Floor Situation

On Tuesday, December 8, 2015, the House will consider H.R. 158, the Visa Waiver Program Improvement Act of 2015, as amended, under suspension of the rules.  H.R. 158 was introduced on January 6, 2015 by Rep. Candice Miller (R-MI) and was referred to the Committee on the Judiciary, and in addition, to the Committee on Homeland Security.  The Homeland Security Committee ordered the bill reported, as amended, by voice vote, on June 25, 2015.

Bill Summary

H.R. 158 includes provisions to strengthen the security of the Visa Waiver Program (VWP) to better ensure that individuals entering the United States through the program are not security risks, while maintaining the program’s ability to facilitate legitimate foreign business travel and tourism to our country.

Specifically, the bill:

• Requires aliens to possess a valid machine-readable passport that is tamper resistant, incorporates document authentication identifiers, and satisfies the internationally-accepted standard for machine readability. The bill requires that, after April 1, 2016, such passports be electronic and include both biographic and biometric information (determined by the Secretary of the Department of Homeland Security) that satisfies internationally accepted standards for electronic passports;

• Prohibits aliens who are nationals of, or who on or after March 1, 2011, have been present at any time in Iraq, Syria, or a country designated by the Secretary of State as a state sponsor of terror, from access to visa-free travel to the U.S. through the VWP. Such individuals are not barred from traveling to the U.S., instead, they will simply have to obtain a visa to do so.  The bill also allows the Secretary to designate additional countries whose nationals or travelers may be subject to the prohibition on visa-free admission to the U.S., for instance, if the Secretary determines the country has a significant presence of a foreign terrorist organization or that the country is a safe haven for terrorists;

• Allows an individual who would otherwise be prohibited from visa-free travel pursuant to the restrictions above to utilize the VWP if the Secretary determines that the individual’s presence in the country of concern was for purposes of official military service or official government service on behalf of the VWP designated country;

• Directs the Secretary of Homeland Security (DHS), in consultation with the Director of National Intelligence (DNI), within 60 days of enactment, to determine whether the aforementioned restrictions should apply to individuals from any other country or area of concern;

• Requires all VWP countries to certify to the DHS Secretary that they are screening, for unlawful activity, each person who is not a citizen or national of that country who is admitted to or departs that country through every database and notice maintained by INTERPOL or through other means determined by the Secretary;

• Requires the DHS Secretary and the Secretary of State to terminate VWP designation for countries if they jointly determine that such countries are not sharing law enforcement and security information currently required by law. The bill allows the redesignation of those countries when the DHS Secretary, in consultation with the Secretary of State, determines that they are sharing such information and complying with program requirements;

• Requires the DHS Secretary and the Secretary of State to terminate VWP designation for countries if they jointly determine that such countries are not conducting the appropriate screening required by the bill. The bill allows the redesignation of those countries when the DHS Secretary, in consultation with the Secretary of State, determines that they are meeting the bill’s screening requirements;

• Requires DHS to report to Congress on the threat to U.S. national security posed by each VWP country, including an assessment of each government’s compliance with requirements of the program;

• Requires an annual evaluation by the DHS Secretary, in consultation with the DNI and Secretary of State, to determine whether any VWP countries present a high risk to U.S. national security. The bill allows for the suspension of participating countries based on a determination that the country presents a high risk to U.S. national security;

• Enhances the Electronic System for Travel Authorization (ESTA) by requiring the DHS Secretary to research opportunities to incorporate into ESTA technology that will detect and prevent fraud and deception and to collect information on additional or previous countries of citizenship of the applicant;

• Requires DHS to report to Congress, within 30 days of enactment and annually thereafter, on the number of individuals denied eligibility to travel under the VWP or whose eligibility for such travel was revoked during the previous year, and the number determined to be a threat to the national security of the United States, including the country or countries of citizenship of each such individual; and,

 

• Directs DHS, in consultation with the State Department, to provide assistance in a risk-based manner to non-VWP countries to assist those countries in submitting to INTERPOL information on theft or loss of passports and on issuing, and validating at the ports of entry of such a country, electronic passports that are fraud-resistant, contain relevant biographic and biometric information, and satisfy internationally accepted standards for such passports.

 

Background

The Visa Waiver Program (VWP) “allows nationals from certain countries,^[1] many of which are in Europe, to enter the United States as temporary visitors (for up to 90 days) for business or pleasure (tourism) without first obtaining a visa from a U.S. consulate abroad.”^[2]  Those entering through the program are required to present a valid passport and meet certain other requirements including an online security screening prior to travel. Temporary visitors from non-VWP countries must obtain a visa from U.S. Department of State officers at a consular office abroad before entering the United States.

Countries must meet certain criteria to qualify for the program, such as: offering reciprocal privileges to citizens of the United States; having had a nonimmigrant refusal rate of less than 3% for the previous year; issuing machine-readable passports and tamper-resistant visa documents with biometric identifiers; sharing information about the theft or loss of passports; accepting the timely repatriation of citizens and nationals for whom a final order of removal has been issued; sharing information regarding nationals traveling to the U.S. who may be security threats; and, it must be determined by the Departments of Homeland Security and State that the country’s inclusion does not compromise the law enforcement or security interests of the United States.^[3]

The Implementing Recommendations of the 9/11 Commission Act of 2007 (H.R. 1), which passed the House by a vote of 371 to 40 on July 27, 2007, required the Department of Homeland Security (DHS) to develop and implement an electronic travel authorization system through which each alien electronically provides, in advance of travel, certain biographical information necessary to determine whether the alien is eligible to travel to the United States and enter under the VWP.  The system, known as the Electronic System for Travel Authorization (ESTA), became fully operational for all VWP visitors traveling to the United States by airplane or cruise ship on January 12, 2009.[4]

Before departing for the United States, aliens must provide certain information electronically through ESTA to determine eligibility to travel to the United States under the VWP. This information includes: biographical information, (name, birth date, country of citizenship, other citizenships, country of residence, telephone number, other names/aliases, parents’ names, national identification number, employment information, and city of birth); passport information (passport number, issuing country, issuance date, and expiration date); and, travel information (departure city, flight number, U.S. contact information, and address while in the United States).[5] The eligibility to travel to the U.S. is valid for two years or until the individual’s passport expires, is valid for multiple entries, and can be revoked at any time.[6]

However, while robust background security checks are required, unlike other nonimmigrants to the United States, those entering under VWP are not subject to the same pre-travel screening required of other temporary visitors and “do not have to get a visa and thus, have no contact with U.S. governmental officials until they arrive at a port of entry and are inspected by CBP officers.”[7]  Additionally, according to the Committee on Homeland Security, not all VWP countries share security or counterterrorism information with the U.S. regularly or expeditiously, screen travelers against security databases that could identify travelers who should be prevented from travel due to criminal, security, or terrorism concerns, or regularly check travel documents for fraud.[8]

H.R. 158 is designed to help ensure that individuals traveling to the United States under the VWP are eligible to do so and do not present a security or terrorism threat. According to the bill sponsor, this legislation “empowers DHS by giving it the authority to suspend a country’s participation in the program if it fails to provide us with the pertinent information needed to stop terrorists from entering the United States [and] strengthens our counterterrorism efforts by codifying the Department’s newly adopted practice of collecting additional biographical data during the application process.”[9]

For more information, click here for background on the Visa Waiver Program and for a summary of H.R. 158, provided by the Committee on Homeland Security.

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[1] As of November 2015, VWP countries include: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, Malta, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
[2] See CRS Report—“Visa Waiver Program,” November 20, 2015 at 1.
[3] Id. at 3.
[4] Id. at 5.
[5] Id. at 6.
[6] Id. at 7.
[7] Id.
[8] See Committee on Homeland Security document—“Background: Visa Waiver Program and Existing Security Gaps”
[9] See Press Release—“Miller: House Visa Waiver Legislation Will Help DHS Stop Terrorists from Traveling to U.S.,” November 20, 2015.

Cost

The Congressional Budget Office (CBO) estimates that implementing H.R. 158 would result in a loss of revenue of about $1 million per year over the 2016 to 2020 period, or $5 million over that five year period, because of anticipated lower usage of the Visa Waiver Program.

Additional Information

For questions or further information please contact Jerry White with the House Republican Policy Committee by email or at 5-0190.