I 

112TH CONGRESS 

2D SESSION H. R. 3855 

To amend the Immigration and Nationality Act to modify the requirements 

of the visa waiver program and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 31, 2012 

Mr. QUIGLEY (for himself, Mr. BURTON of Indiana, Mr. CHABOT, Ms. ROSLEHTINEN, Mr. DIAZ-BALART, Mr. DOLD, Mr. GRIMM, Mr. KINZINGER

of Illinois, Mr. RIVERA, Mr. SHIMKUS, Mr. HIGGINS, Ms. KAPTUR, Mr. 

LIPINSKI, Mr. MURPHY of Connecticut, Ms. SCHAKOWSKY, and Mr. 

MEEKS) introduced the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To amend the Immigration and Nationality Act to modify 

the requirements of the visa waiver program and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Visa Waiver Program 

5 Enhanced Security and Reform Act’’. 


smartinez on DSK6TPTVN1PROD with BILLS
2 

•HR 3855 IH

1 SEC. 2. DEFINITIONS. 

2 (a) DEFINITIONS.—Section 217(c)(1) of the Immi3 gration and Nationality Act (8 U.S.C. 1187(c)(1)) is 

4 amended to read as follows: 

5 ‘‘(1) AUTHORITY TO DESIGNATE; DEFINI6 TIONS.— 

7 ‘‘(A) AUTHORITY TO DESIGNATE.—The 

8 Secretary of Homeland Security, in consultation 

9 with the Secretary of State, may designate any 

10 country as a program country if that country 

11 meets the requirements under paragraph (2). 

12 ‘‘(B) DEFINITIONS.—In this subsection: 

13 ‘‘(i) APPROPRIATE CONGRESSIONAL

14 COMMITTEES.—The term ‘appropriate con15 gressional committees’ means— 

16 ‘‘(I) the Committee on Foreign 

17 Relations, the Committee on Home18 land Security and Governmental Af19 fairs, and the Committee on the Judi20 ciary of the Senate; and 

21 ‘‘(II) the Committee on Foreign 

22 Affairs, the Committee on Homeland 

23 Security, and the Committee on the 

24 Judiciary of the House of Representa25 tives. 

26 ‘‘(ii) OVERSTAY RATE.— 


smartinez on DSK6TPTVN1PROD with BILLS
3 

•HR 3855 IH

1 ‘‘(I) INITIAL DESIGNATION.—The 

2 term ‘overstay rate’ means, with re3 spect to a country being considered 

4 for designation in the program, the 

5 ratio of— 

6 ‘‘(aa) the number of nation7 als of that country who were ad8 mitted to the United States on 

9 the basis of a nonimmigrant visa 

10 under section 101(a)(15)(B) 

11 whose periods of authorized stay 

12 ended during a fiscal year but 

13 who remained unlawfully in the 

14 United States beyond such peri15 ods; to 

16 ‘‘(bb) the number of nation17 als of that country who were ad18 mitted to the United States on 

19 the basis of a nonimmigrant visa 

20 under section 101(a)(15)(B) 

21 whose periods of authorized stay 

22 ended during that fiscal year. 

23 ‘‘(II) CONTINUING DESIGNA24 TION.—The term ‘overstay rate’ 

25 means, for each fiscal year after iniVerDate Mar 15 2010 05:23 Feb 01, 2012 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3855.IH H3855

smartinez on DSK6TPTVN1PROD with BILLS
4 

•HR 3855 IH

1 tial designation under this section 

2 with respect to a country, the ratio 

3 of— 

4 ‘‘(aa) the number of nation5 als of that country who were ad6 mitted to the United States 

7 under this section or on the basis 

8 of a nonimmigrant visa under 

9 section 101(a)(15)(B) whose pe10 riods of authorized stay ended 

11 during a fiscal year but who re12 mained unlawfully in the United 

13 States beyond such periods; to 

14 ‘‘(bb) the number of nation15 als of that country who were ad16 mitted to the United States 

17 under this section or on the basis 

18 of a nonimmigrant visa under 

19 section 101(a)(15)(B) whose pe20 riods of authorized stay ended 

21 during that fiscal year. 

22 ‘‘(III) COMPUTATION OF OVER23 STAY RATE.—In determining the over24 stay rate for a country, the Secretary 

25 of Homeland Security may utilize inVerDate Mar 15 2010 05:23 Feb 01, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3855.IH H3855

smartinez on DSK6TPTVN1PROD with BILLS
5 

•HR 3855 IH

1 formation from any available data2 bases to ensure the accuracy of such 

3 rate. 

4 ‘‘(iii) PROGRAM COUNTRY.—The term 

5 ‘program country’ means a country des6 ignated as a program country under sub7 paragraph (A).’’. 

8 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

9 Section 217 of the Immigration and Nationality Act (8 

10 U.S.C. 1187) is amended as follows: 

11 (1) by striking ‘‘Attorney General’’ each place 

12 the term appears and inserting ‘‘Secretary of Home13 land Security’’, except in subsection (c)(11)(B); 

14 (2) in subsection (c)(2)(C)(iii), by striking 

15 ‘‘Committee on the Judiciary and the Committee on 

16 International Relations of the House of Representa17 tives and the Committee on the Judiciary and the 

18 Committee on Foreign Relations of the Senate’’ and 

19 inserting ‘‘appropriate congressional committees’’; 

20 (3) in subsection (c)(5)(A)(i)(III), by striking 

21 ‘‘Committee on the Judiciary, the Committee on 

22 Foreign Affairs, and the Committee on Homeland 

23 Security, of the House of Representatives and the 

24 Committee on the Judiciary, the Committee on For25 eign Relations, and the Committee on Homeland SeVerDate Mar 15 2010 05:23 Feb 01, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3855.IH H3855

smartinez on DSK6TPTVN1PROD with BILLS
6 

•HR 3855 IH

1 curity and Governmental Affairs of the Senate’’ and 

2 inserting ‘‘appropriate congressional committees’’; 

3 and 

4 (4) by striking subsection (c)(7)(E). 

5 SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON 

6 OVERSTAY RATES. 

7 (a) IN GENERAL.—Section 217(c)(2)(A) of the Immi8 gration and Nationality Act (8 U.S.C. 1187(c)(2)(A)) is 

9 amended to read as follows: 

10 ‘‘(A) GENERAL NUMERICAL LIMITA11 TIONS.— 

12 ‘‘(i) LOW NONIMMIGRANT VISA RE13 FUSAL RATE.—The percentage of nationals 

14 of that country refused nonimmigrant visas 

15 under section 101(a)(15)(B) during the 

16 previous full fiscal year was not more than 

17 3 percent of the total number of nationals 

18 of that country who were granted or re19 fused nonimmigrant visas under such sec20 tion during such year. 

21 ‘‘(ii) LOW NONIMMIGRANT OVERSTAY

22 RATE.—The overstay rate for that country 

23 was not more than 3 percent during the 

24 previous fiscal year.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
7 

•HR 3855 IH

1 (b) QUALIFICATION CRITERIA.—Section 217(c)(3) of 

2 the Immigration and Nationality Act (8 U.S.C. 

3 1187(c)(3)) is amended to read as follows: 

4 ‘‘(3) QUALIFICATION CRITERIA.—After the ini5 tial period, a country may not be designated as a 

6 program country unless the Secretary of Homeland 

7 Security, in consultation with the Secretary of State, 

8 determines, pursuant to the requirements of para9 graph (5), that designation will be continued.’’. 

10 (c) CONTINUING DESIGNATION.—Section 

11 217(c)(5)(A)(i)(II) of the Immigration and Nationality 

12 Act (8 U.S.C. 1187(c)(5)(A)(i)(II)) is amended to read 

13 as follows: 

14 ‘‘(II) shall determine, based upon 

15 the evaluation in subclause (I), wheth16 er any such designation under sub17 section (d) or (f), or probation under 

18 subsection (f), ought to be continued 

19 or terminated;’’. 

20 (d) COMPUTATION OF VISA REFUSAL RATES; JUDI21 CIAL REVIEW.—Section 217(c)(6) of the Immigration and 

22 Nationality Act (8 U.S.C. 1187(c)(6)) is amended to read 

23 as follows: 

24 ‘‘(6) COMPUTATION OF VISA REFUSAL RATES

25 AND JUDICIAL REVIEW.— 


smartinez on DSK6TPTVN1PROD with BILLS
8 

•HR 3855 IH

1 ‘‘(A) COMPUTATION OF VISA REFUSAL

2 RATES.—For purposes of determining the eligi3 bility of a country to be designated as a pro4 gram country, the calculation of visa refusal 

5 rates shall not include any visa refusals which 

6 incorporate any procedures based on, or are 

7 otherwise based on, race, sex, or disability, un8 less otherwise specifically authorized by law or 

9 regulation. 

10 ‘‘(B) JUDICIAL REVIEW.—No court shall 

11 have jurisdiction under this section to review 

12 any visa refusal, the Secretary of State’s com13 putation of a visa refusal rate, the Secretary of 

14 Homeland Security’s computation of an over15 stay rate, or the designation or nondesignation 

16 of a country as a program country.’’. 

17 (e) VISA WAIVER INFORMATION.—Section 217(c)(7) 

18 of the Immigration and Nationality Act (8 U.S.C. 

19 1187(c)(7)) is amended— 

20 (1) by striking subparagraphs (B) through (E); 

21 and 

22 (2) by striking ‘‘WAIVER INFORMATION—’’ and 

23 all that follows through ‘‘In refusing’’ and inserting 

24 ‘‘WAIVER INFORMATION—In refusing’’. 


smartinez on DSK6TPTVN1PROD with BILLS
9 

•HR 3855 IH

1 (f) WAIVER AUTHORITY.—Section 217(c)(8) of the 

2 Immigration and Nationality Act (8 U.S.C. 1187(c)(8)) 

3 is amended to read as follows: 

4 ‘‘(8) WAIVER AUTHORITY.—The Secretary of 

5 Homeland Security, in consultation with the Sec6 retary of State, may waive the application of para7 graph (2)(A)(i) for a country if— 

8 ‘‘(A) the country meets all other require9 ments of paragraph (2); 

10 ‘‘(B) the Secretary of Homeland Security 

11 determines that the totality of the country’s se12 curity risk mitigation measures provide assur13 ance that the country’s participation in the pro14 gram would not compromise the law enforce15 ment, security interests, or enforcement of the 

16 immigration laws of the United States; 

17 ‘‘(C) there has been a general downward 

18 trend in the percentage of nationals of the 

19 country refused nonimmigrant visas under sec20 tion 101(a)(15)(B); 

21 ‘‘(D) the country consistently cooperated 

22 with the Government of the United States on 

23 counterterrorism initiatives, information shar24 ing, preventing terrorist travel, and extradition 

25 of the country’s nationals to the United States 


smartinez on DSK6TPTVN1PROD with BILLS
10 

•HR 3855 IH

1 before the date of its designation as a program 

2 country, and the Secretary of Homeland Secu3 rity and the Secretary of State assess that such 

4 cooperation is likely to continue; and 

5 ‘‘(E) the percentage of nationals of the 

6 country refused a nonimmigrant visa under sec7 tion 101(a)(15)(B) during the previous full fis8 cal year was not more than 10 percent of the 

9 total number of nationals of that country who 

10 were granted or refused such nonimmigrant 

11 visas.’’. 

12 SEC. 4. TERMINATION OF DESIGNATION; PROBATION. 

13 Section 217(f) of the Immigration and Nationality 

14 Act (8 U.S.C. 1187(f)) is amended to read as follows: 

15 ‘‘(f) TERMINATION OF DESIGNATION; PROBATION.— 

16 ‘‘(1) DEFINITIONS.—In this subsection: 

17 ‘‘(A) PROBATIONARY PERIOD.—The term 

18 ‘probationary period’ means the fiscal year in 

19 which a probationary country is placed in pro20 bationary status under this subsection. 

21 ‘‘(B) PROGRAM COUNTRY.—The term ‘pro22 gram country’ has the meaning given that term 

23 in subsection (c)(1)(B). 

24 ‘‘(2) DETERMINATION, NOTICE, AND INITIAL

25 PROBATIONARY PERIOD.— 


smartinez on DSK6TPTVN1PROD with BILLS
11 

•HR 3855 IH

1 ‘‘(A) DETERMINATION OF PROBATIONARY

2 STATUS AND NOTICE OF NONCOMPLIANCE.—As 

3 part of each program country’s periodic evalua4 tion required by subsection (c)(5)(A), the Sec5 retary of Homeland Security shall determine 

6 whether a program country is in compliance 

7 with the program requirements under subpara8 graphs (A)(ii) through (F) of subsection (c)(2). 

9 ‘‘(B) INITIAL PROBATIONARY PERIOD.—If 

10 the Secretary of Homeland Security determines 

11 that a program country visa is not in compli12 ance with the program requirements under sub13 paragraphs (A)(ii) through (F) of subsection 

14 (c)(2), the Secretary of Homeland Security 

15 shall place the program country in probationary 

16 status for the fiscal year following the fiscal 

17 year in which the periodic evaluation is com18 pleted. 

19 ‘‘(3) ACTIONS AT THE END OF THE INITIAL

20 PROBATIONARY PERIOD.—At the end of the initial 

21 probationary period of a country under paragraph 

22 (2)(B), the Secretary of Homeland Security shall 

23 take one of the following actions: 

24 ‘‘(A) COMPLIANCE DURING INITIAL PROBA25 TIONARY PERIOD.—If the Secretary determines 


smartinez on DSK6TPTVN1PROD with BILLS
12 

•HR 3855 IH

1 that all instances of noncompliance with the 

2 program requirements under subparagraphs 

3 (A)(ii) through (F) of subsection (c)(2) that 

4 were identified in the latest periodic evaluation 

5 have been remedied by the end of the initial 

6 probationary period, the Secretary shall end the 

7 country’s probationary period. 

8 ‘‘(B) NONCOMPLIANCE DURING INITIAL

9 PROBATIONARY PERIOD.—If the Secretary de10 termines that any instance of noncompliance 

11 with the program requirements under subpara12 graphs (A)(ii) through (F) of subsection (c)(2) 

13 that were identified in the latest periodic eval14 uation has not been remedied by the end of the 

15 initial probationary period— 

16 ‘‘(i) the Secretary may terminate the 

17 country’s participation in the program; or 

18 ‘‘(ii) on an annual basis, the Secretary 

19 may continue the country’s probationary 

20 status if the Secretary, in consultation 

21 with the Secretary of State, determines 

22 that the country’s continued participation 

23 in the program is in the national interest 

24 of the United States. 


smartinez on DSK6TPTVN1PROD with BILLS
13 

•HR 3855 IH

1 ‘‘(4) ACTIONS AT THE END OF ADDITIONAL

2 PROBATIONARY PERIODS.—At the end of all proba3 tionary periods granted to a country pursuant to 

4 paragraph (3)(B)(ii), the Secretary shall take one of 

5 the following actions: 

6 ‘‘(A) COMPLIANCE DURING ADDITIONAL

7 PERIOD.—The Secretary shall end the country’s 

8 probationary status if the Secretary determines 

9 during the latest periodic evaluation required by 

10 subsection (c)(5)(A) that the country is in com11 pliance with the program requirements under 

12 subparagraphs (A)(ii) through (F) of subsection 

13 (c)(2). 

14 ‘‘(B) NONCOMPLIANCE DURING ADDI15 TIONAL PERIODS.—The Secretary shall termi16 nate the country’s participation in the program 

17 if the Secretary determines during the latest 

18 periodic evaluation required by subsection 

19 (c)(5)(A) that the program country continues to 

20 be in non-compliance with the program require21 ments under subparagraphs (A)(ii) through (F) 

22 of subsection (c)(2). 

23 ‘‘(5) EFFECTIVE DATE.—The termination of a 

24 country’s participation in the program under para25 graph (3)(B) or (4)(B) shall take effect on the first 


smartinez on DSK6TPTVN1PROD with BILLS
14 

•HR 3855 IH

1 day of the first fiscal year following the fiscal year 

2 in which the Secretary determines that such partici3 pation shall be terminated. Until such date, nation4 als of the country shall remain eligible for a waiver 

5 under subsection (a). 

6 ‘‘(6) TREATMENT OF NATIONALS AFTER TERMI7 NATION.—For purposes of this subsection and sub8 section (d)— 

9 ‘‘(A) nationals of a country whose designa10 tion is terminated under paragraph (3) or (4) 

11 shall remain eligible for a waiver under sub12 section (a) until the effective date of such ter13 mination; and 

14 ‘‘(B) a waiver under this section that is 

15 provided to such a national for a period de16 scribed in subsection (a)(1) shall not, by such 

17 termination, be deemed to have been rescinded 

18 or otherwise rendered invalid, if the waiver is 

19 granted prior to such termination. 

20 ‘‘(7) CONSULTATIVE ROLE OF THE SECRETARY

21 OF STATE.—In this subsection, references to sub22 paragraphs (A)(ii) through (F) of subsection (c)(2) 

23 and subsection (c)(5)(A) carry with them the con24 sultative role of the Secretary of State as provided 

25 in those provisions.’’. 


smartinez on DSK6TPTVN1PROD with BILLS
15 

•HR 3855 IH

1 SEC. 5. REVIEW OF OVERSTAY TRACKING METHODOLOGY. 

2 Not later than 180 days after the date of the enact3 ment of this Act, the Comptroller General of the United 

4 States shall conduct a review of the methods used by the 

5 Secretary of Homeland Security— 

6 (1) to track aliens entering and exiting the 

7 United States; and 

8 (2) to detect any such alien who stays longer 

9 than such alien’s period of authorized admission. 

Æ 


smartinez on DSK6TPTVN1PROD with BILLS