[House Report 106-564]
[From the U.S. Government Publishing Office]
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-564
=======================================================================
VISA WAIVER PERMANENT PROGRAM ACT
_______
April 6, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3767]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3767) to amend the Immigration and Nationality Act
to make improvements to, and permanently authorize, the visa
waiver pilot program under section 217 of such Act, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 2
Purpose and Summary........................................ 7
Background and Need for the Legislation.................... 7
Hearings................................................... 9
Committee Consideration.................................... 9
Vote of the Committee...................................... 10
Committee Oversight Findings............................... 11
Committee on Government Reform Findings.................... 11
New Budget Authority and Tax Expenditures.................. 11
Committee Cost Estimate.................................... 11
Constitutional Authority Statement......................... 11
Section-by-Section Analysis and Discussion................. 11
Agency Views............................................... 16
Changes in Existing Law Made by the Bill, as Reported...... 20
Additional Views........................................... 31
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Visa Waiver Permanent Program Act''.
TITLE I--PERMANENT PROGRAM AUTHORIZATION
SEC. 101. ELIMINATION OF PILOT PROGRAM STATUS.
(a) In General.--Section 217 of the Immigration and Nationality Act
(8 U.S.C. 1187) is amended--
(1) in the section heading, by striking ``pilot'';
(2) in subsection (a)--
(A) in the subsection heading, by striking
``Pilot'';
(B) in the matter preceding paragraph (1), by
striking ``pilot'' both places it appears;
(C) in paragraph (1), by striking ``pilot program
period (as defined in subsection (e))'' and inserting
``program''; and
(D) in paragraph (2), in the paragraph heading, by
striking ``pilot'';
(3) in subsection (b), in the matter preceding paragraph
(1), by striking ``pilot'';
(4) in subsection (c)--
(A) in the subsection heading, by striking
``Pilot'';
(B) in paragraph (1), by striking ``pilot'';
(C) in paragraph (2)--
(i) by striking ``subsection (g)'' and
inserting ``subsection (f)''; and
(ii) by striking ``pilot''; and
(D) in paragraph (3)--
(i) in the matter preceding subparagraph
(A), by striking ``(within the pilot program
period)'';
(ii) in subparagraph (A), in the matter
preceding clause (i), by striking ``pilot''
both places it appears; and
(iii) in subparagraph (B), by striking
``pilot'';
(5) in subsection (e)(1)--
(A) in the matter preceding subparagraph (A), by
striking ``pilot''; and
(B) in subparagraph (B), by striking ``pilot'';
(6) by striking subsection (f) and redesignating subsection
(g) as subsection (f); and
(7) in subsection (f) (as so redesignated)--
(A) in paragraph (1)(A) by striking ``pilot'';
(B) in paragraph (1)(C), by striking ``pilot'';
(C) in paragraph (2)(A), by striking ``pilot'' both
places it appears;
(D) in paragraph (3), by striking ``pilot''; and
(E) in paragraph (4)(A), by striking ``pilot''.
(b) Conforming Amendments.--
(1) Documentation requirements.--Clause (iv) of section
212(a)(7)(B) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(7)(B)(iv)) is amended--
(A) in the clause heading, by striking ``pilot'';
and
(B) by striking ``pilot''.
(2) Table of contents.--The table of contents for the
Immigration and Nationality Act is amended, in the item
relating to section 217, by striking ``pilot''.
TITLE II--PROGRAM IMPROVEMENTS
SEC. 201. EXTENSION OF RECIPROCAL PRIVILEGES.
Section 217(a)(2)(A) of the Immigration and Nationality Act (8
U.S.C. 1187(a)(2)(A)) is amended by inserting ``, either on its own or
in conjunction with one or more other countries that are described in
subparagraph (B) and that have established with it a common area for
immigration admissions,'' after ``to extend)''.
SEC. 202. MACHINE READABLE PASSPORT PROGRAM.
(a) Requirement on Alien.--Section 217(a) of the Immigration and
Nationality Act (8 U.S.C. 1187(a)) is amended--
(1) by redesignating paragraphs (3) through (7) as
paragraphs (4) through (8), respectively; and
(2) by inserting after paragraph (2) the following:
``(3) Machine readable passport.--On and after October 1,
2006, the alien at the time of application for admission is in
possession of a valid unexpired machine-readable passport that
satisfies the internationally accepted standard for machine
readability.''.
(b) Requirement on Country.--Section 217(c)(2)(B) of the
Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(B)) is amended to
read as follows:
``(B) Machine readable passport program.--
``(i) In general.--Subject to clause (ii),
the government of the country certifies that it
issues to its citizens machine-readable
passports that satisfy the internationally
accepted standard for machine readability.
``(ii) Deadline for compliance for certain
countries.--In the case of a country designated
as a program country under this subsection
prior to May 1, 2000, as a condition on the
continuation of that designation, the country--
``(I) shall certify, not later than
October 1, 2000, that it has a program
to issue machine-readable passports to
its citizens not later than October 1,
2003; and
``(II) shall satisfy the
requirement of clause (i) not later
than October 1, 2003.''.
SEC. 203. DENIAL OF PROGRAM WAIVER BASED ON GROUND OF INADMISSIBILITY.
(a) In General.--Section 217(a) of the Immigration and Nationality
Act (8 U.S.C. 1187(a)), as amended by section 202, is further amended
by adding at the end the following:
``(9) Automated system check.--The identity of the alien
has been checked using an automated electronic database
containing information about the inadmissibility of aliens to
uncover any grounds on which the alien may be inadmissible to
the United States, and no such ground has been found.''.
(b) Visa Application Sole Method To Dispute Denials of Waiver Based
on Ground of Inadmissibility.--Section 217 of the Immigration and
Nationality Act (8 U.S.C. 1187), as amended by section 101(a)(6) of
this Act, is further amended by adding at the end the following:
``(g) Visa Application Sole Method of Disputing Ground of
Inadmissibility Found in Automated System.--In the case of an alien
denial a waiver under the program by reason of a ground of
inadmissibility uncovered through a written or verbal statement by the
alien or a use of an automated electronic database required under
subsection (a)(9), the alien may apply for a visa at an appropriate
consular office outside the United States. There shall be no other
means of administrative or judicial review of such a denial, and no
court or person otherwise shall have jurisdiction to consider any claim
attacking the validity of such a denial.''.
(c) Parole Authority.--Section 212(d)(5) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)(5)) is amended--
(1) in subparagraph (A), by striking ``subparagraph (B)''
and inserting ``subparagraph (B) or (C)''; and
(2) by adding at the end the following:
``(C) The Attorney General may not parole into the United States
an alien who has applied under section 217 for a waiver of the visa
requirement, and has been denied such waiver by reason of a ground of
inadmissibility uncovered through a written or verbal statement by the
alien or a use of an automated electronic database required under
section 217(a)(9), unless the Attorney General determines that
compelling reasons in the public interest, or compelling health
considerations, with respect to that particular alien require that the
alien be paroled into the United States.''.
SEC. 204. EVALUATION OF EFFECT OF COUNTRY'S PARTICIPATION ON LAW
ENFORCEMENT AND SECURITY.
(a) Initial Designation.--Section 217(c)(2)(C) of the Immigration
and Nationality Act (8 U.S.C. 1187(c)(2)(C)) is amended to read as
follows:
``(C) Law enforcement and security interests.--The
Attorney General, in consultation with the Secretary of
State--
``(i) evaluates the effect that the
country's designation would have on the law
enforcement and security interests of the
United States (including the interest in
enforcement of the immigration laws of the
United States);
``(ii) determines that such interests would
not be compromised by the designation of the
country; and
``(iii) submits a written report to the
Committee on the Judiciary of the United States
House of Representatives and of the Senate
regarding the country's qualification for
designation that includes an explanation of
such determination.''.
(b) Continuation of Designation.--Section 217(c) of the Immigration
and Nationality Act (8 U.S.C. 1187(c)) is amended by adding at the end
the following:
``(5) Written reports on continuing qualification;
designation terminations.--
``(A) Periodic evaluations.--
``(i) In general.--The Attorney General, in
consultation with the Secretary of State,
periodically (but not less than once every 5
years)--
``(I) shall evaluate the effect of
each program country's continued
designation on the law enforcement and
security interests of the United States
(including the interest in enforcement
of the immigration laws of the United
States);
``(II) shall determine whether any
such designation ought to be continued
or terminated under subsection (d); and
``(III) shall submit a written
report to the Committee on the
Judiciary of the United States House of
Representatives and of the Senate
regarding the continuation or
termination of the country's
designation that includes an
explanation of such determination and
the effects described in subclause (I).
``(ii) Effective date.--A termination of
the designation of a country under this
subparagraph shall take effect on the date
determined by the Attorney General, but may not
take effect before the end of the 30-day period
beginning on the date on which notice of the
termination is published in the Federal
Register.
``(iii) Redesignation.--In the case of a
termination under this subparagraph, the
Attorney General shall redesignate the country
as a program country, without regard to
subsection (f) or paragraph (2) or (3), when
the Attorney General, in consultation with the
Secretary of State, determines that all causes
of the termination have been eliminated.
``(B) Automatic termination.--
``(i) Requirement.--On and after October 1,
2005, the designation of any program country
with respect to a report described in
subparagraph (A)(i)(III) has not been submitted
in accordance with such subparagraph during the
preceding 5 years shall be considered
terminated.
``(ii) Effective date.--A termination of
the designation of a country under this
subparagraph shall take effect on the last day
of the 5-year period described in clause (i).
``(iii) Redesignation.--In the case of a
termination under this subparagraph, the
Attorney General shall redesignate the country
as a program country, without regard to
subsection (f) or paragraph (2) or (3), when
the required report is submitted, if the report
includes a determination by the Attorney
General that the country should continue as a
program country.
``(C) Emergency termination.--
``(i) In general.--In the case of a program
country in which an emergency occurs that the
Attorney General, in consultation with the
Secretary of State, determines threatens the
law enforcement or security interests of the
United States (including the interest in
enforcement of the immigration laws of the
United States), the Attorney General shall
immediately terminate the designation of the
country as a program country.
``(ii) Definition.--For purposes of clause
(i), the term `emergency' means--
``(I) the overthrow of a
democratically elected government;
``(II) war (including undeclared
war, civil war, or other military
activity);
``(III) disruptive social unrest;
``(IV) a severe economic or
financial crisis; or
``(V) any other extraordinary event
that threatens the law enforcement or
security interests of the United States
(including the interest in enforcement
of the immigration laws of the United
States).
``(iii) Redesignation.--The Attorney
General may redesignate the country as a
program country, without regard to subsection
(f) or paragraph (2) or (3), when the Attorney
General determines that--
``(I) at least 6 months have
elapsed since the effective date of the
termination;
``(II) the emergency that caused
the termination has ended; and
``(III) the average number of
refusals of nonimmigrant visitor visas
for nationals of that country during
the period of termination under this
subparagraph was less than 3.0 percent
of the total number of nonimmigrant
visitor visas for nationals of that
country which were granted or refused
during such period.
``(D) Treatment of nationals after termination.--
For purposes of this paragraph--
``(i) nationals of a country whose
designation is terminated under subparagraph
(A), (B), or (C) shall remain eligible for a
waiver under subsection (a) until the effective
date of such termination; and
``(ii) a waiver under this section that is
provided to such a national for a period
described in subsection (a)(1) shall not, by
such a designation termination, be deemed to
have been rescinded or otherwise rendered
invalid, if the waiver is granted prior to such
termination.''.
SEC. 205. USE OF INFORMATION TECHNOLOGY SYSTEMS.
(a) In General.--Section 217 of the Immigration and Nationality Act
(8 U.S.C. 1187), as amended by section 203(b), is further amended by
adding at the end the following:
``(h) Use of Information Technology Systems.--
``(1) Automated entry-exit control system.--
``(A) System.--Not later than October 1, 2001, the
Attorney General shall develop and implement a fully
automated entry and exit control system that will
collect a record of arrival and departure for every
alien who arrives by sea or air at a port of entry into
the United States and is provided a waiver under the
program.
``(B) Requirements.--The system under subparagraph
(A) shall satisfy the following requirements:
``(i) Data collection by carriers.--Not
later than October 1, 2001, the records of
arrival and departure described in subparagraph
(A) shall be based, to the maximum extent
practicable, on passenger data collected and
electronically transmitted to the automated
entry and exit control system by each carrier
that has an agreement under subsection (a)(4).
``(ii) Data provision by carriers.--Not
later than October 1, 2002, no waiver may be
provided under this section to an alien
arriving by sea or air at a port of entry into
the United States on a carrier unless the
carrier is electronically transmitting to the
automated entry and exit control system
passenger data determined by the Attorney
General to be sufficient to permit the Attorney
General to carry out this paragraph.
``(iii) Calculation.--The system shall
contain sufficient data to permit the Attorney
General to calculate, for each program country
and each fiscal year, the portion of nationals
of that country who are described in
subparagraph (A) and for whom no record of
departure exists, expressed as a percentage of
the total number of such nationals who are so
described.
``(C) Reporting.--
``(i) Percentage of nationals lacking
departure record.--Not later than January 30 of
each year (beginning with the year 2003), the
Attorney General shall submit a written report
to the Committee on the Judiciary of the United
States House of Representatives and of the
Senate containing the calculation described in
subparagraph (B)(iii) for each program country
for the previous fiscal year.
``(ii) System effectiveness.--Not later
than October 1, 2004, the Attorney General
shall submit a written report to the Committee
on the Judiciary of the United States House of
Representatives and of the Senate containing
the following:
``(I) The conclusions of the
Attorney General regarding the
effectiveness of the automated entry
and exit control system to be developed
and implemented under this paragraph.
``(II) The recommendations of the
Attorney General regarding the use of
the calculation described in
subparagraph (B)(iii) as a basis for
evaluating whether to terminate or
continue the designation of a country
as a program country.
``(2) Automated data sharing system.--
``(A) System.--The Attorney General and the
Secretary of State shall develop and implement an
automated data sharing system that will permit them to
share data in electronic form from their respective
records systems regarding the admissibility of aliens
who are nationals of a program country.
``(B) Requirements.--The system under subparagraph
(A) shall satisfy the following requirements:
``(i) Supplying information to immigration
officers conducting inspections at ports of
entry.--Not later than October 1, 2002, the
system shall enable immigration officers
conducting inspections at ports of entry under
section 235 to obtain from the system, with
respect to aliens seeking a waiver under the
program--
``(I) any photograph of the alien
that may be contained in the records of
the Department of State or the Service;
and
``(II) information on whether the
alien has ever been determined to be
ineligible to receive a visa or
ineligible to be admitted to the United
States.
``(ii) Supplying photographs of
inadmissible aliens.--The system shall permit
the Attorney General electronically to obtain
any photograph contained in the records of the
Secretary of State pertaining to an alien who
is a national of a program country and has been
determined to be ineligible to receive a visa.
``(iii) Maintaining records on applications
for admission.--The system shall maintain, for
a minimum of 10 years, information about each
application for admission made by an alien
seeking a waiver under the program, including
the following:
``(I) The name of each immigration
officer conducting the inspection of
the alien at the port of entry.
``(II) Any information described in
clause (i) that is obtained from the
system by any such officer.
``(III) The results of the
application.''.
(b) Conforming Amendment.--Section 217(e)(1) of the Immigration and
Nationality Act (8 U.S.C. 1187(e)(1)) is amended--
(1) in subparagraph (B), by striking ``and'' at the end;
(2) in subparagraph (C), by striking the period at the end
and inserting ``, and''; and
(3) by adding at the end the following:
``(D) to collect, provide, and share passenger data
as required under subsection (h)(1)(B).''.
SEC. 206. CONDITIONS FOR VISA REFUSAL ELIGIBILITY.
Section 217(c) of the Immigration and Nationality Act (8 U.S.C.
1187(c)), as amended by section 204(b) of this Act, is further amended
by adding at the end the following:
``(6) Computation of visa refusal rates.--For purposes of
determining the eligibility of a country to be designated as a
program country, the calculation of visa refusal rates shall
not include any visa refusals which incorporate any procedures
based on, or are otherwise based on, race, sex, sexual
orientation, or disability, unless otherwise specifically
authorized by law or regulation.''.
Purpose and Summary
H.R 3767 would amend section 217 of the Immigration and
Nationality Act to permanently authorize the Visa Waiver Pilot
Program and make changes in the program to strengthen the law
enforcement and security interests of the United States and
reduce the vulnerability of the United States to entry by
unqualified aliens under the program.
Background and Need for the Legislation
I. Background
The Visa Waiver Pilot Program (VWPP) allows aliens
traveling from certain designated countries to come to the
United States as temporary visitors for business or pleasure
without having to obtain the nonimmigrant visa normally
required to enter the United States. The program authorizes the
Attorney General to waive the ``B'' visa requirement for aliens
traveling from countries that have qualified on the basis of
requirements set forth in section 217 of the Immigration and
Nationality Act. There are currently 29 countries participating
in the program.
While the visa waiver program eliminates the visa
requirement for aliens who would otherwise have to present a
``B'' visa, the program has important restrictions. Aliens
entering with a ``B'' visa may apply to extend the length of
their stay in the U.S. and may petition to change to another
nonimmigrant or immigrant visa status. Aliens entering under
the VWPP may not extend their stay and cannot change their
status. An alien who violates the terms of admission (by
staying beyond 90 days or by accepting unauthorized employment)
is deportable without any judicial recourse or review, except
when claiming asylum.
The Attorney General, in consultation with the Secretary of
State, has the authority to designate countries to the VWPP
program. To qualify for admission to the program, a country
must extend reciprocal visa-free entry privileges to U.S.
citizens, have a low (less than 3 percent) nonimmigrant visa
refusal rate and have or be developing a machine readable
passport. Finally, the admission of the country to the program
must not compromise U.S. law enforcement interests.
To be admitted to the U.S. under the program, travelers
must be a national of, and present a passport issued by, a
designated country, plan to visit the U.S. for business or
pleasure for 90 days or less, enter the U.S. via a
participating carrier (most airlines and passenger lines,
including cruise lines, are participating carriers) or via a
land border, have an onward or return ticket if traveling via
air or sea and be otherwise eligible for admission (in other
words, not be ineligible for admission because of a prior visa
refusal, criminal record, previous deportation, etc.).
Since its initial enactment as part of the Immigration
Reform and Control Act of 1986, the VWPP has been a temporary
program. However, Congress has periodically reauthorized the
program, recognizing its importance to the U.S. travel and
tourism industry and the benefit it provides to American
citizens (through reciprocity) who travel abroad. Failure to
reauthorize the program would result in considerable disruption
of the travel industry. Additionally, U.S. taxpayers would have
to bear the burden of restaffing Department of State consular
offices to issue visas to the millions of visitors who
currently enter under the waiver program. Some of the countries
now in the program would impose a reciprocal visa requirement
on American visitors, resulting in inconvenience to U.S.
citizens traveling abroad.
II. Problems/Vulnerabilities
Mechanism for Monitoring Overstays
The principal mechanism in the statute for monitoring the
continuing qualification of countries in the program has never
worked. The statute provides that countries may be redesignated
in the VWPP on a year by year basis unless the sum of the
number of nationals of the country who were denied admission to
the country and number of nationals who violated the terms of
their admission as nonimmigrant visitors (includes travelers
admitted with ``B'' visas and under the VWPP) was 2 percent or
more of the number of nationals of that country admitted as
nonimmigrant visitors during the preceding fiscal year. Relying
on a measure of the nationals of VWPP countries who violate the
terms of their admission has not worked because the INS has
been unable to either develop a mechanism for tracking the
departure of temporary visitors from VWPP countries (or any
other country) or to develop reliable estimates of overstays
based on secondary sources.
Even if the there were a reliable system to calculate or
estimate overstays by aliens from VWPP countries, such a
mechanism would not be sufficient in emergency situations.
Overstay rates are a lagging indicator based on fiscal year
data, which often are not compiled until months, or years,
after the close of the fiscal year. With 29 countries now in
the program, more effective mechanisms are needed for
monitoring countries in the program and for evaluating the
impact of the program on the law enforcement (including
immigration law) and security interests of the United States.
Machine Readable Passport
Another problem with the VWPP has been the failure by
several designated countries to deploy a machine readable
passport. When a machine readable passport is presented by a
traveler at a port of entry, the data on the passport can be
read electronically; when a traveler presents a passport that
is not machine readable, the passport data must be entered
manually by the INS official who inspects the traveler. The
presentation of a non-machine readable passport is harmful to
the security interests of the United States because it forces
the official to concentrate on data entry rather than
evaluating the alien. Since 1990, the statute has required the
Government of a country nominated for participation in the VWPP
to certify that it has or ``is in the process of developing'' a
machine readable passport. Unfortunately, some countries that
were admitted to the program as long ago as 1991 still have not
developed a machine readable passport. Other counties that have
developed a machine readable passport continue to issue some
non-machine readable passports.
Reliability of Lookout Data
The absence of an overseas consular review of a visa
application for VWPP travelers makes it crucially important
that all potentially useful data be available to INS inspectors
at ports of entry and that aliens ineligible for admission not
be admitted. Currently, Department of State data on ineligible
aliens is routinely transferred to the INS. However, the
transferred data contains text-only biographic information.
Although Department of State files usually contain a photograph
of the ineligible alien, the agencies do not have a system for
transmitting photographs as part of an electronic lookout file.
Without access to photographs, INS inspectors frequently face
difficult decisions when inspecting travelers whose data is
close to but not an exact match with the information in the
lookout file.
III. H.R. 3767
H.R. 3767, the Visa Waiver Permanent Program Act,
permanently authorizes the visa waiver program, thus ending the
program's ``pilot'' status. The bill also strengthens the
program by establishing a mechanism for periodic evaluation of
the impact of each country's participation in the program on
the law enforcement and security interests of the United
States. It also provides a mechanism for suspending a country's
participation in the program when emergency situations arise.
Other provisions in the bill establish a deadline for
implementation of a machine readable passport by program
countries, strengthen admission requirements for visa waiver
travelers to prevent ineligible aliens from using the program
to circumvent immigration laws, establish a fully automated
entry/departure system for tracking overstays by visa waiver
travelers and require increased sharing of information on
ineligible aliens between the Department of State and the
Department of Justice.
Hearings
The committee's Subcommittee on Immigration and Claims held
a hearing on the Visa Waiver Pilot Program on February 10,
2000. Testimony was received from Robert Ashbaugh, Acting
Inspector General, U.S. Department of Justice; Ambassador Mary
A. Ryan, Assistant Secretary of State for Consular Affairs,
U.S. Department of State; Michael Cronin, Acting Associate
Commissioner for Programs, U.S. Immigration and Naturalization
Service, Elisa Liang, Associate Deputy Attorney General, U.S.
Department of Justice; William S. Norman, President and Chief
Executive Officer, Travel Industry Association; E. Wayne Merry,
Director, Program on European Societies in Transition, The
Atlantic Council of the United States; and John Ratigan,
Immigration Consultant, Paul Weiss, Rifkind, Wharton &
Garrison.
Committee Consideration
On March 1, 2000, the Subcommittee on Immigration and
Claims met in open session and ordered favorably reported a
committee print by a voice vote, a quorum being present. On
March 30 and April 4, 2000, the committee met in open session
and ordered favorably reported the bill H.R. 3767 with
amendment by voice vote, a quorum being present.
Vote of the Committee
The committee adopted H.R. 3767 by voice vote. Four
amendments also were adopted by voice vote. These were: (1) an
amendment by Mr. Smith of Texas changing the deadlines
requiring countries in the program to have a machine readable
passport from October 1, 2001, to October 1, 2003, and
requiring aliens applying for admission under the program to
present a machine readable passport from October 1, 2002, to
October 1, 2006; (2) an amendment by Ms. Jackson Lee modifying
the provisions providing for the reinstatement of countries
that have been terminated from the program; (3) an amendment by
Mr. Conyers prohibiting the inclusion of refusals based on
race, sex, sexual orientation or disability in the calculation
of visa refusal rates used for determining the eligibility of a
country to be designated as a program country; and (4) an
amendment by Mr. Frank including compelling health
considerations as a standard for authorizing parole of aliens
who apply for admission under the program.
There was one recorded vote during the committee's
consideration of H.R. 3767, as follows:
Amendment offered Mr. Conyers to require the Attorney
General to conduct a study on the criteria used for selection
of program countries. Defeated 9-13.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. X ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... .............. X ..............
Mr. Cannon...................................................... .............. .............. ..............
Mr. Rogan....................................................... .............. X ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. X ..............
Mr. Bachus...................................................... .............. .............. ..............
Mr. Scarborough................................................. .............. .............. ..............
Mr. Vitter...................................................... .............. X ..............
Mr. Conyers..................................................... X .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... .............. .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... X .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... X .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. .............. ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... .............. .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
-----------------------------------------------
Total....................................................... 9 13 ..............
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the committee believes that
the bill will have no cost for the current fiscal year and for
the next five fiscal years.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8, clause 4 of the
Constitution.
Section-by-Section Analysis and Discussion
Sec. 101. Elimination of Pilot Program Status
Section 101 eliminates the visa waiver program's pilot
status and permanently authorizes the program.
Section 201. Extension of Reciprocal Privileges
Countries designated to the visa waiver program must extend
reciprocal privileges (visa free admissions for 90 days) to
citizens and nationals of the United States. The countries of
the European Community (EC) are in the process of establishing
a common area for immigrant admissions with uniform standards
for entry and duration of stay. Eventually, foreign visitors
who enter the EC will be inspected only once (by the
immigration authorities of the country of entry) and be
authorized to stay 90 days irrespective of where they travel
within the EC. Currently, the United States has separate
bilateral reciprocity agreements with all EC countries that
participate in the Visa Waiver Program. When the EC implements
its uniform standards for duration of stay, the individual
bilateral agreements will become unworkable.
Section 201 amends the reciprocity requirement to allow a
program country to extend reciprocal treatment to U.S. citizens
and nationals either on its own or in conjunction with one or
more other countries that have established a common area for
immigrant admissions. This change affects only the reciprocity
requirement for countries that have already been designated as
Visa Waiver Program countries. The individual countries that
make up a common area for immigrant admissions must still
qualify for designation to the program and meet all
requirements for continuing qualification. This change will not
in any way impinge on the authority of the Attorney General to
rescind the designation of any program country.
Section 202. Machine Readable Passport Program
Section 202 deals with the failure of some Visa Waiver
Program countries to take timely action on the requirement to
issue a machine readable passport. It also introduces a more
precise description of a machine readable passport, requiring
that program countries issue a machine readable passport that
satisfies ``the internationally accepted standard for machine
readability.'' The technical specifications for machine
readable passports are set by the International Civil Aviation
Organization (ICAO), a United Nations organization. The ICAO
specifications are endorsed by the International Organization
for Standardization. The machine readable passports of the
United States and most other countries issuing machine readable
passports meet the ICAO standard.
Subsection (a) requires that, as of October 1, 2006, all
aliens traveling on the Visa Waiver Program must present a
machine readable passport to be admissible under the program.
This requirement will address the situation in which a country
designated to the program has introduced a machine readable
passport, but still issues some non-machine readable passports.
Subsection (b) requires that new countries designated to
the program issue a machine readable passport and imposes a
deadline for compliance by countries currently in the program.
Program countries that do not currently have a machine readable
passport must certify by October 1, 2000, that they have a
program to issue machine readable passports and must begin
issuing machine readable passports by October 1, 2003.
Section 203. Denial of Program Waiver Based on Ground of Ineligibility
Section 203 makes it more difficult for aliens who are
ineligible for admission to the United States to gain admission
under the VWPP. It ensures that the program continues to
benefit eligible aliens (the vast majority of those who utilize
the program) while not allowing it to become a means for aliens
who are ineligible for admission to the United States to
circumvent the visa application process.
Subsection (a) requires that all aliens admitted under the
Visa Waiver Program be checked against an automated electronic
lookout system to determine whether there are any grounds of
ineligibility under which the alien may be inadmissible. While
alien travelers under the program are already subjected to
automated name checks in most instances, section 203(a) makes
such name checks a statutory requirement for aliens applying
under the Visa Waiver Program and prohibits the Immigration and
Naturalization Service from admitting to the United States
inadmissible aliens who apply under the program.
Subsection (b) affirms that a visa application is the sole
method for an alien to dispute a finding of inadmissibility
under the program.
Subsection (c) contains conforming amendments that limit
the circumstances under which an alien who is ineligible for
admission under the Visa Waiver Program can be paroled into the
United States. Parole may not be authorized unless the Attorney
General determines there are compelling reasons in the public
interest or compelling health concerns that require a
particular alien be paroled into the United States.
Section 204. Evaluation of Effect of Country's Participation in Program
on Law Enforcement
Section 204 provides mechanisms for evaluating the impact
on U.S. law enforcement (including the enforcement of
immigration law) and security interests of the designation of a
country to participate in the visa waiver program. These
changes, in effect, provide statutory sanction to the approach
taken by the Attorney General to nominations of the four
countries (Greece, Portugal, Singapore and Uruguay) most
recently considered for designation to the program. To consider
the impact on U.S. law enforcement of the admission of each of
the four countries, the Attorney General established an
Interagency Working Group (IWG) comprised of representatives of
the Department of Justice (Criminal Division), Department of
State, INS, FBI, and chaired by the Department Justice's
Executive Office of National Security. The IWG developed a
comprehensive protocol for evaluating candidate counties and
used the protocol to evaluate the four nominated countries.
Subsection (a) deals with the initial designation of a new
country to the program. It requires the Attorney General, in
consultation with the Secretary of State, to evaluate the
effect on the law enforcement and security interests of the
United States of the country's designation in the program and
to provide a report to the Judiciary Committees of the House
and Senate regarding the outcome of such evaluation.
Subsection (b) deals with the continuing designation of
countries in the program. It requires the Attorney General, in
consultation with the Secretary of State, to periodically (but
not less than once every 5 years) evaluate the effect on the
law enforcement and security interests of the United States of
the country's continued designation in the program and to
provide a report to the Judiciary Committees of the House and
Senate regarding the outcome of such evaluation. To ensure that
the reports are submitted in a timely manner, there is a
provision, effective October 1, 2005, for the automatic
termination of the designation of a country for which a report
has not been submitted during the preceding 5 years.
Subsection (b) also provides for the emergency termination
of a Visa Waiver Program country's designation in the event the
country is affected by an emergency situation. Emergency is
defined as the overthrow of a democratically elected
Government, war, disruptive social unrest, severe economic or
financial crisis or any other extraordinary event that
threatens the law enforcement (including immigration law) or
security interests of the United States.
The expansion of the Visa Waiver Program in recent years to
countries that have had only limited experience with democratic
institutions or have economies that are vulnerable to severe
fluctuations and/or are located in less stable areas of the
world has increased the potential for a serious emergency
occurring in a program country that could threaten the law
enforcement or security interests of the United States. The
emergency termination provision would be used in rare instances
where, because of emergent circumstances in a program country,
there would be an immediate threat to U.S. law enforcement or
security interests if the country were to continue
participating in the program.
A war emergency would only apply to situations in which
hostile military activity occurs on the territory of a program
country. It would not apply in situations where a program
country participates in an allied military action outside of
its territory (such as the Persian Gulf War or recent military
actions in Kosovo).
An emergency involving ``disruptive social unrest'' would
apply to a situation in which there was a severe breakdown in
law and order affecting a significant portion of a program
country's territory. It would not apply in situations involving
isolated events lasting for a relatively brief time, although
the implications of such isolated, temporary events could be
considered during the periodic (five year) review of the
country's continued designation to the program.
A ``severe economic or financial crisis'' would apply to a
situation in which a program country experiences a severe
economic collapse or a financial meltdown similar to what
occurred in Indonesia and several other countries in1998. It
would not apply in a situation where a country experiences a
cyclical economic recession such as was experienced by Japan
and several European countries during the 1990's.
Section 205. Use of Information Technology Systems
This section mandates the establishment of a fully
automated system for tracking the entries and departures of
aliens who are nationals of a program country and an automated
system to share data regarding the inadmissability of aliens
who are nationals of a program country.
Subsection (a)(1) mandates the establishment of a fully
automated system for tracking the entries and departures of
aliens who arrive by sea or air. This system will provide the
first functioning mechanism for monitoring compliance with the
visa waiver program since it was authorized in 1986. The basic
technology for such a system is already in place. Many inbound
flights already transmit passenger data to the INS
electronically via the Advanced Passenger Information System
(APIS). Section (a)(1) requires the INS to make similar use of
outbound passenger data, thereby eliminating the current
reliance on the collection of a paper form from outbound
passengers.
The resulting data on entries and departures by visa waiver
travelers will be matched. Since more than 98 percent of visa
waiver program aliens enter and depart via a participating
carrier, a calculation of the number of aliens for each program
country for whom there is no record of a departure, should
provide a statistically sound basis for determining overstay
rates for program countries. The Attorney General is required
to make specific recommendations as to how this calculation
will be used by October 1, 2004.
Subsection (a)(2) requires the Attorney General and
Secretary of State to develop and implement an automated data
system that will permit the sharing of information regarding
the inadmissability of aliens who are nationals of program
countries. It requires that a photograph of the alien, when
available, be included in the data transmitted on an ineligible
alien. Including a photograph of the alien whenever available
will reduce the risk of inadmissible aliens gaining entry to
the United States under the visa waiver program. It also will
facilitate the entry of legitimate travelers whose biographic
data happens to be similar to that of an alien in the INS
lookout files.
Section 206. Conditions For Visa Refusal Eligibility
Section 206 prohibits the use of visa refusals which
incorporate any procedures or are otherwise based on race, sex,
sexual orientation or disability when calculating the visa
refusal rate for determining the eligibility of a country for
the program.
It would be a violation deep-seated American principles of
equality of treatment and fair play to make determinations
regarding visa eligibility based on discriminatory criteria.
However, this provision does not prohibit a consular officer,
when adjudicating a nonimmigrant visa application, from
examining the applicant's economic situation, income level,
family situation, general life circumstances or other factors
affecting the applicant's entitlement to nonimmigrant status
under Section 101(a)(15) (B) of the Immigration and Nationality
Act.
The political, economic and social situation in the country
or region of the applicant's residence also are appropriate
factors for a consular officer to consider since they could
affect the applicant's entitlement to nonimmigrant status. When
considering this provision, the committee specifically excluded
refusals based on nationality, place of birth, and place of
residence from the list of prohibited refusal criteria because
it determined that these are factors that could have a bearing
on a visa applicant's entitlement to nonimmigrant status.
Agency Views
U.S. Department of State,
Washington, DC, March 30, 2000.
Hon. Lamar Smith, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: We are pleased to take this opportunity
to provide the views of the Department of State on H.R. 3767,
the ``Visa Waiver Permanent Program Act.'' The Department
supports key concepts of the bill, such as a permanent visa
waiver program (VWP), enhanced border security and datasharing,
and use of machine-readable passports (MRPs). Our concerns lie
with those provisions that could work against the more positive
aspects of VWP: promotion of US trade and tourism, enhanced
foreign relations with participating countries, and more
effective use of State Department resources. Striking the
proper balance between competing U.S. interests is an important
goal for us in thinking about a permanent visa waiver program.
We agree that a permanent visa waiver regime requires
certain safeguards to ensure that a country's continued
participation in the program in no way threatens U.S.
interests. H.R. 3767 proposes several measures to tighten up
the existing program, including requiring VWP visitors to enter
the U.S. with a machine-readable passport. The Department
agrees with the need for stricter enforcement of MRP
requirements, but finds the compliance dates in the bill far
too restrictive. While there is no question that some VWPP
countries did not make MRP issuance a high enough priority, we
expect all VWP countries to be issuing MRPs by 2003. Even
countries with longstanding programs, however, will need more
than two years to issue MRPs to all their citizens who wish to
travel to the U.S. under the visa waiver program.
The U.S. itself does not issue MRPs to all its citizens
because of the high cost of installing the required machinery
at all consular posts abroad. (Currently 1.5 percent of
passports issued to U.S. citizens are not machine-readable.)
Similarly, many VWP countries do not issue MRPs at all their
overseas posts.
Another consideration is that passports are generally valid
for ten years, which means there will be a mix of passport
types in circulation until all non-machine readable passports
have expired and been replaced with machine-readable versions.
One and a half percent of the 50 million U.S. passports
currently in circulation are not machine-readable--some 750,000
documents. These passports were issued before MRPs were
available and have not yet expired. All VWPP countries face a
similar situation. We need to provide passport agencies in VWP
countries sufficient lead time to plan for and respond to the
increase in demand for MRPs that would occur under H.R. 3767.
Ideally, we would grant countries ten years to issue MRPs to
all their citizens. If this is not possible, we strongly urge
that the compliance dates in the bill, October 1, 2001, for
issuance of MRPs, and October 1, 2002, for all VWP travelers to
enter on a MRP, be changed to October 1, 2003, and October 1,
2008, respectively.
From a resource perspective, we are concerned about
provisions for precipitous removal of a country from the
program. We realize that border security concerns are behind
these proposed measures, but want to be clear about the severe
resource implications for the Department if a country suddenly
loses its visa waiver status. Our immediate capacity to issue
large numbers of visas in the affected country would be
overwhelmed. The Department would require at least three years
to reallocate permanent resources to a country that was
suddenly removed from the program. We would have to rely on
temporary duty (TDY) assistance and other types of more
expensive staffing solutions in the interim.
The Department agrees that major destabilizing events
inside a VWP country should have a bearing on that country's
continued designation. We believe that this type of situation
can be addressed through the general authority given the
Attorney General under current law or as proposed under section
204(C)(i) of H.R. 3767.
Periodic reviews of a VWP country's performance are an
important part of a permanent program. The VWP interagency
group agrees on the need to monitor a country's performance and
is looking at ways to incorporate this type of review into its
protocol. The Department finds the automatic rescission clause
of the reporting requirement unnecessary and unduly harsh on
the affected VWP country.
Thank you for your consideration of these matters. A
permanent visa waiver program that promotes the full range of
US interests--border security, enhanced foreign relations with
friends and allies, increased trade and tourism, and more
efficient government--is a high priority for the Department. We
would be pleased to continue working with the Congress on
provisions of concern in H.R. 3767.
Sincerely,
Barbara Larkin, Assistant Secretary,
Legislative Affairs.
----------
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, March 30, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on H.R. 3767, the ``Visa Waiver Permanent
Program Act.'' We are pleased that H.R. 3767 permanently
authorizes the Visa Waiver Pilot Program (``VWPP''). We have
concerns, however, about several provisions contained in this
bill and cannot fully endorse it as written. Generally, the
time frames for provisions concerning automated databases
appear to be overly ambitious. In addition, we believe this
bill can be strengthened by the inclusion of certain provisions
that are designed to ensure the future program meets the law
enforcement and national security interests of the United
States. The first section below contains comments that address
our specific concerns with H.R. 3767. Following those comments,
we offer additional measures that we believe would safeguard
the integrity of the future visa waiver program.
Specific Bill Comments
Section 1 of the bill would make the Visa Waiver Pilot
Program a permanent program. We support a permanent visa waiver
program. However, we believe that a permanent authorization for
the program should have provisions to strengthen its integrity.
First, we believe Congress should provide added safeguards to
protect the law enforcement and national security interests of
the United States. Below, we offer several proposals intended
to enhance the Government's law enforcement and national
security interests with respect to visa waiver travel to the
United States. In addition, we believe that the bill should
include a provision permitting the Attorney General to
temporarily suspend country participation in the waiver
program.
In section 101(a)(2)(C), the word ``period'' should be
inserted in the quotation after ``program'' and just before the
parenthetical.
Section 201 of the bill would expand the definition of
reciprocal privileges. The INS defers to the Department of
State on this issue.
As amended, section 202(b) would require each participant
country to issue a machine-readable passport no later than
October 1, 2003. We support a date certain for the issuance of
machine-readable passports. However, we believe that the
Attorney General, in consultation with the Secretary of State,
should determine the date upon which a participant country
should meet this condition. The reference to ``[s]ection
217(c)'' should be corrected to reference section 217(c)(2)(B).
Section 203(b) of the bill specifies that a visa
application is the sole method to dispute denial of a waiver
based on a ground of inadmissibility. Although we support
requiring that an alien refused admission under the program
apply for a visa in order to enter the United States, we are
concerned about the clause that requires that the ground of
inadmissibility be uncovered ``through a written or verbal
statement by the alien or a use of an automated electronic
database required under subsection (a)(9).'' This provision, as
written, will unduly hamper immigration officers because facts
evidencing an alien's inadmissibility are often uncovered
through sources other than the alien's statements or an
automated database check. For example, an alien's
inadmissibility may be uncovered during a luggage search where
documents secreted in a suitcase reveal that the alien has an
overseas criminal conviction or that he is entering the United
States to live and work permanently. In addition, reliable
information from the alien's friend or family member may
clearly evidence that the alien is traveling to the United
States to reside permanently. With respect to the
nonreviewability clause in contained in section 203(b)
(prohibiting review of any denial of admission), the current
VWPP is designed to achieve the goal of nonreviewability except
in asylum cases. The limited nonreviewability provision in this
bill could be read to suggest that there is a right to
administrative or judicial review in other non-asylum VWPP
denials. Current provisions in section 217 of the INA
adequately address this issue.
Section 203(c) of the bill divests the Attorney General of
authority to parole an alien for urgent humanitarian purposes.
We strongly oppose this provision. Currently, the Attorney
General may, on a case-by-case basis, parole an alien for
urgent humanitarian reasons or for significant public benefit.
Parole requests under the Visa Waiver Permanent Program likely
will arise where parole is necessary for compassionate family
or medical situations. Such emergencies fail to meet the public
interest standard; rather, these circumstances meet the urgent
humanitarian interest standard.
Section 204(b) also requires immediate rescission of
country participation in the visa waiver program when
emergencies occur. We propose amending the emergency rescission
language (indicated in italics) to read, ``In the case of a
program country in which an emergency occurs that the Attorney
General, in consultation with the Secretary of State,
determines would compromise the law enforcement or security
interests of the United States (including the interest in
enforcement of the immigration laws of the United States) if
designation of that country were not immediately rescinded, the
Attorney General shall immediately rescind the designation of
the country as a program country.''
Section 205(a) refers to an amendment made earlier in the
bill by section 203(b)(2), but there is no 203(b)(2) in the
bill. Perhaps, the drafters meant to refer to section 203(b).
Section 205(a) of the bill would require the development
and implementation of an automated entry-exit control system at
airports and seaports. We support this provision for airports
but oppose it for seaports. The time frame, however, for
developing such an airport system is unworkable, and no
resources are authorized to implement this provision. Although
we support an October 2004 deadline for developing this system,
funding must be appropriated because such a system depends upon
further database enhancements and the automated I-94 system.
Section 205(a) also would require air and sea carrier data
collection. The data requirements under this provision should
be compatible with our automated I-94 system to ensure that
arrival records can be matched with departure records.
Section 205(a) of the bill would require an automated data
sharing system. We support the provisions concerning data
sharing with the Department of State. Appropriate funding to
support this provision will have to be provided to both
agencies.
ADDITIONAL PROPOSALS FOR A FUTURE VISA WAIVER PROGRAM
Initial Qualifications for the Permanent Program
All citizens of visa waiver countries benefit from being in
the visa waiver program, regardless of where those citizens
reside. Therefore, it is essential that worldwide nonimmigrant
visitor visa refusal rates be used to determine which countries
might initially qualify for the program. It is common practice
for individuals who obtain fraudulent passports to apply for
nonimmigrant visas outside the country identified by the
passport.
As a distinct qualification criterion entry into the
permanent program, we propose a United States border
interception rate of less than .20 percent (2 out of every
1000), which would apply to applicants for admission who were
not admitted at the initial port-of-entry. This criterion
should include a method to account for the risk posed by third
country nationals fraudulently using a participant country's
passport at the time of application for admission at a United
States port-of-entry. It should reflect that some nations have
a low volume of admissions to the United States and that
therefore the overall number of incidents of fraud perpetrated
by third-country nationals may be misleading because of the
small number of travelers.
Continuing Qualification
We favor a separate provision that automatically would
trigger review of a country whose passport is abused by third
country nationals. This would enable the United States to
review visa waiver privileges from any country unable to
implement adequate controls over its passports and their
issuance.
Finally, we urge removal of the probationary status
provisions from the current statute. The current probationary
provision simply provides sanction for a high-risk country to
continue to participate in the program. Instead, we advocate
provisions that would allow the Attorney General, with
notification to the Secretary of State, to revoke or suspend a
country's privilege under the VWPP to quickly address law
enforcement or national security concerns. In today's world, we
must be able to adjust to rapidly changing circumstances as
quickly as possible. We also support a suspension provision in
addition to the rescission provisions.
Thank you for the opportunity to express the Department's
views. Please do not hesitate to call upon my office if we may
be of additional assistance. The Office of Management and
Budget has advised us that from the perspective of the
Administration's program, there is no objection to submission
of this letter.
Sincerely,
Robert Raben, Assistant Attorney General.
Identical letter sent to the Honorable John Conyers, Jr.,
Ranking Minority Member
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TABLE OF CONTENTS
* * * * * * *
Title II--Immigration
* * * * * * *
chapter 2--qualifications for admission of aliens; travel control of
citizens and aliens
Sec. 211. Documentary requirements.
* * * * * * *
Sec. 217. Visa waiver [pilot] program for certain visitors.
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) * * *
* * * * * * *
(7) Documentation requirements.--
(A) * * *
* * * * * * *
(B) Nonimmigrants.--
(i) * * *
* * * * * * *
(iv) Visa waiver [pilot] program.--
For authority to waive the requirement
of clause (i) under a [pilot] program,
see section 217.
* * * * * * *
(d)(1) * * *
* * * * * * *
(5)(A) The Attorney General may, except as provided in
[subparagraph (B)] subparagraph (B) or (C) or in section
214(f), in his discretion parole into the United States
temporarily under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for admission to
the United States, but such parole of such alien shall not be
regarded as an admission of the alien and when the purposes of
such parole shall, in the opinion of the Attorney General, have
been served the alien shall forthwith return or be returned to
the custody from which he was paroled and thereafter his case
shall continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.
* * * * * * *
(C) The Attorney General may not parole into the United
States an alien who has applied under section 217 for a waiver
of the visa requirement, and has been denied such waiver by
reason of a ground of inadmissibility uncovered through a
written or verbal statement by the alien or a use of an
automated electronic database required under section 217(a)(9),
unless the Attorney General determines that compelling reasons
in the public interest, or compelling health considerations,
with respect to that particular alien require that the alien be
paroled into the United States.
* * * * * * *
visa waiver [pilot] program for certain visitors
Sec. 217. (a) Establishment of [Pilot] Program.--The
Attorney General and the Secretary of State are authorized to
establish a [pilot] program (hereinafter in this section
referred to as the ``[pilot] program'') under which the
requirement of paragraph (7)(B)(i)(II) of section 212(a) may be
waived by the Attorney General, in consultation with the
Secretary of State, and in accordance with this section, in the
case of an alien who meets the following requirements:
(1) Seeking entry as tourist for 90 days or less.--
The alien is applying for admission during the [pilot
program period (as defined in subsection (e))] program
as a nonimmigrant visitor (described in section
101(a)(15)(B)) for a period not exceeding 90 days.
(2) National of [pilot] program country.--The alien
is a national of, and presents a passport issued by, a
country which--
(A) extends (or agrees to extend), either
on its own or in conjunction with one or more
other countries that are described in
subparagraph (B) and that have established with
it a common area for immigration admissions,
reciprocal privileges to citizens and nationals
of the United States, and
(B) is designated as a pilot program
country under subsection (c).
(3) Machine readable passport.--On and after
October 1, 2006, the alien at the time of application
for admission is in possession of a valid unexpired
machine-readable passport that satisfies the
internationally accepted standard for machine
readability.
[(3)] (4) Executes immigration forms.--The alien
before the time of such admission completes such
immigration form as the Attorney General shall
establish.
[(4)] (5) Entry into the united states.--If
arriving by sea or air, the alien arrives at the port
of entry into the United States on a carrier which has
entered into an agreement with the Service to guarantee
transport of the alien out of the United States if the
alien is found inadmissible or deportable by an
immigration officer.
[(5)] (6) Not a safety threat.--The alien has been
determined not to represent a threat to the welfare,
health, safety, or security of the United States.
[(6)] (7) No previous violation.--If the alien
previously was admitted without a visa under this
section, the alien must not have failed to comply with
the conditions of any previous admission as such a
nonimmigrant.
[(7)] (8) Round-trip ticket.--The alien is in
possession of a round-trip transportation ticket
(unless this requirement is waived by the Attorney
General under regulations).
(9) Automated system check.--The identity of the
alien has been checked using an automated electronic
database containing information about the
inadmissibility of aliens to uncover any grounds on
which the alien may be inadmissible to the United
States, and no such ground has been found.
(b) Waiver of Rights.--An alien may not be provided a
waiver under the [pilot] program unless the alien has waived
any right--
(1) * * *
* * * * * * *
(c) Designation of [Pilot] Program Countries.--
(1) In general.--The Attorney General, in
consultation with the Secretary of State, may designate
any country as a [pilot] program country if it meets
the requirements of paragraph (2).
(2) Qualifications.--Except as provided in
subsection [(g)] (f), a country may not be designated
as a [pilot] program country unless the following
requirements are met:
(A) * * *
* * * * * * *
[(B) Machine readable passport program.--
The government of the country certifies that it
has or is in the process of developing a
program to issue machine-readable passports to
its citizens.
[(C) Law enforcement interests.--The
Attorney General determines that the United
States law enforcement interests would not be
compromised by the designation of the country.]
(B) Machine readable passport program.--
(i) In general.--Subject to clause
(ii), the government of the country
certifies that it issues to its
citizens machine-readable passports
that satisfy the internationally
accepted standard for machine
readability.
(ii) Deadline for compliance for
certain countries.--In the case of a
country designated as a program country
under this subsection prior to May 1,
2000, as a condition on the
continuation of that designation, the
country--
(I) shall certify, not
later than October 1, 2000,
that it has a program to issue
machine-readable passports to
its citizens not later than
October 1, 2003; and
(II) shall satisfy the
requirement of clause (i) not
later than October 1, 2003.
(C) Law enforcement and security
interests.--The Attorney General, in
consultation with the Secretary of State--
(i) evaluates the effect that the
country's designation would have on the
law enforcement and security interests
of the United States (including the
interest in enforcement of the
immigration laws of the United States);
(ii) determines that such interests
would not be compromised by the
designation of the country; and
(iii) submits a written report to
the Committee on the Judiciary of the
United States House of Representatives
and of the Senate regarding the
country's qualification for designation
that includes an explanation of such
determination.
(3) Continuing and subsequent qualifications.--For
each fiscal year [(within the pilot program period)]
after the initial period--
(A) Continuing qualification.--In the case
of a country which was a [pilot] program
country in the previous fiscal year, a country
may not be designated as a [pilot] program
country unless the sum of--
(i) * * *
* * * * * * *
(B) New countries.--In the case of another
country, the country may not be designated as a
[pilot] program country unless the following
requirements are met:
* * * * * * *
(5) Written reports on continuing qualification;
designation terminations.--
(A) Periodic evaluations.--
(i) In general.--The Attorney
General, in consultation with the
Secretary of State, periodically (but
not less than once every 5 years)--
(I) shall evaluate the
effect of each program
country's continued designation
on the law enforcement and
security interests of the
United States (including the
interest in enforcement of the
immigration laws of the United
States);
(II) shall determine
whether any such designation
ought to be continued or
terminated under subsection
(d); and
(III) shall submit a
written report to the Committee
on the Judiciary of the United
States House of Representatives
and of the Senate regarding the
continuation or termination of
the country's designation that
includes an explanation of such
determination and the effects
described in subclause (I).
(ii) Effective date.--A termination
of the designation of a country under
this subparagraph shall take effect on
the date determined by the Attorney
General, but may not take effect before
the end of the 30-day period beginning
on the date on which notice of the
termination is published in the Federal
Register.
(iii) Redesignation.--In the case
of a termination under this
subparagraph, the Attorney General
shall redesignate the country as a
program country, without regard to
subsection (f) or paragraph (2) or (3),
when the Attorney General, in
consultation with the Secretary of
State, determines that all causes of
the termination have been eliminated.
(B) Automatic termination.--
(i) Requirement.--On and after
October 1, 2005, the designation of any
program country with respect to a
report described in subparagraph
(A)(i)(III) has not been submitted in
accordance with such subparagraph
during the preceding 5 years shall be
considered terminated.
(ii) Effective date.--A termination
of the designation of a country under
this subparagraph shall take effect on
the last day of the 5-year period
described in clause (i).
(iii) Redesignation.--In the case
of a termination under this
subparagraph, the Attorney General
shall redesignate the country as a
program country, without regard to
subsection (f) or paragraph (2) or (3),
when the required report is submitted,
if the report includes a determination
by the Attorney General that the
country should continue as a program
country.
(C) Emergency termination.--
(i) In general.--In the case of a
program country in which an emergency
occurs that the Attorney General, in
consultation with the Secretary of
State, determines threatens the law
enforcement or security interests of
the United States (including the
interest in enforcement of the
immigration laws of the United States),
the Attorney General shall immediately
terminate the designation of the
country as a program country.
(ii) Definition.--For purposes of
clause (i), the term ``emergency''
means--
(I) the overthrow of a
democratically elected
government;
(II) war (including
undeclared war, civil war, or
other military activity);
(III) disruptive social
unrest;
(IV) a severe economic or
financial crisis; or
(V) any other extraordinary
event that threatens the law
enforcement or security
interests of the United States
(including the interest in
enforcement of the immigration
laws of the United States).
(iii) Redesignation.--The Attorney
General may redesignate the country as
a program country, without regard to
subsection (f) or paragraph (2) or (3),
when the Attorney General determines
that--
(I) at least 6 months have
elapsed since the effective
date of the termination;
(II) the emergency that
caused the termination has
ended; and
(III) the average number of
refusals of nonimmigrant
visitor visas for nationals of
that country during the period
of termination under this
subparagraph was less than 3.0
percent of the total number of
nonimmigrant visitor visas for
nationals of that country which
were granted or refused during
such period.
(D) Treatment of nationals after
termination.--For purposes of this paragraph--
(i) nationals of a country whose
designation is terminated under
subparagraph (A), (B), or (C) shall
remain eligible for a waiver under
subsection (a) until the effective date
of such termination; and
(ii) a waiver under this section
that is provided to such a national for
a period described in subsection (a)(1)
shall not, by such a designation
termination, be deemed to have been
rescinded or otherwise rendered
invalid, if the waiver is granted prior
to such termination.
(6) Computation of visa refusal rates.--For
purposes of determining the eligibility of a country to
be designated as a program country, the calculation of
visa refusal rates shall not include any visa refusals
which incorporate any procedures based on, or are
otherwise based on, race, sex, sexual orientation, or
disability, unless otherwise specifically authorized by
law or regulation.
* * * * * * *
(e) Carrier Agreements.--
(1) In general.--The agreement referred to in
subsection (a)(4) is an agreement between a carrier and
the Attorney General under which the carrier agrees, in
consideration of the waiver of the visa requirement
with respect to a nonimmigrant visitor under the
[pilot] program--
(A) * * *
(B) to submit daily to immigration officers
any immigration forms received with respect to
nonimmigrant visitors provided a waiver under
the [pilot] program, [and]
(C) to be subject to the imposition of
fines resulting from the transporting into the
United States of a national of a designated
country without a passport pursuant to
regulations promulgated by the Attorney
General[.], and
(D) to collect, provide, and share
passenger data as required under subsection
(h)(1)(B).
* * * * * * *
[(f) Definition of Pilot Program Period.--For purposes of
this section, the term ``pilot program period'' means the
period beginning on October 1, 1988, and ending on April 30,
2000.]
[(g)] (f) Duration and Termination of Designation.--
(1) In general.--
(A) Determination and notification of
disqualification rate.--Upon determination by
the Attorney General that a [pilot] program
country's disqualification rate is 2 percent or
more, the Attorney General shall notify the
Secretary of State.
* * * * * * *
(C) Termination of designation.--Subject to
paragraph (3), if the program country's
disqualification rate is 3.5 percent or more,
the Attorney General shall terminate the
country's designation as a [pilot] program
country effective at the beginning of the
second fiscal year following the fiscal year in
which the determination under subparagraph (A)
is made.
(2) Termination of probationary status.--
(A) In general.--If the Attorney General
determines at the end of the probationary
period described in paragraph (1)(B) that the
program country placed in probationary status
under such paragraph has failed to develop a
machine-readable passport program as required
by section (c)(2)(C), or has a disqualification
rate of 2 percent or more, the Attorney General
shall terminate the designation of the country
as a [pilot] program country. If the Attorney
General determines that the program country has
developed a machine-readable passport program
and has a disqualification rate of less than 2
percent, the Attorney General shall redesignate
the country as a [pilot] program country.
* * * * * * *
(3) Nonapplicability of certain provisions.--
Paragraph (1)(C) shall not apply unless the total
number of nationals of a [pilot] program country
described in paragraph (4)(A) exceeds 100.
(4) Definition.--For purposes of this subsection,
the term ``disqualification rate'' means the percentage
which--
(A) the total number of nationals of the
[pilot] program country who were--
* * * * * * *
(g) Visa Application Sole Method of Disputing Ground of
Inadmissibility Found in Automated System.--In the case of an
alien denial a waiver under the program by reason of a ground
of inadmissibility uncovered through a written or verbal
statement by the alien or a use of an automated electronic
database required under subsection (a)(9), the alien may apply
for a visa at an appropriate consular office outside the United
States. There shall be no other means of administrative or
judicial review of such a denial, and no court or person
otherwise shall have jurisdiction to consider any claim
attacking the validity of such a denial.
(h) Use of Information Technology Systems.--
(1) Automated entry-exit control system.--
(A) System.--Not later than October 1,
2001, the Attorney General shall develop and
implement a fully automated entry and exit
control system that will collect a record of
arrival and departure for every alien who
arrives by sea or air at a port of entry into
the United States and is provided a waiver
under the program.
(B) Requirements.--The system under
subparagraph (A) shall satisfy the following
requirements:
(i) Data collection by carriers.--
Not later than October 1, 2001, the
records of arrival and departure
described in subparagraph (A) shall be
based, to the maximum extent
practicable, on passenger data
collected and electronically
transmitted to the automated entry and
exit control system by each carrier
that has an agreement under subsection
(a)(4).
(ii) Data provision by carriers.--
Not later than October 1, 2002, no
waiver may be provided under this
section to an alien arriving by sea or
air at a port of entry into the United
States on a carrier unless the carrier
is electronically transmitting to the
automated entry and exit control system
passenger data determined by the
Attorney General to be sufficient to
permit the Attorney General to carry
out this paragraph.
(iii) Calculation.--The system
shall contain sufficient data to permit
the Attorney General to calculate, for
each program country and each fiscal
year, the portion of nationals of that
country who are described in
subparagraph (A) and for whom no record
of departure exists, expressed as a
percentage of the total number of such
nationals who are so described.
(C) Reporting.--
(i) Percentage of nationals lacking
departure record.--Not later than
January 30 of each year (beginning with
the year 2003), the Attorney General
shall submit a written report to the
Committee on the Judiciary of the
United States House of Representatives
and of the Senate containing the
calculation described in subparagraph
(B)(iii) for each program country for
the previous fiscal year.
(ii) System effectiveness.--Not
later than October 1, 2004, the
Attorney General shall submit a written
report to the Committee on the
Judiciary of the United States House of
Representatives and of the Senate
containing the following:
(I) The conclusions of the
Attorney General regarding the
effectiveness of the automated
entry and exit control system
to be developed and implemented
under this paragraph.
(II) The recommendations of
the Attorney General regarding
the use of the calculation
described in subparagraph
(B)(iii) as a basis for
evaluating whether to terminate
or continue the designation of
a country as a program country.
(2) Automated data sharing system.--
(A) System.--The Attorney General and the
Secretary of State shall develop and implement
an automated data sharing system that will
permit them to share data in electronic form
from their respective records systems regarding
the admissibility of aliens who are nationals
of a program country.
(B) Requirements.--The system under
subparagraph (A) shall satisfy the following
requirements:
(i) Supplying information to
immigration officers conducting
inspections at ports of entry.--Not
later than October 1, 2002, the system
shall enable immigration officers
conducting inspections at ports of
entry under section 235 to obtain from
the system, with respect to aliens
seeking a waiver under the program--
(I) any photograph of the
alien that may be contained in
the records of the Department
of State or the Service; and
(II) information on whether
the alien has ever been
determined to be ineligible to
receive a visa or ineligible to
be admitted to the United
States.
(ii) Supplying photographs of
inadmissible aliens.--The system shall
permit the Attorney General
electronically to obtain any photograph
contained in the records of the
Secretary of State pertaining to an
alien who is a national of a program
country and has been determined to be
ineligible to receive a visa.
(iii) Maintaining records on
applications for admission.--The system
shall maintain, for a minimum of 10
years, information about each
application for admission made by an
alien seeking a waiver under the
program, including the following:
(I) The name of each
immigration officer conducting
the inspection of the alien at
the port of entry.
(II) Any information
described in clause (i) that is
obtained from the system by any
such officer.
(III) The results of the
application.
* * * * * * *
Additional Views
We take this opportunity to express our additional views on
the committee's consideration of amendments offered to prohibit
the use of discriminatory profiling in the adjudication of visa
applications and to study the problem of using visa refusal
rates as a criterion to determine eligibility for the Visa
Waiver Program.
In particular, we are deeply troubled by demonstrable
evidence of discriminatory and unlawful profiling in the
adjudication of visa applications. U.S. District Court Judge
Stanley Sporkin determined in the case of Olsen v. Albright \1\
that the U.S. Consulate General in Sao Paulo, Brazil based its
nonimmigrant visa determinations in large part on the
applicants' race, ethnicity or national origin. Judge Sporkin
correctly concluded: ``The principle that government must not
discriminate against particular individuals because of the
color of their skin or the place of their birth means that the
use of generalizations based on these factors is unfair and
unjustified.'' In addition, we are concerned that the use of
visa refusal rates as a criterion to determine eligibility for
the Visa Waiver Program has a discriminatory impact on African
and Caribbean nations.
---------------------------------------------------------------------------
\1\ 990 F. Supp. 31 (D.C.D.C. Dec. 1997)
---------------------------------------------------------------------------
In an effort to respond to these concerns, two amendments
were offered to H.R. 3767:
Conditions for Visa Refusal Eligibility
The unlawful practices found at the U.S. Consulate General
in Sao Paulo call into question the use of visa refusal rates
as a criterion in the Visa Waiver Program. Judge Sporkin
identified numerous instances of unlawful profiling in
adjudicating visas in the Olsen decision. For example, Korean
and Chinese nationals were rarely to be issued visas unless
they were older and had previously received a visa. According
to the Consular Section Head, ``Filipinos and Nigerians have
high fraud rates, and their applications should be viewed with
extreme suspicion, while British and Japanese citizens rarely
overstay, and generally require less scrutiny.'' Further,
identifying cities ``known for fraud'' (most with predominantly
black populations), the Consulate's manual stated that ``anyone
born in these locations is suspect unless older, well-traveled,
etc.''
We are greatly concerned that certain countries have not
been able to qualify under the Visa Waiver Program because
visas are wrongly refused based on generalizations stemming
from a person's race, sex, national origin or other
discriminatory factors.\2\ Therefore, Rep. Conyers offered an
amendment to ensure that Consulates and Embassies abroad
adjudicate nonimmigrant visas based on the merits of the
applications, and not on the basis of ``race, sex, sexual
orientation, disability, nationality, place of birth or place
of residence, unless otherwise specifically authorized by law
or regulation.'' The purpose of the offered amendment is to
ensure that Embassies and Consulates do not engage in the types
of practices described by Judge Sporkin in Olsen.
---------------------------------------------------------------------------
\2\ Under the Visa Waiver Program, the selection of countries to
participate in the program includes the consideration of a country's
refusal rate, which is the rate at which applications for nonimmigrant
visas are denied. The standard for eligibility is a refusal rate that
is lower than 3% for the two-year period preceding the application.
---------------------------------------------------------------------------
The committee agreed to a revised amendment to prohibit the
adjudication of visas on the basis of race, sex, sexual
orientation, or disability, unless otherwise specified by law
or regulation. We are supportive of the committee's agreement
to this amendment because it codifies into law what already
should be the practice of the State Department.
However, it should be, and in our view is clear, that the
decision to remove ``nationality, place of birth, or place of
residence'' does not give consular officers discretion to
discriminate on these bases. The Olsen decision confirms that
the use of generalizations based on nationality, place of birth
or place of residence is unfair, unjustified and contrary to
law.
This amendment makes it clear to the U.S. Consulates and
Embassies abroad that it is a violation of U.S. law for visa
refusals to occur based on generalizations that by their very
nature are not applicable to the individual application. The
amendment is intended to ensure that Embassies and Consulates
adjudicate visas based on the merits of the applications, and
not on the basis of irrelevant and harmful discriminatory
stereotypes.
Report on Impact of Use of Visa Refusal Rates on Selection of Countries
Under the Visa Waiver Program, the selection of countries
to participate in the program includes the consideration of a
country's refusal rate. This amendment offered by Reps. Conyers
and Jackson Lee would have required the Attorney General to
study whether the use of visa refusal rates in determining the
eligibility of countries in the Visa Waiver Program has a
discriminatory impact as well as whether there is a connection
between visa rejection rates and the overstay rates.
The visa refusal rate is not a relevant statistic in
determining eligibility for the Visa Waiver Program. The
pertinent question should be whether the past practices of the
country's citizens indicate a tendency to remain in the United
States beyond the terms of their visas. The refusal rate is
simply not sufficiently probative of that fact. The overstay
rates for a country would be a far more relevant consideration
for determining eligibility to participate in the Visa Waiver
Program. Not a single African or Caribbean country currently is
eligible for the Visa Waiver Program and we continue to believe
that a study is urgently needed to determine why this situation
exists. We regret that the Majority chose to reject this common
sense amendment.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.