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Analysis of Hearing Before the House Subcommittee on Immigration Policy and Enforcement on: "Visa Waiver Program Oversight: Risks and Benefits of the Program"

by Nolan Rappaport

The Visa Waiver Program (VWP)[1] allows nationals from participating countries to visit the United States as tourists or business travelers without a visa for a period not to exceed 90 days. To be admitted under the VWP, they must have a security-enhanced passport valid for six months beyond their expected stay; travel on an approved carrier and possess a return trip ticket if arriving by air or sea; demonstrate both intent to stay 90 days or less and sufficient funds to support themselves during their stay; and obtain approval from the Electronic System for Travel Authorization (ESTA). The following 36 countries participate in the VWP.

Andorra Hungary New Zealand
Australia Iceland Norway
Austria Ireland Portugal
Belgium Italy San Marino
Brunei Japan Singapore
Czech Republic Lativa Slovakia
Denmark Liechtenstein Slovenia
Estonia Lithuania South Korea
Finland Luxembourg Spain
France Malta Sweden
Germany Manaco Switzerland
Greece The Netherlands United Kingdom

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. According to the Department of State (DOS), waiving the visa requirement for high-volume/low-risk countries significantly reduces consular workloads, allowing for streamlined operations, cost savings, and concentration of resources on greater-risk nations in the visa process. On the other hand, it has increased the workload of immigration inspectors at ports of entry by shifting all background checks to ports of entry. DOS may not have the resources it would need to be able to issue visas to the aliens who are using the VWP if the program were to be terminated.

Travelers under the VWP do not undergo the screening required to receive a visa. On the other hand, the VWP enhances security by setting standards for travel documents and information sharing. The ESTA system has improved the security of the VWP, but it is a name-based system and cannot be used to run checks against databases that use biometrics such as DHS's Automated Biometric Identification System (IDENT) and FBI's Integrated Automated Fingerprint Identification System (IAFIS). Travelers are checked against these systems through US-VISIT[2] when they enter the United States[3].

Statement of Congressman Mike Quigley[4]. A hearing only on the VWP has not taken place in the House Committee on the Judiciary for nearly 10 years. This is not an issue of immigration. This is an issue of national security. The VWP increases our access to data regarding who is coming and going. It allows us to map and trend country-based data, and it requires a commitment to safety and security from country-designees.

I represent a district that is nearly one-fifth Polish. I hear from my Polish community daily about the unfair law that excludes their country from visa-free travel. Poland, whose soldiers have fought side-by-side with Americans in Afghanistan, is among those countries left outside, looking in. As President Obama acknowledged in Warsaw this year, Poland's exclusion from the VWP is having a detrimental impact on our relationships with this key ally.

Comments. Poland is not being "excluded" from visa-free travel. Poland has been unable to establish that it is eligible for that privilege. Poland's refusal rate for FY2006 was 26.2%[5]; for FY2007 it was 25.2%[6]; for FY2008 it was 13.8%[7]; for FY2009 it was 13.5%[8]; and for FY2010 it was 9.8%[9]. Poland's refusal rate was much better in FY2010 than in FY2006 and FY 2007, when one out of every four nonimmigrant visa applications from Polish nationals was denied, but at 9.8%, it is still more than three times higher than the maximum acceptable rate for VWP eligibility, which is 3%. Moreover, it is too soon to tell whether its refusal rate will continue to fall or return to the level it experienced in FY2006 and FY2007, and it is possible that the rate dropped just because people were discouraged by how many applications were being denied.

So, I took action. I introduced H.R. 959, the Secure Travel and Counterterrorism Partnership Program Act of 2011. It would allow the Secretary of the Department of Homeland Security (DHS) to bring additional countries into the VWP by modifying primary qualifying criteria for entry.

Comments. H.R. 959 would, among other things, replace visa refusal rates with visa overstay rates for determining eligibility to participate in the VWP. The overstay rate could not be more than 3%, but that requirement could be waived. Section 5 of H.R. 959 would require the Comptroller General of the United States, not later than 180 days after the date of the enactment of the Act, to conduct a review of the methods used by DHS to track aliens entering and exiting the United States[10].

Shouldn't the methods used for tracking entries and exits be evaluated before a decision is made on whether to replace refusal rates with overstay rates? Also, the bill provides that a waiver of the overstay requirement will not be given if it would compromise enforcement of the US immigration laws. Doesn't an overstay rate of more than 3% compromise the enforcement of our immigration laws? According to Table 29 of the 2010 Yearbook of Immigration Statistics, there were 18,248,851 admissions in FY2010 under the VWP[11]. The 3% overstay standard would have permitted up to 547,465 of those admissions to be overstays without disqualifying the VWP countries.

Moreover, according to Richard M. Stana's statement, which will be discussed below, DHS is required by statute to submit an annual report to Congress providing numerical estimates of the number of aliens from each country in each nonimmigrant classification who overstayed an authorized period of admission that expired during the fiscal year prior to the year for which the report is made. DHS officials stated that the department has not provided Congress with annual overstay estimates regularly since 1994 because officials do not have sufficient confidence in the quality of the department's overstay data-which is maintained and generated by US-VISIT[12].

In 2008, the countries in the VWP generated more than 16 million visits to the United States, accounting for 65% of all overseas arrivals that year. VWP travelers spent more than 51 billion dollars in the United States. Their spending generated 512,000 jobs, 13 billion dollars in payrolls, and 7.8 billion dollars in taxes for our economy.

Comments. For those numbers to be meaningful, we would have to know how many of the visitors from VWP countries would have come with a visa if the VWP had not been available. People were coming to the United States from foreign countries as visitors before the VWP program was created.

Statement of David F. Heyman, Assistant Secretary for Policy, Department of Homeland Security (DHS)[13]. All VWP travelers must use secure travel documents that meet internationally recognized standards for machine readability. The majority of VWP travelers are required to use e-passports, which have an embedded chip that includes the bearer's biometric information and are difficult to falsify. VWP countries also are required to meet heightened security standards-including entering into information sharing agreements with the U.S. concerning known or potential terrorists and criminals and the reporting of lost and stolen passport data to the United States. VWP countries are required to undergo initial and periodic DHS inspections, which, among other things, examine the country's security standards for passport issuance and border screening.

Additionally, a critical innovation of the 9/11 Act was the requirement to develop and implement the ESTA, which allows for the pre-travel and recurrent screening of VWP travelers to the United States. Travelers whose ESTA applications are denied must obtain a visa at a U.S. Embassy or Consulate abroad prior to undertaking travel to the United States.

We have seen tangible security benefits, such as identifying matches to the Terrorist Screening Database maintained by the Federal Bureau of Investigation's Terrorist Screening Center and almost 34,000 lost or stolen passport matches before the traveler boarded a flight to the United States.

Accurately determining who is lawfully in the United States depends on our ability to record both entries and exits of foreign nationals. DHS is taking a number of steps in order to improve its capabilities in recording exits.

Comments. When will DHS be able to provide reliable information about overstays?

First, DHS is enhancing its existing biographic air exit system to better be able to match records and thus identify overstays. Second, DHS is conducting new research and working closely with the National Institute of Standards and Technology to develop new concepts for the development of a biometric air exit program.

Comments. Section 711 of the Implementing the 9/11 Commission Recommendations Act of 2007 allows the Secretary of DHS to waive the nonimmigrant refusal rate requirement for admission to the VWP. The waiver became available in October 2008, and was suspended on July 1, 2009, until the air exit system is able to match an alien's biometric information with relevant watch lists and manifest information. It is unclear when DHS will implement an exit system with the specified biometric capacity[14].

Third, DHS is working toward a system for creating an exit program on the United States northern land border to facilitate the exchange of U.S. and Canadian entry records, so that an entry to one country becomes an exit from another.

The DHS strategy is to identify and target for enforcement action those who have overstayed their period of admission and who represent a public safety and/or national security threat by incorporating data contained within law enforcement, military, and intelligence repositories; establish an automated entry-exit capability that will produce information on individual overstays and determine overstay percentages by country; take administrative action against confirmed overstays by providing the State Department with information to support visa refusal or revocation, prohibiting VWP travel, and placing individuals on lookout lists; and provide the core components of an entry-exit and overstay program that will incorporate and use biometric information as technologies mature and DHS can implement an affordable biometric air exit system.

Statement of Richard M. Stana, the Government Accountability Office (GAO)[15]. In 2010, airlines complied with the requirement to verify ESTA approval for almost 98% of the VWP passengers prior to boarding, but the remaining 2%- about 364,000 travelers- traveled under the VWP without verified ESTA approval. In addition, about 650 of these passengers traveled to the United States with a denied ESTA.

DHS tracked some data on passengers that traveled under the VWP without verified ESTA approval, but it did not track other data that would help officials know the extent to which noncompliance poses a risk to the program. Consequently, DHS was unable to determine the level of risk that noncompliance poses to VWP security or to identify improvements needed to minimize noncompliance. In addition, without analysis of data on travelers who were admitted to the United States without a visa after being denied by ESTA, DHS could not determine the extent to which ESTA was accurately identifying individuals who should be denied travel under the program.

The 9/11 Act specifies that each VWP country must enter into agreements with the United States to share information regarding whether citizens and nationals of that country traveling to the United States represent a threat to the security or welfare of the United States and to report lost or stolen passports. DHS has determined that VWP countries can satisfy this requirement by entering into the following three bilateral agreements: (1) Homeland Security Presidential Directive (HSPD) 6, (2) Preventing and Combating Serious Crime (PCSC), and (3) Lost and Stolen Passports.

In May 2011, GAO reported that only half of the countries had fully complied with this requirement and many of the signed agreements had not been implemented. In November 2011, a senior DHS official reported that 21 of the 36 VWP countries had signed HSPD-6 agreements. As of January 2011, 18 of the 36 VWP countries had met the PCSC information-sharing agreement requirement, but the networking modifications and system upgrades required to enable this information sharing to take place had not been completed for any VWP countries. A senior DHS official reported in November 2011, that the number of VWP countries meeting the PCSC requirement had risen to 21. DHS has established a compliance schedule requiring the last of the VWP countries to finalize these agreements by June 2012.

In 2002, Congress mandated that at least once every 2 years, DHS evaluate the effect of each country's continued participation in the program on the security, law enforcement, and immigration interests of the United States. As of May 2011, DHS had not completed half of the reports in a timely manner. More than half of these reports are more than one year overdue.

As of October 2010, the U.S. Immigration and Customs Enforcement Agency (ICE) field offices had closed about 34,700 overstay investigations that were assigned to them from FY2004 through FY2010. These cases resulted in approximately 8,100 arrests (about 23% of the 34,700 investigations) relative to a total estimated overstay population of 4 to 5.5 million.

Comments. If we assume that there is a population of 5 million overstays, it will take approximately 4,320 years to arrest them at the rate of 8,100 arrests every seven years. And how long will it take to remove them if they request removal hearings before immigration judges and appeal adverse decisions to the Board of Immigration Appeals?

In April 2011, GAO reported that efforts to identify and report on visa overstays were hindered by unreliable data. Specifically, U.S. Customs and Border Protection (CBP) does not inspect travelers exiting the United States through land ports of entry, and CBP has not provide a standard mechanism for nonimmigrants departing the United States through land ports of entry to remit their arrival and departure forms. Moreover, the travelers departing the United States through land ports of entry are allowed to turn in their forms on their own initiative.

In September 2008, GAO reported that the DHS methodology for comparing arrivals and departures for the purpose of departure verification would not provide overall or country-specific overstay rates because it did not begin with arrival records to determine if those foreign nationals departed or remained in the United States beyond their authorized periods of admission. DHS started with departure records and matched them to arrival records. As a result, DHS methodology counted overstays who left the country, but did not identify overstays who have not departed the United States and appear to have no intention of leaving.

In addition, in April 2011, GAO reported that DHS had provided its component entities and other federal agencies with information to identify and take enforcement action on overstays on the records of overstay subjects that are recorded in databases. However, DHS did not create lookouts for the following two categories of overstays: (1) temporary visitors who were admitted to the United States using nonimmigrant business and pleasure visas and subsequently overstayed by 90 days or less; and (2) suspected in-country overstays who were not considered to be a priority for investigation as being most likely to pose a threat to national security or public safety.

Comments. Shouldn't these problems be fixed before considering a change in eligibility requirements to permit additional countries to participate in the VWP?

Statement of James Jay Carafano, Ph.D., Heritage Foundation[16]. According to the Congressional Research Service, in FY2009, 16.2 million visitors entered the United States under the VWP, which was 50.5% of all foreign visitors.

Countries participating in the VWP must meet higher-than-normal standards in combating terrorism and in law enforcement, border control, document security, and reporting information on lost and stolen passports. More importantly, they agree to share much more security-related information about travelers than what we get from the standard visa process. This information sharing helps identify and track suspected terrorists and their supporters, international criminals, and visitors who overstay their allotted time in country.

Current law prevents adding new countries with a visa refusal rate greater than 3% until DHS develops and implements a system to biometrically track the departure of foreign visitors, a program that will likely never happen.

The directive for implementing a biometric exit system predates 9/11. After almost two decades, the federal government has failed to implement this Congressional mandate.

Refusal rates have been interpreted as a measure of the propensity to "overstay," i.e., to remain unlawfully in the United States beyond the 90-day period authorized under the VWP. There is ample evidence to suggest, however, that refusal rates are not an optimum metric for assessing the potential to overstay. With the advances in biographical exit records management, it would be far more prudent to rely directly on visa overstay rates as an appropriate metric for qualifying for VWP.

Comments. I share his concern about the inadequacy of the refusal rate standard, but as indicated in my comments above, I do not think that overstay rates are a good alternative now. It would be better to work on making refusal rates more useful, or to wait until information about overstay rates is reliable, before making a change from refusal rates to overstay rates.

From a security perspective, the United States obtains far more useful information for immigration and criminal enforcement and effective counterterrorism from partner VWP countries than from those where visas are required.

From an economic perspective, boosting international travel ought to be a priority. Inbound travel to the U.S. already supports almost 2 million American jobs. The most effective way to encourage travel is through the VWP. In some countries, wait times for visas have ballooned to unreasonable lengths. The Wall Street Journal recently reported that in Brazil the wait times for visa interviews run up to four months. It is far more cost-effective to expand VWP than to add the infrastructure that would be required to speed visa processing and management.

Statement of Jessica M. Vaughan, Center for Immigration Studies[17]. The most recent overstay estimate ranges from one-third to one-half of the illegal alien population, or between four to six million illegal aliens. These illegal settlers present a national security risk -- several of the 9/11 hijackers were overstays and others have been caught working at critical infrastructure facilities or other sensitive locations.

Congress initially mandated the development of an entry-exit system in 1996, after the first World Trade center bombing. Visa overstay data would be less speculative than refusal rates.

As a condition for granting DHS the sole authority and discretion for determining membership in the VWP in 2007, Congress directed the agency to establish a biometric exit recording system for air travelers that can account for at least 97% of those who depart by air. This was in addition to long-standing requirements for DHS to implement an exit recording system as part of US-VISIT, and the long-ignored requirements for DHS to produce annual estimates on how many overstays there are and their nationalities.

A biographic matching system, known as the Arrival Departure Information System (ADIS), has been in place since the beginning of 2004. Although ADIS is helpful, it does not fulfill the Congressional requirements for a true exit system and can produce only limited data for program evaluation metrics.

ADIS is maintained by the airlines, so there is no way to verify the accuracy of the information or to ensure that all travelers comply with a departure reporting requirement. It is a biographic system, not the Congressionally-mandated biometric system, so it cannot authenticate the identity of departing passengers. This means it would be easy for someone to create a record of leaving the country without actually leaving.

ADIS checks are neither automatic nor required as part of the visa adjudication process. They are performed only at the discretion of individual consular offices; some may use the system diligently, while others may never bother.

The 3% overstay rate proposed in H.R. 959 is probably too high. The most recent study of overstays from the Pew Hispanic Center estimates that the overstay rate for Mexican holders of Border Crossing Cards (a type of short-term visitor visa) was 1.7%. This seemingly-low overstay rate, at least by the standards of H.R. 959 supporters, produces hundreds of thousands of illegal immigrants per year.

The implementation of the ESTA process has been touted as a major security enhancement to the VWP. The ESTA tool, however, is of very limited utility in determining the eligibility of travelers or screening out terrorists and criminals, and certainly is no substitute for a consular interview. And qualifying for admission to the United States is more than a simple matter of not being a known terrorist or criminal. To be admitted, visitors need to demonstrate that they have a legitimate reason for travel and that they are likely to return home. That determination simply cannot be done electronically.

Proposed expansion countries raise security and law enforcement concerns. Because we currently lack the safeguards to prevent large numbers of inadmissible travelers from entering, and because we lack the ability to identify and remove those who overstay, the expansion of the program to include more than the clearly qualified countries is risky.

The federal government devotes relatively few resources to identifying and removing illegal immigrants, or to keeping them from becoming established here. ICE has just a few thousand special agents and deportation officers to cope with an illegal alien population of 11 million. Even if DHS is able to determine which visitors overstay, there is little chance that ICE will act on the information.

Additional comments. According to Michael Cutler, Senior Special Agent, INS (Ret.), it is important to weigh the VWP benefits against the benefits of requiring nonimmigrant visitors to have visas. Among other things, the prescreening required by the visa process helps to prevent the entry of aliens who are concealing criminal histories or other types of information that would render them excludible from the United States. The terrorist Richard Reid, the so-called "Shoe Bomber," was able to board an airplane without a visa under the VWP as a citizen of Great Britain. An alien who cannot secure a visa when a visa is required has difficulty boarding an airliner, thereby enhancing airline security. [Under section 273 of the Immigration and Nationality Act, it is unlawful for any person, including any transportation company or aircraft, to bring to the United States any alien who does not have an unexpired visa, if a visa was required. The fine for this offense is $3,000 for each violation.[18] ]

The application for a nonimmigrant visa[19] contains approximately 40 questions that may provide invaluable information to law enforcement officials should the applicant become the target of a criminal or terrorist investigation. Even when an alien applies for a visa and the application is denied, the application he filed remains available to law enforcement and intelligence personnel.

Aliens who lie on visa applications, thereby committing visa fraud, are subject to criminal penalties that range from 10 to 25 years of incarceration if the visa fraud was done in conjunction with terrorism. While it may be very difficult to prove that an alien is engaged in terrorism or plans to participate in a terrorist attack, visa fraud is much easier to show. Also, there are times when law enforcement authorities and/or prosecutors do not want members of criminal or terrorist organizations to be made aware of an ongoing investigation into their organization. The criminal charge of visa fraud can enable law enforcement to arrest a member of a criminal or terrorist organization without revealing the ongoing investigation[20].

1 (December 7, 2011).
31 at pp. 9-11.
12 See statement at pp. 12-13.
14 at pp. 3-4.


About The Author

Nolan Rappaport was an immigration counsel on the House Judiciary Committee. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has spent time in private practice as an immigration lawyer at Steptoe & Johnson. He is retired now, but he welcomes part time and temporary work

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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