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THE PRESIDENT’S WAIVER OF RESTRICTIONS ON 

THE VISA WAIVER PROGRAM 

JOINT HEARING 

BEFORE THE

SUBCOMMITTEE ON NATIONAL SECURITY 

AND THE

SUBCOMMITTEE ON GOVERNMENT OPERATIONS 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 10, 2016 

Serial No. 114–104 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DeSAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

JENNIFER HEMINGWAY, Staff Director 

DAVID RAPALLO, Minority Staff Director 

ART ARTHUR, Subcommittee on National Security Staff Director 

WILLIE MARX, Clerk 


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SUBCOMMITTEE ON NATIONAL SECURITY

RON DESANTIS, Florida, Chairman 

JOHN L. MICA, Florida 

JOHN J. DUNCAN, JR., Tennessee 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma, Vice Chair 

WILL HURD, Texas 

STEPHEN F. LYNCH, Massachusetts, 

Ranking Member 

ROBIN KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

SUBCOMMITTEE ON GOVERNMENT OPERATIONS

MARK MEADOWS, North Carolina, Chairman 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan, Vice Chair 

TREY GOWDY, South Carolina 

THOMAS MASSIE, Kentucky 

MICK MULVANEY, South Carolina 

KEN BUCK, Colorado 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

GERALD E. CONNOLLY, Virginia, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STACEY E. PLASKETT, Virgin Islands 

STEPHEN F. LYNCH, Massachusetts 


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C O N T E N T S 

Page 

Hearing held on February 10, 2016 ....................................................................... 1 

WITNESSES 

Mr. Gil Kerlikowske, Commissioner, Customs and Border Protection, U.S. 

Department of Homeland Security 

Oral Statement ................................................................................................. 9 

Written Statement ............................................................................................ 11 

Ms. Hillary Batjer Johnson, Deputy Coordinator for Homeland Security, 

Screening, and Designations, Bureau of Counterterrorism, U.S. Department 

of State 

Oral Statement ................................................................................................. 18 

Written Statement ............................................................................................ 21 

Ms. Jessica Vaughan, Director of Policy Studies, Center for Immigration 

Studies 

Oral Statement ................................................................................................. 34 

Written Statement ............................................................................................ 36 

Mr. Emanuele Ottolenghi, Senior Fellow, Foundation for Defense of Democracies 

Oral Statement ................................................................................................. 46 

Written Statement ............................................................................................ 48 

Mr. Stephen Heifetz, Partner, Steptoe and Johnson, LLP 

Oral Statement ................................................................................................. 69 

Written Statement ............................................................................................ 71 

APPENDIX 

A letter from Karin Johnson, Director, Washington Legislative Office and 

Joanne Lin, Legislative Counsel at the American Civil Liberties Union 

to Rep. Mark Meadows, Rep. Ron DeSantis, Rep. Gerald Connolly, and 

Rep. Stephen Lynch--in support of Hr 4380-the Equal Protection and Travel 

Act of 2016, submitted by Rep. Thomas Massie ................................................ 102 

A letter from 65 Separate Organizations in Support of HR 4380-The Equal 

Protection and Travel Act of 2016, Submitted by Rep. Thomas Massie ......... 107 

Responses to questions for the record by the U.S. Department of Homeland 

Security, submitted by Chairman DeSantis ...................................................... 110 

Responses to questions from the U.S. Department of State, submitted by 

Chairman DeSantis .............................................................................................. 119 

A letter from Secretary of State John Kerry to Foreign Minister Javad Zarif, 

submitted by Rep. Jody Hice. The text of the letter can be found online 

here: https://www.niacouncil.org/text-sec-kerry-letter-to-zarif-regarding-visawaiver-reform/ 


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THE PRESIDENT’S WAIVER OF RESTRICTIONS 

ON THE VISA WAIVER PROGRAM 

Wednesday, February 10, 2016 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIONAL SECURITY, JOINT WITH THE

SUBCOMMITTEE ON GOVERNMENT OPERATIONS, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

Washington, D.C. 

The subcommittees met, pursuant to call, at 3:00 p.m., in Room 

2154, Rayburn House Office Building, Hon. Ron DeSantis [chairman of the Subcommittee on National Security] presiding. 

Present from Subcommittee on National Security: Representatives DeSantis, Mica, Duncan, Hice, Russell, Hurd, and Lynch. 

Present from Subcommittee on Government Operations: Representatives Meadows, Jordan, Walberg, Massie, Mulvaney, Buck, 

Carter, Grothman, Connolly, Maloney, Norton, Plaskett, and 

Lynch. 

Mr. DESANTIS. The Subcommittee on National Security and the 

Subcommittee on Government Operations will come to order. Without objection, the chair is authorized to declare a recess at any 

time. 

The United States faces clear and present dangers from Islamic 

jihadists both at home and abroad. From the attacks in Paris to the 

massacre in San Bernardino, it is clear that militant Islamists are 

on the march. Identifying terrorists and stopping them before they 

can strike must be a priority for the United States and its allies. 

Certainly, the Federal Government has a duty to prevent terrorists 

and those sympathetic to their aims from entering the United 

States, a duty that it is not currently satisfying. 

Almost 12 years ago, the bipartisan 9/11 Commission provided a 

roadmap for the government to follow in fulfilling these crucial responsibilities. It stated, ‘‘Targeting travel is at least as powerful a 

weapon against terrorists as targeting their money. The United 

States should combine terrorist travel intelligence operations and 

law enforcement and a strategy to intercept terrorists, find terrorist travel facilitators, and constrain terrorist mobility.’’ 

Our consular officers abroad and the inspectors at our ports of 

entry are on the first line of defense in this strategy. Most foreign 

nationals who seek to enter the United States must apply to the 

State Department and meet with one of those consular officers to 

obtain a visa. Those officers are trained to separate bona fide travelers from those with malevolent intentions. Yet, as we have seen 

with the visa issued to San Bernardino terrorist Tashfeen Malik, 


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these officers have not always been successful at weeding out militant Islamists. 

An exception to the rule that an individual who seeks entry to 

the United States must apply for and receive a visa before entering 

this country is the Visa Waiver Program. The Visa Waiver Program 

allows foreign nationals of 38 countries, mostly in Europe, to enter 

the United States as nonimmigrant visas for up to 90 days without 

having to obtain a visa or undergo an in-person interview at a U.S. 

consulate. Approximately 20 million foreign nationals enter each 

year under the program, constituting 37 percent of all visitors from 

overseas. And as this committee has shown in testimony, many 

have overstayed that 90 days without consequence. 

The November 13, 2015, terrorist attacks in Paris made clear 

that there were vulnerabilities in the Visa Waiver Program. The 

terrorists in that massacre killed 130 people and caused over 350 

injuries, and at least five of the attackers were French nationals, 

two of whom are living in Belgium, and one was a Belgian national. And nationals of both France and Belgium are able to enter 

the United States under the Visa Waiver Program. Accordingly, at 

least six of the Paris attackers could have attempted to enter this 

country under the Visa Waiver Program. All they would have needed was a plane ticket. 

Those attacks highlight the fact that even within the borders of 

our closest international partners, there are insular communities 

sheltering militant Islamists bent on destroying our way of life. 

Many Islamic jihadists in places such as Syria are Western passport holders or dual nationals who could take advantage of the 

Visa Waiver Program. This exposes the American people to the possibility that these militants, after being trained and further 

radicalized in Syria and Iraq, could exploit the Visa Waiver Program to enter this country. 

These concerns and others were understood by this committee in 

two hearings that we held in early December. In the first, we identified flaws in the Visa Waiver Program that could be exploited by 

terrorists and criminals. In the second hearing, which followed 

from the findings of the first, the full committee looked at potential 

defects in our nation’s terrorist screening scheme as a whole. 

In response to these concerns and others, Congress crafted a bipartisan measure that included several changes to the Visa Waiver 

Program intended to prevent terrorists from exploiting the program 

and to address other national security concerns, and those changes 

took effect or signed into law in December. 

The bill responded to concerns that were raised about the risks 

related to visa-free travel by foreign nationals who carry both passports, a visa waiver of countries, and of other countries that are not 

friendly to the United States, as well as individuals who have traveled to countries of concern and state sponsors of terrorism, including Syria, Iraq, Iran, and Sudan. It did not prevent those individuals from entering our country, but it did require them to obtain 

a visa before coming to the United States. It gave the Secretary of 

State the authority to designate additional countries of concern. 

And finally, the bill gave the Secretary of Homeland Security very 

limited authority to waive these provisions for specific and targeted 

national security or law enforcement purposes. 


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As it has done in the past, however, this administration refused 

to abide by the limits placed on it by Congress. After these changes 

were signed into law, the Iranian Government objected that the restrictions would violate the nuclear agreement, the so-called Joint 

Comprehensive Plan of Action, which was adopted in October of 

2015. The Iranians claimed that the JCPOA obliges the United 

States not to take any actions that will ‘‘adversely affect the normalization of trade and economic relations with Iran.’’ 

In response, the administration moved to placate Iran. In a letter 

to the Iranian Foreign Minister dated one day after the President 

signed the visa waiver bill into law, the Secretary of State made 

clear that the administration would find ways to ensure that 

changes to Visa Waiver Program would not interfere with Iran’s 

‘‘legitimate business interests.’’ 

Subsequently, on January 21, 2016, the administration announced that it would use what was intended to be a limited law 

enforcement exception to allow foreign nationals who have traveled 

to Iran, Iraq, Sudan, and Syria as journalists, aid workers, military 

or government workers, or for unspecified legitimate business-related purposes to be issued waivers to the restrictions contained in 

the bill. 

Travel for purported legitimate business-related purpose was exactly the type of travel that Congress sought to restrict. In the real 

world, espionage is as likely to involve transfer of restricted goods 

and technology by intermediaries who are putatively citizens of 

friendlier neutral nations as it is to be carried out in secret by foreign intelligence officers. 

I am concerned about these actions both as chairman of the National Security Subcommittee and as a member of the House Judiciary Committee. The Judiciary Committee chairman Bob Goodlatte told the House Judiciary Committee that the administration’s 

decision to abuse their limited waiver authority and allow scores of 

people who have traveled to or are dual nationals of countries like 

Iraq and Syria flies in the face of the reason and congressional intent. The Obama administration, he says, ‘‘is essentially rewriting 

the law by blowing wide open a small window of discretion that 

Congress gave it for law enforcement and national security reasons. 

In fact, the categories of people that the Obama administration is 

exempting from the law were expressly rejected by Congress.’’ 

This administration takes these actions in clear violation of the 

law and does so to favor a known state sponsor of terrorism. And 

I would add, businesses in Iran, many of them are controlled by the 

Revolutionary Guard Corps, which is a designated terrorist organization. 

So I thank our witnesses for their testimony today, and I look 

forward to examining issues related to the impact of this executive 

action on the Visa Waiver Program. 

Mr. DESANTIS. I now recognize the ranking member of the Subcommittee on National Security, Mr. Lynch, for his opening statement. 

Mr. LYNCH. Thank you very much, Mr. Chairman. I want to 

thank you and also Chairman Meadows for their good work and 

Ranking Member Connolly for holding this hearing to examine the 

implementation of the Visa Waiver Program. And I would also like 


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to thank in advance our witnesses today for your willingness to 

help the committee with this work. 

In December of 2015, Congress enacted and President Obama 

signed the Visa Waiver Program Improvement and Terrorist Travel 

Prevention Act as part of the recent omnibus appropriations bill. 

This bipartisan legislation to strengthen the Visa Waiver Program 

became law in the wake of the devastating terrorist attacks in 

Paris, France, in November of 2015, perpetrated by several 

attackers who were citizens of so-called Visa Waiver Program countries, including France and Belgium, and also followed the tragic 

mass shooting in San Bernardino, California, in December of 2015. 

That also evidenced the real and continued threat of a terrorist attack committed on U.S. soil. 

The new act, which I voted for, generally provides that even if 

you are a citizen of one of the 38 allied nations that participated 

in the Visa Waiver Program, you are no longer eligible for temporary visa-free entry to the United States if you travel to Syria, 

Iraq, Sudan, or Iran since March 1, 2011. Similarly, dual nationals 

of any of these four countries are prohibited from Visa Waiver Program eligibility. 

The act also recognizes that, in select cases, the application of 

these new program restrictions could intentionally run contrary to 

national security interests by, for example, excluding U.N. personnel, inspectors with the IAEA, or humanitarian relief workers 

who have visited one of these countries of concern from the Visa 

Waiver Program. 

In order to better ensure that such individuals are able to do 

their jobs, the act provides that the Secretary of Homeland Security may in some instances grant a waiver to a foreign national ‘‘if 

the Secretary determines that such a waiver is consistent with the 

law enforcement or national security interests of the United 

States.’’ It also requires the Secretary to submit to Congress an annual report on each instance in which the Secretary exercises that 

waiver authority. 

Last month, the Department of Homeland Security explained the 

limited circumstances under which the Secretary may consider 

granting a national security waiver. In particular, the agency underscored that such waivers ‘‘will be granted only on a case-by-case 

basis.’’ The Department also noted that waiver eligibility travelers 

may include representatives of international and humanitarian organizations, as well as journalists who travel to Iran, Iraq, Sudan, 

or Syria in performance of their job duties. They may also include 

individuals who travel to Iraq and Iran for legitimate business-related purposes. 

I strongly agree that we must conduct meaningful oversight of 

the implementation of this national security waiver authority. 

However, in analyzing the effectiveness of this provision, we must 

be mindful that our shared interest in national security does not 

exclude the goals of promoting humanitarian assistance, accountability, and economic stability in the four countries of concern. 

Quite the contrary, they can go hand-in-hand. 

Last month, Chairman Chaffetz authorized Representative Steve 

Russell and myself to lead an oversight delegation to the Zaatari 

refugee camp on the Jordanian/Syrian border and the Oncunipar 


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refugee camp in Kilis Province on the Turkish/Syrian border. We 

met with representatives from several international and humanitarian organizations, including the Office of the United Nations 

High Commissioner on Refugees, the World Food Program, and 

Save the Children, and local humanitarian and relief health care 

groups. These officials repeatedly noted that humanitarian aid does 

not only provide dignified living for people in need it but also 

makes us all safer by de-incentivizing desperate populations from 

making desperate choices. This humanitarian aid keeps refugees 

near their home country, albeit on the other side of the border. 

Similarly, conflict reporting by journalists in places like Aleppo, 

Syria, has proven critical to informing U.S. officials and the American public about the security and humanitarian facts on the 

ground. As noted by Professor Ellen Shearer, Co-Director of the 

National Security Journalism Initiative at Northwestern University, ‘‘The cost of getting the truth could be high, but the cost in 

not getting the full story is very real, too.’’ 

In Iraq, U.S.-led efforts to combat the Islamic State will only be 

complicated if the country cannot conduct legitimate business and 

dive deeper into the economic crisis and the social unrest caused 

by falling oil prices. 

And in Iran, international efforts to ensure compliance with the 

robust nuclear inspection regime set forth in the Iran nuclear 

agreement would be undermined if an Iranian economy that is unable to refurbish a deteriorating domestic plane fleet used by IAEA 

inspectors, the International Atomic Energy Agency inspectors, to 

travel between inspection sites. And a number of those inspectors 

have indicated that that is probably the most dangerous thing they 

do in Iran is fly from city to city on the Iran Air because of the 

terrible condition of their air fleet. So we are going to have to consider that. 

Again, now, I voted for tighter restrictions in the Visa Waiver 

Program, given the evidence that the Islamic State has adopted a 

tactic of feeding militant extremists into the stream of legitimate 

refugees and the wider diaspora created by the wars in Iraq and 

Syria. I do believe, though, that in affording the Secretary of Department of Homeland Security flexibility that he has been granted 

by statute, it should be prudently and rarely exercised. 

Mr. Chairman, I look forward to further discussing these and 

other issues relating to the Visa Waiver Program with today’s witnesses, and I yield back the balance of my time. And thank you for 

your indulgence. 

Mr. DESANTIS. I thank the gentleman. 

The chair now recognizes the chairman of the Subcommittee on 

Government Operations, Mr. Meadows, for his opening statement. 

Mr. MEADOWS. Thank you, Mr. Chairman, and thank you, Mr. 

Lynch, for your accurate remarks. I certainly look forward to working with both of you on this particular issue. 

It seems that every time we turn around, on the televisions we 

see unspeakable atrocities that are being committed by ISIS. You 

know, it has come now into the bedrooms and homes of many of 

us where we have to deal with this reality. The increased presence 

of ISIS in countries like Iraq and Syria highlight the concerns over 

the reports of thousands of citizens in Western countries traveling 


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to places like Iraq and Syria and then training with these terrorist 

groups and then returning home. 

Even late last year, obviously, the people of Paris saw this practice manifest in a just horrific tragedy. Individuals with dual citizenship traveled to Syria and trained with these so-called fighters 

that fight against innocent civilians going about their everyday life, 

but it is really not a fight. This was an attack, an attack against 

fathers and mothers, daughters and sons. And these monsters who 

carried out this attack took advantage of rights granted to them as 

nationals of France and nationals of Belgium. 

In an effort to help prevent individuals from similarly exploiting 

the advantages afforded to them by having a citizenship of those 

countries covered by the Visa Waiver Program, Congress, as Mr. 

Lynch put forth, passed a piece of legislation late last year that 

would require those individuals who travel to certain countries of 

concern, or who hold dual citizenship with those countries, to go 

through a more rigorous review before being admitted into the 

United States, a commonsense approach. 

But since the President has signed that bill into law, it seems 

like the administration is starting to backpedal on some of those 

changes to expand that narrow exception for national security afforded to them by Congress. The administration’s disregard for the 

congressional intent is intolerable, especially when we look at the 

action being done to appease a country like Iran. It is troubling. 

I understand that there are many people affected by Congress’s 

changes to the Visa Waiver Program that mean no harm to the 

United States. It is very obvious. What is important to understand 

is that being excluded from the Visa Waiver Program does not keep 

these people from coming to the United States. It just means that 

they have to apply for a visa like all other people around the world 

that are not included in that program. Somehow, we think that it 

is keeping them from coming to the United States. 

That being said, we need to make sure that our visa screening 

process is effective, and I have been pressuring DHS for months, 

including in a hearing in December, to report to Congress on the 

number of individuals who have overstayed their visas. 

While DHS finally released a report about 3 weeks ago, the report left much to be desired. For instance, the figure included only 

a couple of subsections of admissions, leaving incomplete the picture of visa overstays. DHS reports that only 1 percent of admissions overstayed their permissible period. However, when you start 

to look at this, the administration only counted the travelers each 

time they entered the country as a unique admission. Now, what 

I am saying there is, thereby, it lowers the overall numbers to suggest that we are doing a better job than we really are. 

That figure that was reported by DHS suggested that there was 

some 500,000 foreign travelers who had overstayed their visas and 

remained in the United States illegally. As of January 4, that number had been brought down to 416,000 of these who had not left 

the country. As I said, this number does not give the full picture 

either. It does not include those who enter by land or those who 

have entered for other reasons other than business or pleasure 

such as students, guest workers, exchange visitors. In fact, of the 

over 70 specific types of nonimmigrant visas, DHS’s report only 


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covers 2, 2 out of 70. This report is supposed to inform Congress. 

Not only is it missing critical information, the DHS will not even 

provide Congress with the background memos used to compile the 

report. 

We have a DHS official here today, so I hope that hopefully you 

can answer some of these questions for us and start to illuminate 

both members of the majority and the minority. I also hope that 

you can help us understand the significance of a biometric exit system and actually putting that in so that we can start to track this 

system and have proper reporting for visa overstays because it is 

a critical function for our national security. 

And I can tell you that I imagine everyone in this room agrees 

with this. I don’t want to have an incident that happens here that 

could have been prevented by implementing the proper procedures 

to look at this. Far too often we look backwards. We say only if this 

had happened or only if that had happened, maybe this disaster 

could have been prevented. I know one thing for sure. We must get 

it right. We must get it right right away. 

And I thank the chairman for his patience and his direction and 

his leadership on this, and I yield back. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes Mr. Connolly, the ranking member of 

the Subcommittee on Government Operations, for his opening 

statement. 

Mr. CONNELLY. I thank the chair, and welcome to our panelists. 

Last December, in light of the tragedies of San Bernardino and 

Paris, Congress came together and passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, 

passed as part of the omnibus spending bill. It will enhance VWP’s 

information-sharing requirements to better assess travel’s risk. 

It also requires covered travelers to use an e-passport containing 

technology that stores travel information, a digital photograph, biographical information, and biometric identifiers. Such passports 

also included security layers that make it more difficult to alter or 

duplicate them compared to other forms of travel identification. 

The bill also tightens eligibility restrictions for VWP participation but does not block international travel using the normal visa 

process. It would prohibit participation in that process, the VWP 

process, by anyone who has traveled to Syria, Iraq, Iran, Sudan, 

and other designated areas of concern within the past 5 years, and 

dual nationals of those countries. 

It also empowers the Department of Homeland Security with the 

authority to waive these restrictions to support ‘‘the law enforcement and national security interests of the United States.’’ The Department of Homeland Security recently announced that it would 

implement those waivers on a limited case-by-case basis, certain 

categories of individuals, including those who have traveled to Iran 

or Iraq for legitimate business, professional, and humanitarian 

purposes. 

Of course, individuals who may fall into one of those accepted 

categories are not automatically allowed to enter via the program. 

They must undergo the same rigorous screening process as any 

other traveler prior to receiving approval to travel under that program. 


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Some of my colleagues, critics of the administration, claim that 

the Department’s implementation is contrary to congressional intent and represents an overreach of executive authority as the legislative language did not expressly provide exceptions. 

However, I believe the Department is taking a commonsense approach to implementing the waiver authority we granted them, and 

that it is not inconsistent with the requirements of the law. In fact, 

some argue that permitting individuals from waiver countries to 

travel to Iran or Iraq for legitimate business, professional, and humanitarian purposes serves to promote rather than undermine the 

law enforcement and national security interests of our country. 

There is concern that this waiver was provided in the interest of 

reserving the JCPOA in a manner inconsistent with the commitments the U.S. made in the deal. That is the nuclear deal with the 

Iran. For one, the waiver specifies travel after the date the agreement was signed. Additionally, the only reason Iran is subjected to 

these reforms is its designation as a state sponsor of terror. We 

were assured that Iran’s support for terrorism was firewalled—if 

one can make a verb out of that—from the JCPOA negotiations, 

and for good reason, as we do not want to re-litigate the nuclear 

issue every time we take up one of the myriad challenges Iran 

poses to regional and U.S. security. 

In providing this waiver, the administration must answer these 

challenges and make crystal clear to Congress that it was not provided in the interest of addressing perceptions in Tehran. The 

grounds for this waiver must rest solely on a sincere interest to 

preserve the integrity of the Visa Waiver Program and its ability 

to serve as an incentive for implementing border security and surveillance best practices. 

I certainly look forward, Mr. Chairman, to hearing from our witnesses as to whether they believe that allowing, in limited circumstances, Europeans who have traveled to Iran for legitimate 

business to participate in the Visa Waiver Program and whether 

that creates a security risk or actually enhances national security. 

I look forward to hearing from our witnesses, Mr. Chairman, and 

I thank you for holding this hearing. 

Mr. DESANTIS. Thank you. I will hold the record open for 5 legislative days for any members who would like to submit a written 

statement. 

I will now recognize our panel of witnesses. I am pleased to welcome the Honorable Gil Kerlikowske, Commissioner of Customs 

and Border Protection at the U.S. Department of Homeland Security; Ms. Hillary Batjer Johnson, Deputy Coordinator for Homeland 

Security, Screening, and Designations at the Bureau of Counterterrorism at the Department of State. Ms. Johnson is accompanied by 

Mr. Edward Ramotowski, Deputy Assistant Secretary for Consular 

Affairs at the U.S. Department of State, whose expertise may be 

needed during the questioning. 

Ms. Jessica Vaughan, Director of Policy Studies at the Center for 

Immigration Studies; Mr. Emanuele Ottolenghi, Senior Fellow at 

the Foundation for Defense of Democracies; and Mr. Stephen Heifetz, partner at Steptoe and Johnson, LLP. Welcome all. 


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Pursuant to committee rules, all witnesses will be sworn in before they testified. We will also swear in Mr. Ramotowski. So if you 

can please rise and raise your right hand. 

[Witnesses sworn.] 

Mr. DESANTIS. Thank you. Please be seated. 

All witnesses answered in the affirmative. 

In order to allow time for discussion, please limit your oral testimony to 5 minutes. Your entire written statement will be made 

part of the record. 

Now, my pleasure, Mr. Kerlikowske, you are up. 

WITNESS STATEMENTS 

STATEMENT OF GIL KERLIKOWSKE 

Mr. KERLIKOWSKE. Chairman DeSantis, Chairman Meadows, 

Ranking Member Lynch and Ranking Member Connolly, and distinguished members of the subcommittees, I returned on Sunday 

morning from California where CBP had an integral role in safeguarding the Super Bowl. I witnessed the aspects of CBP’s very 

broad and complex mission all in one place, providing security, surveillance on the ground, surveillance from the air, screening cargo 

and deliveries for weapons and dangerous items. 

Well, Customs and Border Protection has a critical role in securing international travel against the threat of the terrorists and 

their supporters, while facilitating lawful travel and tourism. Every 

day, we process 1 million travelers. And as you know, when boarding a U.S.-bound flight, most foreign nationals must obtain a nonimmigrant visa issued by a United States Embassy or consulate, or 

the traveler must apply for a travel authorization through CBP’s 

Electronic System for Travel Authorization, or ESTA. 

Through ESTA, CBP conducts enhanced vetting of these applicants in order to assess whether they are eligible to travel and 

whether they pose a potential risk to the United States. And over 

the past 15 months, CBP has worked with DHS to strengthen the 

security of the program through enhancements to ESTA in order 

to identify those who may pose a threat to the United States. 

And we have introduced additional ESTA data fields that have 

increased the ability of CBP and the National Counterterrorism 

Center to identify applicants with potential connections to terrorism. 

In addition to these enhancements, this past August, Secretary 

Johnson announced further security measures for the Visa Waiver 

Program countries, including increased traveler data collection, 

analysis, and reporting, and require the use of INTERPOL’s Stolen 

and Lost Travel Document database and the required use of electronic passports, which contain additional security features. 

And on December 18, the President signed into law the Consolidated Appropriations Act of 2016, which includes the Visa Waiver 

Program Improvement and Terrorist Travel Prevention Act of 

2015. And with some exceptions for official military and government travel, the law prohibits VWP travel for individuals who have 

been present at any time on or after March 1, 2011, in Iraq, Syria, 

or countries designated as state sponsors of terrorism, which includes Iran and Sudan. It also prohibits VWP travel for individuals 


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who are dual nationals of one of these countries and a VWP country. 

CBP quickly began implementing some of the changes required 

by the new law. For example, we revoked 17,000 ESTA travel authorizations. We established, in conjunction with our interagency 

partners, a terrorist travel prevention cell in our National Targeting Center, and the cell will enhance the Department’s efforts 

to identify and prevent foreign terrorists’ fighter travel, and a subset of the cell’s mission will be to scrutinize individual waiver requests permitted by the new law. 

Additionally, CBP will add new fields to the ESTA application by 

the end of this month that will ask additional questions to further 

improve our ability to vet individual travelers and make decisions 

about their eligibility in accordance with the recent changes. 

Well, as terrorists change their methods and tactics, DHS will 

continue to work our Federal and international partners to counter 

foreign fighter threats to the homeland. We’ll continue to strengthen our travel security programs and systems and enhance our capabilities to secure international air travel against terrorists and 

others who threaten the safety of the traveling public and the security of our nation. 

Chairman DeSantis, Chairman Meadows, Ranking Member 

Lynch, Ranking Member Connolly, and members of the subcommittees, thank you for the opportunity to testify. Let me clarify that 

I came back before the Super Bowl. I did not stay for the Super 

Bowl. 

[Prepared statement of Mr. Kerlikowske follows:] 


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Mr. DESANTIS. Thank you. Ms. Johnson, you are up for 5 minutes. 

STATEMENT OF HILLARY BATJER JOHNSON 

Ms. JOHNSON. Thank you. Good afternoon, Chairman Meadows, 

Chairman DeSantis, Ranking Member Connolly and Ranking Member Lynch, and distinguished members of the committee. I did not 

go to the Super Bowl either. 

Thank you for this opportunity to testify today on implementation of the Visa Waiver Program Improvement and Terrorist Travel 

Prevention Act of 2015. It’s a pleasure to be here today with Commissioner Kerlikowske. 

My written statement describes how the Department of State has 

worked closely with the Department of Homeland Security to implement this new law, while ensuring our top priority remains the 

protection of the U.S. homeland. As a deputy coordinator for Homeland Security in State’s Counterterrorism Bureau, the security of 

the homeland and the safety of our citizens is my constant focus. 

I welcome this legislation to strengthen the Visa Waiver Program. The VWP is a key counterterrorism tool that helps protect 

our homeland every single day. Our VWP partners must uphold 

strict security standards such as sharing information on known 

and suspected terrorists and criminals, and reporting lost and stolen passports to INTERPOL. We use VWP benefits to encourage 

greater information-sharing and more systemic screening by our allies. VWP requirements give our partners the impetus to tighten 

securities in ways that can be politically challenging for them. 

The U.S. Government assesses each VWP country’s compliance 

at least once every 2 years, inspecting airports, seaports, land borders, and passport production and issuance facilities. No other program enables the U.S. Government to conduct such broad and consequential assessments of foreign partners’ security operations. 

I’d also like to underscore that the VWP is not a free pass to 

travel to the United States. All travelers coming to the United 

States undergo checks for ties to terrorism and are subject to multiple layers of security, regardless of whether they have a visa or 

they enter under the VWP. 

As the Commissioner has noted, citizens of VWP countries apply 

to the United States via the ESTA, and CBP checks ESTA forms 

against U.S. terrorist and criminal databases before travelers are 

allowed to travel under the VWP. And that information our partners provide us as part of the VWP is a vital component of our terrorist and criminal databases. 

The layered security continues beyond this step. All travelers are 

screened by CBP’s National Targeting Center before they board an 

airplane and after they’re admitted into the U.S. And ESTAs are 

continuously reviewed and revoked immediately if new intelligence 

comes to light. 

Watch listing and screening and intelligence gathering are some 

of our best tools for countering terrorist travel. These tools are 

most effective when we’re working in collaboration with our VWP 

partners, and that’s an important counterterrorism partnership, 

the VWP. 


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The 38 countries that are part of the VWP include many of our 

closest allies, and they’re proud of their status. VWP membership 

is so prized that many countries not in the VWP complete program 

requirements in the hope of joining the program. 

I’d like to speak to the national security waivers authorized 

under the law. Under the new law, the Secretary of Homeland Security has the authority to waive restrictions if he determines that 

such a waiver is in the law enforcement or national security interests of the United States. We understand that Congress did not 

want to create blanket exemptions to the law, and that is why 

these waivers will be implemented on a case-by-case basis. 

After consulting with the Secretary of State, the Secretary of 

Homeland Security has determined that, as a general matter, it is 

in the national security interests of the United States to administer 

waivers on a case-by-case basis for certain types of ESTA applicants. I want to stress again that these are not blanket waivers. 

Again, the waivers would be administered on a case-by-case basis 

and are narrowly tailored to specific national security interests. 

We publicly outline these categories in which a waiver might 

apply to provide guidance to citizens of VWP countries. There’s a 

lot of confusion about this law among some of our closest allies and 

trading partners. We need to let them know which of their citizens 

might receive a waiver and how that process would work. We noted 

in our guidance that each ESTA applicants would be considered on 

a case-by-case basis. In no instance is travel guaranteed under the 

VWP if a person falls into one of these identified categories. 

I’d like to share quickly some examples of why we think these 

narrowly tailored waivers are in our national security interests. 

For instance, we rely on employees at the International Atomic Energy Agency for the technical expertise to fight the spread of nuclear weapons around the world. Yet without a waiver, IAEA employees who went to Iran to pursue our national security objective 

of preventing Iran from obtaining a nuclear weapon will be considered security risks. 

Without waivers, UNHCR and World Food Program staff who do 

critical work helping refugees in Iraq or feeding starving children 

in Darfur, Sudan, would be unable to travel to the United States 

under the VWP. 

The European Union is an essential partner to us around the 

world, but without a waiver, representatives from the E.U., including E.U. parliamentarians, would be ineligible to travel to the U.S. 

under the VWP. 

Additionally, we work closely with officials of the E.U. Counterterrorism Coordinator’s Office, who travel frequently to Iraq. Without waivers, they would be denied ESTAs. And these waivers 

would allow us to maintain and build our relationships and cooperations with these institutions to work shared counterterrorism 

goals. 

Business representatives or NGO employees who have traveled 

to Iraq to help with schools, roads, and hospitals would be denied 

travel under VWP even though they’re only doing work we have 

encouraged to help stabilize and rebuild that country’s economy. 

In Syria, the world relies on journalists facing great danger to report human rights violations, allegations of chemical weapon use, 


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and brutality of that ongoing conflict that we might otherwise not 

know about. Yet without waivers, they, too, would be denied travel 

under the VWP. 

I recognize that participating in the VWP is a privilege and not 

a right, but denying VWP participation to citizens of member countries who are doing work we promote and support is counter to our 

national security interests. 

I want to stress again that every VWP traveler considered for a 

waiver will be closely examined to see if they meet the stringent 

requirements to travel under the VWP. A case-by-case application 

of waivers in these narrow instances allows us to advance our national security interests and direct our resources to higher-risk 

threats. 

As I’ve discussed, we believe there are significant national security interests for the United States to utilize its waiver authority, 

and we can do so without compromising the safety of our fellow 

citizens at home and overseas and the security of the traveling 

public. 

Mr. Chairman, Ranking Member DeSantis, Ranking Member 

Connelly, and Ranking Member Lynch and distinguished members 

of the committee, thank you for your time. I look forward to your 

questions. 

[Prepared statement of Ms. Johnson follows:] 


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Mr. DESANTIS. Thank you. 

The chair now recognizes Ms. Vaughan for 5 minutes. 

STATEMENT OF JESSICA M. VAUGHAN 

Ms. VAUGHAN. Thank you for the opportunity to testify today. 

Last year, Congress passed the first meaningful improvements to 

the Visa Waiver Program in some time, an acknowledgment of the 

elevated threat we face now from terrorism, espionage, and the inappropriate transfer of technology. These sensible and modest 

changes will allow for more scrutiny of certain travelers coming 

from Visa Waiver Program countries based on their dual nationality or their travel history by requiring them to get a visa. 

This is important because the visa application process is not 

overly burdensome, but it does offer the opportunity for much more 

review than is possible under the Visa Waiver Program for several 

reasons because the visa process gives the government the time 

and the opportunity to ask questions and to ascertain more about 

the applicant’s credibility and purpose for travel. The ESTA on the 

other hand is filled out online and people can submit it just hours 

before departure. The opportunity is for other agencies to help review these applications if needed, whether it’s through the security 

advisory opinion process or other consultation with experts at post 

in which DHS, FBI, intelligence agencies, Treasury officials, Department of Commerce, and others can review the applications if 

the consular department feels it needs that additional consultation. 

The ink from the President’s signature on the law was barely dry 

when the Obama administration significantly undermined these reforms by unilaterally offering waivers that were not explicitly authorized in the law. This is a problem not only because it is a flagrant abuse of executive authority and a breach of the agreement 

with Congress, but because the administration’s plan will expose 

our nation to real threats. 

One of the categories of travelers the administration has carved 

out for waivers, dual nationals traveling to Iran and Iraq for business purposes, is precisely the category of travelers that needs to 

be scrutinized more closely because of past cases of espionage and 

illegal technology transfer. 

The risks inherent in the Visa Waiver Program are compounded 

by the President’s tendency to allow the admission of increasing 

number of foreign visitors, to gloss over the threats, to oversell his 

agency’s ability to screen out risks, and to suppress the enforcement of immigration laws in the Interior. 

I believe there were sound reasons to impose these restrictions. 

The immigration systems of Europe and the United States have already been exploited by terrorists with European citizenship and 

other dual nationalities linked to terrorism and other illicit activity 

that threatens national security. 

Congressional leaders are rightfully angry about this move. The 

law provided the executive branch with the authority to issue waivers only for those dual nationals who were serving in military or 

civilian government jobs, not for journalists, aid workers, or business travelers necessarily. 

One of my main concerns is that the Visa Waiver Program is already a major national security vulnerability that needs to be adVerDate Nov 24 2008 08:54 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 H:\23403.TXT APRIL

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dressed. There are thousands of individuals who were involved 

with or sympathetic to terror groups and countries that sponsor 

terror who also hold passports of countries that participate in the 

Visa Waiver Program who can travel to the U.S. without undergoing the scrutiny of a visa interview. 

Since 2014, there have been more than 100 foreign-born individuals who’ve been arrested for involvement in a terror operation 

after being admitted to the U.S. And DHS has yet to disclose the 

manner of entry for most of them, but we do know that terrorists 

have used the VWP to enter in the past. 

My organization has identified more than 50 naturalized U.S. 

citizens who have been charged with serious national security-related offenses such as terrorism, spying, and theft of sensitive information and technology. Many were already associated with terror groups or foreign intelligence when they naturalized. Eight 

were born in Iran, and their crimes included exporting sensitive 

equipment, military equipment, satellite technology, and so on. So, 

clearly, dual nationality is a vital and frequently used tool for terror and espionage operations. 

The number of Visa Waiver Program entries has been rising significantly. In 2014, more than 20 million visitors were admitted 

under that program, which is a 24 percent increase since 2008, and 

that means many more people who need to be vetted by our screening systems and by CBP inspectors. 

We know that the Visa Waiver Program is frequently abused. In 

fact, visa waiver overstays make up 29 percent of the total number 

of overstays by visitors who were admitted under the short-term 

B–1/B–2 category in 2015. The total number of Visa Waiver Program overstays just in 2015 was more than 150,000, and these 

overstayers, we also know, are not a high priority for ICE. Only 

about 1 percent are ever investigated, and few are deported. 

The other main concern I have is that one of the categories of 

travelers carved out for waivers is dual nationals traveling to Iran 

and Iraq for business purposes, and that’s a category of travelers 

that present a significant national security risk because Iran has 

a comprehensive, effective, and aggressive intelligence program 

that expends substantial time and resources targeting U.S. military equipment, plans, and programs, as well as dual-use technology. 

It’s not just reasonable but urgent that our government take the 

steps to address this vulnerability, and Congress has come up with 

a tool that, if anything, should be expanded, not scaled back. 

Thank you. 

[Prepared statement of Ms. Vaughan follows:] 


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Mr. DESANTIS. Thank you. 

The chair now recognizes Mr. Ottolenghi for 5 minutes. 

STATEMENT OF EMANUELE OTTOLENGHI 

Mr. OTTOLENGHI. Chairmen DeSantis and Meadows, Ranking 

Members Lynch and Connolly, members of the committee, on behalf of the Foundation for Defense of Democracies, thank you for 

the opportunity to testify. 

Entry into the United States under the Visa Waiver Program is 

a privilege, not a right, bestowed on a select group of countries. 

Today, we discuss whether it is reasonable to require greater due 

diligence for a select group of visitors from visa waiver countries 

on the basis that they are dual nationals of Iran or a handful of 

other countries. 

Greater due diligence is, in my view, a sound and not unduly 

burdensome measure. Dual nationals can continue to travel to the 

United States provided they first apply in person and receive a 

visa. Many of us in this room have had to apply for visas to travel 

to other countries. While an annoyance, it is not an overly onerous 

exercise. 

In the case of Iranian dual nationals, this added layer of due diligence is critical to the national security of the United States. 

Tehran has long relied on dual nationals to pursue illegal activities. Clearly, not every dual national is a government agent, but 

virtually all agents of the Iranian regime who are involved in conspiracies to commit acts of terrorism or nuclear and ballistic procurement were dual passport holders. 

With effective enforcement, the visa waiver exception will make 

it more difficult for them to engage in criminal activities on American soil. Tehran relies on dual nationals because a non-Iranian 

passport generally draws less scrutiny at border crossings. It also 

makes it easier to open foreign bank accounts and corporate companies and conduct financial operations overseas. 

My written testimony provides five recent examples of dual nationals’ critical role in Iran’s terror plots. Here are examples of 

cases in which Tehran relied on dual nationals for other illicit activities and to obscure the Iranian ownership of companies. 

Slide 2, please. 

[Slide.] 

Mr. OTTOLENGHI. MCS Systems was a German gas-cylinder factory owned by EIKO, the supreme leader’s holding company, which 

the U.S. Treasury sanctioned in 2013. EIKO obfuscated its ownership by transferring it to two Iranian-Canadian dual nationals who 

then reported directly to EIKO, the goal, to attempt and evade 

sanctions. 

In 2010, Treasury sanctioned IFIC Holding, the German-based 

subsidiary of Iran’s Foreign Investment Company. Commercial extracts for SWIFIC Holding, its Swiss branch, show its owners were 

Canadian and a German dual national. The goal again, avoid sanctions. 

Iran’s airline Mahan Air provides more evidence of the role of 

dual nationals. Treasury designated Mahan Air in 2011 ‘‘for providing financial material and technological support to the Quds 

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gime. Mahan relies on dual nationals to run its front companies in 

Europe while continuing to facilitate ethnic cleansing and other 

crimes against humanity in Syria. 

In most waiver countries, obtaining citizenship is a lengthy process with stringent requirements. Some countries, however, are 

making their citizenship readily available through investment. Iranian nationals, among others, are exploiting this. In 2014, the U.S. 

Treasury issued an advisory that certain individuals were abusing 

the Citizenship-by-Investment program of St. Kitts and Nevis to 

obtain passports for the purpose of engaging in illicit financial activity. The advisory made particular reference to Iranian nationals. 

Three Iranian businessmen with quickly obtained St. Kitts citizenship built a complex financial sanctions evasion network spanning the globe, including the United States. Despite Treasury sanctions, they moved across borders easily and reconstituted sanctioned companies under new names thanks to their St. Kitts passport, and for one of them, a Canadian permanent residency. 

This is not an isolated case. New programs from visa waiver 

countries are now available to wealthy investors, including Iranians in search for a second passport. Such programs may become 

a gateway to a visa-free entry into the United States for Iranian 

procurement agents. The lifting of sanctions against Iran may actually increase the number of regime agents trying to enter the U.S. 

The steps Congress now takes must ensure that actors involved 

in facilitating proliferation and other illicit activities abroad do not 

benefit from free access to the United States. The United States 

should explain to all visa waiver countries offering or considering 

citizenship and permanent residency by investment that the due 

diligence and stringency of the requirements of their programs may 

affect their status. Their programs should not become a shortcut to 

entering the United States. 

The suspension of the Visa Waiver Program for dual nationals of 

Iran is the direct result of the regime’s close association with terrorism and other illicit activities. The dangerous exploitation of foreign passports for illicit purposes justifies the inconvenience posed 

to the relatively few who will now have to obtain a visa in person. 

The singling out of Iranian dual nationals is thus not only appropriate but should be a vital component of homeland security policy. 

My written testimony provides additional recommendations. 

Thank you for the opportunity to testify, and I look forward to your 

questions. 

[Prepared statement of Mr. Ottolenghi follows:] 


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Mr. DESANTIS. Thank you. 

The chair now recognizes Mr. Heifetz for 5 minutes. 

STATEMENT OF STEPHEN HEIFETZ 

Mr. HEIFETZ. Thank you, Chairman DeSantis, Ranking Member 

Lynch, Chairman Meadows, and Ranking Member Connolly. Thank 

you to all of the distinguished members of the Subcommittees on 

National Security and on Government Operations. I appreciate the 

opportunity to participate in this hearing about the Visa Waiver 

Program. 

My name is Stephen Heifetz. I’m a partner at Steptoe and Johnson, an international law firm. And prior to joining Steptoe, I 

served from 2006 to 2010 in several positions at the Department 

of Homeland Security, including as deputy assistant secretary for 

policy development, where I had oversight responsibility for the 

VWP. 

Under the VWP, DHS waives the B non-immigrant visa requirement for aliens traveling from 38 approved countries, all U.S. allies, to permit stays of up to 90 days for business or tourism. The 

effect of the waiver is that the standard visa interview by a U.S. 

consular officer, which generally requires the traveler to go to a 

consular office in person, is not required. This does not mean, however, that DHS waives security requirements for these travelers. In 

fact, under the VWP, DHS mandates additional more stringent security requirements for both the individual traveler and his or her 

home country. 

The 38 U.S. allies that are VWP members must meet high security standards to enter and maintain membership in the VWP, and 

substantial checks are conducted on every traveler. The result is a 

system that provides as much security against terrorist or criminal 

travelers as the visa system. 

Nevertheless, many in the media and elsewhere have labored 

under the misapprehension that security standards have been 

looser for VWP travelers than for those traveling with a visa and 

that this poses a threat to U.S. national security. At least since reforms implemented about a decade ago, that perception has been 

inaccurate. Security experts in both the Bush and Obama administrations have lauded the VWP as a good security program. But, 

like any successful security program, the VWP has continued to be 

closely reviewed over the years, undergoing further reform as new 

threats are perceived. 

The most recent VWP statutory reforms were enacted as part of 

the 2016 Consolidated Appropriations Act in December 2015. 

Among other things, the new law generally precludes travel under 

the VWP for dual nationals of Iran, Iraq, Syria, and Sudan, and 

further, the new law generally precludes travel under the VWP for 

those who have traveled to these countries. 

There are, however, exceptions for those who travel to perform 

military service or other official duties of a VWP member country. 

In addition, the new law provides that the DHS Secretary may, 

with respect to any particular traveler, waive the prohibitions with 

regard to Iran, Iraq, Syria, and Sudan if doing so is in the national 

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Such a waiver would allow VWP travel to the U.S. by a citizen 

of a VWP member country notwithstanding dual nationality or 

travel involving the four countries of concern. For example, a Japanese businessperson who travels to Iraq for business or an Australian doctor who provides humanitarian aid in Syria generally 

would be ineligible for VWP travel under the new law, but that ineligibility can be waived by the DHS Secretary. 

This national security waiver authority is important. Here’s one 

illustration why. The United States and other world powers recently signed a momentous deal with Iran that addresses Iran’s nuclear weapons program. Under this deal, the Joint Comprehensive 

Plan of Action, JCPOA, European companies now will have regular 

business dealings with Iran. It’s common and will become ever 

more common for a European businessperson to travel to Iran to 

conduct legitimate business. But if that European businessperson’s 

travel will preclude further travel to the U.S. under the Visa Waiver Program, that might deter European business dealings with 

Iran. If you’re a Londoner or Parisian sitting in London or Paris 

and considering traveling to Iran to scout a business deal, you 

might reconsider because of the potential loss of VWP privileges. 

As part of the JCPOA, though, the U.S. committed to refrain 

from creating new types of sanctions on Iran. More specifically, the 

U.S. agreed to refrain from, quoting from the JCPOA text, ‘‘imposing exceptional or discriminatory regulatory and procedural requirements in lieu of the sanctions and restrictive measures covered by the JCPOA.’’ 

Some have argued that this commitment necessitates U.S. waivers to allow legitimate business travel to Iran without the loss of 

VWP privileges. Even if one thinks the JCPOA was a bad deal, the 

administration fairly can claim that it is in the national security 

interest of the United States to ensure JCPOA compliance by Iran. 

And ensuring compliance is made much more difficult if Iran can 

allege that the U.S. has breached its obligations by creating obstacles to Iranian travel. That is one reason the administration should 

be granted deference in determining how to utilize the waiver authority under the new VWP law. 

And there are other reasons. There is a great need for humanitarian intervention in some of the poor countries of concern, Syria 

and Iraq in particular. Without the exercise of waivers, the loss of 

VWP privileges may deter needed humanitarian travel to these 

countries. The Australian doctor who wants to offer medical services in Syria may reconsider if doing so will cause a loss of VWP 

privileges. Such thinking could, ironically, have adverse effects on 

U.S. security. 

More fundamentally, waivers that allow travel under the VWP 

should not cause undue concerns because the VWP fundamentally 

is a strong security program. I’ve alluded to that previously and 

discussed it in more detail in my formal written testimony. 

You have other witnesses today that can speak to the operational 

security of the VWP so I’ll close my verbal testimony and would be 

happy to address questions. 

[Prepared statement of Mr. Heifetz follows:] 


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Mr. DESANTIS. Thank you. The chair now recognizes himself for 

5 minutes. 

Ms. Johnson, as a general matter, requiring a foreign national 

traveling to the United States to obtain a visa, how does that damage national security? 

Ms. JOHNSON. Thank you, sir. As I mentioned in my remarks, 

the VWP is a very important and significant counterterrorism tool. 

The security requirements under the VWP —— 

Mr. DESANTIS. That is not my question. You are saying some 

people may be ineligible for the VWP, so my question is, okay, that 

means they would have to get a visa. So the requirement to get a 

visa, how does that damage national security? 

Ms. JOHNSON. So citizens of those VWP countries are very are 

suddenly treated as a heightened security risk. So what we’ve 

heard from our European colleagues in particular just even yesterday —— 

Mr. DESANTIS. Well, wait—okay, yes, but why—I mean, you have 

some of these people in like Brussels and some of these jihadistinfested areas. I mean, why would we not want to treat them as 

a heightened security? 

Ms. JOHNSON. Well, again, I mean —— 

Mr. DESANTIS. They are a heightened security risk, aren’t they? 

Ms. JOHNSON. Well, these waivers are again very limited and 

very narrowly focused and would be done on a case-by-case basis. 

And again, of those categories of travelers we were looking at, it’s 

not somebody who would just go to Syria to go visit perhaps and 

go attend a terrorist training camp. We’re looking at, again, very 

limited and very focused waiver categories that’s permissible under 

the law. 

Mr. DESANTIS. Well, I think that the testimony alluded to—so 

under the administration’s action with respect to the visa waiver 

changes that were enacted by Congress, they would allow somebody who is a national of, say, Iran and a European country who 

qualified under Visa Waiver Program. If that Iranian national is 

traveling back to Iran to do business, even though the businesses 

may have connections with the Revolutionary Guard Corps, they 

would quality under the business exemption, correct? 

Ms. JOHNSON. No, that’s not correct, sir. 

Mr. DESANTIS. Why not? 

Ms. JOHNSON. So, again, these are limited case by case. They 

would be focused on being reviewed. And again, these individuals 

are going to be screened against all of our databases, again, with 

information provided by the VWP countries. 

Mr. DESANTIS. Well, but I think that is the issue is that the reason why you want someone to obtain a visa, I mean, if we are confident that everyone is a threat is in the database, then you are 

right, there are certain things that could catch him at an airport. 

But the whole idea is, you know, you have someone like Tashfeen 

Malik. You know, she didn’t pop on those databases. We were hoping that that visa process that she went through would have ferreted her out and would not have allowed her entry into the United 

States. 

And so let me just return just as a general—because I don’t 

think I got a clear answer. You know, Israel, non-visa waiver counVerDate Nov 24 2008 08:54 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00083 Fmt 6633 Sfmt 6633 H:\23403.TXT APRIL

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try, Azerbaijan, Shiite Muslim ally of ours. Iran, they don’t like 

that Shiite Muslim government. You know, they are not on the 

Visa Waiver Program. So how does it damage national security to 

require these travelers from those areas to get a visa? 

Ms. JOHNSON. I’m not sure I understand the linkage with Israel 

and Azerbaijan. 

Mr. DESANTIS. Just there are different countries that we are allies with where their citizens have to get a visa in order to come 

here that are not under the Visa Waiver —— 

Ms. JOHNSON. I understand. 

Mr. DESANTIS.—Program. So my question is is why not err on 

the side of caution? And if you require someone to get a visa, how 

does that fact damage our national security? 

Ms. JOHNSON. So again, these visa waiver partner countries, 

their citizens are being treated as a heightened security concern 

and we’re looking at not damage—we’re leveraging the program to 

get additional information-sharing requirements. We go and interview their—we, you know, examine their seaports, their land borders, their airports. We’re getting more out of the Visa Waiver Program as a counterterrorism tool than perhaps what we would be 

doing with a non-VWP partner. 

So again, I think that we’re looking at the fact that we’re treating these individuals as heightened security risks and we’re utilizing this waiver —— 

Mr. DESANTIS. Okay. So —— 

Ms. JOHNSON.—to look at a narrow group —— 

Mr. DESANTIS. But I —— 

Ms. JOHNSON. And those countries may not cooperate with us as 

a counterterrorism matter if there’s —— 

Mr. DESANTIS. Which countries —— 

Ms. JOHNSON.—a consideration —— 

Mr. DESANTIS.—have indicated that? 

Ms. JOHNSON. Well, we’ve had a number who have been very 

concerned. Again, yesterday —— 

Mr. DESANTIS. Which ones? 

Ms. JOHNSON. We’ve met—I’ve met with the Swiss, I’ve met with 

the French, I’ve met with the E.U., I’ve met with Japan. They’ve 

all expressed concerns. And as Mr. Steifletz—or Heifetz has mentioned that they may actually choose not to come to the United 

States because they’re concerned—or not got to Iran or they might 

not go to Iraq, participate in a humanitarian mission because 

they’re concerned about this, that they’re being treated—their citizens are being treated as a heightened security risk. 

Our VWP program is going under—every traveler under the 

VWP program is going under heightened security screening just 

like they will with visas. So I take issue that the fact that they 

don’t get an SAO review, they do. They don’t get an automatic 

ESTA just because they’ve applied and answered questions. Every 

one of those individuals are completely scrubbed against our 

screening databases before being issued an ESTA, and then those 

ESTAs are reviewed continually. 

Mr. DESANTIS. So, yes, they are traveling to Iran, some of them 

are doing business with Iran. Iran is the number one state sponsor 

of terrorism in the world. The State Department considers the govVerDate Nov 24 2008 08:54 Feb 16, 2017 Jkt 000000 PO 00000 Frm 00084 Fmt 6633 Sfmt 6633 H:\23403.TXT APRIL

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ernment of Iran to be a state sponsor of terrorism. The Revolutionary Guard Corps is a designated terrorist group. 

So yes, they would be treated differently, but aren’t there legitimate reasons why they should be treated differently given the circumstances? I mean, if a Japanese citizen is going to Taiwan to do 

business, you know, the idea that that was going to affect the visa 

waiver status, I mean, I get that, but you are traveling to Iran, 

given the circumstances, how is it unreasonable to think that that 

would be something that we would be concerned about? 

Ms. JOHNSON. Again, individuals from the VWP countries going 

and conducting legitimate business in Iran that’s permissible under 

the JCPOA shouldn’t be penalized or shouldn’t be considered a 

heightened risk. Of course, again, we would do all of the routine 

screening on each individual —— 

Mr. DESANTIS. So —— 

Ms. JOHNSON.—to ensure that they are not a threat to the 

United States. 

Mr. DESANTIS. So you are worried about penalizing someone 

going to Iran to do business even though that could potentially expose the American people to more danger? And I get like the visa 

waiver—you know, the sharing of intelligence. I think that is good. 

But the bottom line is it is easier to come here if you qualify for 

a visa waiver. And if you are not in the database, you know, I don’t 

think that you are going to be able to be found out. 

My time is up. I am going to recognize Mr. Lynch for 5 minutes. 

Mr. LYNCH. Thank you, Mr. Chairman. 

Let’s stay on that, Ms. Johnson. So a number of my colleagues 

have expressed concern that waivers could be granted to individuals for reasons that might run contrary to our national security 

interests as required under the law. What is the countermeasure 

against that within the system? How do we make sure—and, look, 

I am sort of the devil’s advocate here. I spent a lot of—a lot of 

members on this committee spent a lot of time in the Middle East 

so we—but just came back again from visiting all these refugee 

camps, been to Sudan so I know—and that is on the list here, too, 

certainly understand all the—the huge number of NGOs that we 

have working on these countries on behalf of the American people, 

which the goal is to keep the refugees from flooding into Europe 

and elsewhere, this huge diaspora that has been created because 

of the war in Iraq and Syria. They are trying to keep them stable 

and in safe conditions on the border. 

So as a result, we have got a lot of people—USCIS does great 

work on our behalf. We have got a bunch of different—the World 

Food Program did great work. But we do have a lot of people that 

end up especially in Iraq. We have got tons of contractors that are 

going in and out of Iraq on a regular basis. How do we create a 

countermeasure within—and, Mr. Heifetz, you might want to join 

in on this because your testimony speaks to this issue as well. How 

do we rest assured that someone is not breaching the Visa Waiver 

Program with nefarious intent, that someone gets a waiver from 

the Secretary of DHS and, you know, does what, you know, these 

folks in Paris did or San Bernardino did? 

Ms. JOHNSON. Yes, so again, the Visa Waiver Program requires 

much more strict security standards, so all of the countries have 


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to meet those strict security standards. Countries that don’t issue— 

don’t have to have to have their citizens come get visas do not necessarily have those—I mean, they certainly don’t have those standards that they’re required to meet. So that’s on the front end. And 

then we’re inspecting those on a regular basis. 

It’s important to stress that the information-sharing that we get 

from them, the known and suspected terrorist information we receive from those VWP countries again enhances our screening databases. So we’re getting more information through the VWP partnership than we would any other country relationship that we have 

outside the VWP. 

Then we have the additional layered security, so an individual 

who might be a humanitarian worker applying for an ESTA because they want to utilize this waiver, it should be important to 

note that they’re not applying for the waiver. They’re applying for 

the ESTA. So the ESTA then has more stringent questions. I would 

be frank in, you know, that we have only a couple minutes in a 

visa window. You’re asking a number of questions through the 

ESTA process, which we then look—work really hard to verify. We 

also screen against all of our databases, both terrorism and criminal. And then for all travelers, whether they’re visa or—traveling 

under the visa or the VWP, we have layered security portions 

again to ensure we’re not entering—having people enter the United 

States that should do us harm. 

Mr. LYNCH. Okay. So in the past—and I want to ask you about 

the lists—we had a situation where there were some workers, I believe about 72 workers that went through DHS screening and were 

able to obtain security badges to work in secure areas of our airports, yet they were on the TIDE list. They were on one of our terrorist lists. Has that been straightened out? Because earlier on, 

DHS and people weren’t sharing lists, and that was the root cause 

of that problem. 

Now, I have been reassured in other forums that that problem 

has been addressed and the lists are being shared so that is not 

going to happen anymore. Is that your understanding, Mr. 

Kerlikowske? 

Mr. KERLIKOWSKE. So TSA runs that part of the program and 

Admiral Neffenger. And I know that they have just gone back 

under his direction and completely rescreened all of those individuals against all of these different databases. They’ve rescreened all 

of these individuals as a result of that. There’s another group, of 

course, that works on the ports and the cargo crane and operators 

of other equipment. That is run through the United States Coast 

Guard, and as I understand it, they are also in that process. 

But within DHS and our partner government agencies under 

the—especially under the National Targeting Center, I would tell 

you that there is no database that cannot be shared and is not run 

against others. 

Mr. LYNCH. Okay. I see my time is expired. I will yield back. 

Thank you. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentleman from North Carolina, 

Mr. Meadows, for 5 minutes. 


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Mr. MEADOWS. Ms. Johnson, you say you are going to do these 

waivers on a case-by-case basis, so I guess you have got a criteria 

set for how they get a waiver or not? 

Ms. JOHNSON. I think that would be more of a question for DHS 

in the process of how those waivers are administered. 

Mr. MEADOWS. So is there a criteria? 

Mr. KERLIKOWSKE. There’s a system that—by February 23 that 

will have all of these additional questions. For instance, if you were 

doing legitimate business in Iran, you would have to, of course, had 

an Iranian business passport with those numbers. So —— 

Mr. MEADOWS. What part of the law, I guess —— 

Mr. KERLIKOWSKE.—there’d be a whole —— 

Mr. MEADOWS.—talked about business purposes having a waiver? 

Mr. KERLIKOWSKE. So the protocol would be that if you were 

claiming that you wished under—and, by the way, no waiver has 

been granted and no waiver —— 

Mr. MEADOWS. Right, but it is a national security or law enforcement waiver. It was fairly clear, wasn’t it, national security or law 

enforcement waiver, isn’t that right, Ms. Johnson? 

Mr. KERLIKOWSKE. It is correct. 

Mr. MEADOWS. Okay. So how can you quantify that a business 

purpose is a national security purpose? 

Mr. KERLIKOWSKE. So I think there are —— 

Mr. MEADOWS. I am a business guy, so that means I am a national security risk. 

Mr. KERLIKOWSKE. Or a national security benefit. 

Mr. MEADOWS. Because what I am hearing—and let me tell you 

what troubles me. It sounds like we have created a jobs program 

for Iran that we are concerned about their business activity at the 

expense of the national security of all freedom-loving Americans. 

Have we done that? Because that is what Mr. Heifetz indicated. It 

is important for their economy. So is that what we have done, Ms. 

Johnson? We have created a jobs program? 

Ms. JOHNSON. No, sir. This —— 

Mr. MEADOWS. Then why do we give an exception according to 

DHS—I guess the exception is for legitimate business purposes? 

And it is not just in Iran. It is in Iraq, and they are not part of 

the agreement in terms of the JCPOA. So why would we include 

Iraq and Syria and Sudan if it is not trying to help them get investors from Europe? 

Mr. KERLIKOWSKE. Well, under the business it is only Iraq and 

Iran, and we certainly want to see Iraq’s economy do —— 

Mr. MEADOWS. So it is a jobs program? 

Mr. KERLIKOWSKE. Well, we certainly want to see Iraq’s economy 

do better so that they can support their own defense —— 

Mr. MEADOWS. But I can tell you that was nowhere in the deliberations between the minority or the majority when we were talking about this. It had nothing to do with business purposes. So how 

does the administration start to interpret this law as somehow 

being a jobs program? Ms. Johnson? 

Ms. JOHNSON. Again, it’s not a jobs program. It’s not about—it’s 

not about Iran. It’s about our national security. And I work in the 

Counterterrorism Bureau at the State Department, and so I’m very 


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focused on the fact that the protection of the homeland—which the 

entire State Department is focused on—is one of our major priorities. 

Mr. MEADOWS. So wouldn’t allowing more business travelers who 

travel from Belgium or France going to Iran potentially create a 

greater national security threat than if they never traveled there 

at all? 

Ms. JOHNSON. I don’t think —— 

Mr. MEADOWS. I’m not talking about the Visa Waiver Program 

because I know you have been defaulting that. Could it not potentially create a greater national security threat? 

Ms. JOHNSON. I don’t see the connection in the sense that these 

are—under the JCPOA, these countries can —— 

Mr. MEADOWS. No. One of them is. Not all those countries are 

under that. Am I confused? Or are they all under that? I thought 

only a few of those were, like one. 

Ms. JOHNSON. The program—the VWP partnership, again, for us 

with our partners under the VWP program —— 

Mr. MEADOWS. That is different —— 

Ms. JOHNSON.—they can go —— 

Mr. MEADOWS. That is different than what you just said, though. 

I understand. So if the VWP program is all great, why don’t we expand it to all the countries if it actually increases our national security? Why don’t we increase it to Israel? 

Ms. JOHNSON. I would think that, you know, they’re—again —— 

Mr. MEADOWS. Aren’t they an ally? 

Ms. JOHNSON.—for those countries that want to be part —— 

Mr. MEADOWS. They are a closer ally than Iran, aren’t they? 

Ms. JOHNSON. Well, there’s requirements to get into the program, 

a number of factors —— 

Mr. MEADOWS. But Iran hasn’t met those requirements, have 

they? 

Ms. JOHNSON. Well, it’s—visas —— 

Mr. MEADOWS. But they are —— 

Ms. JOHNSON.—it’s not about Iran. 

Mr. MEADOWS. But they are enjoying the benefit. Let me go on. 

I got a few minutes left. 

For DHS, the report that you sent only had 2 of 70 types of visas. 

Is there any reason why we excluded the other 68 types on that 

report? 

Mr. KERLIKOWSKE. So we were given this mission by—the entryexit mission by Congress in 2013. 

Mr. MEADOWS. Oh, no, no, no, no, no, no. There is a GAO report. 

You were given the mission back in the 1990s. 

Mr. KERLIKOWSKE. I’m sorry. I’m speaking as the commissioner 

of Customs and Border Protection. 

Mr. MEADOWS. Okay. Your agency? 

Mr. KERLIKOWSKE. Right. We were given that mission in 2013. 

And as you know, there had not been a visa waiver overstay report 

for many, many, many years. 

Mr. MEADOWS. Nineteen ninety-four. 

Mr. KERLIKOWSKE. Right, until last year. It was very clear that 

there was a lot of —— 


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Mr. MEADOWS. But there hasn’t still been one. Let’s be clear 

about that. We have had a partial report. 

Mr. KERLIKOWSKE. I’ll agree that the—certainly a partial report. 

It is certainly a step ahead and a step better than what had ever 

been issued before under many administrations. 

Mr. MEADOWS. Well, that is true because it hadn’t been issued 

in 20 years, so I mean something is always better than nothing. I 

guess my—when are we going to get the full report? 

Mr. KERLIKOWSKE. So the full report and the number of things— 

and we’d be happy to spend some time with you or your staff briefing you about all the things that DHS and Customs and Border 

Protection is doing to try to increase the quality of the data. You 

know that an overstay—if you leave the country one day after your 

visa expired, you’re considered an overstay even though you have 

left the country and —— 

Mr. MEADOWS. Yes, but that is not the numbers we are talking 

about. 

Mr. KERLIKOWSKE. Okay. 

Mr. MEADOWS. Let’s don’t give a false premise here —— 

Mr. KERLIKOWSKE. Okay. 

Mr. MEADOWS.—and if the chair will indulge this last clarifying 

question. We have reason to believe that the number of overstays, 

if you include all the categories, is closer to 3/4 of a million versus 

the 500,000 that has been indicated. Would you agree with that 

—— Mr. KERLIKOWSKE. I —— 

Mr. MEADOWS.—estimate? Have you seen any estimate? 

Mr. KERLIKOWSKE. I don’t—no, I have not. 

Mr. MEADOWS. All right. I yield back. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentleman from Virginia, Mr. 

Connolly, for 5 minutes. 

Mr. CONNOLLY. Thank you so much. 

Just for the record, Mr. Kerlikowske, Ms. Johnson, you aren’t in 

some secret conspiracy to allow terrorists to come into the United 

States, are you? 

Mr. KERLIKOWSKE. No, sir. 

Ms. JOHNSON. No, sir. 

Mr. CONNOLLY. And you are both under oath. 

Mr. KERLIKOWSKE. Correct. 

Ms. JOHNSON. Yes. 

Mr. CONNOLLY. Oh, good. Thank God. Okay. I just want to make 

sure because sometime in listening to some of the criticism, one 

would draw perhaps a strange conclusion. 

Mr. Heifetz, were you advocating for a jobs program through the 

use of this program in Iran? 

Mr. HEIFETZ. No, I was not. 

Mr. CONNOLLY. What were you advocating or digressing about? 

Mr. HEIFETZ. Ensuring—that was suggesting that the administration needs deference in the exercise of the national security exemption, among other things, to ensure that all sides to the JCPOA 

are compliant. 

Mr. CONNOLLY. Might there be unintended consequences with 

the law we passed in December? Could there be, you know, people 


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caught up in it that we didn’t intend to—or presumably didn’t intend to be caught up in it? 

Mr. HEIFETZ. Yes. 

Mr. CONNOLLY. Could an IAEA inspector, for example, critical to 

validating compliance with the JCPOA—that is to say the nuclear 

agreement with Iran—could they be caught up in the net unwittingly? 

Mr. HEIFETZ. Yes. 

Mr. CONNOLLY. So we might want to make an exception there? 

Mr. HEIFETZ. For sure. 

Mr. CONNOLLY. Mr. Lynch talked about going to refugee camps. 

So, for example, Medecins Sans Frontieres or Doctors Without Borders or U.N. officials who are doing humanitarian work, certainly 

something we would laud, we might want to give due deference to 

the administration in making sure they are not unwittingly caught 

up in this law and prevented from coming into the United States 

through the waiver program? Would that be a fair statement? 

Mr. HEIFETZ. That seems sensible. 

Mr. CONNOLLY. Ms. Johnson, is that of concern to the State Department? Are there some unintended consequences from a law we 

passed that you are trying to address through implementation, as 

well as Mr. Kerlikowske at DHS? 

Ms. JOHNSON. Yes. Again, with our foreign partners who feel 

that those individuals are being considered a heightened security 

risk, yes. 

Mr. CONNOLLY. Our foreign partners? That is to say they are 

concerned about this? 

Ms. JOHNSON. Yes. And we’re —— 

Mr. CONNOLLY. So there are foreign policy relations that could 

also be at risk because we have maybe passed a law with good intent and out of deep concern to protect the country, but there may 

be some unforeseen aspects of that law, consequence of that law 

that could affect our partners, our allies, and we need to address 

that. Otherwise, we are needlessly alienating friends and partners 

we need in other endeavors. Would that be a fair statement? 

Ms. JOHNSON. Yes, and for the national security of the United 

States. We rely on those partners to help protect the U.S. homeland. 

Mr. CONNOLLY. Right. Are there any such partners who have 

publicly called for us to make adjustments because of those concerns? 

Ms. JOHNSON. I would have to get back to you, but I know the 

E.U. has themselves, I believe, sent a letter to the Speaker of the 

House. 

Mr. CONNOLLY. Okay. So it is not an idle speculation. We actually have a record of concern by Europe, not a trivial partner or 

ally. Okay. 

The issue of dual nationals—and I know it has been addressed— 

but is there another side, either Mr. Kerlikowske or Ms. Johnson, 

to the debate on dual nationality? Because I can tell you my district, there are certain ethnic groups who are apoplectic about the 

application of this law because they feel they are unwitting victims 

and they are not terrorists, though they may be of a certain national background that would fall under the penumbra of this law. 


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Is there some rationale—and I invite you, too, Mr. Heifetz. Is 

there some rationale for why we might want to make exception or 

dual nationals? 

Ms. JOHNSON. So we’re reviewing that internally right now in 

consultation working closely with the Department of Homeland Security. I do know the Europeans have also expressively very concerned about that, feeling that the law was discriminatory. And I 

think—and CBP can—the commission can confirm. I think some of 

the biggest dual national populations come out of Britain, Australia, some of our key allies. 

Mr. KERLIKOWSKE. We implemented the—that particular facet of 

the law almost immediately by canceling 17,000 dual nationals 

that we had information on, and we’ve also—any application that 

has come in since that also shows dual nationality has been denied. 

And of course our default position on all of this, whether it’s with 

a potential waiver application or not, is that if there is any derogatory information, any concern or any—or anything that would violate the law that Congress passed and the President signed, the default position would be to —— 

Mr. CONNOLLY. Deny? 

Mr. KERLIKOWSKE.—deny them and send them —— 

Mr. CONNOLLY. I think that is really important. My time is up 

and I thank the chair, but the default—when in doubt, we don’t do 

it. We don’t put the United States at risk. Okay. Thank you very 

much. Thank you, Mr. Chairman. 

Mr. DESANTIS. The chair now recognizes the gentleman from 

Oklahoma, Mr. Russell, for 5 minutes. 

Mr. RUSSELL. Thank you, Mr. Chairman. And thank you, all of 

you, for being here today. 

The difficulty that obviously a lot of us face on all sides of the 

immigration issue is not conflating refugee resettlement with visa 

waiver, with border security, with the larger immigration issue. I 

think many times we tend to get all of that confused. 

However, here, we are talking about specifically a vulnerability 

second only to the open border that we have and ways that people 

could infiltrate. The Visa Waiver Program constitutes probably the 

greatest threat for infiltration if you were trying to enter the 

United States to do nefarious activities. And a simple yes or no, 

would you disagree with that statement, Mr. Kerlikowske? 

Mr. KERLIKOWSKE. I would not agree with it, no. 

Mr. RUSSELL. Ms. Johnson? 

Ms. JOHNSON. I would not agree as well. 

Mr. RUSSELL. Ms. Vaughan? 

Ms. VAUGHAN. Yes, I would agree with that. 

Mr. RUSSELL. Mr. Ottolenghi? 

Mr. OTTOLENGHI. So would I. 

Mr. RUSSELL. Mr. Heifetz? 

Mr. HEIFETZ. I disagree. 

Mr. RUSSELL. Okay. And see, therein lies the problem because 

even in the refugee camps that we visited, even as we have traveled into some very dangerous places to look at a lot of different 

things, even they will build up their border so that we have a controlled entry. Now, visa waivers, we have control, and I hear cited 

here today that it is the ESTA that is far more stringent and is 


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far more thorough, and therefore, we should have some reassurance. 

Ms. Johnson, how long is the ESTA legitimate for? 

Ms. JOHNSON. I believe it’s 2 years. It’s good for 3 and it can go 

down to 1. 

Mr. RUSSELL. So 2 to 3 years. So do you think that maybe someone could be in a different viewpoint in terms of nefarious activity 

over a 2-year period? 

Ms. JOHNSON. Well, just like our visas, the ESTAs are recurrently vetted so they’re—it’s not a static moment in time. So just 

because you’re issued an ESTA does not mean we don’t continually 

look at you as —— 

Mr. RUSSELL. Well, I understand that, but unless the information 

is volunteered such as the change of address or some other nature, 

the ESTA is good for 2 years. And, you know, whether or not I am 

coming here to visit Disneyland or coming here to commit an act 

of terror, we don’t know. And see, here is part of the problem now. 

I am not conflating the refugee resettlement and some of those— 

look, we need to be a nation that welcomes immigrants. I just want 

to be on the record for that. 

However, what we are talking about here is a vulnerability to infiltration. And as someone who defended my country in uniform for 

more than two decades of my life, living among many of the places 

that we are talking about, by the way, which have very good people, we are vulnerable. 

And, Mr. Heifetz, let me see if I am correct here. You say, as part 

of the JCPOA, though, the United States committed to refrain from 

creating new types of sanctions on Iran. More specifically, the U.S. 

agreed to refrain from ‘‘imposing exceptional or discriminatory regulatory and procedural requirements in lieu of the sanctions and 

restrictive measures cover by the JCPOA.’’ 

So am I hearing you correctly that modifications to the visa waiver should be avoided because it might curtail Iranian business? Yes 

or no? 

Mr. HEIFETZ. No, that’s not what I was saying. 

Mr. RUSSELL. But that’s in multiple statements to include your 

recorded testimony. You do state that we should avoid that because 

it might be discriminatory or exceptional. Do you believe that it’s 

discriminatory or exceptional to have an additional scrutiny on Iranian people conducting Iranian business? 

Mr. HEIFETZ. I believe that we have to be very careful about the 

exercise of VWP privileges and the withdrawal of those VWP privileges and that we need—that it is in the United States’ national 

security interests to ensure compliance with the JCPOA. 

Mr. RUSSELL. Well, okay, but that is a whole separate issue with 

the joint agreement. 

Mr. HEIFETZ. Well, it’s —— 

Mr. RUSSELL. In fact, let’s talk about trading allies. Our top 20 

allies, GDP, okay, China, Brazil, India, Saudi Arabia, Hong Kong, 

Malaysia, these are in the top 20 trading partners. We are talking 

a lot of money, hundreds of billions of dollars in trade to the United 

States. They are not on the Visa Waiver Program. Are you suggesting, sir, that Iran should be treated more favorably or those 


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that do business with Iran, that, say, if I were a Londoner and I 

visited Malaysia —— 

Mr. HEIFETZ. No. 

Mr. RUSSELL.—are you suggesting that I ought to get favorable 

attention because I am going to Iran as opposed to our allies that 

we trade hundreds of billions of dollars with? 

Mr. HEIFETZ. The U.S. security depends in large part on cooperation from, among others, European allies. And when we—if we 

threaten withdrawal of VWP privileges from citizens of those countries, that’s something that has to be factored into the calculation. 

Mr. RUSSELL. Well, I agree, and I understand a little bit about 

security and providing security to the United States having nearly 

lost my life in defense of the country. How would requiring additional screening on a visa application for those conducting business 

in Iran be any different than, say, exceptions to conduct business 

with Saudi Arabia? Do you favor Iran over Saudi Arabia? 

Mr. HEIFETZ. I’m not taken any position on that —— 

Mr. RUSSELL. Well, I think you are, sir. I think you are taking 

a position here —— 

Mr. HEIFETZ. No. 

Mr. RUSSELL.—with your testimony. And this is the point that I 

am making—and thank you, Mr. Chairman, for your indulgence— 

but we have to be very careful here. We have vulnerabilities. We 

want to be a nation that is welcoming. We have vulnerabilities. But 

as Mr. Ottolenghi correctly stated, this is not an additional burden. 

It is not so bad that we can’t do it. And I think we need to be very 

careful before we open ourselves up to real danger and real vulnerability. 

And with that, Mr. Chairman, I yield back. 

Mr. DESANTIS. The gentleman yields back. 

The chair now recognizes the gentleman from Ohio, Mr. Jordan, 

for 5 minutes. 

Mr. JORDAN. I thank the chairman, and thank you, you and Mr. 

Meadows, for putting this hearing together. 

Mr. Kerlikowske, a couple months ago we had an individual from 

DHS here, and we asked her a number of questions, and she wasn’t 

able to give us any answers. Some of them didn’t deal directly— 

I am going to ask you some of the same questions. They didn’t deal 

directly with the Visa Waiver Program, but information I think the 

American public is interested in knowing. So I am going to ask you 

some of the same ones and see if you have the answers. 

Do you know how many Americans have traveled to Syria in the 

past 2 years? 

Mr. KERLIKOWSKE. I do not. 

Mr. JORDAN. And who would have that information? 

Mr. KERLIKOWSKE. Within DHS headquarters, there is a visa 

waiver office, and they’re also—they would work with the Department of State on that information. We have a fairly narrow mission 

—— Mr. JORDAN. I am talking about just Americans —— 

Mr. KERLIKOWSKE.—customs and border protection —— 

Mr. JORDAN.—who have traveled to Syria, people who have left 

our country and travel to—do we know that number? 

Mr. KERLIKOWSKE. Well, if you’re also —— 


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Mr. JORDAN. Not necessarily Visa Waiver Program folks, but just 

anyone. 

Ms. JOHNSON. I think you can get the numbers from the FBI and 

the National Counterterrorism Center. I know last year. So it was 

over 100. I don’t know what the numbers are today. 

Mr. JORDAN. Okay. So over 100. And of those who—do we know 

how many of those 100 who have traveled there who have then 

come back? 

Mr. KERLIKOWSKE. If you are talking about those that may do 

harm and we are concerned about it may come back, I think 

whether it is the DNI or others, I think we would be much more 

comfortable in a closed setting giving you that information. But 

—— Mr. JORDAN. I am not asking whether they are going to do harm 

or not. I am just asking do we know Americans who have traveled 

to Syria, Iraq and then have come back? Do we know that number? 

Mr. KERLIKOWSKE. We do know that number. 

Mr. JORDAN. Okay. But you don’t think we should give that in 

a —— 

Mr. KERLIKOWSKE. I would not because —— 

Mr. JORDAN.—non-classified —— 

Mr. KERLIKOWSKE.—I would tell you that I think that there is a 

significant heightened risk —— 

Mr. JORDAN. Okay. 

Mr. KERLIKOWSKE.—unless there is particular information that 

they went over as a medical worker, et cetera. 

Mr. JORDAN. I understand. 

Mr. KERLIKOWSKE. So we’d be more comfortable telling you that —— Mr. JORDAN. Okay. 

Mr. KERLIKOWSKE.—in a closed setting. 

Mr. JORDAN. So let’s go to—do we know how many Syrian refugees are in the country today? Again, not the Visa Waiver Program, I am talking about Syrian refugees. And Ms. Johnson or 

whoever can—either one. 

Mr. KERLIKOWSKE. And I think that USCIS, the director Leon 

Rodriguez, that is something that would be within his portfolio, not 

Customs and Border Protection. 

Mr. JORDAN. Okay. All right. Well, let’s go to Visa Waiver Program. How many Visa Waiver Program overstays are there currently in the United States? 

Mr. KERLIKOWSKE. The number of overseas was estimated in the 

last reports, and as Chairman Meadows mentioned —— 

Mr. JORDAN. This is the most recent report that you guys —— 

Mr. KERLIKOWSKE. Right. Exactly. 

Mr. JORDAN.—just put together? Okay. 

Mr. KERLIKOWSKE. Over —— 

Mr. JORDAN. What was that number again? 

Mr. KERLIKOWSKE. Over 500,000 overstays. 

Mr. JORDAN. Over 500,000? And what is the average length of 

time they have overstayed? 

Mr. KERLIKOWSKE. I don’t have that. 

Mr. JORDAN. Is it in the report? 

Mr. KERLIKOWSKE. I believe it is. 


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Mr. JORDAN. Okay. And of those half-a-million overstays, do we 

know how many of those may have been to Syria or Iraq in the 

past couple years? I mean, do you know their travel history? So 

they are coming from largely, I mean, most likely a European country who are part of the Visa Waiver Program. Do we know, of those 

half-a-million who are here who have overstayed the time they 

were supposed to be here, do we know how many of those may 

have traveled to Syria or Iraq? 

Mr. KERLIKOWSKE. If we have the information from an air manifest or a sea manifest as to whether or not they had traveled to 

another country, we would have that information, and I’d be happy 

to try and provide more detail. I wouldn’t have that right in front 

of me. 

Mr. JORDAN. But you do think you could get me that information? 

Mr. KERLIKOWSKE. I could get you much more specifics to what 

you’re asking than what I can tell you right now. 

Mr. JORDAN. Well, I think that is an important question —— 

Mr. KERLIKOWSKE. Right. 

Mr. JORDAN.—I mean, because if you have got half-a-million people who are overstaying the time that they are supposed to be here, 

we want to know where they came from. We want to know where 

they have traveled. I mean, the whole idea is that this Visa Waiver 

Program could be exploited by terrorists. It would be interesting to 

know if some of the people who are currently here who have overstayed have already violated what the agreement is, what the law 

is if they had been to places in the Middle East prior to coming to 

the United States. 

Mr. KERLIKOWSKE. And we also know that in order for a country 

to remain in the Visa Waiver Program, there has to be a percentage, an overstay percentage I believe—is it below 3 percent? 

Ms. JOHNSON. The visa, yes. 

Mr. JORDAN. Wait. Say that again. 

Mr. KERLIKOWSKE. So all these countries that are in the Visa 

Waiver Program do a whole host of things that they share information —— 

Mr. JORDAN. Right. 

Mr. KERLIKOWSKE.—whether it’s lost or stolen passports —— 

Mr. JORDAN. I understand. 

Mr. KERLIKOWSKE.—on and on. They also have to abide by a reduced amount of people that would be in an overstay capacity. That 

would be one of the criteria. 

Mr. JORDAN. Okay. Well, that sort of raises the question, then, 

of these half-a-million people who are here who aren’t supposed to 

be here, what kind of ramifications or consequences do the countries that they came from—what kind of consequences have happened? 

Mr. KERLIKOWSKE. Well, I would tell you that —— 

Mr. JORDAN. It is one thing to say there are going to be consequences. We want to know, for the half-a-million who are here 

who aren’t supposed to be here, have there been any consequences? 

Mr. KERLIKOWSKE. Well, I would tell you that the half-a-million 

people includes the people that got on the plane and left the day 

after their overstay. And I think as Chairman Meadows mentioned 


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that there’s a lot of gaps in the data. I mean, that’s why I think 

it took so many years for people to try and gather and put it together. That’s why I was very pleased that Secretary Johnson, 

working with us and other parts of the DHS headquarters, were 

able to put together a report. And as I think all of us have clearly 

mentioned, there are gaps in the report. The data-gathering needs 

to be better, and the information needs to be supplied not just to 

the Members of Congress but also to the American public. None of 

us disagree with that. 

Mr. JORDAN. Okay. I am over time. Thank you, Mr. Chairman. 

Mr. DESANTIS. The chair now recognizes Mr. Hice for 5 minutes. 

Mr. CONNOLLY. Mr. Chairman? 

Mr. DESANTIS. Yes? 

Mr. CONNOLLY. Would you allow just a quick clarification? 

Mr. DESANTIS. Sure. 

Mr. CONNOLLY. I thank the chair. 

It would be helpful, Mr. Kerlikowske, if we had some specified 

data on overstays. So your point is some people are classified 

overstays technically because a few hours lapsed between the expiration of the visa and their getting on an airplane and leaving. I 

think it would be helpful to the committee if we actually had a 

breakdown of that data. So otherwise we are dealing with the raw 

data of a half-a-million, which is not accurate. But what is accurate? And I think that is where Mr. Jordan was going. 

Mr. JORDAN. If I could, Mr. Chairman? 

Mr. DESANTIS. Yes. 

Mr. JORDAN. Yes, great point. We would like to break down that, 

but I think it is also important for the committee to understand— 

my understanding is that half-a-million is only the tourists and 

business, right? There are all kinds of other people here on visas 

who overstay. They may not be in the Visa Waiver Program, but 

there are all kinds of others. So that number is just with those two 

programs, and we can’t even get the exact information where they 

have traveled before, what may have transpired there. 

Mr. KERLIKOWSKE. You’re absolutely correct, Congressman, for 

instance, student visas, but student visas aren’t for 90 days. Student visas are for the completion of the educational requirement. 

As we know, any of us who have sent our kids to college know they 

don’t graduate in 4 years. So we have—so there are significant— 

you know, there’s significant greater difficulties. All of us at DHS 

and certainly —— 

Mr. JORDAN. That is a good point. They may not graduate in 4 

years, but our kids aren’t breaking the law if they would stay 

longer than 4 years. That is the point, right? 

Mr. KERLIKOWSKE. Well, actually —— 

Mr. JORDAN. They are breaking our wallet but not breaking the 

law. 

Mr. KERLIKOWSKE. They’re not breaking the law because— 

they’re not breaking the law if they stay 4–1/2 years to get that college education because the—it’s—at the end of the term, at the end 

of the—that you can see the difficulty of trying to track somebody 

for 4–1/2 years. So that’s why the B–1/B–2 visa I think was easier 

—— 


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Mr. JORDAN. I am not saying it is not difficult. All I am saying 

is we want the numbers, and frankly, that is your job to know 

what is going on and know those who are overstaying their time. 

Mr. DESANTIS. And, though, I think of the 500,000 identified, I 

think you have the vast majority, like 416,000, are still in the 

country overstaying. And there is only a very small fraction that 

were investigated by ICE for overstaying. So I think that there is— 

I mean, we need the data, I agree, but there are a lot more questions that haven’t been answered. 

So, Mr. Hice, you are recognized for 5 minutes. 

Mr. HICE. Thank you, Mr. Chairman. 

Okay. We have, by Congress, given some restrictions to the Visa 

Waiver Program. Ms. Johnson, let me ask you this. Did the administration discuss the exceptions to these restrictions with the government of Iran before announcing those exceptions to Congress 

and the American people? 

Ms. JOHNSON. Are you referring to a conversation between—or a 

letter between Secretary Kerry and Foreign Minister Zarif? 

Mr. HICE. I am referring to any communication with the Iranian 

Government about the exceptions. 

Ms. JOHNSON. So I know that Secretary Kerry did send a letter 

to Foreign Minister Zarif after the Iranians publicly claimed that 

this law violated the JCPOA commitments. In that letter, Secretary Kerry defended the law, telling him that it was not a violation of the JCPOA commitments. He also outlined the fact—what 

the law was, again, defending the law but also outlined why it was 

not in violation of those commitments because it is possible for Europeans to travel to Iran and conduct legitimate business. 

Mr. HICE. So there was communication. Can we have a copy of 

that letter if we don’t already have it, Mr. Chairman, that it be entered in the record? 

Ms. JOHNSON. And these are letters—I mean, we’ve gotten similar letters from our VWP—or similar inquiries. Again, I’ve met 

with —— 

Mr. HICE. Okay. It is concerning to me that Congress passes restrictions and then the administration has conversations with the 

Iranian Government and makes exceptions to the restrictions that 

were imposed by law, by Congress. I would like to have a copy of 

that. 

You mentioned also a little while ago the legitimate business-related purposes. I have absolutely no idea what that means. What 

is the definition? How is that defined? 

Ms. JOHNSON. Well, obviously, legitimate business, we are working through how we would process it in the context of the waivers, 

but obviously, in the case of Iran, it would not be sanctionable— 

things that are sanctionable under both U.S. law and regulations, 

U.N. Security Council resolutions, things of those natures. That 

would be our basis for starting out —— 

Mr. HICE. So you are saying you don’t have a real firm definition 

either? 

Ms. JOHNSON. We definitely—from the sanctionable side obviously, and then what would be looking at how we could also narrowed down review of those individual case-by-case waivers to determine legitimate business. 


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Mr. HICE. I just don’t understand how someone with a so-called 

legitimate business-related purpose, how that business, someone 

traveling to Iran or Iraq or wherever it may be, somehow falls 

under a national security exemption. And can you explain that? 

Ms. JOHNSON. For both Iraq and Iran or —— 

Mr. HICE. Sure. 

Ms. JOHNSON. Yes. So obviously, in the case of Iraq we have been 

encouraging governments from VWP countries but more broadly, 

more globally, to engage in business with Iraq to help stabilize 

their economy. That’s in our national security interests. For Iran, 

the same thing. We are looking at these foreign partners and particularly the VWP countries to engage in—they’ve got legitimate 

business interests and permissible under the JCPOA. Again, that’s 

why we have a deadline of July 14 when it was concluded, not before. And those are international security interests, so those partners to be able to participate in that activity. 

These are partners, again, who are contributing to our national 

security. By participating in the VWP program, they’re providing 

us with additional information on known and suspected terrorists. 

We also have information on how they do border controls both at 

their sea and land and airports. And again, we are constantly monitoring our partnerships with those countries to make sure that it’s 

a securing the homeland and it’s not —— 

Mr. HICE. Okay. Let me go to—— 

Ms. JOHNSON.—undermining our security. 

Mr. HICE. Thank you. Let me go to Mr. Kerlikowske. The Department of Homeland Security, are they currently monitoring individuals who have traveled to countries like Syria, Iraq, some of these 

other countries, where there is known radicalization and training 

efforts that are ongoing in those countries? Are those individuals 

being monitored? 

Mr. KERLIKOWSKE. We would not do that. The Department of 

Justice and the Federal Bureau of Investigation would be in a 

much better position to answer that. We do share —— 

Mr. HICE. Is there anyone on the panel that can answer that? 

So we have experts here and we don’t know whether these people 

traveling these countries where there is radicalization taking place, 

we don’t know if they are being monitored? 

Mr. KERLIKOWSKE. Well, actually, the Department of Justice 

could answer it in a closed session with probably far more specificity —— 

Mr. HICE. But none of you can answer it, so that is not public 

knowledge. We don’t know. Is that —— 

Mr. KERLIKOWSKE. We would not want to release information or 

talk about the number of people or who is being monitored who 

may pose a threat to people of this country in a —— 

Mr. HICE. All right. My time is almost gone. 

Mr. KERLIKOWSKE.—in an open setting. 

Mr. HICE. Since you can’t answer that, let me ask it this way. 

Is there any way for the U.S. Government to prevent individuals 

from visa waiver countries where there is radicalization and training, terroristic training taking place, is there any way to ensure 

that these individuals cannot enter the United States under the 

Visa Waiver Program? 


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Mr. KERLIKOWSKE. You know, as a police chief of two of the largest cities in the country, I was never held accountable for having 

Seattle not having any crime. We did the very best we could. I 

would tell you that it might be very much similar to what we do 

now. Every day, Customs and Border Protection personnel deny admissibility in this country to 241 people that are either stopped at 

preclearance, they’re stopped at a port of entry, or their arrested 

or apprehended. It happens every single day. 

Mr. HICE. But we are giving exceptions to a Visa Waiver Program that, as you just have mentioned, as you just declared, has 

no real security. We don’t know if we are preventing people from 

radicalized countries from coming into the United States under the 

Visa Waiver Program. 

Mr. KERLIKOWSKE. And I didn’t say that. It—I wouldn’t say that 

it has no—I’d say it has greater security than many of the systems 

in place. 

Mr. HICE. My time is up, Mr. Chairman. Thank you. 

Mr. DESANTIS. The gentleman’s time is expired. The chair now 

recognizes the gentleman from Kentucky, Mr. Massie, for 5 minutes. 

Mr. MASSIE. Thank you, Mr. Chairman. 

I would like to take my time to discuss what I hope is an unintended consequence of some hasty changes to this legislation before 

it passed. As a result of this legislation, citizens of Visa Waiver 

Program countries can no longer travel to the United States visafree if they are dual nationals of Iran, Iraq, Sudan, or Syria solely 

due to their ancestry. 

And let that sink in. I mean, this feels like discrimination to me 

because if the citizens of those countries we are excluding, if those 

countries in the Visa Waiver Program decide to reciprocate, there 

is a category of millions of Americans, freedom-loving Americans 

that could be exposed to discrimination as a result merely of who 

their parents were. 

And by this I mean you could be swept into this program of discrimination even if you have never been to one of these four countries if you are solely the progeny of somebody from one of these 

countries because three of the countries consider you to be a citizen 

of that country even if you weren’t born there so long as your father was a citizen of that country. This is a great concern to me. 

There is a piece of legislation that I have introduced. The primary sponsor is Justin Amash. It is H.R. 4380. It is called the 

Equal Protection and Travel Act of 2016 that would remedy this 

problem. 

And, Mr. Chairman, I ask unanimous consent to enter into the 

record two letters in support of H.R. 4380, the Equal Protection 

and Travel Act of 2016. The first letter is from the American Civil 

Liberties Union and the second letter is signed by 65 separate 

groups representing a wide range of viewpoints and membership. 

Mr. DESANTIS. Without objection. 

Mr. MASSIE. So while we have got the witnesses here who are obviously experts on the Visa Waiver Program, I want to ask, for instance, Mr. Heifetz—and anybody is welcome to answer this—of 

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ple from this program merely because their parents were citizens 

of one of these countries, Mr. Heifetz? 

Mr. HEIFETZ. None that are apparent. 

Mr. MASSIE. Please elaborate. 

Mr. HEIFETZ. Well, I think a couple things are worth noting. 

First, the most significant expansion of the Visa Waiver Program 

occurred in the Bush administration. This was a security program, 

properly viewed as one. Secretary Chertoff has spoken on numerous occasions about Visa Waiver Program enhancing U.S. security. 

And the reason for that is the tradeoff is one between a short— 

what is typically a short interview by a consular officer. In exchange, rather than having that, we get heightened security standards by our Visa Waiver Program partners, particularly including 

lots of data to some of the questions that have come up—lots of 

data about who it is who intends to travel here, data that we 

wouldn’t otherwise have access to. 

So I think part of the points—part of what—the point that has 

been made several times is that when we begin—if we chip away 

at the advantages to the member states—to the VWP member 

states, we risk the security that comes with the additional information about who those people are and the heightened security standards that our VWP members provide. 

Mr. MASSIE. Well, let me elaborate about this category of individuals that is going to be discriminated against and then ask another 

question. So this category includes people who may have fled here 

from those countries, for instance, in the ’70s from Iran, who were 

seeking relief from that regime and have never gone back, never 

returned to that country. 

Do we have any evidence—is there a single example of somebody 

who came to this country and is a dual citizen of one of these countries that presented a terrorist threat, you know, with credible evidence? And I am talking about people who were either born in the 

United States and became, by virtue of their parentage, a citizen 

of one of these countries, or fled here and never went back. Is there 

a single example? 

Mr. OTTOLENGHI. Yes, sir. Manssor Arbabsiar, involved in a plot 

to try and murder the Saudi Ambassador to the United States in 

October 2011, Iranian American national living in Texas instructed 

and abetted by the cousin from Iran involved in the—Iran’s Revolutionary Guard Corps forces. 

Mr. MASSIE. And —— 

Mr. OTTOLENGHI. So that’s one example. 

Mr. MASSIE. And —— 

Mr. OTTOLENGHI. The second example, sir, is the seven recent 

pardons by the President —— 

Mr. MASSIE. Let me ask you about that example. 

Mr. OTTOLENGHI.—of Iranian Americans —— 

Mr. MASSIE. That individual had never traveled to Iran. 

Mr. OTTOLENGHI. Sir, you are raising the point about dual nationals who are citizens —— 

Mr. MASSIE. Right. And —— 

Mr. OTTOLENGHI.—of the United States and citizens of Iran. The 

point being made —— 


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Mr. MASSIE. My point, the question was for people who have not 

returned to the country or people that were born here. 

Mr. OTTOLENGHI. I am not familiar with the travel patterns of 

Mr. Arbabsiar —— 

Mr. MASSIE. Okay. Well, my —— 

Mr. OTTOLENGHI.—but certainly he was —— 

Mr. MASSIE.—time is expired. 

Mr. OTTOLENGHI.—a dual national. 

Mr. MASSIE. My time is expired. So here is the point I am making. I think it is fair to discriminate against someone based on 

their activity, their actions, or their travel patterns but not on their 

parentage. And I think the legislation runs the risk of 

disenfranchising millions of freedom-loving Americans. And I hope 

people will consider H.R. 4380 to remedy this. 

And I yield back my time. 

Mr. DESANTIS. The gentleman’s time is expired. 

The chair now recognizes the gentleman from South Carolina for 

5 minutes. 

Mr. MULVANEY. Thank you, Mr. Chairman. I thank the panel. I 

have just got a couple of clean-up questions for a couple different 

folks as we come to the end of this first round. 

Mr. Heifetz, we will start with you. You have been asked a couple times by a couple different people how is it—and in fact several 

folks have been asked how could it be possible that somebody going 

someplace on business could be a national security interest or national security threat? But I don’t think that is your point. 

Let me see if I am correctly articulating your point, and I think 

Ms. Johnson may have made a similar point, which is that if we 

interfere with the free travel of, say, a European businessman or 

woman who has gone to Iran, then gone back, and then comes into 

this country, we deny that person the Visa Waiver Program, then 

that may discourage trade or travel to and from Iran, which would 

be a violation of the agreement we just signed with Iran a couple 

weeks ago. Is that your argument, sir? 

Mr. HEIFETZ. That is an argument as to why discretion with respect to the waiver is important. 

Mr. MULVANEY. I will take that as a yes, as lawyers tend to do, 

but I will take that as a yes unless you are telling me it is no, that 

what you are saying is that because that interpretation of the statute would potentially or likely violate the agreement with Iran, 

that it is in the national security interest of the United States to 

do something else, because breaching the agreement with Iran is 

against the national security interest of the United States? 

Mr. HEIFETZ. That’s—yes. 

Mr. MULVANEY. Okay. Let me ask you this. What if the bill— 

what if the law, by the way, signed by the—I mean passed by the 

House and the Senate and signed by the President required the 

President to do something in violation of the JCPOA? Would it still 

qualify as a national security waiver under this law? Could the 

President break the law in order to not break the JCPOA? 

Mr. HEIFETZ. I have a hard time envisioning the scenario that 

perhaps you’re envisioning. The —— 


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Mr. MULVANEY. We passed a bill today that says that it is illegal 

for anybody who has traveled to Iran to come into the United 

States for a year. We pass that law today —— 

Mr. HEIFETZ. And —— 

Mr. MULVANEY.—and the President waived that law under subsection C in the name of the national security interest of the 

United States. 

Mr. HEIFETZ. If there’s a—an—if there’s a waiver authority for 

national security and the administration determines that it’s in the 

national security interest to waive it, then it’s not a violation of the 

law. 

Mr. MULVANEY. No, but it is a violation of the separate law that 

we may have passed. Again, take by example we passed a bill 

today, we go in the House, Senate, President signs it and says if 

you go to Iran, you can’t come here for a year, could the President 

waive that law under subsection C in your mind? 

Mr. HEIFETZ. If the administration determines that it’s in the national security interest of the United States, then yes. 

Mr. MULVANEY. And I think that is right. I think that is consistent with your position. But my point is I start to get—the hair 

on the back of my neck stands up when we say it is okay for the 

President to break the law in order to accomplish something. But 

anyway, again, I think we are just clarifying a couple questions 

that were asked before. 

A question about process, if I am that Iranian businessman and 

I go to Iran and I come back—excuse me, I am a British business 

person, I go to Iran and I come back and then I want to come to 

the United States. How do we know that I have been to Iran? 

Mr. HEIFETZ. This is probably a better question for —— 

Mr. MULVANEY. Okay. Anybody —— 

Mr. HEIFETZ.—some of the others, but I—my understanding is 

that they’re—that the fields are expanding—the ESTA fields are 

expanding to ask that —— 

Mr. MULVANEY. Okay. 

Mr. HEIFETZ.—to get at that issue. 

Mr. MULVANEY. That is one possible answer. It is not the best 

answer. The best answer would be that the computer systems 

would know that we are sharing information with the British, because if I lie on the ESTA or however you pronounce it, then am 

I going to get caught? Do we share information with the British on 

that? 

Mr. KERLIKOWSKE. We do and —— 

Mr. MULVANEY. Okay. 

Mr. KERLIKOWSKE.—it’s in the travel records and it’s in the either the name information or the advanced data. But then, of 

course, there’s another way, and that is if you then enter the 

United States or you happen to be trying to enter the United 

States through Dublin or Abu Dhabi, you would show to a United 

States Customs and Border Protection officer a passport, who 

would go through the pages of that passport and see the stamp or 

see the information that you had been to one of those four countries. And that’s what we did during the Ebola issue of those impacted countries. 


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Mr. MULVANEY. Okay. And then I am stopped at the border if 

that is the case? 

Mr. KERLIKOWSKE. You’re denied entry because you have traveled within—after 2011. 

Mr. MULVANEY. Thank you. Now, to another point—and I am 

going to ask Ms. Vaughan a question and then I promise, Mr. 

Chairman, I will wrap up—because we talked about this hypothetical businessperson, we have talked to—I think Mr. Heifetz in 

his testimony mentions a couple different folks. 

Mr. Heifetz, I will read from yours. It says, ‘‘It is common and 

will become ever more common for a European businessperson to 

travel to Iran to conduct legitimate business’’—I think we all agree 

with that—‘‘but if that European businessperson’s travel will preclude further travel to the United States, under the VWP, that 

might deter European business dealings with Iran.’’ You then go on 

to talk about the Australian doctor who might also be deterred 

from going to the Middle East in order to provide services. 

Ms. Vaughan—and someone told me before you used to work in 

the Foreign Service. 

Ms. VAUGHAN. That’s right. 

Mr. MULVANEY. Okay. I will ask you first and then I will ask 

anybody. Does anybody really believe that the possibility of getting 

kicked out of the Visa Waiver Program is going to deter a doctor 

from going to work in the Middle East? 

Ms. VAUGHAN. I do not think so. And certainly not with respect 

to business —— 

Mr. MULVANEY. If I have a doctor ask that—if I go to this country, can I still get in —— 

Ms. VAUGHAN. Right, like, oh, I can’t —— 

Mr. MULVANEY. Yes. 

Ms. VAUGHAN. Yes, I can’t go to Disneyland or something. 

Mr. MULVANEY. Right. 

Ms. VAUGHAN. I don’t think that would deter them. I don’t think 

it would deter a businessperson. If they’re pursuing a lucrative 

business opportunity in Iran or Iraq, $160 and the time of a visa 

interview is not going to be too much of a cost of business to go 

take care of that. I think it’s a mistake to think of these people as 

victims. 

Mr. MULVANEY. Well, I am not going to get into victimization, 

but I tend to agree it doesn’t discourage them. If anybody else disagrees—I’m going to let Mr. Heifetz disagree with that because it 

was his testimony. Does anybody else disagree? Does anybody really think that is a deterrent to travel? 

Okay. Let the record reflect nobody said no. 

Mr. Heifetz, it is your testimony. Why do you think it is a deterrent to travel? 

Mr. HEIFETZ. We —— 

Mr. MULVANEY. Do you have personal experience with that? 

Mr. HEIFETZ. Yes, we have clients who—it is—to address another 

point that arose, I think it is common knowledge that travel history—an individual traveler’s travel history is a factor that’s taken 

into account as to whether to grant an ESTA and whether to grant 

entry to the United States, and properly so. 


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We have been asked with some frequency whether travel to a 

particular location will cause difficulties entering the United 

States, and the answer to that is it might. And there have been instances in which people have foregone travel because of that concern. So I would expect that there would be instances in which people decline the type of travel that we’ve been discussing if VWP 

privileges were at risk. 

Mr. MULVANEY. Thank you, Mr. Heifetz. Thank you to the whole 

panel —— 

Mr. DESANTIS. The gentleman’s time is expired. 

Mr. MULVANEY.—and thank you, Mr. Chairman. 

Mr. DESANTIS. We are going to wrap up. We have votes. So I am 

just going to recognize the chairman of the Government Operations 

Subcommittee, Mr. Meadows, for a minute. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

Mr. Kerlikowske, on the report that has been done for the visa 

overstays—and we are not talking about visa waiver; we are talking about all visa overstays—are we expecting another report? Because, as you and I agree, that is not complete. So we are expecting 

a final report from DHS? 

Mr. KERLIKOWSKE. We are expecting a subsequent report in 

which we would have greater detail and more information. Whether or not that is for this coming year, I—because the visa waiver 

—— Mr. MEADOWS. Because we have had other testimony that would 

suggest that we would get that within 6 months. I guess what I 

am saying is, is the report we got is not viewed by DHS as agreeing to the sworn testimony we have already had before this committee, is that correct? 

Mr. KERLIKOWSKE. You know, I don’t know, but I’d be happy to 

—— 

Mr. MEADOWS. Okay. 

Mr. KERLIKOWSKE.—get back to you with an answer. 

Mr. MEADOWS. In the 13 seconds —— 

Mr. KERLIKOWSKE. Yes. 

Mr. MEADOWS.—I have remaining, let me tell you my concern. 

We continue to get stonewalled with regards to the visa overstayed 

numbers. I know that there was a report done in 2013 that has 

failed to be released. It is time. It is time you get it back to this 

committee, and we are going to continue to bring you back until we 

get a report, okay? 

Mr. KERLIKOWSKE. Okay. 

Mr. MEADOWS. I will yield back. 

Mr. CONNOLLY. Mr. Chairman? 

Mr. DESANTIS. The gentleman yields back. 

I want to thank the —— 

Mr. CONNOLLY. Mr. Chairman? 

Mr. DESANTIS.—witness—yes? 

Mr. CONNOLLY. Would you just yield me the same amount of 

time? 

Mr. DESANTIS. One minute. 

Mr. CONNOLLY. Thank you very much. 

Just a statement for the record, it seemed to be suggested in Mr. 

Mulvaney’s questioning that the President of the United States had 


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violated the law. There is no evidence of the President of the 

United States violating the law. That is a very grave charge. It is 

one any one of us at this dais would take exception to if somebody 

threw that at us. And it is no less significant when you do it with 

the President of the United States. 

He is taking advantage of a provision provided in the law. If we 

don’t like it, we can change the law. And it is no different than a 

waiver authority that has been provided in 1 million pieces of legislation to myriad Presidents of the United States. I am old enough 

to remember Ronald Reagan using waiver authorities with impunity, and he wasn’t violating the law even though I didn’t always 

like it. 

Thank you. 

Mr. DESANTIS. Well, I think Mulvaney was talking about a hypothetical case, but I think we do on this side of the aisle—at least 

I do—you know, consider the national security waiver to be narrow, 

and in this instance, when you are expanding it to Iranian business 

travel, I think a lot of us think that that is not consistent with 

Congress’s intent. 

But I would like to thank our witnesses for taking the time to 

appear before us today. 

If there is no further business, without objection, the subcommittee will stand adjourned. 

[Whereupon, at 4:53 p.m., the subcommittees were adjourned.] 


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