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44–075 PDF 2008

S. HRG. 110–473 

WEAKNESSES IN THE VISA WAIVER PROGRAM: 

ARE THE NEEDED SAFEGUARDS IN PLACE 

TO PROTECT AMERICA? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON TERRORISM, 

TECHNOLOGY AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 28, 2008 

Serial No. J–110–77 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY AND HOMELAND SECURITY

DIANNE FEINSTEIN, California, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

JON KYL, Arizona 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

JENNIFER DUCK, Chief Counsel 

STEPHEN HIGGINS, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1 

prepared statement .......................................................................................... 94 

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 15 

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 5 

WITNESSES 

Edson, Stephen A. ‘‘Tony’’, Deputy Assistant Secretary for Visa Services, 

Department of State, Washington, D.C. ............................................................. 7 

Ford, Jess T., Director, International Affairs and Trade, Government Accountability Office, Washington, D.C. ......................................................................... 8 

Ginsburg, Susan, Director, Mobility and Security Program, Migration Policy 

Institute, Washington, D.C. ................................................................................ 10 

Rosenzweig, Paul, Acting Assistant Secretary for International Affairs, and 

Deputy Assistant Secretary for Policy, Department of Homeland Security, 

Washington, D.C. ................................................................................................. 5 

Vaughan, Jessica M., Senior Policy Analyst, Center for Immigration Studies, 

Washington, D.C. ................................................................................................. 13 

QUESTIONS AND ANSWERS 

Responses of Stephen Edson to questions submitted by Senators Hatch, 

Cornyn and Feinstein .......................................................................................... 29 

Responses of Jess T. Ford to questions submitted by Senators Hatch and 

Feinstein ............................................................................................................... 48 

Responses of Paul Rosenzweig to questions submitted by Senators Hatch, 

Cornyn, Feinstein and Brownback ..................................................................... 52 

SUBMISSIONS FOR THE RECORD 

Berkley, Hon. Shelley, a U.S. Representative in Congress from the State 

of Nevada, statement ........................................................................................... 76 

Connors, Bill, Executive Director and Chief Operating Officer, National Business Travel Association, Alexandria, Virginia, statement ................................ 78 

Dow, Roger, President and CEO of the Travel Industry Association, Washington, D.C., statement ........................................................................................ 79 

Edson, Stephen A. ‘‘Tony’’, Deputy Assistant Secretary for Visa Services, 

Department of State, Washington, D.C., statement and attachments ............ 83 

Ford, Jess T., Director, International Affairs and Trade, Government Accountability Office, Washington, D.C., statement ...................................................... 99 

Ginsburg, Susan, Director, Mobility and Security Program, Migration Policy 

Institute, Washington, D.C., statement ............................................................. 115 

Rosenzweig, Paul, Acting Assistant Secretary for International Affairs, and 

Deputy Assistant Secretary for Policy, Department of Homeland Security, 

Washington, D.C., statement .............................................................................. 124 

SITA, executive summary ....................................................................................... 131 

Vaughan, Jessica M., Senior Policy Analyst, Center for Immigration Studies, 

Washington, D.C., statement .............................................................................. 135 

(1) 

WEAKNESSES IN THE VISA WAIVER PROGRAM: ARE THE NEEDED SAFEGUARDS IN 

PLACE TO PROTECT AMERICA? 

THURSDAY, FEBRUARY 28, 2008 

U.S. SENATE, 

SUBCOMMITTEE ON TERRORISM, TECHNOLOGY

AND HOMELAND SECURITY, COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Subcommittee met, pursuant to notice, at 2:32 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Dianne Feinstein, 

Chairman of the Subcommittee, presiding. 

Present: Senators Feinstein, Kyl, and Sessions. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Chairman FEINSTEIN. I would like to call the meeting to order. 

The Ranking Member, my friend and colleague Senator Kyl, said 

sometime ago that he is going to be a little bit late. I know he is 

on his way, and his staff has said go ahead and begin. So I will 

at least get my remarks out of the way. 

I want to begin by welcoming our witnesses. I also want to indicate to you that I am not a fan of the Visa Waiver Program. I actually believe it is the soft underbelly of this country. And if I understand correctly, 27 countries, 16 million people in 2007, 15 million 

people in 2006, a total of 31 million people in 2 years come into 

the United States without a visa; and we today do not yet know 

whether they have left or not. And this presents all kinds of hazards. 

For the citizens of these 27 select countries, including Australia, 

Singapore, Slovenia, and the U.K., entering the United States is as 

simple as purchasing an airline ticket and then arriving at the airport with a valid passport in hand. No visa is required because 

they are from countries that are part of this program, the Visa 

Waiver Program. Thousands, I think tens of thousands, of these 

people overstay their authorized visit. Many just simply disappear 

into the shadows. 

It is estimated that 40 percent of the current undocumented population in this Nation are people who have overstayed their visas— 

not come across the border but come into the country legally, and 

then they do not go home when they are supposed to. So there is 

no doubt in my mind that hundreds of thousands of the illegal population came through the Visa Waiver Program over many years. 

2 

The Visa Waiver Program also provides an attractive option to 

terrorists looking to do Americans harm. At a Senate Judiciary 

Committee hearing on September 25th this past year, DNI Director 

Mike McConnell testified that al Qaeda is purposefully recruiting 

Europeans because they do not require a visa to come into this 

country. As Director McConnell said, this tactic gives al Qaeda ‘‘an 

extra edge in getting an operative or two or three into the country, 

with an ability to carry out an attack that might be reminiscent of 

9/11.’’ 

Secretary Chertoff reiterated these concerns last month when he 

stated that, ‘‘Terrorists are increasingly looking to Europe as both 

a target and a platform for terrorist attacks’’ against the United 

States. 

In an interview with BBC World News, Secretary Chertoff acknowledged, and again I quote, ‘‘The first time we encounter visa 

waiver travelers is when they arrive in the United States, and that 

creates a very small window of opportunity to check them out.’’ 

So, clearly, the Visa Waiver Program leaves open both a major 

gap in our domestic security and a way to exploit and countervene 

our immigration laws. And we know there have been thousands of 

stolen travel documents in Europe, stolen fraud-proof passports, 

stolen Geneva Convention documents, stolen international driver’s 

licenses. So one wonders what happens to those. 

Congress and the Department of Homeland Security have been 

focused on immigration enforcement. In fact, Congress appropriated $3 billion in 2008 for this purpose. The Department of 

Homeland Security is using this money to build a border fence, to 

hire thousands more Border Patrol agents, to conduct immigration 

raids at farms and factories and homes across the country. 

Now, despite the money and the resources the Department is devoting to immigration enforcement, it continues to ignore the longstanding directive to track people who overstay their visas. In 

1986, as a pre-condition to implementing the Visa Waiver Pilot 

Program, the Attorney General was required to certify that there 

was a system in place that could track arrivals and departures. 

Since then, in no less than 12 pieces of legislation, Congress has 

directed the executive branch over and over again to create a way 

to track who is coming in and leaving our country. Congress has 

appropriated millions of dollars, and deadline after deadline has 

been missed; but, still, the executive branch has failed to act. 

This Subcommittee held a hearing on the US-VISIT entry-exit 

system last January. At that point it was clear that the Department of Homeland Security was failing to meet the mandate to develop a way to track who is coming in and going out of the United 

States at all our ports of entry. 

Now, today it seems that the Department is moving full steam 

ahead to admit even more countries to the Visa Waiver Program. 

In fact, just on Tuesday, DHS signed a Memorandum of Understanding to bring yet another country, the Czech Republic, into the 

Visa Waiver Program. Once again, they are doing so without meeting the mandates that Congress has laid out for them. 

Just last week, Secretary Chertoff gave a press briefing on the 

Department of Homeland Security’s efforts to strengthen border security and immigration reform. He stated, and I quote, ‘‘Congress 

3 

didn’t give us a comprehensive immigration reform, so we are going 

to do what we can with the tools we have.’’ 

Let me be clear. Congress has given DHS tools to fix our immigration and security problems in the 9/11 legislation. That law has 

two straightforward requirements: 

First, DHS cannot admit new countries into the program until it 

has a way to track who is coming and going from our country’s airports until it can verify the departure of 97 percent of travelers 

leaving United States airports. It cannot do so today. 

Second, DHS cannot admit new countries into the program until 

it has a fully operational electronic travel authorization system, a 

system that every visa waiver traveler must use. This means that 

every visa waiver traveler must provide their biographical information to the Department of Homeland Security before they get on a 

plane to the United States. DHS cannot do that today. By all accounts, the Department of Homeland Security cannot yet meet either requirement, but it is moving, contrary to law, to admit new 

countries and even more travelers into this program by this fall. 

I believe that what we will hear today is that rather than develop a meaningful exit program, DHS is so determined to certify 

that it can verify the departure of 97 percent of airport travelers 

that it has developed a false calculation of the departure rate. I 

have also heard that although the administration is developing an 

electronic travel authorization system, it does not intend that all 

visa waiver travelers must use it initially -in clear contraindication 

of the statute. Frankly, I hope these reports are untrue. I intend 

to flesh it out. I would not like to begin to believe that the Department of Homeland Security, which has exposed the way that terrorist operatives and illegal immigrants intend to exploit the Visa 

Waiver Program is the same agency that is moving full steam 

ahead to admit at least four and as many as eight new countries 

into the program without the necessary controls in place. 

So I hope that today we can have an open discussion about the 

administration’s intentions with respect to expanding the Visa 

Waiver Program. 

I have been at this for a long time, and I have followed it for a 

long time. And I would just ask the staff to show those charts, if 

you would for a minute. 

But these charts are pretty clear. As you know, the refusal rate 

is 10 percent. These are countries above that line. Those are the 

countries that are above the 10 percent at the end, and then the 

3-percent rate, these are all the countries that are above the 3-percent rate, each one—and this is essentially the same kind of thing. 

So I was prepared to do an amendment on the floor on the bill, 

and I compromised with the Homeland Security Program with a 

view that these strictures that they put in that the two tests be 

met and changing the refusal rate to 10 percent, that the Department would abide by it. And so I am really concerned that everything I hear indicates that the Department is finding ways to get 

around it rather than carry out the mandate. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

So that is really the subject of this hearing, and I note that Senator Kyl is not yet present. Shall I just go ahead? OK. I will just 

4 

go ahead then and introduce the panel. The panel consists of Mr. 

Paul Rosenzweig, the Deputy Assistant Secretary, Office of Policy 

of DHS. Mr. Rosenzweig is the Deputy Assistant Secretary. Prior 

to joining the Department, he was a senior legal research fellow in 

the Center for Legal and Judicial Studies at the Heritage Foundation, where he focused on issues of civil liberties, national security, 

and criminal law. He is also an adjunct professor of law at George 

Mason University School of Law. 

Tony Edson is the Deputy Assistant Secretary for Visa Services, 

Department of State. He joined the Foreign Service in 1981 and is 

currently serving as Deputy Assistant Secretary of State for Visa 

Services in the State Department’s Bureau of Consular Affairs. 

Prior to that, Mr. Edson served as Managing Director of Visa Services and Senior Advisor for Strategic Planning to the Visa Services 

Directorate from 2001 to 2005. He served as Consul General at the 

United States Embassy in Jakarta from June 1998 to 2001, and he 

has also held overseas diplomatic assignments in Naha, Tokyo, 

Bangkok, and Mumbai. 

Jess Ford is Director, International Affairs and Trade, the Government Accountability Office, which we fondly call the ‘‘GAO.’’ He 

joined GAO in 1973 and has worked extensively in the national security and international affairs area concerning trade, foreign assistance, and foreign policy issues. He has managed GAO audits of 

AID, the State Department, and DOD. He has directed the completion of numerous studies on U.S. national security issues, foreign 

assistance, counternarcotics, border security, public diplomacy. He 

is very well fit by biographical information, and he has received numerous awards. 

Susan Ginsburg is Director of Programs on Mobility and Security, the Migration Policy Institute. She is the Director of this. She 

is a member of the Secure Borders and Open Doors Advisory Committee established by Secretary Rice and Secretary Chertoff. Since 

2004, Ms. Ginsburg has provided consultation for the 9/11 Public 

Discourse Project, testified before Congress, and written strategic 

policy. We welcome her. 

And the final, last but not least, Jessica Vaughan, Senior Policy 

Analyst, the Center for Immigration Studies. She is a Senior Policy 

Analyst for the center, and the center examines the impact of immigration on American society. She has been with the center since 

1992, and her area of expertise is immigration policy and operations, particularly visa programs, immigration benefits, and immigration law enforcement. She was a Foreign Service officer with the 

Department of State. 

So, with that, I would welcome the witnesses, and I would also 

note the attendance of the very distinguished Senator from Alabama, Senator Sessions. 

Senator SESSIONS. Thank you. Good to be with you. 

Chairman FEINSTEIN. Good to be with you. Shall I proceed or do 

you wish to say something? 

Senator SESSIONS. Yes, you proceed. 

Chairman FEINSTEIN. All right. I have made an opening statement. Senator— 

Senator SESSIONS. I would just say one thing. 

Chairman FEINSTEIN. You go right ahead. 

5 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. And that would be that I am supportive of the 

Visa Waiver Program in general. I think it needs to be monitored 

carefully. But my concern is the failure to have an effective U.S. 

visa exit system, a failure to have fingerprint documentation, 

which I consider to be critical to any effective biometric program 

of identification. So those are the things I will be asking about because it is one thing to have a system, but if you do not have the 

mechanics, the details to come together effectively, then it can nullify all these wonderful things we talk about. 

Chairman FEINSTEIN. Thank you, Senator. I agree with you 100 

percent. I would like to ask the witnesses if you could confine your 

remarks to 5 minutes. We would like to have your written testimony. We have some of it, but not all of it. And so if you would 

confine your remarks, this little gizmo will give you the result of 

your exposition. And then we will be able to have a conversation. 

So, please, Mr. Rosenzweig, please begin. 

STATEMENT OF PAUL ROSENZWEIG, ACTING ASSISTANT SECRETARY FOR INTERNATIONAL AFFAIRS, AND DEPUTY ASSISTANT SECRETARY FOR POLICY, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. ROSENZWEIG. I am going to assume that my staff has succeeded in getting you our written testimony, which I would ask to 

be made a part of the record. 

Chairman FEINSTEIN. Yes, it will be part of the record. 

Mr. ROSENZWEIG. Senator Feinstein, Senator Sessions, thank you 

very much for the opportunity to appear before the Committee 

today to discuss the Visa Waiver Program and examine how the 

Department of Homeland Security intends to implement the modifications made by the ‘‘Implementing Recommendations of the 9/11 

Commission Act of 2007’’. 

The Department supports a Visa Waiver Program that promotes 

legitimate travel to the United States without compromising, and 

in our judgment even strengthening, our country’s national security, law enforcement, and immigration interests. Those are a clear 

top priority of the administration. Section 711 of the Act accomplishes this objective by concurrently enhancing the Visa Waiver 

Program’s security requirements and creating flexibility that expands opportunities for new countries to join the Visa Waiver Program while imposing new security requirements on existing visa 

waiver countries. 

These twin goals of security and flexibility are complementary, in 

our judgment: the prospect of VWP membership creates tremendous incentives for improved security postures in aspirant or ‘‘road 

map’’ countries. In many respects, we will end up with an even 

stronger travel security cooperation with VWP countries than with 

non-VWP countries where visas remain required. 

Let me spend a brief moment updating you on the steps we have 

taken so far to strengthen the VWP. To ensure that current VWP 

members, ‘‘road map’’ countries, and the European Union understand the legislative changes and the enhanced security standards 

that have been enacted, we have implemented an aggressive outVerDate Aug 31 2005 13:51 Sep 02, 2008 Jkt 043987 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44075.TXT SJUD1 PsN: CMORC
6 

reach and engagement strategy. This strategy will allow the new 

standards to be brought online expeditiously. 

Since the summer of 2007 and the passage of the law, DHS has 

informally met with current and aspirant VWP countries alike to 

explain exactly what the enhanced security measures entail. This 

outreach effort has involved both high-level consultation and working-level technical conversations between DHS personnel and their 

foreign counterparts. More recently, the Department has formalized all seven of the security enhancements contained in the new 

legislation into draft memoranda of understanding. Each member 

and aspirant country must sign a memorandum of understanding 

as well as conclude appropriate implementing arrangements that 

will detail the terms of the new security measures. Those countries 

seeking to join the VWP will have to comply with the new security 

measures prior to admission. More significantly, current participants will also have to meet those new requirements, including 

some of the discretionary requirements, by October of 2009. Staggering the times for compliance in this way best enables us to ensure a smooth transition to uniform security standards for all VWP 

members. As we have stated many times, uniform security standards are essential because the terrorist threat is not confined to 

particular corners of the globe. 

To enable the expeditious adoption of these new security measures, we have led teams throughout Europe and Asia. We have 

been in the Czech Republic, Estonia, Germany, Greece, South 

Korea, and the United Kingdom. We have, as you noted, concluded 

a memorandum of understanding with the Czech Republic. We will 

soon begin formal consultations with Hungary, Slovakia, Latvia, 

and Lithuania. We expect to travel to their respective capitals in 

the next few months. We believe that these information-sharing arrangements, as detailed in the memoranda of understanding, enhance American security by allowing us to ensure that we are making determinations about who is coming to the United States not 

on a blunt country-by-country basis but, rather, on an individual 

specific based upon the best available information held both by the 

United States and by the country from which they originate. 

Now, as we have said, and as you noted in your opening remarks, Madam Chairman, the law gives the Secretary greater 

flexibility to do this only after he certifies that an air exit system 

is in place that can verify the departure of 97 percent of foreign 

nationals and implementations an Electronic Travel Authorization 

system. I am sure we will get into the details of this discussion as 

we go forward, but let me take the opportunity in my oral statement to assure you that the Department of Homeland Security intends to and will comply with the legal requirements imposed upon 

it in law prior to the admission of any new entrant country into 

the Visa Waiver Program. That is what we will do, and we intend 

to—we will not permit the Secretary to certify to a false set of data, 

I assure you of that. 

In short, we believe that Section 711 of the Act provides us with 

enhanced flexibility that will allow us to strengthen the VWP in a 

substantive way and also serve our global interests by bringing 

new members into the program. Ensuring that secure, legitimate, 

7 

visa-free travel to the United States is available to our allies is a 

goal, I submit, we can all and should all agree upon. 

Madam Chairman, members of the Committee, I want to thank 

you for the opportunity to present my testimony today. I would be 

pleased to respond to any questions you might have. 

[The prepared statement of Mr. Rosenzweig appears as a submission for the record.] 

Chairman FEINSTEIN. Thank you very much, Mr. Rosenzweig. 

Mr. Edson, please proceed. 

STATEMENT OF STEPHEN A. ‘‘TONY’’ EDSON, DEPUTY ASSISTANT SECRETARY FOR VISA SERVICES, DEPARTMENT OF 

STATE, WASHINGTON, D.C. 

Mr. EDSON. Thank you, Chairman Feinstein, Senator Sessions. I 

am delighted likewise to be here this afternoon and appreciate this 

opportunity to discuss the role the Department of State plays in 

the Visa Waiver Program under these new legislative requirements 

of Section 711 of the Implementing the 9/11 Commission Recommendations Act of 2007, as well as some of the implications of 

the potential expansion of the VWP on our international relations. 

In November of 2006, in Tallinn, Estonia, President Bush announced his initiative to revamp and strengthen the VWP. With 

the passage of the 9/11 Act last summer, we welcomed the legislative concurrence on modernization of the program, particularly the 

additional security measures. The new law not only strengthens 

the security framework of the program but also creates a path for 

expansion of the program to include some of our closest allies. 

Those enhancements help secure U.S. borders and will promote a 

safer international travel environment. The State Department is 

convinced that dialog with countries hoping to join the program 

will speed their enactment of travel security requirements and will 

strengthen our ties with those partners. 

As I have testified previously, together with our colleagues at the 

Department of Homeland Security, we strive constantly both to 

protect America’s borders and preserve America’s welcome to legitimate international visitors. Section 711 of the 9/11 Act, ‘‘Modernization of the Visa Waiver Program,’’ supports these efforts by 

making clear that the security provisions of the VWP must be enhanced before VWP participation can be extended to any additional 

countries. Armed with this legislative mandate, we are seeking 

ways to deepen security partnerships with aspirant as well as current VWP members in order to facilitate secure, legitimate international travel. 

With the advancement of both new security technologies and new 

security risks, we can and must ensure that for VWP participants 

and aspirant countries, we are able to assess the risks posed by individuals, and not countries, as threats. The changes in the VWP 

in the 9/11 Act give us the tools to do that. 

By statute, DHS has the lead for the VWP program and works 

in close coordination with the Department of State to evaluate compliance with each of these requirements during DHS’ statutorily 

mandated country reviews for both initial and continuing participation. Historically, the Department of State has had responsibility 

for formally nominating a country for consideration for memberVerDate Aug 31 2005 13:51 Sep 02, 2008 Jkt 043987 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44075.TXT SJUD1 PsN: CMORC
8 

ship. We also provide input on the evaluations of a VWP aspirant 

country’s law enforcement, immigration, and security cooperation. 

We are the primary conduit for guidance to our posts abroad on 

VWP issues, and we consult with aspirant governments on a regular basis. In fact, we have been in frequent consultations throughout the fall with what are described as the ‘‘road map’’ countries 

to give them guidance on meeting these new statutory requirements. 

The revised VWP legislation also gives the Department the 

means to increase security-related information sharing with our 

closest allies. The U.S. Government is negotiating memoranda of 

understanding with all VWP governments, both existing and prospective, as was discussed before. As part of the State Department’s responsibility for Homeland Security Presidential Directive 

6 agreements on the integration and use of terrorist screening information, we have provided significant comments on the template 

memorandum that we and DHS are using, and we are part of the 

negotiating teams with our DHS colleagues. We currently have 

eight signed HSPD–6 arrangements on terrorist information sharing and are in negotiation to complete arrangements in more than 

a dozen other countries. The success in getting these agreements 

and the increased level of cooperation we believe is a direct result 

of the dialog on VWP. 

In closing, the Department appreciates the congressional passage 

of the VWP provisions in the 9/11 Act. We see the new requirements as a positive means to strengthen the security of visa-free 

travel, permit some of our close friends and allies to join the Visa 

Waiver Program, and thereby enhance our cooperation and ties 

with those countries over the long term. We look forward to working with our partner agencies and this Committee toward that 

goal. And, of course, I am happy to answer any questions. 

[The prepared statement of Mr. Edson appears as a submission 

for the record.] 

Chairman FEINSTEIN. Thank you very much, Mr. Edson. 

Mr. Ford? 

STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL 

AFFAIRS AND TRADE, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C. 

Mr. FORD. Chairman Feinstein, Senator Sessions, I am pleased 

to be here to discuss an important aspect of the Visa Waiver Program, which enables citizens of 27 participating countries to travel 

to the United States for tourism or business for 90 days or less 

without first obtaining a visa. At your request, we are currently reviewing DHS’ implementation of the Visa Waiver Program. 

Last August, Congress passed legislation that provided DHS 

with the authority to consider expanding the program to additional 

countries with visa refusal rates between 3 and 10 percent if DHS 

first completes and certifies a number of required actions. My 

statement today will focus on one of those requirements, namely, 

that a system is in place that can verify the departure of 97 percent of foreign nationals leaving the United States through airports. 

9 

In December, DHS provided us with information on how it 

planned to certify compliance within the 97-percent requirement. 

As you can see on the posterboard—actually, it is on my left. I am 

going to get the right one here. DHS reported to us that— 

Senator SESSIONS. Can someone bring that a little further? 

Chairman FEINSTEIN. Yes, would the—I dare not ask the press 

to do something. 

[Laughter.] 

Chairman FEINSTEIN. Thank you very much. 

Senator SESSIONS. Maybe this one over here would be OK. Don’t 

move that and block their view. This one would be fine. 

Mr. FORD. Actually, that is a different one, so I am going to explain that one. 

Senator SESSIONS. Go ahead. 

Mr. FORD. OK. The poster on my left is what DHS has reported 

to us that it is going to match records which are reported by the 

airlines of visitors that are departing the country by air to the Department’s existing records based on records back through prior arrivals, changes in immigration status, or prior departures from the 

United States. In essence, this methodology will allow DHS to 

measure people who are leaving the country as to whether or not 

they can match it back through when they arrived. Using this 

methodology, DHS stated that it can attain a match rate of above 

97 percent based on data that they looked at back in August of 

2007, and that they will be able to use this to help certify compliance with the air exit system called for in the August legislation. 

In February, DHS indicated that it has not yet finalized the decision on its methodology, but the Department confirmed that all the 

methodologies currently under consideration would use the departure records as the starting point for the certification. DHS believes 

that this approach will satisfy the 97-percent requirement since it 

will allow the Department to determine that a departing passenger 

is a foreign national who left the country through a U.S. airport. 

There are several limitations with this approach. Now I want to 

turn to the poster on my right-hand side. 

The DHS methodology does not begin with arrival records to determine which foreign nationals have stayed in the United States 

beyond their authorized periods of admission. This term is called 

‘‘overstays.’’ Therefore, DHS’ plan will not inform the overall and 

country-specific overstay rates—key factors in determining illegal 

immigration and security risks in the Visa Waiver Program. We believe that an alternate method could better facilitate DHS’ assessment of security and illegal immigration risks. DHS could use foreign national arrival data as a starting point and review subsequent DHS records to determine whether these foreign nationals 

are still in the country. 

For example, if 100 foreign nationals arrive in the United States 

on an international flight, DHS could track those same 100 foreign 

nationals to determine if they have remained in the country beyond 

their authorized period of admission. This information could help 

DHS monitor illegal immigration and security risks in the Visa 

Waiver Program and its potential expansion. It would also be consistent with legislation that has tasked DHS with developing an 

overstay rate. 

10 

In addition to providing limited information on overstays, DHS 

methodology does not address weaknesses in data that the airlines 

provide to DHS on visitors who are departing the United States by 

air. DHS has acknowledged that they have data weaknesses, and 

they are currently in the process of trying to address them. 

The inability of the U.S. Government to track the status of foreign nationals who arrive in the United States, to identify those 

who overstay their authorized period of visit and may still be in the 

United States, and to use these data to compute overstay rates has 

been a longstanding weakness in the oversight of the Visa Waiver 

Program. 

Chairman FEINSTEIN. Would you repeat that sentence once 

again, please? 

Mr. FORD. OK. The inability of the U.S. Government to track the 

status of foreign nationals who arrive in the United States, to identify those that have overstayed their authorized period of visit and 

may still be in the United States, and to use these data to compute 

overstay rates has been a longstanding weakness in the oversight 

of the Visa Waiver Program. We believe that an air exit system 

that facilitates the development of an overstay rate is important to 

managing these risks; namely, such a system would help DHS to 

understand the current and potential visa waiver countries have 

higher rates of people who remain in the country illegally. DHS’ 

planned methodology for meeting the 97-percent requirement will 

not help the Department develop overstay rates or identify foreign 

visitors who remain in the country illegally. 

That is all I have to say. I would be happy to answer any of your 

questions. 

[The prepared statement of Mr. Ford appears as a submission for 

the record.] 

Chairman FEINSTEIN. Thank you very much, and I would commend your ‘‘Visa Waiver Program: Limitations with Department of 

Homeland Security’s Plan to Verify Departure of Foreign Nationals’’ to everyone to read. I thank you. I think it is very good work. 

Thank you. 

Ms. Ginsburg, please. 

STATEMENT OF SUSAN GINSBURG, DIRECTOR, MOBILITY AND 

SECURITY PROGRAM, MIGRATION POLICY INSTITUTE, 

WASHINGTON, D.C. 

Ms. GINSBURG. Chairman Feinstein, Ranking Member Kyl, Senator Sessions, thank you for the opportunity to testify today before 

this distinguished Subcommittee. I will speak briefly, and I have 

submitted my formal written statement for the record. 

Recognizing legitimate concerns that the Visa Waiver Program 

could pose security risks to the United States, it is important to examine the ways in which the program’s is being modified to limit 

potential exposure while also maintaining its considerable benefits. 

As you said, Chairman Feinstein, terrorism experts are currently 

focused on Europe as a primary concern from where there is visa 

waiver access to the United States. Given this assessment, there is 

continuing reason to take seriously the risk that terrorists may exploit the Visa Waiver Program. Also, since Europe itself is a target, 

11 

European governments and the European Union have a significant 

stake in cooperative mobility/security measures. 

In my view, the steps Congress authorized last year to modernize 

the Visa Waiver Program do have the potential to enable it to 

achieve greater security. But to build an effective system, there are 

several points I consider critical to be addressed. These are, in 

order: first, information sharing about individuals and travel documents; second, a working electronic travel authorization; and, 

third, a functioning exit system. 

These protective measures, with others, can work together to 

raise the level of confidence in the visa-free travel system. However, they must be developed with care, and they must actually be 

implemented. 

The United States must take reasonable risks because absolute 

protection against all risks is impossible. But it cannot rely on 

methods of protecting travel and homeland security that are invoked in principle but do not actually function. Congress is requiring the Homeland Security Secretary to certify that the partner 

country cooperates with the United States on information sharing. 

The reciprocal agreements under which countries provide information allowing for the detection of known or suspect terrorists should 

be paramount for this certification. According to the State Department’s testimony, the United States has signed information agreements under HSPD–6 with eight countries and is in the process of 

negotiating another dozen or so. These agreements should be 

signed with all countries in the Visa Waiver Program—should 

cover all countries in the Visa Waiver Program and any future 

partners, prioritized by risk of terrorism. Actual participation in 

the Visa Waiver Program should be recommenced or begin for the 

first time only when an implementation agreement is signed, not 

on the basis of a preliminary agreement. 

Information on lost and stolen passports is also critical, and the 

United States must be able to confer in real time with passportissuing authorities. This allows U.S. officials to verify their findings 

and helps prevent legitimate travelers from being unnecessarily delayed. 

Regarding the Electronic Travel Authorization, the system does 

have the potential to be a rapid check that protects against security threats while preserving the convenience of travel. But the system has to be well designed. Depending on how the ETA check is 

done, it could generate many rejections or fewer rejections. If it 

generates too many rejections, the consular sections, which would 

then have to process at least some additional visa applications, 

would be overwhelmed. If it generates too few, travelers who 

should not be permitted to travel could travel anyway. The result: 

Inspectors and infrastructure at the ports of entry would be overwhelmed, with deleterious effects on the orderly and efficient flow 

of people and a higher likelihood that time pressure would lead to 

erroneous decisions. Either scenario would be troublesome. 

Also, if the ETA system sends a notably large percentage of travelers with Arabic names to apply for visas, the resulting ill will 

might well overcome the critical operational advantages that pretravel screening clearly provides. Travelers who are rejected because of an initial name recognition problem and are later granted 

12 

visas should be assured that the next time they seek to travel, they 

are not forced to reapply for a visa unless new concerns arise. 

In the long-term effort to reduce the lure of terrorism, it is important to ensure that Muslims and Arabs are not discriminated 

against in the travel and immigration system and that protective 

measures are perceived to be fair and reasonable for all. This is the 

only way to build trust and diminish the draw of terrorism. 

Regarding the exit system, Congress has pushed for it for over 

20 years, and the time has come to take this mission seriously for 

immigration compliance, crime control, and counterterrorism purposes, to enable enhanced trusted traveler programs, and ultimately to increase opportunities for individuals to travel without 

visas. 

Congress has mandated that the exit system be biographic in the 

first phase and 97 percent effective in establishing who exits. The 

97-percent formula only makes sense as a compliance verification 

mechanism if the effect is to match arrivals to departures for 97 

percent of entering travelers. 

By 2009, Congress has mandated that the exit system be biometric. This would allow for a higher rate of accuracy and, therefore, 

make it easier to manage a trusted traveler program, for example. 

An effective of exit system would also be directly useful to 

counterterrorism officials as a tool in tracking suspects and terrorist networks. However, it must also be recognized that once exit 

violations are clear, enforcement needs concerning visa overstays 

will be clear as well. A working exit system alone will not fully address the visa overstay problem, which accounts for up to 40 percent of all illegal immigration. Therefore, it is appropriate to begin 

considering the design of the compliance and enforcement system, 

including the availability of real-time enforcement response capability at ports of entry. Fixing the visa overstay problem will also 

require the United States to redesign the visa laws so as to reduce 

the incentives to overstay. 

If anything has been learned in the past year of immigration debate, it is that security confidence and confidence in enforcement 

systems are essential to forward movement. An effective exit system can contribute to achieving broader reforms in immigration 

policy. 

As Congress oversees the Visa Waiver Program, it is important 

to remember that continued expansion of opportunities for lawabiding citizens to travel and do business efficiently is an important way by which the United States demonstrates the appeal of 

an open, democratic society that is based on the recognition of individual rights and in contrast to the destructive visions perpetrated 

by terrorists. 

Chairman FEINSTEIN. Ms. Ginsburg, you are 2 minutes over. 

Ms. GINSBURG. Thank you for the opportunity. 

[The prepared statement of Ms. Ginsburg appears as a submission for the record.] 

Chairman FEINSTEIN. Thank you very much. 

Ms. Vaughan? 

13 

STATEMENT OF JESSICA M. VAUGHAN, SENIOR POLICY ANALYST, CENTER FOR IMMIGRATION STUDIES, WASHINGTON, 

D.C. 

Ms. VAUGHAN. Good afternoon, and thanks for the chance to be 

here today. My remarks this afternoon are a summary of my written statement that was submitted in advance. 

The weaknesses in the Visa Waiver Program are very important 

to consider as the Department of Homeland Security moves to expand the program rapidly. We all know that the program benefits 

certain interests—the travel industry, the State Department in its 

workload reduction, and, of course, travelers themselves. We know 

the risks as well. Americans will be more vulnerable to terrorist attack, more exposed to organized criminal enterprises, and will experience even more illegal immigration, all of which comes at enormous fiscal and social costs to the Nation. The challenge is to find 

a way to reap the benefits and manage the risks. 

But DHS is moving forward to add too many countries too quickly before it can show that it can even gauge the risks, much less 

manage them, and before we have a robust interior enforcement 

system in place to minimize the cost of the inevitable increases in 

crime and illegal immigration that will come from people taking 

advantage of the expansion of the program. 

One of the missing pieces is overstay reporting. We have all understood for well over a decade that visa overstayers represent a 

significant share of the illegal alien population. It is probably 4 to 

6 million illegal aliens. They present a possible national security 

risk. They commit crimes. And like other illegal immigrants, they 

are costly to taxpayers. Since the total net cost of illegal immigration runs about $10 billion a year after taxes are accounted for, the 

share of that cost that is attributable to visa overstayers is likely 

$3 to $5 billion a year. And this has to be weighed against any additional revenues that we might hope to reap from additional travelers coming from overseas. 

So with all we know about the risks and costs associated with 

overstayers, it is hard to understand why DHS has displayed so little curiosity about this population and made so little progress over 

the years in getting a handle on who is overstaying. Developing the 

capacity to count overstayers and identify nationality and, ideally, 

category of entry simply has to be prerequisite for expanding the 

Visa Waiver Program or any visa program. 

Clearly, the biographical matching system that has been discussed by DHS is not a true entry-exit system, and I commend the 

GAO for pointing this out and for all the work that it has done over 

the years in drawing attention to the overstay problem. But DHS 

does have other tools that it can use at its disposal. It has got the 

beginnings of a biometric system that gets information on arrivals, 

and DHS uses this information and shares it with other agencies 

for law enforcement purposes and other analysis. And so if the 

agency is so confident that these road map countries are ready for 

the program, why has it not shared with us information on their 

overstays from their admittedly imperfect systems that they do 

have? 

One of the other features that has been touted as a major security enhancement is the Electronic Travel Authorization. And this 

14 

process may well succeed in alerting officials to the pending arrival 

of people who might be of interest, but we should not pretend that 

this is a way for the agency to determine visitors’ actual eligibility 

to visit the United States, as DHS has claimed. Qualifying for admission to the United States is not just a matter of proving that 

you are not a terrorist and not a criminal. You have to demonstrate 

that you have got a legitimate purpose for visiting and that you are 

going to go home when your time has expired. And unless the ETA 

system that we are planning can actually read people’s minds, it 

is going to be a very limited use in minimizing the risks of expanding the program. 

The best way to gauge somebody’s eligibility for admission is still 

for consular officers and immigration inspectors to talk to them. 

The 9/11 Commission study and others done by my organization 

have shown that the exercise of professional judgment by welltrained officers has done more to thwart plots against America 

than any technological advances, even though they certainly do 

help. And the reality is that a number of the fast-track road map 

countries on the DHS list just simply are not in the same league 

as other countries that are now in the program. 

For instance, most of the countries on the expansion list have per 

capita incomes that are less than half of the United States, and 

they are half to two-thirds of the other European countries in the 

program. Lithuania, in particular, presents a number of concerns 

in terms of visa compliance organized crime, et cetera. The number 

of asylum applicants, the number of people who apply for the visa 

lottery, these are all indicators of demand and interest in permanent migration to the United States. And reports from U.S. and 

international law enforcement agencies suggest that many of the 

other countries also present significant concerns, whether it is 

crime syndicates, drug trafficking, prostitution rings, noncompliance with visa laws, et cetera. 

All of this would be less of a concern if we had the means to easily correct our visa mistakes, and, unfortunately, ICE does not have 

the resources nor the staff to remove more than a fraction of the 

illegal population. They have improved in the last year or two, but 

they really are not capable of removing more than about 250,000 

people a year, and that is just a drop in the bucket of the illegal 

population. And we still lack the compliance systems that would 

lead more illegal immigrants to return home on their own. It is still 

far too easy for an illegal alien to get a job, a driver’s license, a 

bank account, a mortgage, et cetera. 

So, in conclusion, while the expansion of the Visa Waiver Program may serve foreign policy goals and benefit travelers, the expansion comes at a price, and it is up to Congress to do what it 

can to try to reduce the security and fiscal costs of the program. 

In addition, and while there is no requirement to do this, the expansion of the program should be accompanied by an infusion of 

additional resources for ICE for interior enforcement. 

Thank you. 

[The prepared statement of Ms. Vaughan appears as a submission for the record.] 

Chairman FEINSTEIN. Thank you very much, and let me thank 

all our witnesses. 

15 

We are joined by my friend from a neighboring State, the great 

State of Arizona. We have worked on this Committee together for, 

oh, I think at least 10 years now. 

Senator Kyl. Actually, 13. 

Chairman FEINSTEIN. Thirteen years, and exchanged the Chair 

and the Ranking. And I am delighted that he has joined us today, 

and thank you, Senator Kyl, and I would like to recognize you for 

an opening statement. 

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE 

STATE OF ARIZONA 

Senator KYL. Thank you, Madam Chairman. Rather than making 

a lengthy opening statement, let me just thank you for holding this 

hearing. I note from our records that our last hearing on this subject was September of 2006, so it is time that we revisit the issue, 

especially since we have a new program that is underway and we 

have some potential ability to evaluate the system that is being 

contemplated here. 

I will put the statement that I had written in the record, but I 

was just struck—and I did read the testimony, and I apologize I 

was not here for the opening statement of all of you. But we have 

a real challenge, I think, to evaluate the tradeoffs that have been 

well stated. 

Ms. Vaughan, you stated them, and I suspect some of the others 

of you did, too. There are two big pressures for change here. There 

are a lot of countries—I was just in the Czech Republic, and there 

are a lot of countries that want to be part of our visa waiver system. It is the good—you know, that is the in thing to be, and there 

are a lot of advantages for citizens of a country to do that. 

And, second, it does—well, as a part of that, it certainly enhances travel opportunities, and there are a lot of interests in our 

country that support that. But the Secretary of Homeland Security 

also believes that it represents an opportunity to work out enhanced tracking that will assist in tracking criminals and terrorists. And I am sure that that is true. 

We also know, however, that there is a greater potential for visa 

overstayers given the countries that it is being expanded to, and 

that that in and of itself imposes costs in addition to the potential 

for a greater number of terrorists and criminals. 

So the question is, as Ms. Vaughan said: Is it worth it? And to 

me the answer is—I mean, first of all, you can never quantify what 

it is worth to catch a terrorist or two, but we can quantify the huge 

costs of visa overstayers in this country, and they are enormous. 

So to me, the only way you answer the question in the affirmative 

it is worth it is to ensure that you have a system in place to be 

able to comply with the law, to be able to track the visa overstayers, and, I would go a step further, to know who they are and 

inform Federal, State, and local law enforcement of who they are. 

In other words, a simple system—granted, it is totally incomplete 

because it only deals with the air exits out of the country. But 90 

days, or whatever the visa date is, after an individual is supposed 

to have departed, if we do not have a record that the individual has 

departed, that information, that person’s name goes out to everybody, all law enforcement throughout the entire country. And then 

16 

if somebody gets picked up for a traffic stop or whatever, there is 

an immediate ability to at least identify that individual. 

But until we have a system in place that at least offers the potential to identify how many and who the individuals are that overstay, it seems to me that we are moving too fast and, frankly, in 

potential violation of the law that Congress passed. 

Sorry for that statement. 

[The prepared statement of Senator Kyl appears as a submission 

for the record.] 

Chairman FEINSTEIN. Well, I thank you. I agree with you 100 

percent. I would delete the word ‘‘potential’’ violations. I think they 

are violating the law. And, you know, we are a period of time away 

from 9/11. Richard Reid, the Shoe Bomber, came in on a visa waiver. Zacarias Moussaoui came in on a visa waiver. I mean, how 

many lessons do we need to learn? And just so everybody knows, 

there are 13 road map countries; 7 of them exceed the rejection 

rate in the law. The rejection rate is 10 percent, and this means 

that when somebody goes into an American consulate to get a visa, 

10 percent of them are rejected. The reason they are rejected is 

very often because their economic circumstances are such that the 

consular officer interviewing them does not believe they are going 

to come back to the country. They are specifically Hungary, here 

10.3 percent of the people are rejected; Latvia, 11.8 percent; Slovakia, 12 percent; Lithuania, which was just mentioned, 12.9 percent; Bulgaria, 14.3 percent; Poland, 25.2 percent; and Romania, 

37.7 percent of people who go in to get a visa are rejected because 

the belief is they will not come back to the country. In Romania, 

there is an agreement with surrounding nations that allows somebody to come into the country, stay for 24 hours, and then go out 

on a visa waiver. Now, how is that for security? 

I suspect the Department is under a lot of pressure from the 

American tour industry to push these, but I will tell you, 1 day if 

it turns out there is another 9/11 and these people came in on the 

Visa Waiver Program—I do not know how to finish the sentence 

because I know how I would feel if I did not do my utmost to try 

to stop it. 

Let me ask this question of DHS, Mr. Rosenzweig: Will you be 

able to verify that 97 percent of the 16 or 17 million visa waiver 

entrants that we will have this year have left or overstayed before 

you bring in other countries? Yes or no, sir? 

Mr. ROSENZWEIG. I do not think that is the right question, 

ma’am. The question is whether or not— 

Chairman FEINSTEIN. Well, it is my question. 

Mr. ROSENZWEIG. The statutory question is whether or not we 

will be able to verify 97 percent of departures of aliens. That does 

not necessarily equate to verifying the departure of the 16 million 

entrants in a particular year. 

I can assure you that what we will be able to verify is the departure of 97 percent of foreign nationals as required by the statute, 

and that if we cannot do that, we will not so certify. 

Chairman FEINSTEIN. Well, aren’t these people that come in, they 

come in for a short stay and then they go out? 

Mr. ROSENZWEIG. Ma’am, again I would say that that is perhaps 

only a part of the story. I think that, frankly, Mr. Ford’s chart is 

17 

incomplete. If you are addressing an overstay question as opposed 

to a verification of— 

Chairman FEINSTEIN. But to overstay, you have to come in. 

Mr. ROSENZWEIG. You have to enter, yes. But it does not—but 

the key word on his chart is ‘‘potentially.’’ 

Chairman FEINSTEIN. I cannot see it. 

Mr. ROSENZWEIG. I am sorry. I can see it well. I can see it well. 

The key word is ‘‘potentially’’ overstay. But the verification of departure and the definition of overstay are different things. Between 

that entrance and that exit, there are any number of ways in which 

one could affect the overstay rate. I am almost tempted to draw on 

the chart here, but I will not. 

Chairman FEINSTEIN. Go ahead. Do it if it helps you. 

Mr. ROSENZWEIG. One can exit by land—I have got a whole list. 

One could die; change a name that prevents a matching record; be 

a dual national who used more than—who used two different passports, one on the entry and one on the exit, as is permitted by law; 

be arrested and in jail in the United States and, therefore, not 

leaving; be arrested and have been deported already; most commonly, change status. 

Chairman FEINSTEIN. Excuse me, but don’t you think the Department of Homeland Security, who has the responsibility for letting 

these people come in, also has the responsibility to know where 

they go? 

Mr. ROSENZWEIG. Well, of course we do to some degree, ma’am, 

but— 

Chairman FEINSTEIN. All right. Then why make all the excuses? 

Mr. ROSENZWEIG. I am not making any excuses, ma’am. However, Congress has not seen fit and we have not imposed land exit 

requirement on the United States. You, for example, I know, have 

the San Ysidro port of entry in your State, and if you have been 

there—and I know you have, as have I been—the amount of infrastructure development required to actually check people out at the 

land border is immense. We think it probably costs in the hundreds 

of millions of dollars at that port of entry alone. 

So I am not making excuses, but I am addressing the reality that 

we are not going to have land border exit with Canada and Mexico 

that is mandatory check-out of entrants for quite some time, and 

that if your question is has that person overstayed, the answer is 

no if they have left lawfully within the time. Flown into Los Angeles, departed through San Ysidro, that is a perfectly lawful act, and 

it is not captured in this definition. 

Chairman FEINSTEIN. If you believe that Europe is becoming a 

platform for the entry of people who would do us harm in this Nation—and I am one that believes this based on what I know—then 

our job is to protect America. And the way we protect America is 

being able to check everybody out thoroughly and have the requirements of the law in place before we admit additional people. 

Mr. ROSENZWEIG. Ma’am, the Visa Waiver Program changes that 

you have enacted will enhance security not by focusing on checking 

people out, since there are some who would say that a terrorist departing is a good thing; but, rather, by extending the security arrangements that we are developing to the existing visa waiver 

countries. 

18 

Let me give you two numbers that kind of exemplify this: 4 million and 10,000. Four million is the number of people who came on 

the Visa Waiver Program already this year from the United Kingdom. Ten thousand is the number of people who came with visas 

from Latvia last year, roughly. 

What we are getting in this new program, the huge benefit we 

are getting, is cooperative arrangements with the existing VWP 

countries as well as the new aspirant countries so that people traveling from those countries can be identified in advance of their 

travel, so that there will never be a day in which somebody departs 

from, say, Germany and is somebody that the Germans know to be 

a problem or a serious criminal threat, but that we do not know. 

We will get from the Germans additional data—or the Czechs or 

the Estonians— 

Chairman FEINSTEIN. My time is just about up. 

Mr. ROSENZWEIG. I apologize for taking— 

Chairman FEINSTEIN. Let me just frame my question a little 

quickly. It takes a yes or no answer, very simple. Will you have an 

air exit system in place by this fall? 

Mr. ROSENZWEIG. That is yet to be determined. We have not settled on a methodology for how to measure it, and so I cannot tell 

you that the Secretary will affirmatively assert that there is one. 

Clearly, if we do not have such a system in place by this fall, we 

will not admit any new entrant countries. 

Chairman FEINSTEIN. Thank you. 

Senator Kyl? 

Senator KYL. Thank you, Madam Chairman. I do want to get 

back to the point that, of course, Congress recognizes that without 

a land exit system, our system will necessarily be incomplete. We 

have tried to recognize that, as a practical matter, through seaports and airports primarily, we will at least have a handle on that 

which we can realistically monitor. 

I do not think it is an answer—well, first of all, about what percentage of the foreign nationals that are here on temporary visas 

are not from Canada and Mexico, who are here from visa waiver 

countries? It would be a substantial number. 

Mr. ROSENZWEIG. I am not sure I understand. There are roughly 

16 million entrants in the past year from the visa waiver country 

program. We do not count Canadians separately because, as you 

know, we have never had an entry program even with Canada— 

Senator KYL. Right. 

Mr. ROSENZWEIG.—much less an exit program. 

Senator KYL. So the bottom line is there are an awful lot of those 

folks who are not from Mexico and Canada. 

Chairman FEINSTEIN. Sixteen million. 

Mr. ROSENZWEIG. Sixteen million entrants from visa waiver 

countries, past year, yes. 

Senator KYL. So let’s forget about the land exit to Canada or 

Mexico. We are still talking about 16 million people here. 

Mr. ROSENZWEIG. That is correct for entrants, yes. Senator Kyl. 

OK, now, and I am also not particularly concerned about those who 

die while they are here, though there may be some. Certainly, as 

the Chairman pointed out, you would want to know those that are 

in custody in the United States and, therefore, cannot voluntarily 

19 

leave. We should be able to track them. And we ought to be able 

to find out if people have changed their name if that precludes us 

from knowing whether they have departed. We ought to try to at 

least know that. 

So it seems to me that the question remains: Are we committed 

to understanding who has left by a sea-or airport? And can we do 

that with a 97-percent degree of certainty? And if we have not yet 

figured out the methodology that we are going to use to achieve 

that legislatively required goal, should we perhaps put on hold the 

rush to add more countries in order to beat the deadline? And if 

Congress has not been clear enough in the way that it has defined 

this, maybe you could recommend how we could be more clear? 

Mr. ROSENZWEIG. There is much in that question. The way I 

would answer it is this: Congress has afforded the Secretary certain flexibility and discretion in the law that it passed. We are 

making preparations for the admission of new countries in the 

event that the United States achieves its side of the obligations, 

that is, the development of the 97-percent verification system and 

the development of an Electronic Travel Authorization system. We 

are working to achieve those, but we have also made clear to all 

of our partners in Eastern Europe and in South Korea that the negotiations that we are having with them are contingent upon the 

U.S. completing its own homework and doing at the Department 

that which the law requires. 

They all have entered into these agreements in anticipation of 

that because they, too, will have much work to do. The Memorandum of Understanding, for example, we signed with the Czech 

Republic this past Tuesday will require the exchange of information on known and suspected terrorists. Agreeing to that— 

Senator KYL. Right. Let me just interrupt and say that is a very 

positive aspect of this, and I think the Secretary is right to focus 

on that. But we also need to focus on the other part of this. Could 

you respond briefly to the comment I made in my opening statement before my time is up here about the ability to advise law enforcement throughout the country if we simply do not have knowledge that somebody has left? It does not mean that they have not 

left. It does not mean that they have not died. It does not mean 

that there is some legitimate reason why we do not have their 

name. But at least it would be an alert that we do not have an indication of departure and, therefore, it is worth checking out if we 

do have some reason to identify that individual in some other way, 

some other law enforcement way. 

Mr. ROSENZWEIG. That is clearly one of the interstitial objectives 

of this program that will become even more practicable once we 

have the biometric air exit portion of this in place. As I am sure 

you know, biographic programs have many false positive— 

Senator KYL. Sure, they do. All right— 

Mr. ROSENZWEIG. We do not want to overwhelm the police looking for— 

Senator KYL. Right. But let me just ask you, this system is going 

to be imperfect no matter what. 

Mr. ROSENZWEIG. Yes, sir. 

Senator KYL. And so the question is: To make an imperfect system at least as good as you can, what is wrong with purely bioVerDate Aug 31 2005 13:51 Sep 02, 2008 Jkt 043987 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44075.TXT SJUD1 PsN: CMORC
20 

graphical information, the name and the other information you 

have, being given to Federal, State, and local law enforcement because we do not know that that individual has departed within the 

90 days? It does not mean they have not, but that we do not have 

any record of it. What is wrong with that? 

Mr. ROSENZWEIG. I do not know in theory that anything is wrong 

with that. As we improve the biographical match so that there are 

fewer names—I mean, as you know, we stopped—we did not do 

this for years because our biographical match was at 70 percent, 

60 percent. We were just going to overwhelm the system. As we get 

to a point where we are verifying, say, 97 percent departure, I believe the numbers would probably be manageable. 

Senator KYL. I appreciate it. 

Chairman FEINSTEIN. Thank you, Senator. 

Senator Sessions? 

Senator SESSIONS. Thank you, Madam Chairman, for your leadership, and I have enjoyed offering with you legislation that would 

really enhance penalties and take some real firm steps toward 

dealing with those who systematically and in large numbers commit fraud in immigration by documents and that kind of thing. 

Mr. Rosenzweig, I guess I am just somewhat dispirited by your 

comments and those of Mr. Edson in the sense that you speak for 

the U.S. Government, and I sense that you do not understand what 

the Congress expects and the American people expect. And I sense 

you have absolutely no intention of fulfilling those requirements. 

In my view, I have to say that this Secretary of State and this 

Secretary of Homeland Security, Mr. Chertoff, and the President 

are not committed to this. If they were committed to having this 

system working, they would have come to us, and they would have 

asked for the money, and they would have asked for the legislation 

to be able to successfully complete a visa exit system for our country. 

Now, do any of you know how many million transactions take 

place daily when people use credit cards to get money? I do not 

know, but it is millions. Is it too much to ask that somebody whom 

we have allowed to enter this country, a non-citizen, take 2 minutes to put their fingers on a machine before they exit the country 

and to file a document so that that can be recorded as having 

exited the country? Is this going to cost us hundreds of millions of 

dollars? I do not think so. And if it does, we are prepared to pay 

that. We are prepared to pay a good bit more than that. 

Let me ask you, Mr. Rosenzweig, about this statute that was 

passed some years ago that required at airports and seaports, not 

later than December 31, 2003, the Attorney General, which now I 

understand is Homeland Security, shall implement an integrated 

entry and exit system at airports; and then not later than December 31, 2004, they shall implement an entry and exit data system 

at 50 land border ports, the large land border ports; and, finally, 

by December 31, 2005-–2 years ago—the Attorney General shall 

fully implement the integrated entry data system throughout the 

land border system. 

Is this law not in effect? Has it been abrogated and— 

Mr. ROSENZWEIG. Excuse me, Senator. Pardon me for coughing. 

As far as I know, the law is still in effect, sir. 

21 

Senator SESSIONS. What do you say about a citizen that said that 

Congress passed a law that said the Government is supposed to 

have this completed 2 years ago, why hasn’t it been completed? 

Mr. ROSENZWEIG. I would answer a citizen by saying that though 

those goals are statutorily mandated, the costs of them have not 

been appropriated for in many instances, and in some instances, 

we have received contrary indications in subsequent laws, particularly with respect to land border entry and exit, most particularly 

on the Northern border— 

Senator SESSIONS. Well, let me ask this—OK. You say you could 

perhaps use some more money. Have you come to the Congress and 

indicated a desire to have more money so that you can complete 

the program that you were asked to complete? 

Mr. ROSENZWEIG. In each of the President’s budgets over the last 

several years, we have requested money for various aspects of 

these programs. In many instances, they have been cut, moved, 

changed, as you know, through the appropriations process. 

Senator SESSIONS. No, I do not know. Are you testifying here 

under oath that the President’s budget, if followed, would have provided you the money to complete the exit system? 

Mr. ROSENZWEIG. The good news is I was not sworn before I 

came here, but the answer to your question would be that I could 

not— 

Chairman FEINSTEIN. I have the oath right here. 

[Laughter.] 

Mr. ROSENZWEIG. The good news, the honest answer is I could 

not tell you precisely which pieces of this were part of the President’s— 

Senator SESSIONS. I do not think so. I will just tell you. Nobody 

that I have heard, the President of the United States or Homeland 

Security, has come here and said, look, you gave me this requirement, I need these additional funds and technologies to get there. 

And my time is up, but I would just—it is really dispiriting, I have 

to tell you, to have this talk and go now 2 years past this deadline 

and not be close to getting there, when to me it is an absolutely 

simple, essential part of a lawful system of immigration. 

Chairman FEINSTEIN. Mr. Rosenzweig, I think we are going to do 

another round. 

Mr. ROSENZWEIG. Sure. I am ready. 

Chairman FEINSTEIN. And I want to get you on the record. I am 

not going to make you raise your right hand, but you can think it. 

Mr. ROSENZWEIG. I am responding truthfully, notwithstanding 

the absence of the oath, ma’am. 

Chairman FEINSTEIN. Let me ask this question: This fall—and 

you alluded to this, but I want to finish the sentence. Before DHS 

admits new countries into the program, will you have an air exit 

system in place that can track overstays? 

Mr. ROSENZWEIG. If by tracking overstays you mean a system of 

the form that Mr. Ford has pointed to over here, the answer is I 

do not know yet. 

Chairman FEINSTEIN. You do not know that? 

Mr. ROSENZWEIG. I do not know what methodology we will choose 

for verifying departure under the 97-percent air departure requirements. That has not been determined yet. The methodology Mr. 

22 

Ford has alluded to on this on this side is one of the methodologies 

under consideration. The one on the other side is another, and 

there are at least three or four more that I could rattle off at this 

point. 

Chairman FEINSTEIN. So then my conclusion would be that the 

answer is no. Now, let me ask another question. Under pre-existing 

law, if more than 2 percent of a current Visa Waiver Program 

country’s nationals overstay or otherwise violate this 90-day visa, 

the country cannot continue to participate in the program. Is DHS 

or any other agency now tracking whether nationals of current visa 

waiver countries are overstaying their 90-day authorized stays? 

Mr. ROSENZWEIG. Prior to the development of the systems that 

we are talking about in the context of this legislation, the data was 

of, as Mr. Ford said, inadequate quality to allow us to use that as 

an effective measure. We are— 

Chairman FEINSTEIN. So I would say the answer is no. Am I 

wrong? 

Mr. ROSENZWEIG. That would be your characterization. I would 

say that we have not been able to have adequate data to use that 

aspect. In fact— 

Chairman FEINSTEIN. So there is no real enforcement— 

Mr. ROSENZWEIG. On the contrary. 

Chairman FEINSTEIN.—in the program against a country—if 

more than 2 percent of a current visa waiver country’s nationals 

violate their visas, the law says the country cannot continue to participate. And what I hear you saying is we have no way to know. 

So I would view the answer as no. Is that incorrect? 

Mr. ROSENZWEIG. That is not incorrect, ma’am, but that is a 

characterization. I have no sense at all under the current state of 

the data whether or not a country is violating or is not violating. 

Chairman FEINSTEIN. But this is the whole police power of the 

law, that if a country’s nationals are not complying with it, the 

country is dropped out of the program. So there has to be a measurement—and I am going to ask the GAO then go in and take a 

look at it. I do not know, Mr. Ford, whether you did take a look 

at this, but that is the law. If 2 percent of a country’s nationals either violate the visa or overstay the visa, the country is removed 

from the program. Did you happen to look at that? 

Mr. FORD. No, but we can look at it in the context of our current 

job. As far as I know, DHS does collect some information related 

to overstays, but based on what we have seen, there are so many 

holes in the data that it is not very reliable, cannot be relied on. 

But I do not know whether they are making any effort, you know, 

to enforce this provision of the law. That I do not know. 

Mr. ROSENZWEIG. Actually, if I may followup, one of the things 

that we think is of great value in the Visa Waiver Program legislation is that Congress has, A, provided us with a definition of 

overstays now, so there is now a statutory definition; and, B, provided us with the incentive, the 97-percent requirement to enhance 

the data quality collections from the airlines that will enable us to 

actually set a maximum visa overstay rate and allow us to also 

have the data to actually be able to enforce this portion of the law. 

23 

Chairman FEINSTEIN. So I take it that no country has ever been 

disqualified from the program that is in the program on the basis 

that their nationals did not comply? 

Mr. ROSENZWEIG. That is not correct, ma’am. There have been 

two countries that were removed from the program in the early 

1990’s, and it was because—and at least in part we had sufficient 

evidence that was not statistical evidence, but sufficient anecdotal 

evidence to view a heightened increase in the overstay rate from 

those two countries. 

Chairman FEINSTEIN. What were the two countries? 

Mr. ROSENZWEIG. Argentina and Uruguay, and that was as part 

of the financial crisis down in the Southern Cone back in the early 

1990’s. 

Chairman FEINSTEIN. My time is just about up, and I want the 

Ranking Member to have some time. 

Senator KYL. I would like to change gears here and ask somebody else a question. 

Mr. Ford, in the conclusion in your report—and I thank you for 

that report, by the way—you say, ‘‘An air exit system that facilitates the development of overstay rate data is important to managing potential risk in expanding the Visa Waiver Program. DHS’ 

planned methodology for meeting the 97-percent provision so it can 

move forward with the program expansion will not demonstrate improvements in the air exit system or help the Department identify 

overstays or develop overstay rates.’’ 

Could you explain exactly what you mean by that and what the 

implications of that conclusion are? 

Mr. FORD. Yes. Again, the reason we said that was because in 

our discussions with DHS, they have not indicated that they were 

going to use arrivals as a baseline for establishing overstay rates. 

They are just going to measure departures. So if 100 people come 

into the country, they are not going to be able to tell you whether 

97 of those people overstayed or left appropriately because they are 

not starting from arrivals. They are measuring from departure. 

They are going to look at departure manifests from the airlines. 

Our point is that that methodology does not allow you to determine an effective overstay rate, which means you cannot have an 

effective exit system, and that is the point of our testimony. 

Chairman FEINSTEIN. If you would permit me, if I understand 

what you are saying, the 97 percent is not 97 percent of those who 

come into the country. 

Mr. FORD. That is correct. 

Chairman FEINSTEIN. It is 97 percent of those who leave. 

Mr. FORD. That is correct. 

Chairman FEINSTEIN. So it could be 50 percent. That is amazing. 

Senator KYL. I am not sure why examining those who leave you 

cannot 100 percent of departure. If you are looking at a departure 

list, you ought to be 100 percent right. Are we missing something 

on this, Mr. Rosenzweig? 

Mr. ROSENZWEIG. I do not think you are missing something. I 

guess my point would be that you said departures in the statute. 

Senator KYL. OK. All right. Let me ask you this question very 

specifically? 

Mr. ROSENZWEIG. I am sorry. 

24 

Senator KYL. Do you believe that the Secretary of Homeland Security believes that he can comply with the statute without looking 

at any data to derive a percent of people who came here but, rather, that it is only required that we meet 97 percent of the departures, as Mr. Ford just identified? 

Mr. ROSENZWEIG. The Secretary of Homeland Security has not 

chosen a methodology— 

Senator KYL. I understand that. My question was: Are you telling us that it is your understanding that the Secretary of Homeland Security believes that it is a compliance with the statute to 

simply measure 97 percent of departures rather than deriving 97 

percent of people who came here departing? 

Mr. ROSENZWEIG. I am sorry if this will disappoint you, but the 

Secretary has not formed a view on that inasmuch as he is continuing to examine all of the methodologies that might be used to 

meet the statutory requirements. Some of those would be consistent with what I take to be your interest. Some of those would 

be more consistent with— 

Senator KYL. And when is that methodology going to be decided 

upon? 

Mr. ROSENZWEIG. No doubt before he certifies the— 

Senator KYL. Give me a rough timeframe here. 

Mr. ROSENZWEIG. Well, we are hoping to be able to achieve a 97- 

percent air exit departure prior to the fall when we hope to be in 

a position to admit aspirant countries. That would be our target, 

but by all means, if we do not achieve that, we will not do it. 

Chairman FEINSTEIN. But they are only going to submit to the 

Secretary 97 percent of departures, not measuring people— 

Senator KYL. I guess that is the question. Is it your belief that 

that is what will be done here? Or can you tell us that you think 

actually it will be a different methodology? 

Mr. ROSENZWEIG. Having participated in the internal discussions, I can assure you that no methodology has been chosen as yet 

and that— 

Senator KYL. Would you assure us of this—and I will back it up. 

Mr. ROSENZWEIG. OK. 

Senator KYL. That the Secretary will be informed as soon as you 

are able to inform him after leaving here that at least—and I think 

I can speak for Senator Sessions as well—the three of us agree 

with the GAO report that it would not be an appropriate way to 

achieve the compliance with the statute to simply derive the 97 

percent based upon departures? Would you convey that to the Secretary? 

Mr. ROSENZWEIG. I will absolutely convey that to him, sir. 

Senator KYL. We would appreciate that. 

Mr. ROSENZWEIG. I suspect he knew it already. 

Chairman FEINSTEIN. And I think we should convey it in writing 

as well. We will. 

Senator KYL. By the way, thank you all, and I am sorry we did 

not give each of you an opportunity to get on the hot seat like we 

did Mr. Rosenzweig. But we appreciate— 

Chairman FEINSTEIN. They might enjoy missing it. 

[Laughter.] 

Senator KYL. Yes, right. 

25 

Mr. ROSENZWEIG. Oh, this is fun. 

Senator KYL. If it were not for the honor of it. Well, this is serious business. 

Mr. ROSENZWEIG. It is, sir. 

Senator KYL. And I hope you appreciate the seriousness with 

which we have approached this. And I do not like to be critical of 

my administration, but it is hard not to be when we get the kind 

of testimony that we did today. 

Mr. ROSENZWEIG. May I respond to that just for a minute? Because I do not want to leave the impression that we are being at 

all cavalier. But I have to say that there are weaknesses as much 

in the methodology that Mr. Ford suggests of starting with arrivals, some of which I alluded to earlier, as well as the methodology 

over here, which I would say is actually false or incorrectly titled 

as planning to use departure data as a starting point. What we are 

actually planning to use is starting with arrivals, but in the absence of actual matches to all arrivals, include as well changes of 

status, which are perfectly permissible ways of not departing, and 

prior departures that might account for somebody having left, entered, and re-left again just by land. 

Senator KYL. I appreciate it. Just— 

Mr. ROSENZWEIG. It is not irrational. 

Senator KYL. We are not looking for perfection here. We are looking for the best we can. We understand the land-based system is 

not workable right now, but let’s don’t let perfection be the enemy 

of the good here. That is what we are saying. 

Chairman FEINSTEIN. But just for one moment, to interpret a 

statute that in measuring the percent you only take the people that 

actually want to leave and you do not consider that the people that 

have come in so that you have a valid percent to me is manipulation any way you put it, because it is a percent of the whole, and 

the whole are the people that have come in under the Visa Waiver 

Program. It is not the people that depart. It is a phony statistic if 

it is just the people that depart. 

Mr. ROSENZWEIG. If I may, and with respect, since the statute 

told us to set a maximum overstay rate in one portion of the law, 

there is at least some inconsistency between telling us to set an 

overstay rate in the future and telling us that in another portion 

of the law you have said verify departure but you meant overstay 

rate. You lose different—I mean, I am not the lawyer, I am not the 

OGC lawyer who will interpret this statute and recommend it to 

the Secretary. But we must at least agree it is ambiguous. 

Chairman FEINSTEIN. Well, we will talk with the Homeland Security Committee, and if there is a problem with the statute, we 

will submit an amendment and try to quickly remedy it. But I cannot believe that anybody in the Congress wants a false measurement. They want a measurement of a population that is using the 

Visa Waiver Program. That is the point of it. 

Senator Sessions, would you— 

Senator SESSIONS. Yes. Well, I think there is a classical rule of 

statutory construction that you do not give a statute a construction 

that would create a ridiculous result. I mean, it is not conceivable 

that the Congress could have thought of this, I do not think. The 

words clearly are read one way; then they have to be read that 

26 

way. But it certainly was not Congress’s intent. We were acting on 

behalf of the people of the United States of America, and the people 

of the United States of America supported and elected Congressmen and Presidents who promised to follow the law. And the law 

and the statute that goes back to the one I read you, which is Title 

8, Section 1365, USCA, requires the exit system to be complete at 

the land borders by 2005. 

And so if someone would like to do a research project on why 

people think this country is on the wrong track and why there is 

an erosion of confidence in politicians, I think they are underestimating the American people’s concern about the question of immigration, because we have had leader after leader after leader 

promise and pass statutes and say they are going to do wonderful 

things, including saying we are going to build a fence at the border, 

and only a few miles of it has been built. We say we are going to 

do things, and we have no intention of following up with them. 

I just have to tell you it is a very, very troubling thing to me, 

and it is not silly. It is very important. And I hope that the next 

President of the United States will be asked specifically where they 

stand on it and are they committed. Are they committed to undermining what Congress does? Or are they committed to seeing that 

it is enforced? 

Senator Feinstein, your explanation of this 97-percent rule was 

worse than I imagined when I came here. But let me ask you, Ms. 

Vaughan, you are a critic of the system. What about the situation—how could you ever certify that people have left if they could 

all leave by land exits and never be recorded? Doesn’t that in itself 

invalidate the integrity of any numbers we would get? 

Ms. VAUGHAN. That is definitely one of the weaknesses in relying 

simply on air exits. The goal, as I understand it, is to ultimately 

have an exit system in place at the land borders as well to kind 

of close the circle. 

Chairman FEINSTEIN. That is correct. Take the first thing first. 

Senator SESSIONS. Back in—I am not sure when this was passed. 

I think it was in the 1990s. We said by 2005. It was a 10-year 

warning or opportunity for Congress to get there—for the administrations to get there, and I do not think any administration has 

been serious. 

Ms. VAUGHAN. No, and I think it is important to add that there 

is some matching and analysis of the data that we do have. We all 

know it is not perfect, but we could learn something from the exits 

that we are already collecting through the biographic manifests. 

And what I find a little bit confusing is that DHS seems ready to 

certify that it is counting an adequate number of departures, and 

yet is not willing to tell us anything about the people who stayed. 

There is no attempt to analyze any information about the overstayer, so it is just kind of like, OK, you know, we are certifying, 

but we still do not have an overstay rate. 

So, I mean, we have to—that is the point. 

Senator SESSIONS. Well, I think that is a good point. Mr. 

Rosenzweig, what about that? Is the only interest the administration has in the millions that are overstaying illegally, is the only 

interest they have in that what is mandated by Congress? Or does 

this administration understand that it has a responsibility to enVerDate Aug 31 2005 13:51 Sep 02, 2008 Jkt 043987 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44075.TXT SJUD1 PsN: CMORC
27 

sure the safety of America and the integrity of this system? And 

isn’t the way it is created today guaranteed not to be effective? The 

fundamental system, people come here by permission, who commit 

to leave at a certain date, and we have no way to ascertain whether or not they have left. 

Mr. ROSENZWEIG. The law that you passed will move us in that 

direction. It requires the setting of an overstay rate based upon the 

biographic air exit information. It requires us to get to a 97-percent 

air exit verification. We will take that data— 

Senator SESSIONS. Air exit. But you have explained to us why 

that is not an accurate number. 

Mr. ROSENZWEIG. Well— 

Senator SESSIONS. Couldn’t we just say if you come by air you 

have to exit by air, or if you do not exit by air, you have to file 

a certain document with a biometric fingerprint as part of that so 

we can verify? If you wanted to have this system work, couldn’t 

that be a way to do it? And have you ever asked Congress to give 

you the money and the resources to do it? 

Mr. ROSENZWEIG. Actually, Senator, during the conversations 

about this very provision, we did suggest the possibility of requiring those who enter by air to leave by air as a matter of law. That 

was not part of the final legislation, and I do not know why because I was not privy to your internal negotiations. That would be 

one possible solution. I can imagine a number of arguments against 

it including our desire to allow people to come into New York and 

then travel to Toronto, or vice versa. 

Senator SESSIONS. You know, sometimes I would like to see some 

leadership out of the administration. I would like to have them who 

are—you who are running these programs tell us what you need 

to make it lawful. Don’t you understand that is what we want? 

Isn’t that—how much more basic can it be? The American people 

and this Congress desire a lawful system of immigration. There are 

some who do not. And so I guess the question is, it is pretty clear 

which side you are on. You have not come forward to ask us for 

the things necessary to close these loops—some of them are not difficult to close—and create a lawful system. It is just very discouraging to me. 

Thank you, Madam Chairman. 

Chairman FEINSTEIN. Thank you very much. 

Unless somebody has something they want to say, I think we 

have heard enough to know that the program really is still in 

shambles, regretfully, and I do not think that any one of us can say 

that the Visa Waiver Program provides any sense of stability in 

controlling illegal immigration. 

We have agreed to—we will send Mr. Ford a letter, GAO, and 

ask you to look into that overstay rate situation, and we will prepare a letter for the Ranking Member, for Senator Sessions, and 

myself to clarify what the intent was behind the 97 percent. And 

I think in writing we will prepare a number of other questions so 

that we have the Department on record. 

I really think this is a very serious thing, and I understand the 

pressures that the economics bring on the Department, and that is, 

a constant pushing by countries to get into the program because 

their people believe it means ease with which they can come to the 

28 

United States; and, second, constant pressures from the travel industry. But I think we have to protect this country, and if this, in 

fact, is correct that this program is the soft underbelly and offers 

an opportunity for people who would do us grievous injury to come 

to this country, it really is not worth speeding it—which you call 

‘‘flexibility,’’ which I call ‘‘speed’’—into a position without the adequate security portions of it. And I have concluded, after holding 

several of these hearings for a long, long time, that there are no 

adequate security provisions within this program. 

So I thank you very much for your attendance and for your testimony and, I think, the good graces with which you have taken it. 

So thank you very much, and the hearing is adjourned. 

[Whereupon, at 4:04 p.m., the Subcommittee was adjourned.] 

Questions and answers and submissions for the record follow.] 

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