LegiStorm

Summary:

The terrorist attacks in Paris in November 2015 and in Belgium in March 2016, which were perpetrated mainly by French and Belgian citizens, have increased focus on the potential security risks posed by the visa waiver program (VWP). The VWP allows nationals from certain countries, many of which are in Europe, to enter the United States as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business or pleasure from non-VWP countries must obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to the United States. Concerns have been raised about the ability of terrorists to enter the United States under the VWP, because those entering under the VWP undergo a biographic rather than a biometric (i.e., fingerprint) security screening, and do not need to interview with a U.S. government official before embarking to the United States. Nonetheless, it can be argued 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. In addition, 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. Furthermore, there is interest in the VWP as a mechanism to promote tourism and commerce. The inclusion of countries in the VWP may help foster positive relations between the United States and those countries, and ease consular office workloads abroad. As of July 2016, there were 38 countries participating in the VWP. In FY2014, more than 21 million visitors entered the United States under this program, constituting 31% of all overseas visitors. To qualify for the VWP, statute specifies that a country must offer reciprocal privileges to U.S. citizens; have had a nonimmigrant refusal rate of less than 3% for the previous year; issue their nationals machine-readable passports that incorporate biometric identifiers; certify that it is developing a program to issue tamper-resistant, machinereadable 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 an emergency occurs that threatens the United States’ security or immigration interests. All aliens entering under the VWP must present passports that contain electronic data chips (epassports). Under 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 entering 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. ESTA became operational for all VWP countries on January 12, 2009. Under statute, the Secretary of the Department of Homeland Security (DHS) has the authority to waive the nonimmigrant refusal rate requirement, provided certain conditions are met. The waiver became available in October 2008. In 2008, eight countries were added to the VWP who needed the nonimmigrant refusal rate waiver to be part of the program. However, the waiver authority was suspended on July 1, 2009, because DHS had not 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 implemented. There are countries (e.g., Israel, Poland, Romania) that have expressed interest in being a part of the VWP who would need a waiver of the nonimmigrant refusal rate. On December 8, 2015, the House passed H.R. 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act. The bill was enacted as part of the FY2016 Consolidated Appropriations Act (P.L. 114-113), which was signed into law on December 18, 2015. The act makes numerous changes to the VWP, including, with some exceptions, prohibiting those who have traveled to Syria, Iraq, and certain other countries since March 2011 from entering the United States under the VWP. In addition, under the act, dual nationals of VWP countries and Syria, Iraq, and certain other countries, with possible exceptions, are also prohibited from traveling to the United States under the VWP. Moreover, P.L. 114-113 changes the informationsharing requirements for countries to participate in the VWP program. Some of the changes to the VWP made by P.L. 114-113 have raised concerns about discrimination based on national origin or family heritage. Two bills introduced after the passage of P.L. 114-113, H.R. 4380 and S. 2449, would remove the new prohibitions on certain dual nationals traveling under the VWP. Other legislation has been introduced in the 114 th Congress that would reinstate the nonimmigrant refusal rate waiver authority and make other changes to the VWP, such as allowing DHS to use overstay rates to determine program eligibility (H.R. 1401/H.R. 2686/S. 1507/S. 2091). There are also introduced bills that would change some of the program requirements to augment the security features of the program (e.g., H.R. 4122 and S. 2337). Another proposal (H.R. 2116) would create a new visa waiver program for the U.S. Virgin Islands, and allow Poland to be added to the VWP without meeting the program’s requirements.