Visa Waiver Program

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

Since the events of September 11, 2001, concerns have been raised about the ability of terrorists
to enter the United States under the visa waiver program (VWP), since the VWP bypasses the
first step by which foreign visitors are screened for admissibility to enter the United States.
Nonetheless, the inclusion of countries in the VWP may help foster positive relations between the
United States and those countries, promote tourism and commerce, and eases consular office
workloads abroad. The VWP allows nationals from certain countries 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.
In FY2007, 16 million visitors entered the United States under this program, constituting 49% 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 or an average of no more than 2% over the past two fiscal years with neither year going
above 2.5%; issue their nationals machine-readable passports that incorporate biometric
identifiers; certify that it is developing a program to issue tamper-resident, machine-readable visa
documents that incorporate biometric identifiers which are verifiable at the country’s port of
entry; 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 interests. P.L. 110-53 adds new requirements to participate in
the VWP, and provides the Secretary of the Department of Homeland Security (DHS) the
authority to waive the nonimmigrant refusal rate requirement. Certain statutory conditions must
be met before the waiver to becomes available.
All aliens entering under the VWP must present machine-readable passports. In addition,
passports issued between October 26, 2005, and October 25, 2006, must have a digitized photo on
the data page, while passports issued after October 25, 2006, must contained electronic data chips
(e-passports). Under DHS regulations, travelers who seek to enter the United States through the
VWP are subject to the biometric requirements of the US-VISIT program.
Numerous countries (e.g., Poland, Estonia, Israel, South Korea) have expressed interest in being a
part of the VWP. DHS and DOS have provided selected countries with “road maps” to help them
meet the requirements of the program. However, some of the countries have complained that the
“road maps” do not contain milestones or time tables. They note that since U.S. consular officers
are the ones that approve or disapprove applications for visas, it is extremely difficult for
countries to affect their visa refusal rates and meet the requirements of the program. In addition,
DHS has signed Memorandums of Understanding with certain countries who are likely to meet
the program requirements once the nonimmigrant refusal rate waiver is available to facilitate
these countries entries to the VWP. This report will be updated if legislative action occurs.

Current Policy..................................................................................................................................1
VWP Qualifying Criteria...........................................................................................................1
Nonimmigrant Refusal Rate Waiver.........................................................................................3
Electronic Travel Authorization System (ESTA)................................................................4
Arrival and Departure Inspections............................................................................................5
Trends in Use of the VWP........................................................................................................7
Policy Issues....................................................................................................................................7
Adding Countries to the VWP..................................................................................................8
Process for Adding Countries to the VWP .........................................................................9
EU Countries.......................................................................................................................9
GAO Report......................................................................................................................10
Management and Oversight....................................................................................................10
Lost and Stolen Passports.........................................................................................................11
The Number of Lost/Stolen Passports..............................................................................12
Overstays ................................................................................................................................. 12
Legislation in the 110^th Congress..................................................................................................13
Increasing Security Measures and Expanding the VWP.........................................................13
Implementing the 9/11 Commission Recommendations Act of 2007 (P.L. 110-53).........13
S. 653................................................................................................................................15
H.R. 561/S. 342 ...............................................................................................................15
H.R. 1465 .........................................................................................................................15
H.R. 1543..........................................................................................................................16
H.R. 2006..........................................................................................................................16
H.R. 2526..........................................................................................................................16
H.R. 6094/S. 3007.............................................................................................................16
Suspending the VWP..............................................................................................................16
H.R. 1342/H.R. 3064/H.R. 4192 ......................................................................................16
Figure 1. Number of Entrants under the VWP for FY1998-FY2007, Percentage of All
Nonimmigrant Entrants Who Are VWP Entrants, and Percentage of All B Visa Entrants
Who Are VWP Entrants...............................................................................................................6
Appendix. Legislative History Prior to the 110^th Congress...........................................................18
Author Contact Information..........................................................................................................21

Under the visa waiver program (VWP), the Secretary of Homeland Security,¹ in consultation with
the Secretary of State, may waive the “B” nonimmigrant visa requirement for aliens traveling ²
from certain countries as temporary visitors for business or pleasure (tourists). Nationals from
participating countries simply complete an admission form (I-94) before their arrival and are
admitted for up to 90 days. The VWP constitutes one of a few exceptions under the Immigration
and Nationality Act (INA) in which foreign nationals are admitted into the United States without
a valid visa.
Temporary foreign visitors for business or pleasure from most countries must obtain a visa from ³
Department of State (DOS) offices at a consular post abroad before coming to the United States.
Personal interviews are generally required, and consular officers use the Consular Consolidated
Database (CCD) to screen visa applicants. In addition to indicating the outcome of any prior visa
application of the alien in the CCD, the system links with other databases to flag problems that
may make the alien ineligible for a visa under the so-called “grounds for inadmissibility” of the
INA, which include criminal, terrorist, and public health grounds for exclusion. Consular officers
are required to check the background of all aliens in the “lookout” databases, including the ⁴
Consular Lookout and Support System (CLASS) and TIPOFF databases.
Although the VWP greatly eases the documentary requirements for nationals from participating
countries, it has important restrictions. Aliens entering with a B visa may petition to extend their
length of stay in the United States or may petition to change to another nonimmigrant or
immigrant status. Aliens entering through the VWP are not permitted to extend their stays except ⁵
for emergency reasons and then for only 30 days. Additionally, with some limited exceptions,
aliens entering through VWP are not permitted to adjust 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).
Currently, to qualify for the VWP a country must:

¹^T^h^{e S}^ecret^ar^y^o^f^Ho^mel^aⁿ^d^S^ecuri^t^y^ad^mⁱⁿⁱ^st^{ers t}^h^{e V}^W^P^p^r^o^g^ram^.^S^ectⁱ^oⁿ⁴⁰²^o^f^t^h^{e Ho}^m^e^l^aⁿ^d^S^ecu^ri^t^y^A^c^t^o^f
²⁰⁰^{2 (}^H^SA^;^P^.^L^.¹^07-²⁹⁶⁾^{, s}ⁱ^gⁿ^e^dⁱⁿ^{to la}^w^on^N^o^v^e^m^b^e^r^{25, 2}⁰⁰²^,^s^t^a^t^e^s^{: “}^T^he^Se^c^r^e^t^a^r^y^[^o^f^H^o^m^e^la^{nd Se}^c^u^rⁱ^ty^]^,
^a^c^ting^thro^ug^{h t}^h^e^U^nde^r^Se^c^r^e^t^a^r^y^f^o^{r B}^o^rde^r^a^{nd T}^r^aⁿ^s^p^orta^tio^{n S}^e^c^u^rity^{, s}^h^a^{ll be}^re^s^ponsⁱ^b^le^f^o^{r th}^e^f^o^llowⁱ^ng^{: ...}
^{(4) Es}^ta^blis^hing^aⁿ^{d a}^d^mⁱ^nis^t^e^rⁱⁿ^g^rule^s^,^{... g}^o^v^e^rniⁿ^g^the^g^r^aⁿ^ti^ng^of^vⁱ^s^a^s^{or othe}^{r f}^o^rm^s^of^pe^r^m^is^sⁱ^on,^inc^l^udi^ng
^pa^role^{, t}^o^eⁿ^te^r^the^Uni^t^e^d^S^t^a^t^e^s^{to in}^divⁱ^d^u^a^l^{s w}^{ho a}^r^e^no^{t a}^c^itiz^eⁿ^or^aⁿ^a^lieⁿ^la^wf^ull^y^a^d^m^itte^{d f}^o^{r pe}^rm^aⁿ^eⁿ^t
^resi^d^eⁿ^{ce i}ⁿ^t^h^{e Un}ⁱ^t^e^{d S}^t^at^es.^”^P^rⁱ^o^{r t}^o^M^a^rch¹^,²⁰⁰³^,^t^h^{e A}^t^t^o^rⁿ^ey^Gen^e^ralⁱⁿ^coⁿ^s^u^l^t^a^tⁱ^oⁿ^wⁱ^t^h^t^h^{e S}^ecret^ar^y^o^f^S^t^at^e
^w^a^s^r^e^s^pons^ible^f^o^r^de^sⁱ^gⁿ^a^ting^t^h^e^VW^P^c^o^untrⁱ^e^s^.
²^“^B^”^vⁱ^s^a^r^e^f^e^r^s^{to the}^s^u^b^p^a^r^a^g^r^a^{ph i}ⁿ^t^h^e^I^m^mⁱ^g^r^a^{tion a}ⁿ^{d N}^a^tioⁿ^a^liz^a^{tion A}^c^{t (}^I^N^A^{§ 101(}^a⁾⁽¹⁵⁾⁽^B⁾⁾^.
³^T^o^obtaⁱ^{n a}ⁿ^oⁿⁱ^m^m^ig^r^a^{nt v}ⁱ^s^a^{, indiv}ⁱ^d^u^a^l^s^s^u^bm^{it w}^r^itte^{n a}^pplic^a^tions^aⁿ^d^un^de^rg^{o inte}^rv^ie^w^s^a^{nd ba}^c^k^g^r^ound
^c^h^e^c^k^s^.^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^te^m^por^a^r^y^a^d^mⁱ^s^sⁱ^ons^{, s}^e^e^C^R^S^R^e^por^{t R}^L³¹³⁸^1,^U^.^{S. I}^m^mⁱ^gr^ati^oⁿ^Polic^y^oⁿ
^Te^m^por^ar^y^A^d^mⁱ^s^sⁱ^ons^,^by^C^h^a^d^C^.^H^a^dda^{l a}ⁿ^{d R}^u^th^Elle^{n W}^a^s^e^m^.
⁴^F^o^r^m^o^r^eⁱⁿ^f^o^r^m^atⁱ^oⁿ^on^vi^{sa i}^ssu^an^ces,^{see C}^R^S^R^e^p^o^r^t^R^L³¹⁵¹^2,^Vⁱ^sa^Iss^u^an^{ces: P}^o^lⁱ^cy,^Issu^es,^an^d^L^e^gⁱ^sl^atⁱ^oⁿ^,
^by^{Ruth Elle}ⁿ^W^a^se^m^.
⁵^T^h^is^pr^ov^is^io^{n w}^a^s^am^e^nde^{d by}^P.L^.¹⁰^6-⁴⁰⁶^to^pr^ovⁱ^d^e^e^x^te^nde^d^v^o^lun^t^a^r^y^de^pa^r^t^ur^e^to^no^nim^m^igr^a^nts^w^{ho e}ⁿ^te^r
^unde^r^the^VW^{P a}ⁿ^d^r^e^qui^r^e^m^e^dic^a^l^tr^e^a^t^m^e^nt.

• offer reciprocal privileges to United States citizens;
• have had a nonimmigrant refusal rate of less than 3% for the previous year or an
average of no more than 2% over the past two fiscal years with neither year
going above 2.5%;
• issue machine-readable passports (and all aliens entering under the VWP must
possess a machine-readable passport);
• certify that it has established a program to issue to its nationals machine-readable
passports that are tamper-resistant and incorporate a biometric identifier ⁶
(deadline October 26, 2005);
• 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; and
• certify that it is developing a program to issue tamper-resident, machine-readable
visa documents that incorporate biometric identifiers which are verifiable at the
country’s port of entry (deadline October 26, 2006).
In addition, §711 of the Implementing the 9/11 Commission Recommendations Act of 2007⁷ (P.L.
110-53) added new criteria for participating in the VWP. (The Act also created a waiver allowing
the Secretary of DHS to admit countries with refusal rates under 10% to the VWP. However,
certain currently unmet conditions must be fulfilled before the waiver is available.) The new
requirements include requiring VWP countries to
• enter into an agreement with the United States to report or make available
through INTERPOL information about the theft or loss of passports (previously,
VWP countries only had to certify that they were reporting thefts of blank
passports);
• 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;
and
• 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.
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 ⁸
threatens the law enforcement or security interest of the United States. For example, because of ⁹
Argentina’s economic collapse in December 2001, and the increase in the number of Argentine

⁶^A^{ll pa}^s^s^por^ts^is^s^u^e^d^a^f^te^r^O^c^tobe^r²⁶^{, 2}⁰⁰⁵^p^r^e^s^eⁿ^te^{d by}^a^lie^ns^eⁿ^t^e^rⁱ^ng^un^de^r^the^VW^P^ha^v^e^to^be^m^a^c^h^ine^-^r^e^a^d^a^b^le
^an^d^con^t^aiⁿ^a^bⁱ^o^m^et^ri^{c i}^d^en^tⁱ^fⁱ^e^r.
⁷^P^.^L^.¹¹^0-5³^H.R^.¹^,^sigⁿ^e^dⁱⁿ^t^o^l^a^w^{on A}^u^g^u^{st 3, 2}⁰⁰⁷^{. F}^o^{r m}^o^re^de^ta^{ils on}^the^c^h^aⁿ^g^e^{s to t}^h^e^V^W^{P in}^{this A}^c^{t, se}^e
^be^low^se^c^{tion “}^L^e^g^isla^{tion in t}^h^e¹¹⁰^th^Con^g^ress.^”
⁸^Aⁿ^e^m^er^gen^c^yⁱ^s^d^e^fⁱⁿ^e^d^{as (1}^{) t}^h^{e o}^v^ert^h^ro^w^o^f^{a d}^e^m^o^cratⁱ^cal^l^y^el^ect^ed^go^vern^m^eⁿ^t^;⁽²^{) w}^a^r;⁽³⁾^{a sever}^e
^br^e^a^k^dow^{n in la}^w^a^{nd or}^de^rⁱⁿ^th^e^c^ountr^y^{; (}⁴⁾^a^s^e^v^e^r^e^e^c^onom^ic^c^o^lla^ps^e^;^aⁿ^d⁽⁵⁾^aⁿ^y^othe^r^e^x^tr^a^o^r^d^ina^r^y^e^v^eⁿ^{t in the}
^pr^og^r^a^m^c^ountr^y^w^h^e^r^e^tha^t^c^ount^r^y^’^s^pa^r^tic^ipa^tio^{n c}^o^u^l^d^thr^e^a^t^eⁿ^t^h^e^la^w^eⁿ^f^o^r^c^em^eⁿ^{t or}^s^e^c^u^r^ity^inte^r^e^s^t^s^of^the
^Un^ited^S^t^{ates. INA}^§²¹⁷⁽^c)(5^)(B^).
⁹^Begiⁿⁿⁱⁿ^gⁱⁿ^Decem^b^e^r^{2001, A}^r^g^e^ntina^e^x^pe^rieⁿ^c^e^d^a^s^e^rious^e^c^o^nom^ic^c^r^is^is^{, inc}^l^ud^ing^de^f^a^ulting^on^loaⁿ^s^by
⁽^c^onti^nue^d.^..)

nationals attempting to use the VWP to enter the United States and remain illegally past the 90-¹⁰¹¹
day period of admission, that country was removed from the VWP in February 2002.
Similarly, on April 15, 2003, Uruguay was terminated from the VWP because Uruguay’s
participation in the VWP was determined to be inconsistent with the U.S. interest in enforcing the ¹²
immigration laws.
Additionally, there is probationary status for VWP countries that do not maintain a low visa
refusal rate. Countries on probation are determined by a formula based on a disqualification rate ¹³
of 2%-3.5%. Probationary countries with a disqualification rate less than 2% over a period not ¹⁴
to exceed three years may remain VWP countries. Countries may also be placed on probation if
more time is necessary to determine whether the continued participation of the country in the
VWP is in the security interest of the United States. In April 2003, Belgium was placed on
provisional status because of concerns about the integrity of nonmachine-readable Belgian ¹⁵
passports and the reporting of lost or stolen passports. DHS completed another country review
of Belgium in 2005, and removed the country from probationary status.
As mentioned above, the Implementing the 9/11 Commission Recommendations Act of 2007
allows the Secretary of DHS, in consultation with the Secretary of DOS, to waive the
nonimmigrant refusal rate requirement for admission to the VWP after the Secretary of DHS
certifies to Congress that
• an air exit system is in place that can verify the departure of not less than 97% of ¹⁶
foreign nationals that exit through U.S. airports, and

^(...c^on^tin^ue^d)
^f^o^re^ig^{n c}^r^e^d^{itors, de}^v^a^lua^tioⁿ^of^{its c}^u^rre^nc^y^,^a^{nd inc}^r^e^a^s^e^d^le^v^e^{ls of}^une^m^p^loy^m^eⁿ^{t a}^nd^pov^e^r^ty^{. For m}^o^re^inf^o^r^m^a^tion
^{on t}^h^e^fⁱ^na^nc^ia^{l c}^o^lla^ps^eⁱⁿ^A^r^g^e^ntina^s^e^e^C^R^S^R^e^por^{t R}^S²¹⁰⁷^2,^T^h^e^Fin^ancⁱ^a^{l Crisis i}ⁿ^Arge^ntin^a^,^by^J^.^{F. H}^o^rn^be^c^k^.
¹⁰^Iⁿ^a^d^diti^on,^m^aⁿ^y^A^r^ge^ntine^na^ti^ona^ls^w^e^r^e^tr^yⁱ^ng^{to us}^e^the^V^W^{P to}^obtaⁱ^{n e}ⁿ^try^{to t}^h^e^Unite^d^Sta^t^e^s^sole^ly^f^o^{r the}
^p^u^r^p^o^s^{e o}^f^p^r^o^ceedⁱⁿ^g^to^th^{e Can}^a^dⁱ^an^b^o^rd^{er a}ⁿ^d^p^u^r^s^uⁱⁿ^g^an^asy^l^u^m^clai^mⁱⁿ^Can^a^d^a^{. A}^cco^rdⁱⁿ^g^to^Citizen^sh^ip^aⁿ^d
^I^m^mⁱ^g^r^a^{tion C}^a^na^da^{, be}^tw^e^eⁿ¹⁹^{99 a}ⁿ^d²⁰^01,^m^o^r^e^thaⁿ²^,⁵^{00 A}^r^g^e^ntine^s^f^ile^{d r}^e^f^u^g^e^e^c^l^aⁱ^m^s^{in C}^a^na^da^a^f^te^r
^traⁿ^siting^t^h^e^Unite^d^Sta^t^e^s^u^nde^r^the^V^W^P^.^Fe^de^{ral Re}^giste^r^{, Fe}^br^ua^r^y^{21, 20}⁰²^{, v}^o^l.⁶⁷^,^no.³⁵^,^p.⁷⁹⁴^4.
¹¹^W^hⁱ^l^e^t^h^{e nu}^m^b^{er o}^f^A^r^gen^tⁱⁿ^{e no}ⁿⁱ^mmⁱ^g^ran^t^t^r^avel^{ers t}^o^t^h^{e Un}ⁱ^t^ed^S^t^at^{es d}^eclⁱⁿ^{ed b}^e^t^w^een¹⁹⁹⁸^an^d²⁰⁰⁰^,^t^h^e
ⁿ^u^m^b^e^{r o}^f^A^r^gen^tⁱⁿ^{es d}^eⁿⁱ^ed^a^d^mⁱ^s^sⁱ^oⁿ^at^t^h^{e bo}^rd^{er and}^t^h^{e nu}^mb^{er o}^fⁱⁿ^t^e^ri^o^r^ap^p^r^e^h^en^si^on^{s i}ⁿ^creased^.^T^h^e
^De^pa^rtm^e^{nt of}^Justic^e^{in c}^o^nsulta^tion^w^{ith DOS de}^te^rm^ine^d^tha^t^A^r^g^e^ntina^’^{s pa}^r^tic^ipa^tⁱ^oⁿⁱⁿ^the^V^W^{P w}^a^{s inc}^onsiste^nt
^w^{ith the}^Unite^d^Sta^t^e^s^{’ in}^te^re^{st in}^eⁿ^f^o^rc^ing^{it’s im}^mⁱ^g^r^a^ti^{on la}^w^s^{. T}^h^e^D^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity^{did n}^o^{t e}^x^is^t
^{in Fe}^br^ua^r^y²⁰⁰²^{, a}ⁿ^{d a}^u^t^horⁱ^t^y^f^o^r^the^VW^P^r^e^sⁱ^de^d^w^{ith the}^A^tto^rⁿ^e^y^G^e^ne^r^a^{l in the}^D^e^pa^r^t^m^e^{nt o}^f^J^u^s^tic^e^.^Fe^de^ral
^Re^giste^r^,^Fe^br^ua^r^y^{21, 2}⁰⁰²^{, v}^o^l.^67,^no^{. 3}⁵^,^pp^{. 7}⁹⁴³^-⁷⁹⁴^5.
¹²^Betw^e^eⁿ²⁰⁰⁰^aⁿ^d²⁰⁰³^Uru^g^u^a^y^ex^p^e^rien^ced^{a reces}^sioⁿ^cau^sin^g^{its citizen}^{s to}^en^ter^uⁿ^d^e^{r th}^e^VW^P^to^liv^{e an}^d
^w^o^rk^ille^ga^ll^y^{in the}^Un^ite^{d S}^t^a^t^e^s^{. In}²⁰^02,^Urug^ua^y^a^{n na}^tiona^ls^w^e^r^e^tw^{o to thre}^e^tim^e^s^m^o^re^lik^e^l^y^thaⁿ^a^ll
^non^im^mⁱ^g^r^aⁿ^ts^{on a}^v^e^r^a^g^e^{to ha}^v^e^be^eⁿ^de^nie^d^a^d^mⁱ^s^sⁱ^{on a}^t^t^h^e^b^o^r^de^r^.^U^r^ug^ua^y^a^{n a}ⁱ^r^a^r^rⁱ^v^a^ls^ha^{d a}ⁿ^a^ppa^r^eⁿ^t
^o^v^erst^a^y^rat^e^m^o^{re t}^h^an^t^wⁱ^{ce t}^h^{e rat}^e^o^f^t^h^{e avera}^g^{e ap}^p^a^ren^t^o^v^erst^a^y^rat^e^f^o^{r al}^l^ai^{r arri}^valⁿ^oⁿⁱ^mmi^gran^t^s^.^Fe^de^ral
^Re^giste^r^,^Ma^r^c^{h 7, 20}^03,^v^o^{l. 68,}^{no. 45}^,^p^p^{. 10}⁹⁵^4-¹⁰⁹⁵⁷^.
¹³^“^D^is^qua^lif^ic^a^{tion r}^a^te^”^is^de^fⁱ^ne^d^a^s^the^pe^r^c^eⁿ^ta^g^e^of^na^tiona^ls^f^r^o^m^a^c^ountr^y^w^{ho a}^pplie^d^f^o^r^a^d^mⁱ^s^sⁱ^{on a}^s^a
^non^im^mⁱ^g^r^aⁿ^{t w}^{ho e}^ithe^r^vⁱ^ola^t^e^d^the^te^r^m^s^of^the^non^im^mⁱ^g^r^aⁿ^{t v}ⁱ^s^a^{, w}^{ho w}^e^r^e^e^x^c^l^ude^{d f}^r^o^m^a^d^mⁱ^s^sⁱ^on^or^w^ho
^wⁱ^t^h^d^r^ew^t^h^ei^{r ap}^p^lⁱ^catⁱ^oⁿ^f^o^{r adm}ⁱ^s^sⁱ^oⁿ^{as a no}ⁿⁱ^m^mⁱ^gran^t^.
¹⁴^T^h^e^I^lle^g^a^{l I}^m^mⁱ^g^r^a^{tion R}^e^f^o^r^m^a^{nd I}^m^mⁱ^g^r^aⁿ^{t R}^e^s^pons^ibil^ity^A^c^t^of¹⁹^{96 (}^P^.L^{. 10}^4-²⁰⁸⁾^.
¹⁵^Fe^de^{ral Re}^gⁱ^ste^r^{, Ma}^r^c^h^7,²⁰^03,^v^o^{l. 6}⁸^,^no^{. 4}⁵^,^pp^{. 1}⁰⁹^54-¹⁰⁹⁵^7.
¹⁶^D^H^S^ha^sⁿ^o^{t y}^e^{t f}ⁱ^na^liz^e^d^its^m^e^thod^ol^og^y^f^o^r^m^e^e^ting^this^pr^ov^isⁱ^on.^Iⁿ^a^d^diti^on^{, t}^h^e^r^e^is^s^o^m^e^dis^a^g^r^e^e^m^e^nt
^be^tw^e^eⁿ^c^e^r^ta^{in c}^r^itic^{s a}^{nd DHS r}^e^g^a^rding^e^x^a^c^tl^y^w^h^a^t^ne^e^d^{s to}^be^v^e^rifⁱ^e^d^.

• the electronic travel authorization system (ESTA discussed below) is ¹⁷
operational.
Initially, the air exit system does not need to incorporate biometric identifiers; however, after June
30, 2009, if the air exit system is unable to match an alien’s biometric information with relevant
watch lists and manifest information, the Secretary of DHS’s authority to waive the nonimmigrant
refusal rate will be suspended until the air exit system has the specified biometric capacity. DHS ¹⁸
is unlikely to meet this deadline.
Once the Secretary of DHS has the authority to waive the nonimmigrant refusal rate requirement
for admission to the VWP, to participate in the program a country who receives a refusal rate
waiver will also have to
• meet all the security requirements of the program;
• be determined by the Secretary of DHS 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;
• 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
• during the previous fiscal year, the nonimmigrant visas refusal rate was not more
than 10%, or the overstay rate did not exceed the maximum overstay rate
established by the Secretaries of DHS and DOS for countries receiving waivers
of the nonimmigrant refusal rate to participate in the VWP the program.
P.L. 110-53 also specifies that in determining whether to waive the nonimmigrant refusal rate
requirement, the Secretary of DHS, in consultation with the Secretary of DOS, 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.
As previously mentioned, P.L. 110-53 mandates that the Secretary of DHS, in consultation with
the Secretary of DOS, develop and implement an electronic travel authorization system (ESTA),
through which each alien electronically provides, in advance of travel, the biographical

¹⁷^{DHS de}^te^rm^ine^d^tha^t^t^h^e^la^w^pe^rm^{its it}^{to util}^iz^e^the^w^a^iv^e^r^w^h^eⁿ^ESTA^{is f}^unc^tiona^l^but^be^f^o^re^{it i}^s^m^a^nda^tory^f^o^r
^a^{ll V}^W^P^tra^v^e^l^e^r^s^.^Critic^s^doⁿ^o^t^a^g^re^e^w^{ith this}^inte^r^p^re^ta^tio^{n a}ⁿ^d^think^t^h^a^t^EST^A^s^houl^{d be}^m^a^nda^tory^f^o^{r a}^{ll V}^W^P
^tra^v^e^l^e^r^s^bef^o^re^ne^w^c^ountrie^s^a^r^e^a^d^m^itte^{d to t}^h^e^pr^og^ram^.^U^.^{S. G}^o^v^e^rn^m^e^{nt A}^c^c^ounta^b^il^ity^O^f^fⁱ^c^e^,^Vⁱ^sa^Waⁱ^ver
^Pr^ogr^am^:^Ac^tio^ns^Ar^e^N^e^e^d^e^d^t^o^I^m^pr^ov^e^M^ana^ge^m^e^{nt o}^f^t^h^e^Ex^pa^ns^ion^Pr^oc^e^s^s^,^a^nd^to^As^s^e^s^s^and^M^itigate^Pr^ogr^am
^Risks,^G^A^O^-^08-^967,^Se^pte^m^be^r²⁰⁰⁸^.⁽^H^erea^f^t^e^{r GA}^O,^Vⁱ^sa^Waⁱ^v^e^r^P^r^o^g^r^a^m^:^A^c^tⁱ^oⁿ^s^A^r^{e Need}^ed^t^o^Imp^r^o^ve
^M^ana^ge^me^{nt of}^the^Ex^pa^nsio^{n Pr}^oc^e^{ss, an}^{d to}^Asse^{ss an}^{d M}^itig^ate^Progr^{am Risk}^s.)
¹⁸^GA^O,^Vis^a^W^a^iv^e^r^Pr^ogr^am^:^Ac^tⁱ^ons^Ar^e^N^e^e^d^e^d^{to I}^m^pr^ov^e^M^aⁿ^age^m^e^nt^{of t}^h^e^Ex^p^ansⁱ^{on Pr}^oc^e^s^s^,^an^{d t}^o^As^s^e^s^s
^and^M^itig^ate^Pro^g^{ram R}ⁱ^sk^s.

information necessary to determine whether the alien is eligible to travel to the United States and
enter under the VWP. Aliens using ESTA will be charged a fee that will be set at a level so that
the cost of creating and administering ESTA is covered by the fees. Eligibility to travel
determined by ESTA will be valid for at most three years, and eligibility can be revoked at any
time. 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. Under law, ESTA becomes
operational 60 days after the Secretary of DHS publishes a notice in the Federal Register. The ¹⁹
interim final rule was published on June 9, 2008.
Unlike other nonimmigrants, no background checks are done on travelers under the VWP prior to
their departure for the United States. This expedited process allows only one opportunity—
immigration inspectors at port of entry—to identify inadmissable aliens. Prior to the alien’s
arrival, an electronic passenger manifest is sent from the airline or commercial vessel to
immigration inspectors at the port of entry which is checked against security databases.
Since October 1, 2002, passenger arrival and departure information on individuals entering and
leaving the U.S. under the VWP has been electronically collected from airlines and cruise lines,
through DHS’s Bureau of Customs and Border Protection’s (CBP) Advanced Passenger
Information System (APIS) system. If the carrier fails to submit the information, an alien may not
enter under the VWP. APIS sends the data to the DHS’s Bureau of Immigration and Customs ²⁰
Enforcement’s (ICE) Arrival and Departure Information System (ADIS) for matching arrivals
and departures and reporting purposes. APIS collects carrier information such as flight number,
airport of departure and other data.
At port of entry, immigration inspectors observe and question applicants, examine passports, and
conduct checks against a computerized system to determine whether the applicant is admissible to ²¹
the United States. DHS’s CBP inspects aliens who seek to enter the United States. Primary
inspection consists of a brief interview with an immigration inspector, a cursory check of the ²²
traveler’s documents, and a query of the Interagency Border Inspection System (IBIS), and
entry of the traveler into the US-VISIT system. The US-VISIT system uses biometric ²³
identification (finger scans) to check identity and track presence in the United States. Currently,
inspectors at the border collect the 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 quick (usually lasting no

¹⁹^D^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^rⁱ^t^y^{, “}^C^ha^ng^es^{to the}^Vis^a^W^a^iv^e^r^Pr^og^r^a^m^T^o^I^m^plem^eⁿ^{t the}^Ele^c^t^r^o^nic^Sy^s^t^em^f^o^r
^T^r^a^v^e^l^A^u^thoriz^a^tio^{n (E}^ST^A⁾^P^r^o^g^r^a^m^,”^Fe^de^{ral Re}^giste^r^,^J^une^{9, 200}^8,^v^o^l^{. 73,}ⁿ^o^{. 11,}^p^p^{. 32}⁴⁴^0-³²⁴⁵^3.
²⁰^A^D^IS^f^eed^{s in}^f^o^r^m^atioⁿ^to^th^{e I}ⁿ^terag^eⁿ^c^y^Bo^rd^{er In}^sp^ectioⁿ^Sy^st^e^m^(IBIS).
²¹^A^lthoug^{h a}^lie^ns^w^h^o^eⁿ^te^r^u^nde^r^the^VW^P^do^no^{t ne}^e^d^a^vⁱ^s^a^{, a}^{ll v}ⁱ^s^a^w^a^iv^e^r^pr^og^r^a^m^a^pplic^aⁿ^ts^a^r^e^is^s^u^e^d
^non^im^mⁱ^g^r^aⁿ^{t v}ⁱ^s^a^w^a^iv^e^r^a^r^rⁱ^v^a^l/^de^pa^r^t^ur^e^f^o^r^m^s⁽^F^or^m^I^-^94W⁾^.
²²^{IBIS in}^te^rf^a^c^e^s^w^{ith the}^{FBI’s N}^a^tiona^{l Crim}^e^Inf^o^rmatⁱ^oⁿ^Cen^t^er^(NCIC),^t^h^{e T}^r^easu^r^y^Eⁿ^f^o^rce^m^eⁿ^t^and
^Co^mm^uⁿⁱ^catioⁿ^s^Sy^ste^m⁽^T^{ECS II), Natio}ⁿ^a^l^A^u^to^m^a^ted^I^m^mⁱ^g^r^atioⁿ^L^o^o^k^o^u^t^Sy^ste^m^(N^AIL^S^{), No}ⁿ^-^immⁱ^g^r^an^t
^In^f^o^rmatⁱ^oⁿ^S^y^st^e^m^(NIIS^),^CL^AS^S^and^T^I^P^O^F^F^t^e^rro^rⁱ^st^d^a^t^a^b^a^se^s.^Becau^{se o}^f^t^h^{e n}^u^m^ero^u^s^sy^st^e^m^{s an}^d^d^a^t^a^b^a^ses
^tha^tⁱⁿ^te^rf^a^c^e^w^{ith IBIS, the}^sy^ste^m^is^a^b^le^{to ob}^ta^{in suc}^hⁱⁿ^f^o^rm^a^{tion a}^s^w^h^e^t^he^{r a}ⁿ^a^lieⁿ^{is a}^d^mⁱ^ssible^,^aⁿ^a^lie^n’s
^cri^mⁱⁿ^alⁱⁿ^f^o^r^m^atⁱ^oⁿ^,^an^{d w}^h^et^h^e^{r an}^alⁱ^eⁿⁱ^s^w^aⁿ^t^ed^b^y^l^a^w^en^f^o^rc^e^m^en^t^.
²³^For^m^o^r^e^inf^o^r^m^a^{tion o}ⁿ^U^S^-^V^I^S^I^T^s^e^e^,^C^R^S^R^e^por^{t R}^L³²²³⁴^,^U^.^{S. Vis}ⁱ^t^o^r^an^{d I}^m^mⁱ^gr^aⁿ^t^Sta^t^us^I^ndic^a^tor
^Te^c^hnol^ogy⁽^U^S-^VI^SI^T)^Pr^o^g^r^a^m^,^by^Lⁱ^s^a^{M. Se}^g^h^e^{tti a}ⁿ^{d Ste}^p^heⁿ^{R. V}ⁱ^na^.

longer than a minute); however, if the inspector 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, ²⁴
travel documents are further examined, and additional databases are queried.
Additionally, P.L. 110-53 required that the Secretary of DHS, 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. DHS has said that the final ²⁵
rule for this system will be published by October 15, 2008. 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.
Figure 1. Number of Entrants under the VWP for FY1998-FY2007, Percentage of All
Nonimmigrant Entrants Who Are VWP Entrants, and Percentage of All B Visa
Entrants Who Are VWP Entrants
^Source:^Depart^{ment of}^{Homeland Security,}^{FY2006: Yearbook of I}^{mmigration Statistics}^{. Data are not}^{available for}
^{FY1997. De}^partme^{nt of Homelan}^{d Security,}^{Nonimmigrant Admis}^sio^{ns to the United States: 2007}^{, Aug}^{ust 2}⁰⁰^8.

²⁴^L^ook^out^da^ta^ba^s^e^s^s^u^c^h^a^s^T^I^P^O^{FF, w}^h^ic^{h is}ⁱⁿ^te^g^r^a^t^e^d^w^{ith C}^L^A^{SS, c}^o^ntaⁱⁿ^inf^o^r^m^a^{tion o}ⁿ^a^lie^ns^w^{ho a}^r^e
^ina^d^mⁱ^s^sⁱ^ble^f^o^r^eⁿ^tr^y^{into the}^Uⁿ^ite^{d Sta}^t^e^s^{. N}^S^E^E^R^S^aⁿ^{d S}^E^VI^S^a^r^e^a^l^s^o^us^e^d^d^u^rⁱ^ng^s^e^c^onda^r^y^ins^p^e^c^tions^.
^Im^mⁱ^g^r^a^{tion inspe}^c^t^{ors m}^a^y^a^c^c^e^{ss NA}^I^L^{S II, w}^h^ic^{h is a}^te^x^t^-b^a^s^e^d^sy^ste^m^tha^t^inte^rf^a^c^e^s^w^{ith IBIS a}^{nd CL}^A^{SS. For}
^m^o^r^e^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^{t R}^L³¹³^81,^U^.^S.^I^m^mⁱ^gr^at^io^{n P}^o^lⁱ^c^y^{on Te}^m^p^or^ar^y^A^d^mⁱ^s^sⁱ^ons^,^by^C^h^a^d^C^.^H^a^dda^l
^a^{nd Ru}^th^Elle^{n W}^a^se^m^.
²⁵^P^e^r^s^ona^{l c}^o^nv^e^r^s^a^{tion w}^{ith D}^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity^C^ong^r^e^s^sⁱ^ona^{l A}^f^f^a^ir^s^,^Se^ptem^be^r^22,²⁰^08.

^Note:^{Number of co}^untries^part^{icipating in the VWP at the e}^{nd of the fiscal year: FY1}⁹⁹^{8, 26; FY1}^999-FY2⁰⁰^1,
^{29; FY20}^02,^{28; a}^{nd FY20}^03-FY2^007,^27.
The number of people entering under the VWP grew steadily as countries were added to the
program, and reached a peak of 17.7 million in FY2000. In FY2007, 16 million people entered
under the VWP. The number of visitors entering under the VWP declined by 3.4 million or 20%
between FY2001 and FY2002. The number of all nonimmigrants entering the United States
declined by 4.9 million or 14.9% during the same period, but the number of nonimmigrants who
were not from VWP countries declined by 1.6 million (9.6%). Similarly, the number of foreign
nationals entering the United States with B visas between FY2001 and FY2002 declined by
13.4% or 1.7 million, which is a smaller decline than the decline in the percent of visitors entering
under the VWP.
Between FY2002 and FY2005, the number of people entering under the VWP increased 16.4%,
from 13.2 to 15.8 million. The number of people entering under the VWP declined slightly
between FY2005 and FY2006, from 15.8 million to 15.3 million, and then increased to 16 million
in FY2007. The number of people entering as nonimmigrants decreased slightly between FY2002
and FY2003, from 27.9 to 27.8 million, and then increased from 27.8 to 37.1 million (33.5%)
between FY2003 and FY2007. The number of aliens entering as temporary visitors for business
or pleasure increased 35.4% from 24.3 to 32.9 million between FY2002 and FY2007. In FY2007,
visitors entering under the VWP constituted 43% of all nonimmigrant admissions, and 48.5% of ²⁶
all temporary visitors.
During the most recent years, the majority of the growth in nonimmigrant and temporary visitor
admittances came from aliens from countries not in the VWP. Between FY2002 and FY2004, the
percent increase of the number of aliens entering under the VWP was larger than the increase in
both the number of nonimmigrant and temporary visitor entrants. However, between FY2004 and
FY2007, the increase in the number of aliens entering under the VWP was smaller than the
increase in both the number of nonimmigrant and temporary visitor entrants. Moreover, in
FY2007 the proportions of nonimmigrant and temporary visitor admissions from VWP countries
are the smallest in more than 10 years, when there were fewer countries in the program.
Additionally, for the first time since 1995, when there were 23 VWP countries, visitors from
VWP countries constitute less than 50% of all temporary visitors to the United States.

The VWP is supported by the U.S. travel and tourism industry, the business community, and
DOS. 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 ²⁷
foreign tourism and commerce for the United States. DOS argues that by waiving the visa

²⁶^T^e^m^por^a^r^y^vⁱ^s^itor^s^inc^l^ude^a^lieⁿ^s^w^{ho e}ⁿ^te^r^e^{d w}^{ith B}^vⁱ^s^a^s^a^{nd t}^h^os^e^w^{ho e}ⁿ^te^r^e^{d u}^nde^r^the^VW^P.
²⁷^T^h^e^e^x^am^ple^of^A^r^g^e^ntina^w^a^s^f^r^e^que^ntly^us^e^d^to^ill^us^tr^a^t^e^this^r^e^l^a^tions^hi^p;^dur^ing^the^fⁱ^{rst y}^e^a^r^A^r^g^e^ntina^w^a^{s in}
^the^V^W^P^,^to^urism^f^r^o^m^tha^t^c^oun^try^{to the}^Unite^d^Sta^t^e^s^g^r^e^w^b^y^11.5%^.^Som^e^c^ite^Sout^{h K}^o^r^e^a^a^s^a^c^oun^tr^y^tha^t
^s^houl^{d be}^pa^r^ticⁱ^p^a^tingⁱⁿ^VW^P^b^ecau^{se o}^f^t^h^{e t}^r^ad^{e an}^d^t^o^u^rⁱ^s^m^gro^w^t^hⁱ^t^cou^l^d^gen^e^rat^e^,^and^con^t^en^d^t^h^at^t^hⁱ^s^f^act^o^r
^s^houl^d^be^a^dde^{d to}^the^c^r^ite^rⁱ^a^us^e^d^{to s}^e^le^c^t^pa^r^ticⁱ^p^a^ting^c^o^untrⁱ^e^s^{. O}^t^he^r^pr^op^oneⁿ^t^s^of^the^VW^P,^how^e^v^e^r^{, c}^onte^nd
^tha^t^the^c^r^ite^rⁱ^a^s^h^o^u^ld^no^{t be}^br^o^a^de^ne^{d t}^o^inc^l^ude^t^our^is^m^poteⁿ^ti^a^l^if^the^thr^e^s^h^o^l^ds^of^r^e^f^u^s^a^{l r}^a^{tes a}^{nd v}ⁱ^s^a^ov^e^r^s^t^a^y
⁽^c^onti^nue^d.^..)

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. Additionally, some contend that currently DOS does not have the ²⁸
resources to resume issuing visas to all the visitors from VWP countries.
Nonetheless, while the program has significantly reduced the consular workload and facilitated
travel to the United States, it has increased the workload of immigration inspectors at ports of
entry by shifting background checks to ports of entry. Furthermore, others contend that the
relaxed documentary requirements of the VWP increase immigration fraud and decrease border
security. Immigration inspectors have stated that terrorists and criminals believed they would
receive less scrutiny during the immigration inspection process if they applied for admission into ²⁹
the United States under the VWP. Another concern has been the lack of information on aliens
from VWP countries who overstay the terms of their admittance.
On September 6, 2006, the Senate Judiciary Committee’s Terrorism, Technology, and Homeland
Security Subcommittee held a hearing entitled “Keeping Terrorists Off The Plane: Strategies For
Pre-Screening International Passengers Before Takeoff.” During that hearing, testimony by Jess
T. Ford of the Government Accountability Office (GAO) noted that the VWP has many benefits
as well as some inherent risks. Of particular concern are the stolen passports from VWP countries
especially since they are prized travel documents among those attempting to illegally enter the ³⁰
United States; and problems with the two-year reviews of participating VWP countries.
Although some view the VWP as a security risk since travelers under the program do not undergo
the screening required to receive a visa, others contend that the inclusion of countries in the VWP
actually increases U.S. security. They argue that the VWP enhances security by setting standards
for travel documents and information sharing, and that the program promotes economic growth
and cultural ties. In addition, membership in the VWP could be used as an incentive to get other ³¹
countries to share information with the United States.
There are countries that have expressed a desire to be included in the VWP because of the
possible economic benefits (e.g., increasing commerce and tourism), making it easier and cheaper
for their populace to travel to the United States (i.e., since their citizens do not have to get a visa
before traveling temporarily to the United States), and because membership in the program is

^(...c^on^tin^ue^d)
^vi^o^l^atⁱ^oⁿ^s^{are w}^eaken^ed^,^arguⁱⁿ^{g t}^h^at^t^h^{ese p}^r^o^vⁱ^sⁱ^oⁿ^s^a^r^e^e^s^s^e^ntia^{l to s}^a^f^e^g^u^a^r^{d a}^{nd c}^ontr^o^l^our^b^o^r^d^e^r^s^.
²⁸^In^{his te}^stim^ony^be^f^o^re^the^Hous^e^Im^mⁱ^g^r^a^{tion a}^{nd Cla}ⁱ^m^s^Subc^o^m^m^itte^e^{on Fe}^br^ua^ry^{28, 2}⁰⁰²^{, W}^illia^m^{S. Norm}^aⁿ^,
^P^r^e^s^ideⁿ^{t a}ⁿ^{d C}^h^ie^f^Ex^e^c^u^tiv^e^Of^fⁱ^c^e^r^o^f^the^T^r^a^v^e^l^I^ndus^tr^y^A^s^s^o^cⁱ^a^tion^of^A^m^e^r^ic^a^,^s^t^a^t^e^d^tha^t^{it w}^oul^{d ta}^k^e^hu^ndr^e^d^s
^of^ne^w^c^onsula^r^sta^f^f^a^{nd te}^{ns of}^m^illi^{ons of}^dolla^{rs t}^o^issue^vⁱ^sa^{s t}^o^vⁱ^sito^{rs c}^u^rre^ntly^eⁿ^te^ring^un^de^{r the}^V^W^P^.
²⁹^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^J^u^s^tic^e^,^O^f^fⁱ^c^e^of^Iⁿ^s^p^e^c^t^or^G^e^ne^r^a^{l R}^e^por^{t I}^-²⁰⁰^2-⁰⁰^2,^F^o^l^l^o^w-U^p^R^e^po^rt^oⁿ^t^h^{e V}ⁱ^sa^Wai^ver
^Pr^ogr^am^,^Dece^m^b^{er 2}⁰⁰¹^.^(Here^a^f^t^{er ci}^t^e^d^{as DOJ,}^{Follow-Up Re}^port^.)
³⁰^T^e^s^tⁱ^m^on^y^of^J^e^s^s^T^.^For^d^{, D}ⁱ^r^e^c^t^or^Iⁿ^te^rⁿ^a^tio^na^{l A}^f^f^a^ir^s^a^{nd T}^r^a^d^e^,^G^e^ne^r^a^l^A^c^c^ountiⁿ^g^O^f^fⁱ^c^e^,^{in U}^.^{S. C}^o^ng^r^e^s^s^,
^Se^na^te^Com^m^itte^e^{on the}^J^u^dicⁱ^a^r^y^Co^m^m^ittee^,^Subc^om^m^itte^e^{on Te}^rroris^m^{, Te}^c^hnolog^y^,^a^{nd H}^o^m^e^l^a^{nd Se}^c^u^rity^,
^Keepⁱⁿ^g^T^e^rro^{rists Off T}^h^{e Plan}^e^:^S^t^ra^te^gⁱ^{es Fo}^r^Pr^e^-^Sc^r^e^eⁿⁱ^{ng I}ⁿ^te^r^natio^na^{l P}^a^s^s^e^nge^r^s^Be^for^e^T^a^k^e^o^ff,^h^eariⁿ^gs,^th^nd
¹⁰⁹^Co^ng^.,²^s^e^s^s^{., Se}^pte^m^be^r^{7, 2}⁰⁰⁶^.
³¹^F^o^{r a}ⁿ^exa^m^p^l^{e o}^f^t^hⁱ^s^agree^m^en^t^,^{see Ja}^m^e^{s Ja}^{y Cara}^fan^o^,^W^ith^a^Little^H^e^{lp fr}^om^O^u^r^Fr^ie^nds^{: E}ⁿ^hancⁱⁿ^g^Se^c^u^r^ity
^by^Ex^pa^ndi^ng^the^Vis^a^W^a^iv^e^r^Pr^ogr^am^,^H^e^r^ita^g^e^Foun^da^tio^n,^Ex^e^c^u^tiv^e^Me^m^o^r^a^ndum^{no. 9}⁹¹^,^Fe^b^r^ua^r^y^{3, 200}^6.

often perceived as evidence of close ties with the United States. In 2005, the administration began
providing countries interested in joining the VWP with “road maps” to aid the countries in ³²
meeting the program’s criteria. However, some of the countries have complained that since the
“road maps” do not contain milestones or time tables, it is difficult to measure the amount of ³³
progress made towards fulfilling the criteria for VWP membership. Moreover, others contend
that since U.S. consular officers are the ones that approve or disapprove applications for visas, it
is extremely difficult for countries to affect their visa refusal rates, limiting the ability of a
country to follow a defined set of steps to meet the required VWP criteria.

The first step in the process is that the Department of State (DOS) advises DHS of its intent to
nominate a country for inclusion in the program only after State has determined that the country ³⁵
meets key criteria for visa waiver designation. Then DHS and DOS may engage in a pre-
nomination consultation process to ensure that all parties are in agreement before DOS submits its
formal nomination. After receiving the formal nomination from DOS, DHS, through an
interagency working group, evaluates the effect that the country’s designation would have on U.S.
law enforcement, security, and immigration interests. On the basis of the review, the interagency
working group submits a recommendation to the Secretary of DHS, who, in consultation with the ³⁶
Secretary DOS, decides whether to admit the country into the program.
Twelve of the road map countries are members in the EU, which may also raise another issue
concerning the VWP. EU rules require that all member states be treated equally (solidarity
clause). In addition, a visa is required for all citizens from non-VWP EU countries wishing to
travel to the United States, whereas under EU law, these countries do not require visas of US
citizens for stays up to 90 days. Presently any of the 12 EU Member States not participating in the ³⁷³⁸
VWP could invoke the EU solidarity clause and visa reciprocity clause, with the result that the
other EU countries may have to decline to be members of the VWP, or place visa requirements on
United States citizens traveling to EU countries unless the other countries are allowed to enter the

³²^T^h^e^r^e^a^r^e^c^u^r^r^e^ntly^{13 “}^r^oa^{d m}^a^p”^c^ountrⁱ^e^s^{. T}^h^ey^a^r^e^B^u^lg^a^r^ia^{, C}^y^pr^us^{, C}^zech^Re^p^u^b^lⁱ^c^,^E^s^t^oⁿⁱ^a,^G^r^e^ece,^Huⁿ^g^ar^y^,
^Sout^{h K}^o^r^e^a^,^L^a^tv^ia^{, L}^ithua^nia^,^Ma^lta^,^P^o^la^nd,^R^o^m^a^nia^,^a^nd^Slo^v^a^kⁱ^a^.
³³^{For e}^x^a^m^ple^,^{on Fe}^br^ua^ry^{8, 20}⁰⁶^{, t}^h^e^He^rita^g^e^Foun^da^tioⁿ^he^{ld a}ⁿ^e^v^eⁿ^{t e}ⁿ^title^d^Fi^ghtⁱⁿ^{g a}^M^o^r^e^Effe^c^tiv^e^W^a^r^on
^Te^r^r^o^rⁱ^s^m^:^Ex^pan^di^{ng t}^h^e^Vis^a^W^a^iv^e^r^Pr^ogr^am^.^T^h^{e f}^eat^u^r^ed^sp^eakers^w^e^re^Am^b^a^ssad^o^r^{s P}^e^t^r^K^o^l^a^{r o}^f^t^h^{e Czech}
^R^e^public^,^J^o^{hn B}^r^utoⁿ^of^the^EU^,^J^a^nus^z^R^e^ite^r^of^P^o^laⁿ^d^{, a}^{nd A}ⁿ^d^r^á^s^Sim^oⁿ^y^{i of}^H^ung^a^r^y^.^A^r^e^c^o^r^d^ing^of^the^e^v^eⁿ^{t is}
^a^v^a^ila^ble^a^t^http://w^ww^.he^r^ita^g^e^.o^rg^/P^re^ss/Ev^eⁿ^ts/e^v⁰²⁰⁸⁰^6a^.c^fm^.
³⁴^N^o^te^tha^t^this^s^e^c^tio^{n is}^ba^s^e^{d o}ⁿ^U^.^{S. G}^o^v^e^rnm^e^nt^A^c^c^ounta^b^ility^O^f^fⁱ^c^e^,^B^o^rd^{er S}^ecu^ri^t^y^{: S}^t^ron^g^e^{r A}^c^tⁱ^oⁿ^s^Need^ed
^to^{Assess a}ⁿ^d^Miti^g^a^t^{e Risks}^o^f^t^h^{e Visa}^Wa^{iver Prog}^ra^m,^G^A^O^-^06-⁸⁵^{4, J}^u^ly^{, 20}⁰⁶^{, p}^.⁵¹^.⁽^H^erea^f^t^e^{r GA}^O,^B^o^rd^er
^Se^c^u^rity^{: Stro}^nge^{r Ac}^ti^ons^Ne^e^d^e^d^to^Asse^{ss an}^{d M}^itig^ate^Risk^{s of}^the^Visa^W^a^iv^e^r^Program^.)
³⁵^N^o^te^{, t}^h^is^pa^r^a^g^r^a^ph^de^s^c^rⁱ^be^s^th^e^inte^rⁱ^m^pr^oc^e^s^s^f^o^r^a^dding^a^c^o^uⁿ^tr^y^{to the}^VW^{P. I}ⁿ^J^u^ly²⁰⁰^{6, G}^A^O^r^e^por^te^{d tha}^t
^{DHS w}^a^{s dra}^f^ting^proc^e^dure^s^oⁿ^t^h^e^proc^e^{ss by}^w^h^ic^{h a}^dditi^ona^{l c}^o^untrie^s^a^r^e^a^d^m^itte^{d int}^o^t^h^e^V^W^{P. CRS w}^a^s
^una^ble^t^o^c^o^nf^ir^m^w^h^e^t^he^r^the^ne^w^pr^oc^e^dur^e^s^ha^v^e^be^eⁿ^fⁱ^na^liz^e^d^.
³⁶^GA^O,^Bor^d^e^r^Se^c^u^r^ity^:^Str^o^nge^r^Ac^tions^N^e^e^d^e^d^to^As^s^e^s^s^and^M^itigate^Rⁱ^s^k^s^{of t}^h^e^Vis^a^W^a^iv^e^r^Pr^ogr^am^.
³⁷^Noⁿ^-^V^W^P^E^U^couⁿ^t^ri^{es cou}^l^d^c^oⁿ^t^end^t^h^at^t^h^{e f}^act^t^h^at^o^t^h^e^{r coun}^t^rⁱ^e^{s i}ⁿ^t^h^{e E}^U^are^p^a^rt^o^f^t^h^e^VW^P^coⁿ^s^tⁱ^t^u^t^e^s
^uⁿ^e^qu^al^t^r^eat^m^eⁿ^t^.
³⁸^T^h^e^s^a^m^e^vⁱ^s^a^r^u^le^s^do^not^a^pply^{to U}^.^{S. c}^itiz^eⁿ^s^tr^a^v^e^ling^t^o^the^N^on-^VW^{P EU}^c^o^untrⁱ^e^s^{, a}^{nd N}^on-^VW^{P EU}
^c^itiz^eⁿ^{s tra}^v^e^ling^{to the}^Uⁿ^ite^d^St^a^t^e^s^.

VWP.³⁹ Nonetheless, the other EU countries may put pressure on the non-VWP EU countries not
to file a formal complaint which could strain EU-U.S. relations. Also, some of the countries may ⁴⁰
not have raised this issue yet because they are not full members of the Schengen area. Notably,
Greece, a full member of the EU that is not a VWP country (but who was nominated in 2007 by ⁴¹
DOS to become a VWP country), has not filed a complaint about unequal treatment.
The Commission on European Communities has stated that it believes that the road map process
could be “an adequate means for ensuring visa exemption for all EU citizens in the medium
term...” However, the Commission noted that to make the process fully effective there needs to be
more consistency in setting the goals and measures for road map countries. The Commission also
stated that the United States had not shown any willingness to consider interim facilitation
measures such as providing a fee exemption for tourist visas, and that the EU should continue to ⁴²
press the United States to streamline at least some aspects of the visa application process.
A September 2008 report by the Government Accountability Office (GAO) noted that the
executive branch is moving aggressively to expand the VWP by the end of 2008, but that the
process has not been transparent leading to confusion among interagency partners and aspiring
program countries. The Department of State has reported difficulties explaining to certain
countries with FY2007 refusal rates below 10% and that have interest in joining the program
(e.g., Croatia, Israel, and Tawain) why DHS had not negotiated MOUs with them, but had
negotiated MOUs with several countries with refusal rates over 10% (e.g., Hungary, Latvia, ⁴³
Lithuania, and Slovakia). GAO also found that although DHS had achieved some security
enhancements to the program during the negotiations with aspiring VWP countries (e.g., sharing
of information on lost and stolen passports), but concluded that DHS has not fully developed the ⁴⁴
tools to access and mitigate the risks of the VWP.
In April 2004, the Inspector General (IG) for the DHS released a report entitled An Evaluation of ⁴⁵
the Security Implications of the Visa Waiver Program. The report detailed security concerns with
the VWP, some of which resulted from establishment of DHS in March 2003, and the transfer of

³⁹^C^onv^e^r^s^a^tion^w^{ith T}^e^l^m^{o B}^a^lta^za^r^,^J^u^s^tic^e^a^{nd H}^o^m^e^A^f^f^a^ir^s^C^ouns^e^l^or^{, E}^u^r^o^pe^aⁿ^Uⁿ^io^{n, A}^p^r^{il 1}⁸^,²⁰^05.
⁴⁰^T^h^{e S}^c^h^eⁿ^g^en^{area co}^m^p^ri^{ses t}^h^e^E^U^co^un^t^rⁱ^e^{s w}^hⁱ^c^h^h^a^{ve si}^gn^ed^t^h^{e co}ⁿ^v^en^tⁱ^oⁿⁱ^m^p^l^e^m^en^tⁱⁿ^{g t}^h^e^S^c^h^eⁿ^g^en
^A^g^r^e^em^eⁿ^ts^of¹⁹⁸^{5 a}ⁿ^{d 1}⁹⁹⁰^on^the^f^r^e^e^m^o^v^e^m^e^{nt of}^pe^r^s^ons^aⁿ^d^the^s^t^aⁿ^da^r^d^iz^a^tio^{n of}^b^o^r^d^e^r^c^oⁿ^t^r^o^ls^{. Se}^e
^http:^//m^onde^di^plo^.^c^o^m^/^m^a^ps^/s^c^h^eng^eⁿ²⁰^00,^vⁱ^s^ite^{d J}^a^nua^r^y^23,²⁰^06.
⁴¹^DHS^b^e^ganⁱ^t^s^revi^ew^o^f^G^r^eece^f^o^{r p}^a^rtⁱ^cⁱ^p^atⁱ^oⁿⁱⁿ^t^h^{e V}^W^Pⁱⁿ^l^a^t^e²⁰⁰⁷^.
⁴²^Com^m^{ission of}^the^Eur^ope^aⁿ^C^o^m^m^unitie^s,^Re^por^{t fr}^om^the^C^o^m^mⁱ^s^sⁱ^{on t}^o^t^h^e^C^o^unc^il^on^Vis^a^W^a^iv^e^r^Re^cⁱ^pr^oc^ity
^w^{ith C}^e^r^t^ai^{n T}^h^ir^d^C^o^untrⁱ^e^s^,^Octo^b^e^r^1,²⁰⁰⁶^,^p^p^.¹¹^-¹²^.
⁴³^Iⁿ^a^m^e^e^ting^w^{ith C}^R^S^{, D}^H^S^s^aⁱ^d^tha^t^the^c^o^unt^rⁱ^e^s^w^{ho ha}^d^pr^e^v^ious^ly^be^eⁿ^“^r^oa^{d m}^a^p”^c^ountrⁱ^e^s^w^e^r^e^gⁱ^veⁿ
^p^r^io^ri^ty^,^sin^{ce in}^so^m^e^resp^ects,^the^y^we^re^“^f^{irst in line}^.^”
⁴⁴^U^.^{S. G}^o^v^e^rnm^e^nt^A^c^c^ounta^b^ility^O^f^fⁱ^c^e^,^Vis^a^W^a^iv^e^r^Pr^ogr^am^:^A^c^tions^Ar^e^N^e^e^d^e^d^{to I}^m^pr^ov^e^M^a^nage^m^e^nt^of^the
^Ex^pansⁱ^oⁿ^Pr^oc^e^s^s^,^a^nd^{to As}^s^e^s^s^an^{d M}^itig^ate^Pr^ogr^am^Ris^k^s^,^GAO-08-9⁶⁷^,^Se^p^t^e^m^be^{r 2008}^.⁽^H^er^ea^f^t^e^{r GA}^O,^Vⁱ^sa
^W^a^iv^e^r^Pr^ogr^am^:^Ac^ti^ons^Ar^e^N^e^e^d^e^d^to^I^m^pr^ov^e^M^aⁿ^age^m^e^nt^of^t^h^e^Ex^pa^ns^io^{n Pr}^oc^e^s^s^,^an^{d to}^As^s^e^s^s^{and M}^iti^gate
^Pr^ogr^am^Ris^k^s^.⁾
⁴⁵^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity^{, Of}^fⁱ^c^e^o^f^Iⁿ^s^p^e^c^tions^,^Ev^a^l^ua^tions^,^aⁿ^d^Spe^cⁱ^a^l^R^e^vⁱ^e^w^s^OI^G^-^04-^26,^An
^Ev^alu^a^tioⁿ^{of t}^h^e^Se^c^u^rity^Imp^lic^a^tio^{ns o}^f^the^{Visa W}^a^iv^e^r^Pro^g^ra^m^{, A}^p^r^{il 20}^04.

the VWP’s administration to DHS’s Border and Transportation Security Directorate (BTS). The
report found that after the abolishment of the Immigration and Naturalization Service (INS), the
VWP had a series of acting managers and officials, and that many within DHS and other federal
agencies were unsure who was in charge of the program.
Many of these management issues were resolved with the establishment of the Visa Waiver
Program Oversight Unit within DHS’ Office of International Enforcement (OIE) in July, 2004.
Nonetheless, GAO has reported on-going issues with the country review process noting that
stakeholders (e.g., overseas embassies, DOS regional bureaus, and document analysts) continue
to express concerns about the lack of clear, consistent, and transparent protocols for the biennial ⁴⁶
reviews. In addition, GAO noted that DHS has not provided sufficient resources to OIE and the
VWP Oversight Unit to effectively and continuously monitor the risks posed by existing VWP ⁴⁷
countries.
The July 2006 GAO report also noted that DHS has not established time frames and operating
procedures for the requirement that VWP countries report information on lost and stolen
passports in a timely manner. The issues with lost and stolen passports are similar to those
documented in the IG April 2004 report which found that information provided by VWP
governments on lost and stolen passports was not been checked against United States’ entry/exit
data to determine whether the passports have been used to enter the United States, and noted that
collection of data on lost and stolen passports is not proactive, uniform, nor disseminated in an
organized manner. In addition, the IG report observed that the lack of international
standardization in passport numbering systems complicates the ability to identify people using
stolen VWP country passports.
As in the April 2004 IG report, the July 2006 GAO report also noted that the U.S. lacks a
centralized mechanism for foreign governments to report lost and stolen passports. In May 2004,
the United States joined 40 other countries in providing information on lost and stolen passports
to the U.S. National Central Bureau of the International Criminal Police Organization (Interpol).
The Interpol lost and stolen passport database is available to law enforcement and immigration ⁴⁸
authorities worldwide. Although all but four of the VWP countries provide data to the Interpol
database, DHS is not using Interpol’s database to its full potential because DHS does not
automatically access the information at primary inspection. According to the Secretary General of

⁴⁶^U^.^{S. G}^o^v^e^rnm^e^nt^A^c^c^ounta^b^ility^O^f^fⁱ^c^e^,^Borde^r^Se^c^u^rity^{: Stro}^nge^{r Ac}^{tions Ne}^e^d^e^d^to^Asse^{ss and}^M^itiga^t^e^Risk^{s of}
^t^h^{e V}ⁱ^{sa Wa}ⁱ^{ver P}^r^o^g^r^a^m^,^G^A^O^-^06-⁸⁵^{4, J}^u^ly^{, 20}⁰⁶^{, p}^.⁵¹^.⁽^H^erea^f^t^e^{r GA}^O,^B^o^rd^er^S^ecu^ri^t^y^{: S}^t^r^o^{nger A}^c^tⁱ^oⁿ^s^Need^ed
^to^{Assess a}ⁿ^d^Miti^g^a^t^{e Risks}^o^f^t^h^{e Visa}^Wa^{iver Prog}^ra^m.⁾
⁴⁷^GA^O,^Bor^d^e^r^Se^c^u^r^ity^:^Str^o^nge^r^Ac^tions^N^e^e^d^e^d^to^As^s^e^s^s^and^M^itigate^Rⁱ^s^k^s^{of t}^h^e^Vis^a^W^a^iv^e^r^Pr^ogr^am^,^p.^4.
⁴⁸^T^h^{e In}^t^e^rp^o^l^l^o^st^an^{d st}^o^l^{en p}^a^ssp^o^r^t^d^a^t^a^b^a^{se b}^{ecame o}^p^e^ratⁱ^oⁿ^a^lⁱⁿ^Ju^l^y^,²⁰⁰²^.^T^h^{e Un}ⁱ^t^e^{d S}^t^at^{es agreed}^t^o^t^r^an^sf^er
³²⁰^,0⁰⁰^r^e^c^o^r^d^s^of^los^t^or^s^t^oleⁿ^U^.^{S. pa}^s^s^p^or^ts^r^e^p^o^r^t^e^d^sⁱ^nc^e²⁰⁰²^{. I}ⁿ^te^r^p^o^l^’^s^da^ta^ba^s^e^pr^e^s^eⁿ^tly^c^ontaⁱ^ns
^a^pprox^im^a^t^e^l^y^{1.6 m}^{illion re}^c^o^r^d^{s re}^porte^d^by^the⁴¹^c^o^uⁿ^tr^ie^{s. Of}^t^h^e^1.^{6 m}^illion^re^c^o^{rds, a}^p^prox^im^a^t^e^l^y^60%^a^r^e
^pa^s^s^por^ts^,^pr^e^d^om^inaⁿ^tly^los^t^or^s^t^oleⁿ^f^r^om^the^be^a^r^e^r^{, w}^h^ile^40%^a^r^e^na^tiona^{l i}^d^eⁿ^tⁱ^fⁱ^c^a^{tion d}^o^c^u^m^e^nts^.^U^.^S.
^D^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity^{, Of}^fⁱ^ce^of^Iⁿ^s^p^e^c^tions^,^Ev^a^l^ua^tions^{, a}^nd^Spe^cⁱ^a^l^R^e^vⁱ^e^w^s^O^I^G^-^05-^07,^A^R^evi^{ew o}^f
^the^U^s^e^of^Stoleⁿ^P^a^s^s^por^ts^fr^om^Vis^a^W^a^iv^e^r^C^o^untrⁱ^e^s^t^o^Eⁿ^te^r^th^e^Uⁿ^ite^d^State^s^,^Decem^b^e^r²⁰⁰⁴^{, pp. 7-}^8.⁽^H^e^r^e^a^f^te^r
^c^ite^{d a}^s^DHS,^Re^vⁱ^e^w^{of t}^h^e^U^s^e^{of S}^t^oleⁿ^Pas^s^p^or^ts^fr^om^Vis^a^W^a^iv^e^r^C^ountrⁱ^e^s^t^o^Eⁿ^te^r^the^Uⁿ^ite^{d St}^ate^s^.)

Interpol, the United States will not have an effective screening tool for checking passports until ⁴⁹
Interpol’s data can be automatically queried during primary inspections.
Due to the findings in the April 2004 report detailing deficiencies in the reporting of lost and ⁵⁰
stolen passports, in December 2004 DHS’ Office of the Inspector General released a follow up
report entitled, A Review of the Use of Stolen Passports from Visa Waiver Countries to Enter the
United States which found that the majority of aliens applying for admission to the United States
using stolen passports are admitted, and that the likelihood of being admitted only slightly ⁵¹
declined if the passport was posted in the lookout system. The study reviewed two groups of
aliens who used stolen passports to attempt to enter the United States. One group did not have
lookouts posted for the stolen passports, and 79 out of 98 aliens were admitted (81%). The other
group had lookouts posted for the stolen passports, and 57 out of 78 aliens were admitted (73%),
of which 33 of the admissions occurred after September 11, 2001.
Currently, DOS receives most of the stolen passport reports from foreign governments. Based on
DOS reports from January 2002 to June 2004, 28 foreign governments reported 56,943 stolen ⁵²
blank foreign passports. In June 2004, the Director of the U.S. National Central Bureau of
Interpol said that for 55 of the 181 Interpol countries, there probably were over 10 million lost
and stolen passports that might be in circulation. In August 2004, according to CBP, their ⁵³
database contains 1.2 million records of stolen passports. Notably, between January and June

2005, DHS confiscated 298 passports issued by VWP countries that travelers were attempting to ⁵⁴

use at ports of entry to fraudulently enter the United States.
Some maintain that the nonimmigrant visa refusal rate is an unobjective and arbitrary standard,
because it is based on decisions made by consular officers rather than the actual behavior of
nonimmigrants. When the program was conceived, it was expected that the number of
nonimmigrants who overstay the terms of their entry under this program would be a better
standard for future program participation. Reportedly, since December 2002, DHS has been
matching the entry and exit portions of the I-94 forms for participants in the VWP to create an
entry/exit system for VWP nationals. Some question whether this system can produce accurate
counts of those who overstay the terms of their entry. Until an automated entry-exit system is
fully operational and the data produced are trusted and easily accessible, it is difficult for

⁴⁹^GA^O,^Bor^d^e^r^Se^c^u^r^ity^:^Str^o^nge^r^Ac^tions^N^e^e^d^e^d^to^As^s^e^s^s^and^M^itigate^Rⁱ^s^k^s^{of t}^h^e^Vis^a^W^a^iv^e^r^Pr^ogr^am^,^p.^5.
⁵⁰^U^.^{S. D}^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity^{, Of}^fⁱ^c^e^o^f^Iⁿ^s^p^e^c^tions^,^Ev^a^l^ua^tions^,^aⁿ^d^Spe^cⁱ^a^l^R^e^vⁱ^e^w^s^OI^G^-^05-^07,^A
^R^evi^{ew o}^f^t^h^{e Use o}^f^S^t^o^l^en^P^a^sspo^r^t^s^f^r^o^m^Vⁱ^s^a^Waⁱ^{ver Cou}ⁿ^t^ri^{es t}^o^Eⁿ^t^e^{r t}^h^{e Un}ⁱ^t^ed^S^t^a^t^es^,^Decemb^e^{r 2}⁰⁰⁴^.
⁵¹^A^look^{out s}^y^s^t^em^c^ontaⁱ^ns^inf^o^r^m^a^{tion o}ⁿ^a^lie^ns^w^h^o^a^r^e^or^m^a^y^be^ina^d^mⁱ^s^s^a^ble^{to t}^h^e^Uⁿ^ite^d^Sta^t^e^s^{, or}^w^{ho m}^a^y
^be^of^inte^re^{st to}^la^w^eⁿ^f^o^rc^e^m^eⁿ^{t f}^o^{r re}^a^s^{ons suc}^h^a^s^im^mⁱ^g^r^a^{tion v}ⁱ^ola^tio^ns^{, a}^lieⁿ^s^m^ug^g^ling^,^s^u^s^p^e^c^te^{d or}^a^c^t^ua^l
^c^r^im^ina^l^a^c^tiv^it^y^,^a^{nd susp}^ect^ed^tⁱ^{es t}^o^t^e^rro^ri^st^s.
⁵²^T^h^e^r^e^a^r^e^t^w^{o ty}^pe^s^o^f^los^t^or^s^t^o^l^eⁿ^pa^s^s^por^ts^{: pa}^s^s^p^or^ts^s^t^o^l^eⁿ^f^r^o^m^indivⁱ^dua^ls^{, a}ⁿ^{d s}^t^o^l^eⁿ^blaⁿ^k^p^a^s^s^por^ts^{. Si}^nc^e
^pa^s^s^por^ts^s^t^oleⁿ^f^r^om^indivⁱ^d^u^a^l^s^a^r^e^m^odifⁱ^e^d^by^r^e^pla^cⁱ^ng^the^e^x^isting^p^hot^og^r^a^phs^aⁿ^{d b}ⁱ^og^r^a^phic^a^{l da}^ta^w^{ith tha}^t^of
^t^h^{e i}ⁿ^t^eⁿ^d^e^{d u}^s^ers,^t^h^{ese ch}^an^{ges are u}^s^u^a^l^l^y^ea^si^{er f}^o^{r an}ⁱⁿ^sp^ect^o^r^t^o^d^e^t^ect^,^un^lⁱ^k^{e f}^o^rged^st^o^l^en^bl^an^{k p}^a^ssp^o^r^t^s
^w^h^ic^{h a}^r^e^of^teⁿ^m^odifⁱ^e^d^w^{ith hig}^h^q^u^a^lity^phot^og^ra^phs^aⁿ^d^biog^ra^phic^da^ta^a^{nd a}^r^e^v^e^ry^diff^ic^{ult to}^de^te^c^t^.
⁵³^DHS^,^Re^vⁱ^e^w^{of t}^h^e^U^s^e^of^St^oleⁿ^Pas^s^por^ts^fr^om^Vis^a^W^a^iv^e^r^C^o^untrⁱ^e^s^t^o^En^te^r^the^Uⁿ^ite^d^State^s^,^p.^8.
⁵⁴^GA^O,^Bor^d^e^r^Se^c^u^r^ity^:^Str^o^nge^r^Ac^tions^N^e^e^d^e^d^to^As^s^e^s^s^and^M^itigate^Rⁱ^s^k^s^{of t}^h^e^Vis^a^W^a^iv^e^r^Pr^ogr^am^,^p.^3.

immigration agents to identify those who have overstayed their 90-day admission periods. Thus, ⁵⁵
aliens could enter under the VWP and stay indefinitely.

)
Signed into law on August 3, 2007, §711 of P.L. 110-53 (H.R. 1) allows the Secretary of DHS, in
consultation with the Secretary of DOS, to waive the nonimmigrant refusal rate requirement for
admission to the VWP on the date on which the Secretary of DHS certifies to Congress that an air
exit system is in place that can verify the departure of not less than 97% of foreign nationals that
exit through U.S. airports. In addition, the Secretary of DHS must also certify to Congress that the
electronic travel authorization system (discussed below) is operational, prior to being able to ⁵⁶
waive the nonimmigrant refusal rate requirement. Initially, the air exit system does not need to
incorporate biometric identifiers; however, after June 30, 2009, if the air exit system is unable to
match an alien’s biometric information with relevant watch lists and manifest information, the
Secretary of DHS’ authority to waive the nonimmigrant refusal rate will be suspended until the
air exit system has the specified biometric capacity.
Once the Secretary of DHS has the authority to waive the nonimmigrant refusal rate requirement
for admission to the VWP, to participate in the program a country who receives a refusal rate
waiver will also have to:
• meet all the security requirements of the program (including the new
requirements created by P.L. 110-53);
• be determined by the Secretary of DHS to have a totality of security risk
mitigation measures which 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;
• 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
• during the previous fiscal year, the nonimmigrant visas refusal rate was not more
than 10%, or the overstay rate did not exceed the maximum overstay rate

⁵⁵^For^f^u^r^t^he^r^inf^o^r^m^a^{tion, s}^e^e^C^R^S^R^e^por^{t R}^L³¹⁰¹^9,^Te^r^r^o^rⁱ^s^m^:^Aut^o^m^a^te^d^Lo^ok^ou^{t Sy}^s^t^e^m^s^a^nd^Bor^d^e^r^Se^c^u^r^ity
^O^p^tio^ns^a^{nd I}^s^s^u^e^s^{, by}^W^illia^m^J.^Krouse^aⁿ^{d Ra}^pha^e^l^F.^P^e^rl;^aⁿ^d^{CRS Re}^port⁹⁸^-8^9,^I^m^mⁱ^gr^ati^on:^Vis^a^Eⁿ^tr^y^/^Ex^it
^C^ontr^o^{l Sy}^s^t^e^m^,^by^W^illia^m^{J. Kr}^ouse^aⁿ^d^Rut^h^El^le^{n W}^a^se^m^.
⁵⁶^T^h^is^pr^ov^is^io^{n is}^sⁱ^m^ila^r^{to t}^h^e^pr^ov^is^ionⁱⁿ^S.^{4 w}^h^ic^{h w}^a^s^the^Se^na^te^v^e^r^s^{ion of}^H^.^R^.^1.^H^.^R^.^{1, a}^s^p^a^s^s^e^{d by}^the
^H^ous^e^,^w^ouldⁿ^o^{t ha}^v^e^m^odifⁱ^e^d^the^VW^P^.

established by the Secretaries of DHS and DOS for countries receiving waivers
of the nonimmigrant refusal rate to participate in the VWP the program.
P.L. 110-53 also specifies that in determining whether to waive the nonimmigrant refusal rate
requirement, the Secretary of DHS, in consultation with the Secretary of DOS, 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 makes several changes to the criteria to qualify as a VWP country which
are intended to enhance the security of the program. As previously mentioned, the Act mandates
that the Secretary of DHS, in consultation with the Secretary of State, develop and implement an
electronic travel authorization system (the 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. Aliens using the system
will be charged a fee that will be set at a level so that the cost of creating and administering the
system is covered by the fees. Eligibility to travel determined by the system is valid for no more
than three years, and eligibility can be revoked at any time. Notably, a determination under the
system that an alien is eligible to travel to the United States does not constitute a determination
that the alien is admissible. The system will become operational 60 days after the Secretary of
DHS publishes a notice in the Federal Register.
P.L. 110-53 also requires the Secretary of DHS, 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.
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. (Currently, VWP countries only have to certify that they are
reporting thefts of blank passports.) The agreements have to 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 DHS 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
admittance 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
DHS 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 DHS, in
consultation with the Secretary of DHS, 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 DHS shall reinstate the country in the VWP.
P.L. 110-53 requires a report on the progress made on the new exit system and the procedures to
calculate and increase the accuracy of overstay rates is due 180 days after enactment. P.L. 110-53
also authorizes such sums as necessary to carry out the provisions of the act.
Introduced by Senator George Voinvich on February 15, 2007, S. 653 is similar to P.L. 110-53,
but S. 653 would not require DHS certification of an exit system for air travelers prior to
providing the Secretary of DHS with the authority to waive the nonimmigrant refusal rate
requirement for certain countries under the VWP. Unlike P.L. 110-53, the bill would not require
the Secretaries of DHS and DOS to establish a maximum overstay rate for countries who receive
a waiver of the nonimmigrant refusal rate, and also would not specify that during the previous
fiscal year, countries receiving the nonimmigrant refusal rate waiver must have had a
nonimmigrant visas refusal rate of not more than 10%.
H.R. 561, introduced by Representative Phil English, and S. 342, introduced by Senator George
Voinovich, would require the Secretary of DHS in consultation with the Secretary of DOS to
establish a pilot program for not more than five countries to participate in the VWP as
probationary program countries. A country would be eligible for the pilot program if: (1) the
country’s participation would not compromise U.S. security and law enforcement interests; (2)
the country is close to meeting the requirements of the VWP and has a feasible strategy to meet
all requirements within three years; (3) the country meets the requirements determined by the
Secretary of DHS to ensure the security of travel documents; (4) the country cooperated with the
United States on counterterrorism initiatives and information sharing before the date of
enactment; and (5) the country enters into an agreement with the United States to further advance
U.S. security interests by implementing additional counterterrorism and information sharing
initiatives. A country would be eligible to participate in the pilot program for three years.
Participation could be extended for two years if the country demonstrates significant progress
towards meeting the VWP requirements, submits a plan to meet the requirements, and whose
continued participation is determined to be in U.S. law enforcement and security interests. A
country’s participation could be terminated at any time if the country is not in compliance with
the requirements of the pilot program, or is not able to demonstrate quantifiable progress towards
meeting the VWP requirements.
Introduced by Representative Robert Wexler on March 9, 2007, H.R. 1465 would allow the
Secretary of DHS to waive the nonimmigrant refusal rate requirement for countries participating
in the VWP if the country (1) has developed a viable plan to meet the nonimmigrant refusal rate
requirement within three years; (2) during the previous two years has made significant progress in
reducing their nonimmigrant refusal rate; (3) would not compromise the security or welfare of the
United States by having the rate waived and being included in the VWP; and (4) has fully
cooperated in counterterrorism and information sharing initiatives. The bill would also require
that no later than one year after enactment, that the Secretary of DHS, in consultation with the

Secretary of State, submit a report to Congress that describes plans for enhancing secure travel
standards for VWP countries, including the feasibility of instituting an electronic authorization
travel system, additional passenger exchanges, and enhanced airport security standards.
Introduced by Representative Rahm Emanuel on March 15, 2007, H.R. 1543 is almost identical to
S. 653, but would specify that the nonimmigrant refusal rate requirement for admission to the
VWP could only be waived on or after the date on which the Secretary of DHS certifies to
Congress that an air exit system is in place that can verify the departure of not less than 97% of
foreign nationals that exit through U.S. airports.
H.R. 2006 was introduced by Representative Bernie Thompson on April 23, 2007. The bill is
similar to H.R. 1543, but would specify that countries receiving the nonimmigrant refusal rate
waiver must have had during the previous fiscal year (1) a nonimmigrant visa refusal rate of not
more than 6% or (2) a rate of less than 2% for the total number of nationals who were denied or
withdrew admission or overstayed the terms of their nonimmigrant visas compared with all the
nationals who applied for admission as nonimmigrants.
H.R. 2526, introduced by Representative Carolyn Maloney on May 24, 2007, would designate
Greece as a VWP country. As discussed above, DOS nominated Greece to the VWP in late 2007,
and DHS is currently conducting the country review to establish that Greece meets the program
requirements.
S. 3007 was introduced on May 12, 2008, by Senator Gordon Smith, and H.R. 6094 was
introduced by Representative Steve Israel on May 20, 2008. The bills would specify that the
Attorney General, in making a determination of whether a country’s inclusion in the VWP is in
U.S. law enforcement interest, should consider whether the country (1) extradites or prosecutes
wanted or indicted Nazi war criminals and (2) accepts the return of their nationals removed from
the United States for Nazi war crimes.
Representative Phil Gingrey introduced H.R. 1342 on March 6, 2007, and Representative Sam
Graves introduced H.R. 3064 on July 17, 2007. H.R. 4192 was introduced by Representative
Thomas Tancredo on November 15, 2007. All the bills would immediately suspend the VWP until
the Secretary of DHS certifies to Congress that certain conditions regarding immigration
enforcement have been met. Nonetheless, the conditions in these three bills are not identical. H.R.

1342 and H.R. 4192 would require that (1) the automated entry-exit system (commonly called

US-VISIT) is fully implemented and functional; (2) all ports of entry have functional biometric
readers; and (3) all nonimmigrants, including Border Crossing Card holders, are processed
through the entry-exit system. H.R. 3064 contains the same requirement regarding the
implementation of the entry-exit system, but would also require among other conditions that
• the system of machine-readable, tamper-resistant visas and other travel and entry
documents, and the technology standard for visa waiver program participants
required by the Enhanced Border Security and Visa Entry Reform Act of 2002
are fully operational at all ports of entry and, where applicable, at consular posts
abroad;
• DHS has the operational capability to take into custody and remove from the
United States any deportable alien who has been brought to the attention of the
DHS by a state or local law enforcement agency;
• the backlog of immigration benefit applications has been eliminated, as required
in the HSA; and
• the number of aliens removed from the United States, during each of four months
preceding the month in which the certification under this section is executed, is at
least 25% higher than in the comparable months of the previous year.
These requirements are similar to those in H.R. 688 in the 109^th Congress.

The Visa Waiver Program was established as a temporary program (Visa Waiver Pilot Program)
by the Immigration Reform and Control Act of 1986 (P.L. 99-603). Participation in the pilot
program was originally limited to eight countries. Congress 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 the
following five laws 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 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; 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 program was scheduled to expire on September 30, 1997, but temporary extensions ^th⁵⁷
were included in the Continuing Resolutions passed in the 105 Congress. The Commerce,
Justice, State, and Judiciary (CJS) FY1998 Appropriations Act (P.L. 105-119) also contained an
extension through April 30, 1998. In 1998, Congress passed legislation (P.L. 105-173) that not
only extended the program through April 30, 2000, but made other changes to the standard by ⁵⁸
which countries are selected (designated) to participate in the VWP. By 1999, program ⁵⁹
participation had grown to include 29 countries.

⁵⁷^Aⁿ^e^x^te^ns^{ion of}^the^p^ilot^pr^og^r^a^m^w^a^s^inc^l^ude^dⁱⁿ^the^fⁱ^r^s^{t C}^oⁿ^tin^uing^R^e^s^o^l^u^tio^{n (}^P^.L¹⁰^5-⁵⁶^§¹¹⁷⁾^f^o^r^FY¹⁹⁹⁸^.
^T^h^e^fⁱ^v^e^s^ubs^e^que^{nt C}^ontiⁿ^uⁱ^ng^R^e^s^o^lutio^ns^—^P^.L^{. 1}^05-⁶⁴^,^P.L^.¹^05-^68,^P^.^L^.¹^05-^69,^P^.^L^.¹^05-⁷¹^,^a^nd^P^.^L^.¹⁰^5-⁸⁴^—
^sⁱ^m^p^l^y^ex^te^nde^{d the}^e^x^pir^a^ti^on^da^te^of^the^pr^ov^is^ionsⁱⁿ^t^h^e^fⁱ^r^s^{t C}^o^ntin^uing^R^e^s^o^l^u^ti^{on f}^o^r^FY¹⁹⁹⁸⁽^P^.L^{. 10}^5-⁵⁶⁾^.
⁵⁸^O^r^ig^ina^lly^{, to qua}^lif^y^f^o^r^the^Vⁱ^s^a^W^a^ive^r^Pⁱ^l^o^t^P^r^og^r^a^m^c^ountrⁱ^e^s^ne^e^d^e^d^t^o^ha^v^e^ha^{d a}ⁿ^a^v^e^r^a^g^e^nonim^m^ig^r^a^nt
^r^e^f^u^s^a^{l r}^a^te^of^{no m}^o^r^e^thaⁿ^2%^o^v^e^r^the^pa^s^t^tw^{o f}ⁱ^s^c^a^l^y^e^a^r^s^w^{ith ne}^ithe^r^y^e^a^r^g^o^ing^a^bov^e^2.5%^.^P.^L^.^105-¹⁷^{3 a}^d^de^d
^the^c^r^ite^rⁱ^a^tha^t^a^c^o^un^tr^y^c^{ould h}^a^v^e^a^nonim^m^ig^r^a^{nt r}^e^f^u^s^a^{l r}^a^te^of^le^s^s^thaⁿ^3%^f^o^r^the^pr^e^v^io^us^y^e^a^r^a^{nd q}^u^a^lif^y^f^o^r
^the^pr^og^r^a^m^.
⁵⁹^A^s^of^Ja^nua^r^y^2007,²⁷^c^o^uⁿ^tr^ie^s^w^e^r^e^e^lig^ible^{to pa}^r^t^ic^ipa^t^eⁱⁿ^the^VW^P^:^A^ndor^r^a^,^A^u^s^t^r^a^lia^{, A}^u^s^t^rⁱ^a^,^B^e^lg^ium^,
^B^r^une^{i, D}^e^nm^a^r^k^,^Finlaⁿ^{d, Fr}^aⁿ^c^e^,^G^e^r^m^aⁿ^y^,^I^c^e^l^a^{nd, I}^r^e^la^nd,^I^t^a^l^y^,^J^a^pa^{n, L}ⁱ^ec^hteⁿ^s^t^eⁱ^{n, L}^u^x^e^m^bour^g^,^Mo^na^c^o^{, t}^h^e
^Net^h^erl^aⁿ^d^s^,^New^Z^eal^an^d^,^No^rw^a^y^,^P^o^rt^u^g^al^,^S^aⁿ^M^a^ri^no^,^Sⁱⁿ^g^apo^r^e,^S^l^o^v^enⁱ^a^,^S^p^aiⁿ^,^S^w^ed^en^,^S^wⁱ^t^zerl^aⁿ^d^,^and^t^h^e
⁽^c^onti^nue^d.^..)

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 ⁶⁰⁶¹
(INS) exercised the Attorney General’s parole authority to extend the program temporarily.
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
• mandate that by October 1, 2007 all entrants under the VWP must have machine-
readable passports;
• require that all visa waiver program applicants be checked against lookout
systems;
• require ongoing evaluations of participating countries (not less than once every
five years);
• require the collection of visa waiver program arrival/departure data at air and sea
ports of entry; and
• require that the calculation of visa refusal rates for determining country eligibility ⁶²
shall not include any refusals based on race, sex, or disability.
At the time, many maintained that P.L. 106-396 balanced the competing concerns of facilitating
travel and tightening immigration controls.
The USA Patriot Act (P.L. 107-56), signed into law on October 26, 2001, advanced the deadline
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 can show that it is making progress toward issuing machine-readable passports. In
addition, the USA Patriot Act directed the Secretary of State each year until 2007 to ascertain that
designated VWP countries have established programs to develop tamper-resistant passports.
On September 24, 2003 the Secretary of State extended the deadline for visitors from 21 VWP ⁶³
countries to present a machine-readable passport at the ports of entry until October 26, 2004. At

^(...c^on^tin^ue^d)
^Uⁿ^ite^{d K}ⁱ^ng^dom^{. A}^r^ge^ntina^w^a^s^r^e^m^o^v^e^{d f}^r^o^m^the^VW^Pⁱⁿ^Fe^br^ua^r^y^{2002, a}ⁿ^{d U}^r^ug^ua^y^w^a^s^r^e^m^ove^{d in A}^p^r^il²⁰⁰³^.
⁶⁰^T^h^e^H^o^m^e^l^a^{nd Se}^c^u^r^ity^A^c^{t o}^f²⁰⁰²⁽^P^.L^{. 1}^07-²⁹⁶⁾^a^b^olis^he^{d t}^h^e^I^m^mⁱ^g^r^a^{tion a}^{nd N}^a^tur^a^liz^a^tⁱ^on^S^e^r^v^ic^e⁽^I^N^S)^a^nd
^e^f^f^e^c^tiv^e^Ma^r^c^{h 1, 20}⁰³^{, tr}^aⁿ^s^f^e^r^r^e^{d m}^o^s^t^of^its^f^unc^tions^t^o^t^h^r^e^e^b^u^r^e^a^u^sⁱⁿ^the^ne^w^D^e^pa^r^t^m^e^{nt of}^H^o^m^e^la^{nd Se}^c^u^r^ity
^(DHS^):^Ci^tⁱ^zen^shⁱ^p^and^Immⁱ^gratⁱ^oⁿ^S^e^rv^{ices (USCIS); Bu}^reau^o^f^Immig^r^atioⁿ^an^d^C^u^sto^m^{s En}^f^o^rce^m^en^{t (ICE); an}^d^,
^B^u^r^e^a^u^of^C^u^s^t^om^s^a^{nd B}^o^r^d^e^r^P^r^ote^c^tion⁽^C^B^P⁾^.
⁶¹^P^a^role^{is a}^te^m^pora^r^y^a^u^thoriz^a^{tion t}^o^eⁿ^te^{r the}^Un^ite^d^S^t^at^{es an}^dⁱ^sⁿ^o^r^m^a^l^l^y^gran^t^e^d^w^h^en^t^h^{e al}ⁱ^eⁿ^’^{s en}^t^r^yⁱ^s
^de^te^r^m^ine^d^{to be}ⁱⁿ^t^h^e^p^ubl^ic^int^e^r^e^s^t⁽^I^N^A^{§ 21}²⁽^d)⁽⁵⁾⁽^A⁾⁾^.
⁶²^Ma^ny^of^the^s^e^r^e^quir^e^m^e^nts^w^e^r^e^inc^l^u^d^e^d^t^o^a^d^dr^e^s^s^s^hor^tc^om^ing^s^{in t}^h^e^pr^og^r^a^m^,^a^s^ideⁿ^tif^ie^{d by}^t^h^e^Iⁿ^s^p^e^c^t^or^s
^G^e^ne^r^a^{l of}^both^the^D^e^pa^r^t^m^e^nts^of^J^u^s^tic^e^a^{nd Sta}^t^e^.
⁶³^T^h^{e 2}¹^couⁿ^t^ri^{es gran}^t^e^d^{a po}^st^poⁿ^e^m^eⁿ^t^w^e^r^e^:^A^u^st^ralⁱ^a^,^A^u^st^ri^a,^Den^m^ar^k,^Fⁱⁿ^l^an^d,^F^r^an^ce,^G^e^rman^y^,^Icel^an^d^,
⁽^c^onti^nue^d.^..)

this time, an entrant under the VWP with a passport which is not machine-readable must obtain a
visa to travel to the United States.
The Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act),⁶⁴
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 in the United States,
that all aliens who enter under the VWP are checked against a lookout system. The Border
Security 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 ⁶⁵
passports that are tamper-resistant and incorporate a biometric identifier. The Border Security
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 ⁶⁶
requirement deadline was extended to October 27, 2005 by P.L. 108-299. 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 ⁶⁷
biometric deadline. 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.
Thus, only France and Italy were unable to meet the new deadline, but have since come 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).

^(...c^on^tin^ue^d)
^I^r^e^la^{nd, I}^t^a^l^y^,^J^a^pa^{n, M}^ona^c^o^,^the^N^e^the^r^la^nds^{, N}^e^w^Ze^a^l^a^{nd, N}^o^r^w^ay^{, P}^o^r^t^ug^a^l^{, Sa}ⁿ^Ma^rⁱⁿ^o^,^Sing^a^por^e^,^Spaⁱⁿ^,
^Sw^e^d^eⁿ^{, Sw}^itz^e^r^la^{nd, a}^{nd t}^h^e^Uⁿⁱ^t^e^d^Kⁱ^ng^d^o^m^.^Oⁿ^N^o^v^e^m^b^e^r^{11, 200}^{3, L}^u^x^e^m^bour^g^w^a^s^g^r^aⁿ^te^{d a}ⁿ^e^x^te^ns^ion^of^the
^d^ead^lⁱⁿ^e.
⁶⁴^P^.^L^.¹⁰^7-¹⁷³^.^T^h^e^or^ig^ina^l^bil^l^,^H^.^R^.³⁵²⁵^{, w}^a^s^s^pons^or^e^d^by^R^e^pr^e^s^eⁿ^ta^tiv^e^{F. J}^a^m^e^s^Se^ns^e^nbr^eⁿⁿ^e^r^.
⁶⁵^T^h^e^a^c^t^ta^sk^e^d^the^Inte^rna^tio^na^l^Civ^{il A}^vⁱ^a^{tion Org}^aⁿⁱ^z^a^tion⁽^I^C^A^O⁾^w^{ith de}^v^e^loping^t^h^e^bi^om^e^t^rⁱ^c^s^t^a^nda^r^d^.
⁶⁶^Sigⁿ^e^dⁱⁿ^to^la^w^{on A}^u^g^u^s^t^9,²⁰^04.
⁶⁷^F^o^{r exam}^p^l^e,^{see l}^e^t^t^e^r^f^r^o^m^Rep^.^F^.^Jam^e^{s S}^eⁿ^s^en^b^r^enⁿ^e^r,^Jr.^,^t^o^L^u^{c F}^rⁱ^e^d^eⁿ^,^P^r^esi^d^en^t^o^f^t^h^{e E}^u^r^o^p^ean^C^o^un^sel^o^f
^Mⁱⁿⁱ^st^ers,^and^F^r^aⁿ^co^F^r^at^tⁱⁿⁱ^,^Vⁱ^ce-P^r^esi^d^en^t^o^f^t^h^{e E}^u^rop^ean^Commi^ssi^oⁿ^,^A^p^ri^l⁷^,²⁰⁰⁵^.

P.L. 108-458,⁶⁸ 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.
^A^l^is^oⁿ^Si^skⁱⁿ
^Sp^{ecialist i}ⁿ^I^m^mⁱ^g^r^atioⁿ^P^o^lic^y
^asⁱ^s^kⁱⁿ^@^crs^.^l^o^c.^g^o^v^,^7-⁰²⁶⁰

⁶⁸^T^h^e^orig^ina^l^bi^{ll, H.R}^.²⁸⁴⁵^{, w}^a^{s spo}ⁿ^sore^d^by^Se^na^tor^Susa^{n M.}^Collins^a^{nd sig}ⁿ^e^dⁱⁿ^to^la^w^{on De}^c^e^m^b^e^r^17,²⁰^04.