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• U.S. Department of State

Summary

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. The visa waiver program (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. 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. Under Department of Homeland Security (DHS) regulations, at this time travelers who seek to enter the United States through the VWP are not subject to the biometric requirements of the US-VISIT program; however, as of September 30, 2004, VWP participants arriving at airports and seaports will be subject to US-VISIT. By eliminating the visa requirement, this program facilitates international travel and commerce and eases consular office workloads abroad, but it also bypasses the first step by which foreign visitors are screened for admissibility to enter the United States. In 2003, 13.5 million visitors entered the United States under this program, constituting 49% of all overseas visitors. To qualify for the VWP, the INA specifies that a country must: 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%; certify that the country issues, or will issue machine-readable passports; and be determined not to compromise the law enforcement or security interests of the United States by its inclusion in the program. Countries can be immediately terminated from the VWP if an emergency occurs that threatens the law enforcement or security interest of the United States. The USA PATRIOT Act enacted a requirement that by October 1, 2003, all aliens applying for admission under the VWP must have machine-readable passports; however, the Act allows the Secretary of State to waive the requirement until September 30, 2007 and the requirement was waived for 22 of the 27 countries participating in the VWP. In addition, the Enhanced Border Security and Visa Reform Act of 2002 requires that by October 26, 2004, all VWP countries must issue their nationals machine-readable passports which incorporate biometric identifiers. DOS and DHS have stated no country will be able to meet the biometric deadline. Under the law, there is no mechanism other than congressional action to extend the deadline. If the deadline is not extended, all participating countries that cannot certify that they have a program to issue machine-readable passports with biometric identifiers will be ineligible for the VWP. Concerns have been raised that DOS does not have enough consular staff to process all the B visas which would have to be issued. Nonetheless, some note that the VWP is a security risk and the program should be suspended until passport security can be improved. Three bills introduced in the 108th Congress would suspend the VWP (H.R. 2235, H.R. 3522, and H.R. 3534), while H.R. 3956 would add Poland to the program. This report will be updated if legislative action occurs.

Related Legislation:
• H.R.2235
• H.R.3522
• H.R.3534
• H.R.3956

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