79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–564

VISA WAIVER PERMANENT PROGRAM ACT

APRIL 6, 2000.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr. SMITH of Texas, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany H.R. 3767]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 3767) to amend the Immigration and Nationality Act to make

improvements to, and permanently authorize, the visa waiver pilot

program under section 217 of such Act, having considered the

same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.

TABLE OF CONTENTS

Page

The Amendment ......................................................................................... 2

Purpose and Summary .............................................................................. 7

Background and Need for the Legislation ................................................ 7

Hearings ...................................................................................................... 9

Committee Consideration .......................................................................... 9

Vote of the Committee ............................................................................... 10

Committee Oversight Findings ................................................................. 11

Committee on Government Reform Findings .......................................... 11

New Budget Authority and Tax Expenditures ........................................ 11

Committee Cost Estimate .......................................................................... 11

Constitutional Authority Statement ......................................................... 11
2

Section-by-Section Analysis and Discussion ............................................ 11

Agency Views .............................................................................................. 16

Changes in Existing Law Made by the Bill, as Reported ....................... 20

Additional Views ........................................................................................ 31

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Visa Waiver Permanent Program Act’’.

TITLE I—PERMANENT PROGRAM

AUTHORIZATION

SEC. 101. ELIMINATION OF PILOT PROGRAM STATUS.

(a) IN GENERAL.—Section 217 of the Immigration and Nationality Act (8 U.S.C.

1187) is amended—

(1) in the section heading, by striking ‘‘PILOT’’;

(2) in subsection (a)—

(A) in the subsection heading, by striking ‘‘PILOT’’;

(B) in the matter preceding paragraph (1), by striking ‘‘pilot’’ both

places it appears;

(C) in paragraph (1), by striking ‘‘pilot program period (as defined in

subsection (e))’’ and inserting ‘‘program’’; and

(D) in paragraph (2), in the paragraph heading, by striking ‘‘PILOT’’;

(3) in subsection (b), in the matter preceding paragraph (1), by striking

‘‘pilot’’;

(4) in subsection (c)—

(A) in the subsection heading, by striking ‘‘PILOT’’;

(B) in paragraph (1), by striking ‘‘pilot’’;

(C) in paragraph (2)—

(i) by striking ‘‘subsection (g)’’ and inserting ‘‘subsection (f)’’; and

(ii) by striking ‘‘pilot’’; and

(D) in paragraph (3)—

(i) in the matter preceding subparagraph (A), by striking ‘‘(within

the pilot program period)’’;

(ii) in subparagraph (A), in the matter preceding clause (i), by

striking ‘‘pilot’’ both places it appears; and

(iii) in subparagraph (B), by striking ‘‘pilot’’;

(5) in subsection (e)(1)—

(A) in the matter preceding subparagraph (A), by striking ‘‘pilot’’; and

(B) in subparagraph (B), by striking ‘‘pilot’’;

(6) by striking subsection (f) and redesignating subsection (g) as subsection

(f); and

(7) in subsection (f) (as so redesignated)—

(A) in paragraph (1)(A) by striking ‘‘pilot’’;

(B) in paragraph (1)(C), by striking ‘‘pilot’’;

(C) in paragraph (2)(A), by striking ‘‘pilot’’ both places it appears;

(D) in paragraph (3), by striking ‘‘pilot’’; and

(E) in paragraph (4)(A), by striking ‘‘pilot’’.

(b) CONFORMING AMENDMENTS.—

(1) DOCUMENTATION REQUIREMENTS.—Clause (iv) of section 212(a)(7)(B) of

the Immigration and Nationality Act (8 U.S.C. 1182(a)(7)(B)(iv)) is amended—

(A) in the clause heading, by striking ‘‘PILOT’’; and

(B) by striking ‘‘pilot’’.

(2) TABLE OF CONTENTS.—The table of contents for the Immigration and

Nationality Act is amended, in the item relating to section 217, by striking

‘‘pilot’’.
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TITLE II—PROGRAM IMPROVEMENTS

SEC. 201. EXTENSION OF RECIPROCAL PRIVILEGES.

Section 217(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C.

1187(a)(2)(A)) is amended by inserting ‘‘, either on its own or in conjunction with

one or more other countries that are described in subparagraph (B) and that have

established with it a common area for immigration admissions,’’ after ‘‘to extend)’’.

SEC. 202. MACHINE READABLE PASSPORT PROGRAM.

(a) REQUIREMENT ON ALIEN.—Section 217(a) of the Immigration and Nationality

Act (8 U.S.C. 1187(a)) is amended—

(1) by redesignating paragraphs (3) through (7) as paragraphs (4) through

(8), respectively; and

(2) by inserting after paragraph (2) the following:

‘‘(3) MACHINE READABLE PASSPORT.—On and after October 1, 2006, the alien

at the time of application for admission is in possession of a valid unexpired

machine-readable passport that satisfies the internationally accepted standard

for machine readability.’’.

(b) REQUIREMENT ON COUNTRY.—Section 217(c)(2)(B) of the Immigration and

Nationality Act (8 U.S.C. 1187(c)(2)(B)) is amended to read as follows:

‘‘(B) MACHINE READABLE PASSPORT PROGRAM.—

‘‘(i) IN GENERAL.—Subject to clause (ii), the government of the

country certifies that it issues to its citizens machine-readable passports that satisfy the internationally accepted standard for machine

readability.

‘‘(ii) DEADLINE FOR COMPLIANCE FOR CERTAIN COUNTRIES.—In the

case of a country designated as a program country under this subsection prior to May 1, 2000, as a condition on the continuation of that

designation, the country—

‘‘(I) shall certify, not later than October 1, 2000, that it has a

program to issue machine-readable passports to its citizens not

later than October 1, 2003; and

‘‘(II) shall satisfy the requirement of clause (i) not later than

October 1, 2003.’’.

SEC. 203. DENIAL OF PROGRAM WAIVER BASED ON GROUND OF INADMISSIBILITY.

(a) IN GENERAL.—Section 217(a) of the Immigration and Nationality Act (8

U.S.C. 1187(a)), as amended by section 202, is further amended by adding at the

end the following:

‘‘(9) AUTOMATED SYSTEM CHECK.—The identity of the alien has been

checked using an automated electronic database containing information about

the inadmissibility of aliens to uncover any grounds on which the alien may be

inadmissible to the United States, and no such ground has been found.’’.

(b) VISA APPLICATION SOLE METHOD TO DISPUTE DENIALS OF WAIVER BASED ON

GROUND OF INADMISSIBILITY.—Section 217 of the Immigration and Nationality Act

(8 U.S.C. 1187), as amended by section 101(a)(6) of this Act, is further amended by

adding at the end the following:

‘‘(g) VISA APPLICATION SOLE METHOD OF DISPUTING GROUND OF INADMISSIBILITY

FOUND IN AUTOMATED SYSTEM.—In the case of an alien denial a waiver under the

program by reason of a ground of inadmissibility uncovered through a written or

verbal statement by the alien or a use of an automated electronic database required

under subsection (a)(9), the alien may apply for a visa at an appropriate consular

office outside the United States. There shall be no other means of administrative

or judicial review of such a denial, and no court or person otherwise shall have jurisdiction to consider any claim attacking the validity of such a denial.’’.

(c) PAROLE AUTHORITY.—Section 212(d)(5) of the Immigration and Nationality

Act (8 U.S.C. 1182(d)(5)) is amended—

(1) in subparagraph (A), by striking ‘‘subparagraph (B)’’ and inserting ‘‘subparagraph (B) or (C)’’; and

(2) by adding at the end the following:

‘‘(C) The Attorney General may not parole into the United States an alien who

has applied under section 217 for a waiver of the visa requirement, and has been

denied such waiver by reason of a ground of inadmissibility uncovered through a

written or verbal statement by the alien or a use of an automated electronic database required under section 217(a)(9), unless the Attorney General determines that

compelling reasons in the public interest, or compelling health considerations, with
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respect to that particular alien require that the alien be paroled into the United

States.’’.

SEC. 204. EVALUATION OF EFFECT OF COUNTRY’S PARTICIPATION ON LAW ENFORCEMENT

AND SECURITY.

(a) INITIAL DESIGNATION.—Section 217(c)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(C)) is amended to read as follows:

‘‘(C) LAW ENFORCEMENT AND SECURITY INTERESTS.—The Attorney General, in consultation with the Secretary of State—

‘‘(i) evaluates the effect that the country’s designation would have

on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the

United States);

‘‘(ii) determines that such interests would not be compromised by

the designation of the country; and

‘‘(iii) submits a written report to the Committee on the Judiciary

of the United States House of Representatives and of the Senate regarding the country’s qualification for designation that includes an explanation of such determination.’’.

(b) CONTINUATION OF DESIGNATION.—Section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) is amended by adding at the end the following:

‘‘(5) WRITTEN REPORTS ON CONTINUING QUALIFICATION; DESIGNATION TERMINATIONS.—

‘‘(A) PERIODIC EVALUATIONS.—

‘‘(i) IN GENERAL.—The Attorney General, in consultation with the

Secretary of State, periodically (but not less than once every 5 years)—

‘‘(I) shall evaluate the effect of each program country’s continued designation on the law enforcement and security interests of

the United States (including the interest in enforcement of the immigration laws of the United States);

‘‘(II) shall determine whether any such designation ought to be

continued or terminated under subsection (d); and

‘‘(III) shall submit a written report to the Committee on the

Judiciary of the United States House of Representatives and of the

Senate regarding the continuation or termination of the country’s

designation that includes an explanation of such determination and

the effects described in subclause (I).

‘‘(ii) EFFECTIVE DATE.—A termination of the designation of a country under this subparagraph shall take effect on the date determined

by the Attorney General, but may not take effect before the end of the

30-day period beginning on the date on which notice of the termination

is published in the Federal Register.

‘‘(iii) REDESIGNATION.—In the case of a termination under this subparagraph, the Attorney General shall redesignate the country as a

program country, without regard to subsection (f) or paragraph (2) or

(3), when the Attorney General, in consultation with the Secretary of

State, determines that all causes of the termination have been eliminated.

‘‘(B) AUTOMATIC TERMINATION.—

‘‘(i) REQUIREMENT.—On and after October 1, 2005, the designation

of any program country with respect to a report described in subparagraph (A)(i)(III) has not been submitted in accordance with such subparagraph during the preceding 5 years shall be considered terminated.

‘‘(ii) EFFECTIVE DATE.—A termination of the designation of a country under this subparagraph shall take effect on the last day of the 5-

year period described in clause (i).

‘‘(iii) REDESIGNATION.—In the case of a termination under this subparagraph, the Attorney General shall redesignate the country as a

program country, without regard to subsection (f) or paragraph (2) or

(3), when the required report is submitted, if the report includes a determination by the Attorney General that the country should continue

as a program country.

‘‘(C) EMERGENCY TERMINATION.—

‘‘(i) IN GENERAL.—In the case of a program country in which an

emergency occurs that the Attorney General, in consultation with the

Secretary of State, determines threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States), the Attorney Gen-
5

eral shall immediately terminate the designation of the country as a

program country.

‘‘(ii) DEFINITION.—For purposes of clause (i), the term ‘emergency’ means—‘‘(I) the overthrow of a democratically elected government;

‘‘(II) war (including undeclared war, civil war, or other military

activity);

‘‘(III) disruptive social unrest;

‘‘(IV) a severe economic or financial crisis; or

‘‘(V) any other extraordinary event that threatens the law enforcement or security interests of the United States (including the

interest in enforcement of the immigration laws of the United

States).

‘‘(iii) REDESIGNATION.—The Attorney General may redesignate the

country as a program country, without regard to subsection (f) or paragraph (2) or (3), when the Attorney General determines that—

‘‘(I) at least 6 months have elapsed since the effective date of

the termination;

‘‘(II) the emergency that caused the termination has ended;

and

‘‘(III) the average number of refusals of nonimmigrant visitor

visas for nationals of that country during the period of termination

under this subparagraph was less than 3.0 percent of the total

number of nonimmigrant visitor visas for nationals of that country

which were granted or refused during such period.

‘‘(D) TREATMENT OF NATIONALS AFTER TERMINATION.—For purposes of

this paragraph—

‘‘(i) nationals of a country whose designation is terminated under

subparagraph (A), (B), or (C) shall remain eligible for a waiver under

subsection (a) until the effective date of such termination; and

‘‘(ii) a waiver under this section that is provided to such a national

for a period described in subsection (a)(1) shall not, by such a designation termination, be deemed to have been rescinded or otherwise rendered invalid, if the waiver is granted prior to such termination.’’.

SEC. 205. USE OF INFORMATION TECHNOLOGY SYSTEMS.

(a) IN GENERAL.—Section 217 of the Immigration and Nationality Act (8 U.S.C.

1187), as amended by section 203(b), is further amended by adding at the end the

following:

‘‘(h) USE OF INFORMATION TECHNOLOGY SYSTEMS.—

‘‘(1) AUTOMATED ENTRY-EXIT CONTROL SYSTEM.—

‘‘(A) SYSTEM.—Not later than October 1, 2001, the Attorney General

shall develop and implement a fully automated entry and exit control system that will collect a record of arrival and departure for every alien who

arrives by sea or air at a port of entry into the United States and is provided a waiver under the program.

‘‘(B) REQUIREMENTS.—The system under subparagraph (A) shall satisfy

the following requirements:

‘‘(i) DATA COLLECTION BY CARRIERS.—Not later than October 1,

2001, the records of arrival and departure described in subparagraph

(A) shall be based, to the maximum extent practicable, on passenger

data collected and electronically transmitted to the automated entry

and exit control system by each carrier that has an agreement under

subsection (a)(4).

‘‘(ii) DATA PROVISION BY CARRIERS.—Not later than October 1, 2002,

no waiver may be provided under this section to an alien arriving by

sea or air at a port of entry into the United States on a carrier unless

the carrier is electronically transmitting to the automated entry and

exit control system passenger data determined by the Attorney General

to be sufficient to permit the Attorney General to carry out this paragraph.

‘‘(iii) CALCULATION.—The system shall contain sufficient data to

permit the Attorney General to calculate, for each program country and

each fiscal year, the portion of nationals of that country who are described in subparagraph (A) and for whom no record of departure exists, expressed as a percentage of the total number of such nationals

who are so described.

‘‘(C) REPORTING.—
6

‘‘(i) PERCENTAGE OF NATIONALS LACKING DEPARTURE RECORD.—Not

later than January 30 of each year (beginning with the year 2003), the

Attorney General shall submit a written report to the Committee on

the Judiciary of the United States House of Representatives and of the

Senate containing the calculation described in subparagraph (B)(iii) for

each program country for the previous fiscal year.

‘‘(ii) SYSTEM EFFECTIVENESS.—Not later than October 1, 2004, the

Attorney General shall submit a written report to the Committee on

the Judiciary of the United States House of Representatives and of the

Senate containing the following:

‘‘(I) The conclusions of the Attorney General regarding the effectiveness of the automated entry and exit control system to be developed and implemented under this paragraph.

‘‘(II) The recommendations of the Attorney General regarding

the use of the calculation described in subparagraph (B)(iii) as a

basis for evaluating whether to terminate or continue the designation of a country as a program country.

‘‘(2) AUTOMATED DATA SHARING SYSTEM.—

‘‘(A) SYSTEM.—The Attorney General and the Secretary of State shall

develop and implement an automated data sharing system that will permit

them to share data in electronic form from their respective records systems

regarding the admissibility of aliens who are nationals of a program country.

‘‘(B) REQUIREMENTS.—The system under subparagraph (A) shall satisfy

the following requirements:

‘‘(i) SUPPLYING INFORMATION TO IMMIGRATION OFFICERS CONDUCTING INSPECTIONS AT PORTS OF ENTRY.—Not later than October 1,

2002, the system shall enable immigration officers conducting inspections at ports of entry under section 235 to obtain from the system,

with respect to aliens seeking a waiver under the program—

‘‘(I) any photograph of the alien that may be contained in the

records of the Department of State or the Service; and

‘‘(II) information on whether the alien has ever been determined to be ineligible to receive a visa or ineligible to be admitted

to the United States.

‘‘(ii) SUPPLYING PHOTOGRAPHS OF INADMISSIBLE ALIENS.—The system shall permit the Attorney General electronically to obtain any photograph contained in the records of the Secretary of State pertaining

to an alien who is a national of a program country and has been determined to be ineligible to receive a visa.

‘‘(iii) MAINTAINING RECORDS ON APPLICATIONS FOR ADMISSION.—The

system shall maintain, for a minimum of 10 years, information about

each application for admission made by an alien seeking a waiver

under the program, including the following:

‘‘(I) The name of each immigration officer conducting the inspection of the alien at the port of entry.

‘‘(II) Any information described in clause (i) that is obtained

from the system by any such officer.

‘‘(III) The results of the application.’’.

(b) CONFORMING AMENDMENT.—Section 217(e)(1) of the Immigration and Nationality Act (8 U.S.C. 1187(e)(1)) is amended—

(1) in subparagraph (B), by striking ‘‘and’’ at the end;

(2) in subparagraph (C), by striking the period at the end and inserting ‘‘,

and’’; and

(3) by adding at the end the following:

‘‘(D) to collect, provide, and share passenger data as required under

subsection (h)(1)(B).’’.

SEC. 206. CONDITIONS FOR VISA REFUSAL ELIGIBILITY.

Section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)), as

amended by section 204(b) of this Act, is further amended by adding at the end the

following:

‘‘(6) COMPUTATION OF VISA REFUSAL RATES.—For purposes of determining

the eligibility of a country to be designated as a program country, the calculation of visa refusal rates shall not include any visa refusals which incorporate

any procedures based on, or are otherwise based on, race, sex, sexual orientation, or disability, unless otherwise specifically authorized by law or regulation.’’.
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PURPOSE AND SUMMARY

H.R 3767 would amend section 217 of the Immigration and Nationality Act to permanently authorize the Visa Waiver Pilot Program and make changes in the program to strengthen the law enforcement and security interests of the United States and reduce

the vulnerability of the United States to entry by unqualified aliens

under the program.

BACKGROUND AND NEED FOR THE LEGISLATION

I. BACKGROUND

The Visa Waiver Pilot Program (VWPP) allows aliens traveling

from certain designated countries to come to the United States as

temporary visitors for business or pleasure without having to obtain the nonimmigrant visa normally required to enter the United

States. The program authorizes the Attorney General to waive the

‘‘B’’ visa requirement for aliens traveling from countries that have

qualified on the basis of requirements set forth in section 217 of

the Immigration and Nationality Act. There are currently 29 countries participating in the program.

While the visa waiver program eliminates the visa requirement

for aliens who would otherwise have to present a ‘‘B’’ visa, the program has important restrictions. Aliens entering with a ‘‘B’’ visa

may apply to extend the length of their stay in the U.S. and may

petition to change to another nonimmigrant or immigrant visa status. Aliens entering under the VWPP may not extend their stay

and cannot change their status. An alien who violates the terms of

admission (by staying beyond 90 days or by accepting unauthorized

employment) is deportable without any judicial recourse or review,

except when claiming asylum.

The Attorney General, in consultation with the Secretary of

State, has the authority to designate countries to the VWPP program. To qualify for admission to the program, a country must extend reciprocal visa-free entry privileges to U.S. citizens, have a

low (less than 3 percent) nonimmigrant visa refusal rate and have

or be developing a machine readable passport. Finally, the admission of the country to the program must not compromise U.S. law

enforcement interests.

To be admitted to the U.S. under the program, travelers must be

a national of, and present a passport issued by, a designated country, plan to visit the U.S. for business or pleasure for 90 days or

less, enter the U.S. via a participating carrier (most airlines and

passenger lines, including cruise lines, are participating carriers) or

via a land border, have an onward or return ticket if traveling via

air or sea and be otherwise eligible for admission (in other words,

not be ineligible for admission because of a prior visa refusal,

criminal record, previous deportation, etc.).

Since its initial enactment as part of the Immigration Reform

and Control Act of 1986, the VWPP has been a temporary program.

However, Congress has periodically reauthorized the program, recognizing its importance to the U.S. travel and tourism industry and

the benefit it provides to American citizens (through reciprocity)

who travel abroad. Failure to reauthorize the program would result
8

in considerable disruption of the travel industry. Additionally, U.S.

taxpayers would have to bear the burden of restaffing Department

of State consular offices to issue visas to the millions of visitors

who currently enter under the waiver program. Some of the countries now in the program would impose a reciprocal visa requirement on American visitors, resulting in inconvenience to U.S. citizens traveling abroad.

II. PROBLEMS/VULNERABILITIES

Mechanism for Monitoring Overstays

The principal mechanism in the statute for monitoring the continuing qualification of countries in the program has never worked.

The statute provides that countries may be redesignated in the

VWPP on a year by year basis unless the sum of the number of

nationals of the country who were denied admission to the country

and number of nationals who violated the terms of their admission

as nonimmigrant visitors (includes travelers admitted with ‘‘B’’

visas and under the VWPP) was 2 percent or more of the number

of nationals of that country admitted as nonimmigrant visitors during the preceding fiscal year. Relying on a measure of the nationals

of VWPP countries who violate the terms of their admission has

not worked because the INS has been unable to either develop a

mechanism for tracking the departure of temporary visitors from

VWPP countries (or any other country) or to develop reliable estimates of overstays based on secondary sources.

Even if the there were a reliable system to calculate or estimate

overstays by aliens from VWPP countries, such a mechanism would

not be sufficient in emergency situations. Overstay rates are a lagging indicator based on fiscal year data, which often are not compiled until months, or years, after the close of the fiscal year. With

29 countries now in the program, more effective mechanisms are

needed for monitoring countries in the program and for evaluating

the impact of the program on the law enforcement (including immigration law) and security interests of the United States.

Machine Readable Passport

Another problem with the VWPP has been the failure by several

designated countries to deploy a machine readable passport. When

a machine readable passport is presented by a traveler at a port

of entry, the data on the passport can be read electronically; when

a traveler presents a passport that is not machine readable, the

passport data must be entered manually by the INS official who inspects the traveler. The presentation of a non-machine readable

passport is harmful to the security interests of the United States

because it forces the official to concentrate on data entry rather

than evaluating the alien. Since 1990, the statute has required the

Government of a country nominated for participation in the VWPP

to certify that it has or ‘‘is in the process of developing’’ a machine

readable passport. Unfortunately, some countries that were admitted to the program as long ago as 1991 still have not developed a

machine readable passport. Other counties that have developed a

machine readable passport continue to issue some non-machine

readable passports.
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Reliability of Lookout Data

The absence of an overseas consular review of a visa application

for VWPP travelers makes it crucially important that all potentially useful data be available to INS inspectors at ports of entry

and that aliens ineligible for admission not be admitted. Currently,

Department of State data on ineligible aliens is routinely transferred to the INS. However, the transferred data contains text-only

biographic information. Although Department of State files usually

contain a photograph of the ineligible alien, the agencies do not

have a system for transmitting photographs as part of an electronic

lookout file. Without access to photographs, INS inspectors frequently face difficult decisions when inspecting travelers whose

data is close to but not an exact match with the information in the

lookout file.

III. H.R. 3767

H.R. 3767, the Visa Waiver Permanent Program Act, permanently authorizes the visa waiver program, thus ending the program’s ‘‘pilot’’ status. The bill also strengthens the program by establishing a mechanism for periodic evaluation of the impact of

each country’s participation in the program on the law enforcement

and security interests of the United States. It also provides a mechanism for suspending a country’s participation in the program

when emergency situations arise. Other provisions in the bill establish a deadline for implementation of a machine readable passport

by program countries, strengthen admission requirements for visa

waiver travelers to prevent ineligible aliens from using the program to circumvent immigration laws, establish a fully automated

entry/departure system for tracking overstays by visa waiver travelers and require increased sharing of information on ineligible

aliens between the Department of State and the Department of

Justice.

HEARINGS

The committee’s Subcommittee on Immigration and Claims held

a hearing on the Visa Waiver Pilot Program on February 10, 2000.

Testimony was received from Robert Ashbaugh, Acting Inspector

General, U.S. Department of Justice; Ambassador Mary A. Ryan,

Assistant Secretary of State for Consular Affairs, U.S. Department

of State; Michael Cronin, Acting Associate Commissioner for Programs, U.S. Immigration and Naturalization Service, Elisa Liang,

Associate Deputy Attorney General, U.S. Department of Justice;

William S. Norman, President and Chief Executive Officer, Travel

Industry Association; E. Wayne Merry, Director, Program on European Societies in Transition, The Atlantic Council of the United

States; and John Ratigan, Immigration Consultant, Paul Weiss,

Rifkind, Wharton & Garrison.

COMMITTEE CONSIDERATION

On March 1, 2000, the Subcommittee on Immigration and Claims

met in open session and ordered favorably reported a committee

print by a voice vote, a quorum being present. On March 30 and

April 4, 2000, the committee met in open session and ordered fa-
10

vorably reported the bill H.R. 3767 with amendment by voice vote,

a quorum being present.

VOTE OF THE COMMITTEE

The committee adopted H.R. 3767 by voice vote. Four amendments also were adopted by voice vote. These were: (1) an amendment by Mr. Smith of Texas changing the deadlines requiring countries in the program to have a machine readable passport from October 1, 2001, to October 1, 2003, and requiring aliens applying for

admission under the program to present a machine readable passport from October 1, 2002, to October 1, 2006; (2) an amendment

by Ms. Jackson Lee modifying the provisions providing for the reinstatement of countries that have been terminated from the program; (3) an amendment by Mr. Conyers prohibiting the inclusion

of refusals based on race, sex, sexual orientation or disability in the

calculation of visa refusal rates used for determining the eligibility

of a country to be designated as a program country; and (4) an

amendment by Mr. Frank including compelling health considerations as a standard for authorizing parole of aliens who apply for

admission under the program.

There was one recorded vote during the committee’s consideration of H.R. 3767, as follows:

Amendment offered Mr. Conyers to require the Attorney General

to conduct a study on the criteria used for selection of program

countries. Defeated 9–13.

ROLLCALL NO. 1

Ayes Nays Present

Mr. Sensenbrenner ............................................................................................ ..................... ..................... .....................

Mr. McCollum .................................................................................................... ..................... ..................... .....................

Mr. Gekas .......................................................................................................... ..................... X .....................

Mr. Coble ........................................................................................................... ..................... X .....................

Mr. Smith (TX) .................................................................................................. ..................... X .....................

Mr. Gallegly ....................................................................................................... ..................... X .....................

Mr. Canady ........................................................................................................ ..................... X .....................

Mr. Goodlatte .................................................................................................... ..................... X .....................

Mr. Chabot ........................................................................................................ ..................... X .....................

Mr. Barr ............................................................................................................. ..................... X .....................

Mr. Jenkins ........................................................................................................ ..................... ..................... .....................

Mr. Hutchinson .................................................................................................. X ..................... .....................

Mr. Pease .......................................................................................................... ..................... X .....................

Mr. Cannon ....................................................................................................... ..................... ..................... .....................

Mr. Rogan ......................................................................................................... ..................... X .....................

Mr. Graham ....................................................................................................... ..................... ..................... .....................

Ms. Bono ........................................................................................................... ..................... X .....................

Mr. Bachus ........................................................................................................ ..................... ..................... .....................

Mr. Scarborough ................................................................................................ ..................... ..................... .....................

Mr. Vitter ........................................................................................................... ..................... X .....................

Mr. Conyers ....................................................................................................... X ..................... .....................

Mr. Frank ........................................................................................................... ..................... ..................... .....................

Mr. Berman ....................................................................................................... ..................... ..................... .....................

Mr. Boucher ....................................................................................................... ..................... ..................... .....................

Mr. Nadler ......................................................................................................... X ..................... .....................

Mr. Scott ........................................................................................................... X ..................... .....................

Mr. Watt ............................................................................................................ X ..................... .....................

Ms. Lofgren ....................................................................................................... ..................... ..................... .....................

Ms. Jackson Lee ................................................................................................ X ..................... .....................

Ms. Waters ........................................................................................................ X ..................... .....................

Mr. Meehan ....................................................................................................... ..................... ..................... .....................
11

ROLLCALL NO. 1—Continued

Ayes Nays Present

Mr. Delahunt ..................................................................................................... X ..................... .....................

Mr. Wexler ......................................................................................................... ..................... ..................... .....................

Mr. Rothman ..................................................................................................... ..................... ..................... .....................

Ms. Baldwin ...................................................................................................... X ..................... .....................

Mr. Weiner ......................................................................................................... ..................... ..................... .....................

Mr. Hyde, Chairman .......................................................................................... ..................... X .....................

Total ................................................................................................ 9 13 .....................

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the committee reports that the findings

and recommendations of the committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform were received as referred to in clause 3(c)(4) of rule

XIII of the Rules of the House of Representatives.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

COMMITTEE COST ESTIMATE

In compliance with clause 3(d)(2) of rule XIII of the Rules of the

House of Representatives, the committee believes that the bill will

have no cost for the current fiscal year and for the next five fiscal

years.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the committee finds the authority for this legislation in Article I, section 8, clause 4 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Sec. 101. Elimination of Pilot Program Status

Section 101 eliminates the visa waiver program’s pilot status and

permanently authorizes the program.

Section 201. Extension of Reciprocal Privileges

Countries designated to the visa waiver program must extend reciprocal privileges (visa free admissions for 90 days) to citizens and

nationals of the United States. The countries of the European Community (EC) are in the process of establishing a common area for

immigrant admissions with uniform standards for entry and dura-
12

tion of stay. Eventually, foreign visitors who enter the EC will be

inspected only once (by the immigration authorities of the country

of entry) and be authorized to stay 90 days irrespective of where

they travel within the EC. Currently, the United States has separate bilateral reciprocity agreements with all EC countries that

participate in the Visa Waiver Program. When the EC implements

its uniform standards for duration of stay, the individual bilateral

agreements will become unworkable.

Section 201 amends the reciprocity requirement to allow a program country to extend reciprocal treatment to U.S. citizens and

nationals either on its own or in conjunction with one or more

other countries that have established a common area for immigrant

admissions. This change affects only the reciprocity requirement for

countries that have already been designated as Visa Waiver Program countries. The individual countries that make up a common

area for immigrant admissions must still qualify for designation to

the program and meet all requirements for continuing qualification. This change will not in any way impinge on the authority of

the Attorney General to rescind the designation of any program

country.

Section 202. Machine Readable Passport Program

Section 202 deals with the failure of some Visa Waiver Program

countries to take timely action on the requirement to issue a machine readable passport. It also introduces a more precise description of a machine readable passport, requiring that program countries issue a machine readable passport that satisfies ‘‘the internationally accepted standard for machine readability.’’ The technical specifications for machine readable passports are set by the

International Civil Aviation Organization (ICAO), a United Nations

organization. The ICAO specifications are endorsed by the International Organization for Standardization. The machine readable

passports of the United States and most other countries issuing

machine readable passports meet the ICAO standard.

Subsection (a) requires that, as of October 1, 2006, all aliens

traveling on the Visa Waiver Program must present a machine

readable passport to be admissible under the program. This requirement will address the situation in which a country designated

to the program has introduced a machine readable passport, but

still issues some non-machine readable passports.

Subsection (b) requires that new countries designated to the program issue a machine readable passport and imposes a deadline for

compliance by countries currently in the program. Program countries that do not currently have a machine readable passport must

certify by October 1, 2000, that they have a program to issue machine readable passports and must begin issuing machine readable

passports by October 1, 2003.

Section 203. Denial of Program Waiver Based on Ground of Ineligibility

Section 203 makes it more difficult for aliens who are ineligible

for admission to the United States to gain admission under the

VWPP. It ensures that the program continues to benefit eligible

aliens (the vast majority of those who utilize the program) while
13

not allowing it to become a means for aliens who are ineligible for

admission to the United States to circumvent the visa application

process.

Subsection (a) requires that all aliens admitted under the Visa

Waiver Program be checked against an automated electronic lookout system to determine whether there are any grounds of ineligibility under which the alien may be inadmissible. While alien travelers under the program are already subjected to automated name

checks in most instances, section 203(a) makes such name checks

a statutory requirement for aliens applying under the Visa Waiver

Program and prohibits the Immigration and Naturalization Service

from admitting to the United States inadmissible aliens who apply

under the program.

Subsection (b) affirms that a visa application is the sole method

for an alien to dispute a finding of inadmissibility under the program.

Subsection (c) contains conforming amendments that limit the

circumstances under which an alien who is ineligible for admission

under the Visa Waiver Program can be paroled into the United

States. Parole may not be authorized unless the Attorney General

determines there are compelling reasons in the public interest or

compelling health concerns that require a particular alien be paroled into the United States.

Section 204. Evaluation of Effect of Country’s Participation in Program on Law Enforcement

Section 204 provides mechanisms for evaluating the impact on

U.S. law enforcement (including the enforcement of immigration

law) and security interests of the designation of a country to participate in the visa waiver program. These changes, in effect, provide statutory sanction to the approach taken by the Attorney General to nominations of the four countries (Greece, Portugal, Singapore and Uruguay) most recently considered for designation to the

program. To consider the impact on U.S. law enforcement of the

admission of each of the four countries, the Attorney General established an Interagency Working Group (IWG) comprised of representatives of the Department of Justice (Criminal Division), Department of State, INS, FBI, and chaired by the Department Justice’s Executive Office of National Security. The IWG developed a

comprehensive protocol for evaluating candidate counties and used

the protocol to evaluate the four nominated countries.

Subsection (a) deals with the initial designation of a new country

to the program. It requires the Attorney General, in consultation

with the Secretary of State, to evaluate the effect on the law enforcement and security interests of the United States of the country’s designation in the program and to provide a report to the Judiciary Committees of the House and Senate regarding the outcome

of such evaluation.

Subsection (b) deals with the continuing designation of countries

in the program. It requires the Attorney General, in consultation

with the Secretary of State, to periodically (but not less than once

every 5 years) evaluate the effect on the law enforcement and security interests of the United States of the country’s continued designation in the program and to provide a report to the Judiciary
14

Committees of the House and Senate regarding the outcome of

such evaluation. To ensure that the reports are submitted in a

timely manner, there is a provision, effective October 1, 2005, for

the automatic termination of the designation of a country for which

a report has not been submitted during the preceding 5 years.

Subsection (b) also provides for the emergency termination of a

Visa Waiver Program country’s designation in the event the country is affected by an emergency situation. Emergency is defined as

the overthrow of a democratically elected Government, war, disruptive social unrest, severe economic or financial crisis or any other

extraordinary event that threatens the law enforcement (including

immigration law) or security interests of the United States.

The expansion of the Visa Waiver Program in recent years to

countries that have had only limited experience with democratic institutions or have economies that are vulnerable to severe fluctuations and/or are located in less stable areas of the world has increased the potential for a serious emergency occurring in a program country that could threaten the law enforcement or security

interests of the United States. The emergency termination provision would be used in rare instances where, because of emergent

circumstances in a program country, there would be an immediate

threat to U.S. law enforcement or security interests if the country

were to continue participating in the program.

A war emergency would only apply to situations in which hostile

military activity occurs on the territory of a program country. It

would not apply in situations where a program country participates

in an allied military action outside of its territory (such as the Persian Gulf War or recent military actions in Kosovo).

An emergency involving ‘‘disruptive social unrest’’ would apply to

a situation in which there was a severe breakdown in law and

order affecting a significant portion of a program country’s territory. It would not apply in situations involving isolated events lasting for a relatively brief time, although the implications of such isolated, temporary events could be considered during the periodic

(five year) review of the country’s continued designation to the program.

A ‘‘severe economic or financial crisis’’ would apply to a situation

in which a program country experiences a severe economic collapse

or a financial meltdown similar to what occurred in Indonesia and

several other countries in1998. It would not apply in a situation

where a country experiences a cyclical economic recession such as

was experienced by Japan and several European countries during

the 1990’s.

Section 205. Use of Information Technology Systems

This section mandates the establishment of a fully automated

system for tracking the entries and departures of aliens who are

nationals of a program country and an automated system to share

data regarding the inadmissability of aliens who are nationals of

a program country.

Subsection (a)(1) mandates the establishment of a fully automated system for tracking the entries and departures of aliens who

arrive by sea or air. This system will provide the first functioning

mechanism for monitoring compliance with the visa waiver pro-
15

gram since it was authorized in 1986. The basic technology for such

a system is already in place. Many inbound flights already transmit passenger data to the INS electronically via the Advanced Passenger Information System (APIS). Section (a)(1) requires the INS

to make similar use of outbound passenger data, thereby eliminating the current reliance on the collection of a paper form from

outbound passengers.

The resulting data on entries and departures by visa waiver

travelers will be matched. Since more than 98 percent of visa waiver program aliens enter and depart via a participating carrier, a

calculation of the number of aliens for each program country for

whom there is no record of a departure, should provide a statistically sound basis for determining overstay rates for program

countries. The Attorney General is required to make specific recommendations as to how this calculation will be used by October

1, 2004.

Subsection (a)(2) requires the Attorney General and Secretary of

State to develop and implement an automated data system that

will permit the sharing of information regarding the

inadmissability of aliens who are nationals of program countries. It

requires that a photograph of the alien, when available, be included in the data transmitted on an ineligible alien. Including a

photograph of the alien whenever available will reduce the risk of

inadmissible aliens gaining entry to the United States under the

visa waiver program. It also will facilitate the entry of legitimate

travelers whose biographic data happens to be similar to that of an

alien in the INS lookout files.

Section 206. Conditions For Visa Refusal Eligibility

Section 206 prohibits the use of visa refusals which incorporate

any procedures or are otherwise based on race, sex, sexual orientation or disability when calculating the visa refusal rate for determining the eligibility of a country for the program.

It would be a violation deep-seated American principles of equality of treatment and fair play to make determinations regarding

visa eligibility based on discriminatory criteria. However, this provision does not prohibit a consular officer, when adjudicating a

nonimmigrant visa application, from examining the applicant’s economic situation, income level, family situation, general life circumstances or other factors affecting the applicant’s entitlement to

nonimmigrant status under Section 101(a)(15) (B) of the Immigration and Nationality Act.

The political, economic and social situation in the country or region of the applicant’s residence also are appropriate factors for a

consular officer to consider since they could affect the applicant’s

entitlement to nonimmigrant status. When considering this provision, the committee specifically excluded refusals based on nationality, place of birth, and place of residence from the list of prohibited refusal criteria because it determined that these are factors

that could have a bearing on a visa applicant’s entitlement to nonimmigrant status.
16

AGENCY VIEWS

U.S. DEPARTMENT OF STATE,

Washington, DC, March 30, 2000.

Hon. LAMAR SMITH, Chairman,

Subcommittee on Immigration and Claims,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: We are pleased to take this opportunity to

provide the views of the Department of State on H.R. 3767, the

‘‘Visa Waiver Permanent Program Act.’’ The Department supports

key concepts of the bill, such as a permanent visa waiver program

(VWP), enhanced border security and datasharing, and use of machine-readable passports (MRPs). Our concerns lie with those provisions that could work against the more positive aspects of VWP:

promotion of US trade and tourism, enhanced foreign relations

with participating countries, and more effective use of State Department resources. Striking the proper balance between competing U.S. interests is an important goal for us in thinking about

a permanent visa waiver program.

We agree that a permanent visa waiver regime requires certain

safeguards to ensure that a country’s continued participation in the

program in no way threatens U.S. interests. H.R. 3767 proposes

several measures to tighten up the existing program, including requiring VWP visitors to enter the U.S. with a machine-readable

passport. The Department agrees with the need for stricter enforcement of MRP requirements, but finds the compliance dates in the

bill far too restrictive. While there is no question that some VWPP

countries did not make MRP issuance a high enough priority, we

expect all VWP countries to be issuing MRPs by 2003. Even countries with longstanding programs, however, will need more than

two years to issue MRPs to all their citizens who wish to travel to

the U.S. under the visa waiver program.

The U.S. itself does not issue MRPs to all its citizens because of

the high cost of installing the required machinery at all consular

posts abroad. (Currently 1.5 percent of passports issued to U.S. citizens are not machine-readable.) Similarly, many VWP countries do

not issue MRPs at all their overseas posts.

Another consideration is that passports are generally valid for

ten years, which means there will be a mix of passport types in circulation until all non-machine readable passports have expired and

been replaced with machine-readable versions. One and a half percent of the 50 million U.S. passports currently in circulation are

not machine-readable—some 750,000 documents. These passports

were issued before MRPs were available and have not yet expired.

All VWPP countries face a similar situation. We need to provide

passport agencies in VWP countries sufficient lead time to plan for

and respond to the increase in demand for MRPs that would occur

under H.R. 3767. Ideally, we would grant countries ten years to

issue MRPs to all their citizens. If this is not possible, we strongly

urge that the compliance dates in the bill, October 1, 2001, for

issuance of MRPs, and October 1, 2002, for all VWP travelers to

enter on a MRP, be changed to October 1, 2003, and October 1,

2008, respectively.
17

From a resource perspective, we are concerned about provisions

for precipitous removal of a country from the program. We realize

that border security concerns are behind these proposed measures,

but want to be clear about the severe resource implications for the

Department if a country suddenly loses its visa waiver status. Our

immediate capacity to issue large numbers of visas in the affected

country would be overwhelmed. The Department would require at

least three years to reallocate permanent resources to a country

that was suddenly removed from the program. We would have to

rely on temporary duty (TDY) assistance and other types of more

expensive staffing solutions in the interim.

The Department agrees that major destabilizing events inside a

VWP country should have a bearing on that country’s continued

designation. We believe that this type of situation can be addressed

through the general authority given the Attorney General under

current law or as proposed under section 204(C)(i) of H.R. 3767.

Periodic reviews of a VWP country’s performance are an important part of a permanent program. The VWP interagency group

agrees on the need to monitor a country’s performance and is looking at ways to incorporate this type of review into its protocol. The

Department finds the automatic rescission clause of the reporting

requirement unnecessary and unduly harsh on the affected VWP

country.

Thank you for your consideration of these matters. A permanent

visa waiver program that promotes the full range of US interests—

border security, enhanced foreign relations with friends and allies,

increased trade and tourism, and more efficient government—is a

high priority for the Department. We would be pleased to continue

working with the Congress on provisions of concern in H.R. 3767.

Sincerely,

BARBARA LARKIN, Assistant Secretary,

Legislative Affairs.

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, March 30, 2000.

Hon. HENRY J. HYDE, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Department of Justice on H.R. 3767, the ‘‘Visa Waiver Permanent

Program Act.’’ We are pleased that H.R. 3767 permanently authorizes the Visa Waiver Pilot Program (‘‘VWPP’’). We have concerns,

however, about several provisions contained in this bill and cannot

fully endorse it as written. Generally, the time frames for provisions concerning automated databases appear to be overly ambitious. In addition, we believe this bill can be strengthened by the

inclusion of certain provisions that are designed to ensure the future program meets the law enforcement and national security interests of the United States. The first section below contains comments that address our specific concerns with H.R. 3767. Following

those comments, we offer additional measures that we believe

would safeguard the integrity of the future visa waiver program.
18

SPECIFIC BILL COMMENTS

Section 1 of the bill would make the Visa Waiver Pilot Program

a permanent program. We support a permanent visa waiver program. However, we believe that a permanent authorization for the

program should have provisions to strengthen its integrity. First,

we believe Congress should provide added safeguards to protect the

law enforcement and national security interests of the United

States. Below, we offer several proposals intended to enhance the

Government’s law enforcement and national security interests with

respect to visa waiver travel to the United States. In addition, we

believe that the bill should include a provision permitting the Attorney General to temporarily suspend country participation in the

waiver program.

In section 101(a)(2)(C), the word ‘‘period’’ should be inserted in

the quotation after ‘‘program’’ and just before the parenthetical.

Section 201 of the bill would expand the definition of reciprocal

privileges. The INS defers to the Department of State on this issue.

As amended, section 202(b) would require each participant country to issue a machine-readable passport no later than October 1,

2003. We support a date certain for the issuance of machine-readable passports. However, we believe that the Attorney General, in

consultation with the Secretary of State, should determine the date

upon which a participant country should meet this condition. The

reference to ‘‘[s]ection 217(c)’’ should be corrected to reference section 217(c)(2)(B).

Section 203(b) of the bill specifies that a visa application is the

sole method to dispute denial of a waiver based on a ground of inadmissibility. Although we support requiring that an alien refused

admission under the program apply for a visa in order to enter the

United States, we are concerned about the clause that requires

that the ground of inadmissibility be uncovered ‘‘through a written

or verbal statement by the alien or a use of an automated electronic database required under subsection (a)(9).’’ This provision, as

written, will unduly hamper immigration officers because facts evidencing an alien’s inadmissibility are often uncovered through

sources other than the alien’s statements or an automated database check. For example, an alien’s inadmissibility may be uncovered during a luggage search where documents secreted in a suitcase reveal that the alien has an overseas criminal conviction or

that he is entering the United States to live and work permanently. In addition, reliable information from the alien’s friend or

family member may clearly evidence that the alien is traveling to

the United States to reside permanently. With respect to the

nonreviewability clause in contained in section 203(b) (prohibiting

review of any denial of admission), the current VWPP is designed

to achieve the goal of nonreviewability except in asylum cases. The

limited nonreviewability provision in this bill could be read to suggest that there is a right to administrative or judicial review in

other non-asylum VWPP denials. Current provisions in section 217

of the INA adequately address this issue.

Section 203(c) of the bill divests the Attorney General of authority to parole an alien for urgent humanitarian purposes. We strongly oppose this provision. Currently, the Attorney General may, on
19

a case-by-case basis, parole an alien for urgent humanitarian reasons or for significant public benefit. Parole requests under the

Visa Waiver Permanent Program likely will arise where parole is

necessary for compassionate family or medical situations. Such

emergencies fail to meet the public interest standard; rather, these

circumstances meet the urgent humanitarian interest standard.

Section 204(b) also requires immediate rescission of country participation in the visa waiver program when emergencies occur. We

propose amending the emergency rescission language (indicated in

italics) to read, ‘‘In the case of a program country in which an

emergency occurs that the Attorney General, in consultation with

the Secretary of State, determines would compromise the law enforcement or security interests of the United States (including the

interest in enforcement of the immigration laws of the United

States) if designation of that country were not immediately rescinded, the Attorney General shall immediately rescind the designation of the country as a program country.’’

Section 205(a) refers to an amendment made earlier in the bill

by section 203(b)(2), but there is no 203(b)(2) in the bill. Perhaps,

the drafters meant to refer to section 203(b).

Section 205(a) of the bill would require the development and implementation of an automated entry-exit control system at airports

and seaports. We support this provision for airports but oppose it

for seaports. The time frame, however, for developing such an airport system is unworkable, and no resources are authorized to implement this provision. Although we support an October 2004 deadline for developing this system, funding must be appropriated because such a system depends upon further database enhancements

and the automated I–94 system.

Section 205(a) also would require air and sea carrier data collection. The data requirements under this provision should be compatible with our automated I–94 system to ensure that arrival records

can be matched with departure records.

Section 205(a) of the bill would require an automated data sharing system. We support the provisions concerning data sharing

with the Department of State. Appropriate funding to support this

provision will have to be provided to both agencies.

ADDITIONAL PROPOSALS FOR A FUTURE VISA WAIVER PROGRAM

Initial Qualifications for the Permanent Program

All citizens of visa waiver countries benefit from being in the visa

waiver program, regardless of where those citizens reside. Therefore, it is essential that worldwide nonimmigrant visitor visa refusal rates be used to determine which countries might initially

qualify for the program. It is common practice for individuals who

obtain fraudulent passports to apply for nonimmigrant visas outside the country identified by the passport.

As a distinct qualification criterion entry into the permanent program, we propose a United States border interception rate of less

than .20 percent (2 out of every 1000), which would apply to applicants for admission who were not admitted at the initial port-ofentry. This criterion should include a method to account for the

risk posed by third country nationals fraudulently using a partici-
20

pant country’s passport at the time of application for admission at

a United States port-of-entry. It should reflect that some nations

have a low volume of admissions to the United States and that

therefore the overall number of incidents of fraud perpetrated by

third-country nationals may be misleading because of the small

number of travelers.

Continuing Qualification

We favor a separate provision that automatically would trigger

review of a country whose passport is abused by third country nationals. This would enable the United States to review visa waiver

privileges from any country unable to implement adequate controls

over its passports and their issuance.

Finally, we urge removal of the probationary status provisions

from the current statute. The current probationary provision simply provides sanction for a high-risk country to continue to participate in the program. Instead, we advocate provisions that would

allow the Attorney General, with notification to the Secretary of

State, to revoke or suspend a country’s privilege under the VWPP

to quickly address law enforcement or national security concerns.

In today’s world, we must be able to adjust to rapidly changing circumstances as quickly as possible. We also support a suspension

provision in addition to the rescission provisions.

Thank you for the opportunity to express the Department’s

views. Please do not hesitate to call upon my office if we may be

of additional assistance. The Office of Management and Budget has

advised us that from the perspective of the Administration’s program, there is no objection to submission of this letter.

Sincerely,

ROBERT RABEN, Assistant Attorney General.

Identical letter sent to the Honorable John Conyers, Jr., Ranking

Minority Member

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

* * * * * * *

TABLE OF CONTENTS

* * * * * * *

TITLE II—IMMIGRATION

* * * * * * *

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL CONTROL OF CITIZENS

AND ALIENS

Sec. 211. Documentary requirements.

* * * * * * *
21

Sec. 217. Visa waiver øpilot¿ program for certain visitors.

* * * * * * *

TITLE II—IMMIGRATION

* * * * * * *

CHAPTER 2—QUALIFICATIONS FOR ADMISSION OF ALIENS; TRAVEL

CONTROL OF CITIZENS AND ALIENS

* * * * * * *

GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND

INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILITY

SEC. 212. (a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR ADMISSION.—Except as otherwise provided in this Act, aliens who are

inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(1) * * *

* * * * * * *

(7) DOCUMENTATION REQUIREMENTS.—

(A) * * *

* * * * * * *

(B) NONIMMIGRANTS.—

(i) * * *

* * * * * * *

(iv) VISA WAIVER øPILOT¿ PROGRAM.—For authority to waive the requirement of clause (i) under a

øpilot¿ program, see section 217.

* * * * * * *

(d)(1) * * *

* * * * * * *

(5)(A) The Attorney General may, except as provided in øsubparagraph (B)¿ subparagraph (B) or (C) or in section 214(f), in his

discretion parole into the United States temporarily under such

conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien

applying for admission to the United States, but such parole of

such alien shall not be regarded as an admission of the alien and

when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or

be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner

as that of any other applicant for admission to the United States.

* * * * * * *

(C) The Attorney General may not parole into the United States

an alien who has applied under section 217 for a waiver of the visa

requirement, and has been denied such waiver by reason of a

ground of inadmissibility uncovered through a written or verbal

statement by the alien or a use of an automated electronic database

required under section 217(a)(9), unless the Attorney General determines that compelling reasons in the public interest, or compelling
22

health considerations, with respect to that particular alien require

that the alien be paroled into the United States.

* * * * * * *

VISA WAIVER øPILOT¿ PROGRAM FOR CERTAIN VISITORS

SEC. 217. (a) ESTABLISHMENT OF øPILOT¿ PROGRAM.—The Attorney General and the Secretary of State are authorized to establish a øpilot¿ program (hereinafter in this section referred to as the ‘‘øpilot¿ program’’) under which the requirement of paragraph

(7)(B)(i)(II) of section 212(a) may be waived by the Attorney General, in consultation with the Secretary of State, and in accordance

with this section, in the case of an alien who meets the following

requirements:

(1) SEEKING ENTRY AS TOURIST FOR 90 DAYS OR LESS.—The

alien is applying for admission during the øpilot program period (as defined in subsection (e))¿ program as a nonimmigrant

visitor (described in section 101(a)(15)(B)) for a period not exceeding 90 days.

(2) NATIONAL OF øPILOT¿ PROGRAM COUNTRY.—The alien is

a national of, and presents a passport issued by, a country

which—

(A) extends (or agrees to extend), either on its own or

in conjunction with one or more other countries that are described in subparagraph (B) and that have established

with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United

States, and

(B) is designated as a pilot program country under

subsection (c).

(3) MACHINE READABLE PASSPORT.—On and after October

1, 2006, the alien at the time of application for admission is in

possession of a valid unexpired machine-readable passport that

satisfies the internationally accepted standard for machine

readability.

ø(3)¿ (4) EXECUTES IMMIGRATION FORMS.—The alien before

the time of such admission completes such immigration form

as the Attorney General shall establish.

ø(4)¿ (5) ENTRY INTO THE UNITED STATES.—If arriving by

sea or air, the alien arrives at the port of entry into the United

States on a carrier which has entered into an agreement with

the Service to guarantee transport of the alien out of the

United States if the alien is found inadmissible or deportable

by an immigration officer.

ø(5)¿ (6) NOT A SAFETY THREAT.—The alien has been determined not to represent a threat to the welfare, health, safety,

or security of the United States.

ø(6)¿ (7) NO PREVIOUS VIOLATION.—If the alien previously

was admitted without a visa under this section, the alien must

not have failed to comply with the conditions of any previous

admission as such a nonimmigrant.

ø(7)¿ (8) ROUND-TRIP TICKET.—The alien is in possession of

a round-trip transportation ticket (unless this requirement is

waived by the Attorney General under regulations).
23

(9) AUTOMATED SYSTEM CHECK.—The identity of the alien

has been checked using an automated electronic database containing information about the inadmissibility of aliens to uncover any grounds on which the alien may be inadmissible to

the United States, and no such ground has been found.

(b) WAIVER OF RIGHTS.—An alien may not be provided a waiver under the øpilot¿ program unless the alien has waived any

right—

(1) * * *

* * * * * * *

(c) DESIGNATION OF øPILOT¿ PROGRAM COUNTRIES.—

(1) IN GENERAL.—The Attorney General, in consultation

with the Secretary of State, may designate any country as a

øpilot¿ program country if it meets the requirements of paragraph (2).

(2) QUALIFICATIONS.—Except as provided in subsection

ø(g)¿ (f), a country may not be designated as a øpilot¿ program

country unless the following requirements are met:

(A) * * *

* * * * * * *

ø(B) MACHINE READABLE PASSPORT PROGRAM.—The

government of the country certifies that it has or is in the

process of developing a program to issue machine-readable

passports to its citizens.

ø(C) LAW ENFORCEMENT INTERESTS.—The Attorney

General determines that the United States law enforcement interests would not be compromised by the designation of the country.¿

(B) MACHINE READABLE PASSPORT PROGRAM.— (i) IN GENERAL.—Subject to clause (ii), the government of the country certifies that it issues to its citizens

machine-readable passports that satisfy the internationally accepted standard for machine readability.

(ii) DEADLINE FOR COMPLIANCE FOR CERTAIN

COUNTRIES.—In the case of a country designated as a

program country under this subsection prior to May 1,

2000, as a condition on the continuation of that designation, the country—

(I) shall certify, not later than October 1, 2000,

that it has a program to issue machine-readable

passports to its citizens not later than October 1,

2003; and

(II) shall satisfy the requirement of clause (i)

not later than October 1, 2003.

(C) LAW ENFORCEMENT AND SECURITY INTERESTS.—The

Attorney General, in consultation with the Secretary of

State—

(i) evaluates the effect that the country’s designation would have on the law enforcement and security

interests of the United States (including the interest in

enforcement of the immigration laws of the United

States);
24

(ii) determines that such interests would not be

compromised by the designation of the country; and

(iii) submits a written report to the Committee on

the Judiciary of the United States House of Representatives and of the Senate regarding the country’s qualification for designation that includes an explanation of

such determination.

(3) CONTINUING AND SUBSEQUENT QUALIFICATIONS.—For

each fiscal year ø(within the pilot program period)¿ after the

initial period—

(A) CONTINUING QUALIFICATION.—In the case of a

country which was a øpilot¿ program country in the previous fiscal year, a country may not be designated as a

øpilot¿ program country unless the sum of—

(i) * * *

* * * * * * *

(B) NEW COUNTRIES.—In the case of another country,

the country may not be designated as a øpilot¿ program

country unless the following requirements are met:

* * * * * * *

(5) WRITTEN REPORTS ON CONTINUING QUALIFICATION; DES- IGNATION TERMINATIONS.— (A) PERIODIC EVALUATIONS.— (i) IN GENERAL.—The Attorney General, in consultation with the Secretary of State, periodically (but

not less than once every 5 years)—

(I) shall evaluate the effect of each program

country’s continued designation on the law enforcement and security interests of the United States

(including the interest in enforcement of the immigration laws of the United States);

(II) shall determine whether any such designation ought to be continued or terminated under

subsection (d); and

(III) shall submit a written report to the Committee on the Judiciary of the United States House

of Representatives and of the Senate regarding the

continuation or termination of the country’s designation that includes an explanation of such determination and the effects described in subclause

(I).

(ii) EFFECTIVE DATE.—A termination of the designation of a country under this subparagraph shall

take effect on the date determined by the Attorney General, but may not take effect before the end of the 30-

day period beginning on the date on which notice of the

termination is published in the Federal Register.

(iii) REDESIGNATION.—In the case of a termination

under this subparagraph, the Attorney General shall

redesignate the country as a program country, without

regard to subsection (f) or paragraph (2) or (3), when

the Attorney General, in consultation with the Sec-
25

retary of State, determines that all causes of the termination have been eliminated.

(B) AUTOMATIC TERMINATION.— (i) REQUIREMENT.—On and after October 1, 2005,

the designation of any program country with respect to

a report described in subparagraph (A)(i)(III) has not

been submitted in accordance with such subparagraph

during the preceding 5 years shall be considered terminated.

(ii) EFFECTIVE DATE.—A termination of the designation of a country under this subparagraph shall

take effect on the last day of the 5-year period described in clause (i).

(iii) REDESIGNATION.—In the case of a termination

under this subparagraph, the Attorney General shall

redesignate the country as a program country, without

regard to subsection (f) or paragraph (2) or (3), when

the required report is submitted, if the report includes

a determination by the Attorney General that the country should continue as a program country.

(C) EMERGENCY TERMINATION.— (i) IN GENERAL.—In the case of a program country

in which an emergency occurs that the Attorney General, in consultation with the Secretary of State, determines threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United

States), the Attorney General shall immediately terminate the designation of the country as a program country.

(ii) DEFINITION.—For purposes of clause (i), the

term ‘‘emergency’’ means—

(I) the overthrow of a democratically elected

government;

(II) war (including undeclared war, civil war,

or other military activity);

(III) disruptive social unrest;

(IV) a severe economic or financial crisis; or

(V) any other extraordinary event that threatens the law enforcement or security interests of the

United States (including the interest in enforcement of the immigration laws of the United

States).

(iii) REDESIGNATION.—The Attorney General may

redesignate the country as a program country, without

regard to subsection (f) or paragraph (2) or (3), when

the Attorney General determines that—

(I) at least 6 months have elapsed since the effective date of the termination;

(II) the emergency that caused the termination

has ended; and

(III) the average number of refusals of nonimmigrant visitor visas for nationals of that country during the period of termination under this
26

subparagraph was less than 3.0 percent of the

total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during such period.

(D) TREATMENT OF NATIONALS AFTER TERMINATION.— For purposes of this paragraph—

(i) nationals of a country whose designation is terminated under subparagraph (A), (B), or (C) shall remain eligible for a waiver under subsection (a) until

the effective date of such termination; and

(ii) a waiver under this section that is provided to

such a national for a period described in subsection

(a)(1) shall not, by such a designation termination, be

deemed to have been rescinded or otherwise rendered

invalid, if the waiver is granted prior to such termination.

(6) COMPUTATION OF VISA REFUSAL RATES.—For purposes of

determining the eligibility of a country to be designated as a

program country, the calculation of visa refusal rates shall not

include any visa refusals which incorporate any procedures

based on, or are otherwise based on, race, sex, sexual orientation, or disability, unless otherwise specifically authorized by

law or regulation.

* * * * * * *

(e) CARRIER AGREEMENTS.—

(1) IN GENERAL.—The agreement referred to in subsection

(a)(4) is an agreement between a carrier and the Attorney General under which the carrier agrees, in consideration of the

waiver of the visa requirement with respect to a nonimmigrant

visitor under the øpilot¿ program—

(A) * * *

(B) to submit daily to immigration officers any immigration forms received with respect to nonimmigrant visitors provided a waiver under the øpilot¿ program, øand¿

(C) to be subject to the imposition of fines resulting

from the transporting into the United States of a national

of a designated country without a passport pursuant to

regulations promulgated by the Attorney Generalø.¿, and

(D) to collect, provide, and share passenger data as required under subsection (h)(1)(B).

* * * * * * *

ø(f) DEFINITION OF PILOT PROGRAM PERIOD.—For purposes of

this section, the term ‘‘pilot program period’’ means the period beginning on October 1, 1988, and ending on April 30, 2000.¿

ø(g)¿ (f) DURATION AND TERMINATION OF DESIGNATION.—

(1) IN GENERAL.— (A) DETERMINATION AND NOTIFICATION OF DISQUALI- FICATION RATE.—Upon determination by the Attorney General that a øpilot¿ program country’s disqualification rate

is 2 percent or more, the Attorney General shall notify the

Secretary of State.

* * * * * * *
27

(C) TERMINATION OF DESIGNATION.—Subject to paragraph (3), if the program country’s disqualification rate is

3.5 percent or more, the Attorney General shall terminate

the country’s designation as a øpilot¿ program country effective at the beginning of the second fiscal year following

the fiscal year in which the determination under subparagraph (A) is made.

(2) TERMINATION OF PROBATIONARY STATUS.— (A) IN GENERAL.—If the Attorney General determines

at the end of the probationary period described in paragraph (1)(B) that the program country placed in probationary status under such paragraph has failed to develop

a machine-readable passport program as required by section (c)(2)(C), or has a disqualification rate of 2 percent or

more, the Attorney General shall terminate the designation of the country as a øpilot¿ program country. If the Attorney General determines that the program country has

developed a machine-readable passport program and has a

disqualification rate of less than 2 percent, the Attorney

General shall redesignate the country as a øpilot¿ program

country.

* * * * * * *

(3) NONAPPLICABILITY OF CERTAIN PROVISIONS.—Paragraph

(1)(C) shall not apply unless the total number of nationals of

a øpilot¿ program country described in paragraph (4)(A) exceeds 100.

(4) DEFINITION.—For purposes of this subsection, the term

‘‘disqualification rate’’ means the percentage which—

(A) the total number of nationals of the øpilot¿ program country who were—

* * * * * * *

(g) VISA APPLICATION SOLE METHOD OF DISPUTING GROUND OF

INADMISSIBILITY FOUND IN AUTOMATED SYSTEM.—In the case of an

alien denial a waiver under the program by reason of a ground of

inadmissibility uncovered through a written or verbal statement by

the alien or a use of an automated electronic database required

under subsection (a)(9), the alien may apply for a visa at an appropriate consular office outside the United States. There shall be no

other means of administrative or judicial review of such a denial,

and no court or person otherwise shall have jurisdiction to consider

any claim attacking the validity of such a denial.

(h) USE OF INFORMATION TECHNOLOGY SYSTEMS.—

(1) AUTOMATED ENTRY-EXIT CONTROL SYSTEM.—

(A) SYSTEM.—Not later than October 1, 2001, the Attorney General shall develop and implement a fully automated entry and exit control system that will collect a

record of arrival and departure for every alien who arrives

by sea or air at a port of entry into the United States and

is provided a waiver under the program.

(B) REQUIREMENTS.—The system under subparagraph

(A) shall satisfy the following requirements:

(i) DATA COLLECTION BY CARRIERS.—Not later than

October 1, 2001, the records of arrival and departure
28

described in subparagraph (A) shall be based, to the

maximum extent practicable, on passenger data collected and electronically transmitted to the automated

entry and exit control system by each carrier that has

an agreement under subsection (a)(4).

(ii) DATA PROVISION BY CARRIERS.—Not later than

October 1, 2002, no waiver may be provided under this

section to an alien arriving by sea or air at a port of

entry into the United States on a carrier unless the carrier is electronically transmitting to the automated

entry and exit control system passenger data determined by the Attorney General to be sufficient to permit the Attorney General to carry out this paragraph.

(iii) CALCULATION.—The system shall contain sufficient data to permit the Attorney General to calculate,

for each program country and each fiscal year, the portion of nationals of that country who are described in

subparagraph (A) and for whom no record of departure

exists, expressed as a percentage of the total number of

such nationals who are so described.

(C) REPORTING.— (i) PERCENTAGE OF NATIONALS LACKING DEPAR- TURE RECORD.—Not later than January 30 of each year

(beginning with the year 2003), the Attorney General

shall submit a written report to the Committee on the

Judiciary of the United States House of Representatives and of the Senate containing the calculation described in subparagraph (B)(iii) for each program

country for the previous fiscal year.

(ii) SYSTEM EFFECTIVENESS.—Not later than October 1, 2004, the Attorney General shall submit a written report to the Committee on the Judiciary of the

United States House of Representatives and of the Senate containing the following:

(I) The conclusions of the Attorney General regarding the effectiveness of the automated entry

and exit control system to be developed and implemented under this paragraph.

(II) The recommendations of the Attorney General regarding the use of the calculation described

in subparagraph (B)(iii) as a basis for evaluating

whether to terminate or continue the designation of

a country as a program country.

(2) AUTOMATED DATA SHARING SYSTEM.—

(A) SYSTEM.—The Attorney General and the Secretary

of State shall develop and implement an automated data

sharing system that will permit them to share data in electronic form from their respective records systems regarding

the admissibility of aliens who are nationals of a program

country.

(B) REQUIREMENTS.—The system under subparagraph

(A) shall satisfy the following requirements:

(i) SUPPLYING INFORMATION TO IMMIGRATION OFFICERS CONDUCTING INSPECTIONS AT PORTS OF ENTRY.—
29

Not later than October 1, 2002, the system shall enable

immigration officers conducting inspections at ports of

entry under section 235 to obtain from the system, with

respect to aliens seeking a waiver under the program—

(I) any photograph of the alien that may be

contained in the records of the Department of State

or the Service; and

(II) information on whether the alien has ever

been determined to be ineligible to receive a visa or

ineligible to be admitted to the United States.

(ii) SUPPLYING PHOTOGRAPHS OF INADMISSIBLE

ALIENS.—The system shall permit the Attorney General

electronically to obtain any photograph contained in

the records of the Secretary of State pertaining to an

alien who is a national of a program country and has

been determined to be ineligible to receive a visa.

(iii) MAINTAINING RECORDS ON APPLICATIONS FOR

ADMISSION.—The system shall maintain, for a minimum of 10 years, information about each application

for admission made by an alien seeking a waiver under

the program, including the following:

(I) The name of each immigration officer conducting the inspection of the alien at the port of

entry.

(II) Any information described in clause (i)

that is obtained from the system by any such officer.

(III) The results of the application.

* * * * * * *

(31)

1 990 F. Supp. 31 (D.C.D.C. Dec. 1997)

2 Under the Visa Waiver Program, the selection of countries to participate in the program includes the consideration of a country’s refusal rate, which is the rate at which applications for

nonimmigrant visas are denied. The standard for eligibility is a refusal rate that is lower than

3% for the two-year period preceding the application.

ADDITIONAL VIEWS

We take this opportunity to express our additional views on the

committee’s consideration of amendments offered to prohibit the

use of discriminatory profiling in the adjudication of visa applications and to study the problem of using visa refusal rates as a criterion to determine eligibility for the Visa Waiver Program.

In particular, we are deeply troubled by demonstrable evidence

of discriminatory and unlawful profiling in the adjudication of visa

applications. U.S. District Court Judge Stanley Sporkin determined

in the case of Olsen v. Albright 1 that the U.S. Consulate General

in Sao Paulo, Brazil based its nonimmigrant visa determinations in

large part on the applicants’ race, ethnicity or national origin.

Judge Sporkin correctly concluded: ‘‘The principle that government

must not discriminate against particular individuals because of the

color of their skin or the place of their birth means that the use

of generalizations based on these factors is unfair and unjustified.’’

In addition, we are concerned that the use of visa refusal rates as

a criterion to determine eligibility for the Visa Waiver Program has

a discriminatory impact on African and Caribbean nations.

In an effort to respond to these concerns, two amendments were

offered to H.R. 3767:

Conditions for Visa Refusal Eligibility

The unlawful practices found at the U.S. Consulate General in

Sao Paulo call into question the use of visa refusal rates as a criterion in the Visa Waiver Program. Judge Sporkin identified numerous instances of unlawful profiling in adjudicating visas in the

Olsen decision. For example, Korean and Chinese nationals were

rarely to be issued visas unless they were older and had previously

received a visa. According to the Consular Section Head, ‘‘Filipinos

and Nigerians have high fraud rates, and their applications should

be viewed with extreme suspicion, while British and Japanese citizens rarely overstay, and generally require less scrutiny.’’ Further,

identifying cities ‘‘known for fraud’’ (most with predominantly black

populations), the Consulate’s manual stated that ‘‘anyone born in

these locations is suspect unless older, well-traveled, etc.’’

We are greatly concerned that certain countries have not been

able to qualify under the Visa Waiver Program because visas are

wrongly refused based on generalizations stemming from a person’s

race, sex, national origin or other discriminatory factors.2 Therefore, Rep. Conyers offered an amendment to ensure that Consulates and Embassies abroad adjudicate nonimmigrant visas
32

based on the merits of the applications, and not on the basis of

‘‘race, sex, sexual orientation, disability, nationality, place of birth

or place of residence, unless otherwise specifically authorized by

law or regulation.’’ The purpose of the offered amendment is to ensure that Embassies and Consulates do not engage in the types of

practices described by Judge Sporkin in Olsen. The committee agreed to a revised amendment to prohibit the

adjudication of visas on the basis of race, sex, sexual orientation,

or disability, unless otherwise specified by law or regulation. We

are supportive of the committee’s agreement to this amendment because it codifies into law what already should be the practice of the

State Department.

However, it should be, and in our view is clear, that the decision

to remove ‘‘nationality, place of birth, or place of residence’’ does

not give consular officers discretion to discriminate on these bases.

The Olsen decision confirms that the use of generalizations based

on nationality, place of birth or place of residence is unfair, unjustified and contrary to law.

This amendment makes it clear to the U.S. Consulates and Embassies abroad that it is a violation of U.S. law for visa refusals to

occur based on generalizations that by their very nature are not

applicable to the individual application. The amendment is intended to ensure that Embassies and Consulates adjudicate visas

based on the merits of the applications, and not on the basis of irrelevant and harmful discriminatory stereotypes.

Report on Impact of Use of Visa Refusal Rates on Selection of Countries

Under the Visa Waiver Program, the selection of countries to

participate in the program includes the consideration of a country’s

refusal rate. This amendment offered by Reps. Conyers and Jackson Lee would have required the Attorney General to study whether the use of visa refusal rates in determining the eligibility of

countries in the Visa Waiver Program has a discriminatory impact

as well as whether there is a connection between visa rejection

rates and the overstay rates.

The visa refusal rate is not a relevant statistic in determining

eligibility for the Visa Waiver Program. The pertinent question

should be whether the past practices of the country’s citizens indicate a tendency to remain in the United States beyond the terms

of their visas. The refusal rate is simply not sufficiently probative

of that fact. The overstay rates for a country would be a far more

relevant consideration for determining eligibility to participate in

the Visa Waiver Program. Not a single African or Caribbean country currently is eligible for the Visa Waiver Program and we continue to believe that a study is urgently needed to determine why

this situation exists. We regret that the Majority chose to reject

this common sense amendment.

JOHN CONYERS, Jr.

BARNEY FRANK.

HOWARD L. BERMAN.

JERROLD NADLER.

ROBERT C. SCOTT.

MELVIN L. WATT.
33

SHEILA JACKSON LEE. MAXINE WATERS. MARTIN T. MEEHAN. WILLIAM D. DELAHUNT. ROBERT WEXLER. TAMMY BALDWIN. ANTHONY D. WEINER.

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