactment of P.L. 114-113.
157 The first of such reports would be due 90 days after the bill is enacted.
158 The criteria include the number of nationals determined to be ineligible to travel to the United States under the VWP
during the previous year; the number of nationals who were identified in U.S. government terrorism databases during
the previous year, the estimated number of nationals who traveled to Iraq or Syria since March 1, 2011, to engage in
terrorism; the country’s capacity to combat passport fraud; the level of cooperation with U.S. counter-terrorism efforts;
the adequacy of the country’s border and immigration controls; and any other criteria determined by the Secretary of
Homeland Security.
159 The first report would be due 60 days after enactment.
160 The first report would be due 30 days after enactment.
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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
Organization (ICAO)161 is expected to establish standards for e-passports and obligate the 191
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

Analyst in Immigration Policy


Acknowledgments
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
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 not be relied upon for purposes other
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
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161 The International Civil Aviation Organization (ICAO) is a United Nations specialized agency established to manage
the administration and governance of the Convention on International Civil Aviation. The ICAO works with
Convention Member States and industry groups to reach consensus on international civil aviation standards and
practices. International Civil Aviation Organization, About ICAO, at https://www.icao.int/about-icao/Pages/
default.aspx.
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