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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 2046 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 2046

To amend the Immigration and Nationality Act to modify the requirements 
           of the visa waiver program and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2012

Ms. Mikulski (for herself and Mr. Kirk) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
To amend the Immigration and Nationality Act to modify the requirements 
           of the visa waiver program and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Visa Waiver Program Enhanced 
Security and Reform Act''.

SEC. 2. DEFINITIONS.

    (a) Definitions.--Section 217(c)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(1)) is amended to read as follows:
            ``(1) Authority to designate; definitions.--
                    ``(A) Authority to designate.--The Secretary of 
                Homeland Security, in consultation with the Secretary 
                of State, may designate any country as a program 
                country if that country meets the requirements under 
                paragraph (2).
                    ``(B) Definitions.--In this subsection:
                            ``(i) Appropriate congressional 
                        committees.--The term `appropriate 
                        congressional committees' means--
                                    ``(I) the Committee on Foreign 
                                Relations, the Committee on Homeland 
                                Security and Governmental Affairs, and 
                                the Committee on the Judiciary of the 
                                Senate; and
                                    ``(II) the Committee on Foreign 
                                Affairs, the Committee on Homeland 
                                Security, and the Committee on the 
                                Judiciary of the House of 
                                Representatives.
                            ``(ii) Overstay rate.--
                                    ``(I) Initial designation.--The 
                                term `overstay rate' means, with 
                                respect to a country being considered 
                                for designation in the program, the 
                                ratio of--
                                            ``(aa) the number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States on the basis of a 
                                        nonimmigrant visa under section 
                                        101(a)(15)(B) whose periods of 
                                        authorized stay ended during a 
                                        fiscal year but who remained 
                                        unlawfully in the United States 
                                        beyond such periods; to
                                            ``(bb) the number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States on the basis of a 
                                        nonimmigrant visa under section 
                                        101(a)(15)(B) whose periods of 
                                        authorized stay ended during 
                                        that fiscal year.
                                    ``(II) Continuing designation.--The 
                                term `overstay rate' means, for each 
                                fiscal year after initial designation 
                                under this section with respect to a 
                                country, the ratio of--
                                            ``(aa) the number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States under this section or on 
                                        the basis of a nonimmigrant 
                                        visa under section 
                                        101(a)(15)(B) whose periods of 
                                        authorized stay ended during a 
                                        fiscal year but who remained 
                                        unlawfully in the United States 
                                        beyond such periods; to
                                            ``(bb) the number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States under this section or on 
                                        the basis of a nonimmigrant 
                                        visa under section 
                                        101(a)(15)(B) whose periods of 
                                        authorized stay ended during 
                                        that fiscal year.
                                    ``(III) Computation of overstay 
                                rate.--In determining the overstay rate 
                                for a country, the Secretary of 
                                Homeland Security may utilize 
                                information from any available 
                                databases to ensure the accuracy of 
                                such rate.
                            ``(iii) Program country.--The term `program 
                        country' means a country designated as a 
                        program country under subparagraph (A).''.
    (b) Technical and Conforming Amendments.--Section 217 of the 
Immigration and Nationality Act (8 U.S.C. 1187) is amended as follows:
            (1) By striking ``Attorney General'' each place the term 
        appears and inserting ``Secretary of Homeland Security'', 
        except in subsection (c)(11)(B).
            (2) In subsection (c)(2)(C)(iii), by striking ``Committee 
        on the Judiciary and the Committee on International Relations 
        of the House of Representatives and the Committee on the 
        Judiciary and the Committee on Foreign Relations of the 
        Senate'' and inserting ``appropriate congressional 
        committees''.
            (3) In subsection (c)(5)(A)(i)(III), by striking 
        ``Committee on the Judiciary, the Committee on Foreign Affairs, 
        and the Committee on Homeland Security, of the House of 
        Representatives and the Committee on the Judiciary, the 
        Committee on Foreign Relations, and the Committee on Homeland 
        Security and Governmental Affairs of the Senate'' and inserting 
        ``appropriate congressional committees''.
            (4) By striking subsection (c)(7)(E).

SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON OVERSTAY RATES.

    (a) In General.--Section 217(c)(2)(A) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(2)(A)) is amended to read as follows:
                    ``(A) General numerical limitations.--
                            ``(i) Low nonimmigrant visa refusal rate.--
                        The percentage of nationals of that country 
                        refused nonimmigrant visas under section 
                        101(a)(15)(B) during the previous full fiscal 
                        year was not more than 3 percent of the total 
                        number of nationals of that country who were 
                        granted or refused nonimmigrant visas under 
                        such section during such year.
                            ``(ii) Low nonimmigrant overstay rate.--The 
                        overstay rate for that country was not more 
                        than 3 percent during the previous fiscal 
                        year.''.
    (b) Qualification Criteria.--Section 217(c)(3) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(3)) is amended to read as 
follows:
            ``(3) Qualification criteria.--After the initial period, a 
        country may not be designated as a program country unless the 
        Secretary of Homeland Security, in consultation with the 
        Secretary of State, determines, pursuant to the requirements of 
        paragraph (5), that designation will be continued.''.
    (c) Continuing Designation.--Section 217(c)(5)(A)(i)(II) of the 
Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(A)(i)(II)) is 
amended to read as follows:
                                    ``(II) shall determine, based upon 
                                the evaluation in subclause (I), 
                                whether any such designation under 
                                subsection (d) or (f), or probation 
                                under subsection (f), ought to be 
                                continued or terminated;''.
    (d) Computation of Visa Refusal Rates; Judicial Review.--Section 
217(c)(6) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(6)) 
is amended to read as follows:
            ``(6) Computation of visa refusal rates and judicial 
        review.--
                    ``(A) 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, or disability, unless 
                otherwise specifically authorized by law or regulation.
                    ``(B) Judicial review.--No court shall have 
                jurisdiction under this section to review any visa 
                refusal, the Secretary of State's computation of a visa 
                refusal rate, the Secretary of Homeland Security's 
                computation of an overstay rate, or the designation or 
                nondesignation of a country as a program country.''.
    (e) Visa Waiver Information.--Section 217(c)(7) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(7)) is amended--
            (1) by striking subparagraphs (B) through (E); and
            (2) by striking ``Waiver information--'' and all that 
        follows through ``In refusing'' and inserting ``Waiver 
        information--In refusing''.
    (f) Waiver Authority.--Section 217(c)(8) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:
            ``(8) Waiver authority.--The Secretary of Homeland 
        Security, in consultation with the Secretary of State, may 
        waive the application of paragraph (2)(A)(i) for a country if--
                    ``(A) the country meets all other requirements of 
                paragraph (2);
                    ``(B) the Secretary of Homeland Security determines 
                that the totality of the country's security risk 
                mitigation measures provide assurance that the 
                country's participation in the program would not 
                compromise the law enforcement, security interests, or 
                enforcement of the immigration laws of the United 
                States;
                    ``(C) there has been a general downward trend in 
                the percentage of nationals of the country refused 
                nonimmigrant visas under section 101(a)(15)(B);
                    ``(D) the country consistently cooperated with the 
                Government of the United States on counterterrorism 
                initiatives, information sharing, preventing terrorist 
                travel, and extradition of the country's nationals to 
                the United States before the date of its designation as 
                a program country, and the Secretary of Homeland 
                Security and the Secretary of State assess that such 
                cooperation is likely to continue; and
                    ``(E) the percentage of nationals of the country 
                refused a nonimmigrant visa under section 101(a)(15)(B) 
                during the previous full fiscal year was not more than 
                10 percent of the total number of nationals of that 
                country who were granted or refused such nonimmigrant 
                visas.''.

SEC. 4. TERMINATION OF DESIGNATION; PROBATION.

    Section 217(f) of the Immigration and Nationality Act (8 U.S.C. 
1187(f)) is amended to read as follows:
    ``(f) Termination of Designation; Probation.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Probationary period.--The term `probationary 
                period' means the fiscal year in which a probationary 
                country is placed in probationary status under this 
                subsection.
                    ``(B) Program country.--The term `program country' 
                has the meaning given that term in subsection 
                (c)(1)(B).
            ``(2) Determination, notice, and initial probationary 
        period.--
                    ``(A) Determination of probationary status and 
                notice of noncompliance.--As part of each program 
                country's periodic evaluation required by subsection 
                (c)(5)(A), the Secretary of Homeland Security shall 
                determine whether a program country is in compliance 
                with the program requirements under subparagraphs 
                (A)(ii) through (F) of subsection (c)(2).
                    ``(B) Initial probationary period.--If the 
                Secretary of Homeland Security determines that a 
                program country visa is not in compliance with the 
                program requirements under subparagraphs (A)(ii) 
                through (F) of subsection (c)(2), the Secretary of 
                Homeland Security shall place the program country in 
                probationary status for the fiscal year following the 
                fiscal year in which the periodic evaluation is 
                completed.
            ``(3) Actions at the end of the initial probationary 
        period.--At the end of the initial probationary period of a 
        country under paragraph (2)(B), the Secretary of Homeland 
        Security shall take 1 of the following actions:
                    ``(A) Compliance during initial probationary 
                period.--If the Secretary determines that all instances 
                of noncompliance with the program requirements under 
                subparagraphs (A)(ii) through (F) of subsection (c)(2) 
                that were identified in the latest periodic evaluation 
                have been remedied by the end of the initial 
                probationary period, the Secretary shall end the 
                country's probationary period.
                    ``(B) Noncompliance during initial probationary 
                period.--If the Secretary determines that any instance 
                of noncompliance with the program requirements under 
                subparagraphs (A)(ii) through (F) of subsection (c)(2) 
                that were identified in the latest periodic evaluation 
                has not been remedied by the end of the initial 
                probationary period--
                            ``(i) the Secretary may terminate the 
                        country's participation in the program; or
                            ``(ii) on an annual basis, the Secretary 
                        may continue the country's probationary status 
                        if the Secretary, in consultation with the 
                        Secretary of State, determines that the 
                        country's continued participation in the 
                        program is in the national interest of the 
                        United States.
            ``(4) Actions at the end of additional probationary 
        periods.--At the end of all probationary periods granted to a 
        country pursuant to paragraph (3)(B)(ii), the Secretary shall 
        take one of the following actions:
                    ``(A) Compliance during additional period.--The 
                Secretary shall end the country's probationary status 
                if the Secretary determines during the latest periodic 
                evaluation required by subsection (c)(5)(A) that the 
                country is in compliance with the program requirements 
                under subparagraphs (A)(ii) through (F) of subsection 
                (c)(2).
                    ``(B) Noncompliance during additional periods.--The 
                Secretary shall terminate the country's participation 
                in the program if the Secretary determines during the 
                latest periodic evaluation required by subsection 
                (c)(5)(A) that the program country continues to be in 
                non-compliance with the program requirements under 
                subparagraphs (A)(ii) through (F) of subsection (c)(2).
            ``(5) Effective date.--The termination of a country's 
        participation in the program under paragraph (3)(B) or (4)(B) 
        shall take effect on the first day of the first fiscal year 
        following the fiscal year in which the Secretary determines 
        that such participation shall be terminated. Until such date, 
        nationals of the country shall remain eligible for a waiver 
        under subsection (a).
            ``(6) Treatment of nationals after termination.--For 
        purposes of this subsection and subsection (d)--
                    ``(A) nationals of a country whose designation is 
                terminated under paragraph (3) or (4) shall remain 
                eligible for a waiver under subsection (a) until the 
                effective date of such termination; and
                    ``(B) a waiver under this section that is provided 
                to such a national for a period described in subsection 
                (a)(1) shall not, by such termination, be deemed to 
                have been rescinded or otherwise rendered invalid, if 
                the waiver is granted prior to such termination.
            ``(7) Consultative role of the secretary of state.--In this 
        subsection, references to subparagraphs (A)(ii) through (F) of 
        subsection (c)(2) and subsection (c)(5)(A) carry with them the 
        consultative role of the Secretary of State as provided in 
        those provisions.''.

SEC. 5. REVIEW OF OVERSTAY TRACKING METHODOLOGY.

    Not later than 180 days after the date of the enactment of this 
Act, the Comptroller General of the United States shall conduct a 
review of the methods used by the Secretary of Homeland Security--
            (1) to track aliens entering and exiting the United States; 
        and
            (2) to detect any such alien who stays longer than such 
        alien's period of authorized admission.
                                 <all>
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