II 

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. 

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

3 SECTION 1. SHORT TITLE. 

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

5 Enhanced Security and Reform Act’’. 

6 SEC. 2. DEFINITIONS. 

7 (a) DEFINITIONS.—Section 217(c)(1) of the Immi8 gration and Nationality Act (8 U.S.C. 1187(c)(1)) is 

9 amended to read as follows: 


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1 ‘‘(1) AUTHORITY TO DESIGNATE; DEFINI2 TIONS.— 

3 ‘‘(A) AUTHORITY TO DESIGNATE.—The 

4 Secretary of Homeland Security, in consultation 

5 with the Secretary of State, may designate any 

6 country as a program country if that country 

7 meets the requirements under paragraph (2). 

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

9 ‘‘(i) APPROPRIATE CONGRESSIONAL

10 COMMITTEES.—The term ‘appropriate con11 gressional committees’ means— 

12 ‘‘(I) the Committee on Foreign 

13 Relations, the Committee on Home14 land Security and Governmental Af15 fairs, and the Committee on the Judi16 ciary of the Senate; and 

17 ‘‘(II) the Committee on Foreign 

18 Affairs, the Committee on Homeland 

19 Security, and the Committee on the 

20 Judiciary of the House of Representa21 tives. 

22 ‘‘(ii) OVERSTAY RATE.— 

23 ‘‘(I) INITIAL DESIGNATION.—The 

24 term ‘overstay rate’ means, with re25 spect to a country being considered 


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1 for designation in the program, the 

2 ratio of— 

3 ‘‘(aa) the number of nation4 als of that country who were ad5 mitted to the United States on 

6 the basis of a nonimmigrant visa 

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

8 whose periods of authorized stay 

9 ended during a fiscal year but 

10 who remained unlawfully in the 

11 United States beyond such peri12 ods; to 

13 ‘‘(bb) the number of nation14 als of that country who were ad15 mitted to the United States on 

16 the basis of a nonimmigrant visa 

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

18 whose periods of authorized stay 

19 ended during that fiscal year. 

20 ‘‘(II) CONTINUING DESIGNA21 TION.—The term ‘overstay rate’ 

22 means, for each fiscal year after ini23 tial designation under this section 

24 with respect to a country, the ratio 

25 of— 


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1 ‘‘(aa) the number of nation2 als of that country who were ad3 mitted to the United States 

4 under this section or on the basis 

5 of a nonimmigrant visa under 

6 section 101(a)(15)(B) whose pe7 riods of authorized stay ended 

8 during a fiscal year but who re9 mained unlawfully in the United 

10 States beyond such periods; to 

11 ‘‘(bb) the number of nation12 als of that country who were ad13 mitted to the United States 

14 under this section or on the basis 

15 of a nonimmigrant visa under 

16 section 101(a)(15)(B) whose pe17 riods of authorized stay ended 

18 during that fiscal year. 

19 ‘‘(III) COMPUTATION OF OVER20 STAY RATE.—In determining the over21 stay rate for a country, the Secretary 

22 of Homeland Security may utilize in23 formation from any available data24 bases to ensure the accuracy of such 

25 rate. 


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1 ‘‘(iii) PROGRAM COUNTRY.—The term 

2 ‘program country’ means a country des3 ignated as a program country under sub4 paragraph (A).’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

6 Section 217 of the Immigration and Nationality Act (8 

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

8 (1) By striking ‘‘Attorney General’’ each place 

9 the term appears and inserting ‘‘Secretary of Home10 land Security’’, except in subsection (c)(11)(B). 

11 (2) In subsection (c)(2)(C)(iii), by striking 

12 ‘‘Committee on the Judiciary and the Committee on 

13 International Relations of the House of Representa14 tives and the Committee on the Judiciary and the 

15 Committee on Foreign Relations of the Senate’’ and 

16 inserting ‘‘appropriate congressional committees’’. 

17 (3) In subsection (c)(5)(A)(i)(III), by striking 

18 ‘‘Committee on the Judiciary, the Committee on 

19 Foreign Affairs, and the Committee on Homeland 

20 Security, of the House of Representatives and the 

21 Committee on the Judiciary, the Committee on For22 eign Relations, and the Committee on Homeland Se23 curity and Governmental Affairs of the Senate’’ and 

24 inserting ‘‘appropriate congressional committees’’. 

25 (4) By striking subsection (c)(7)(E). 


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1 SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON 

2 OVERSTAY RATES. 

3 (a) IN GENERAL.—Section 217(c)(2)(A) of the Immi4 gration and Nationality Act (8 U.S.C. 1187(c)(2)(A)) is 

5 amended to read as follows: 

6 ‘‘(A) GENERAL NUMERICAL LIMITA7 TIONS.— 

8 ‘‘(i) LOW NONIMMIGRANT VISA RE9 FUSAL RATE.—The percentage of nationals 

10 of that country refused nonimmigrant visas 

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

12 previous full fiscal year was not more than 

13 3 percent of the total number of nationals 

14 of that country who were granted or re15 fused nonimmigrant visas under such sec16 tion during such year. 

17 ‘‘(ii) LOW NONIMMIGRANT OVERSTAY

18 RATE.—The overstay rate for that country 

19 was not more than 3 percent during the 

20 previous fiscal year.’’. 

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

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

23 1187(c)(3)) is amended to read as follows: 

24 ‘‘(3) QUALIFICATION CRITERIA.—After the ini25 tial period, a country may not be designated as a 

26 program country unless the Secretary of Homeland 


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1 Security, in consultation with the Secretary of State, 

2 determines, pursuant to the requirements of para3 graph (5), that designation will be continued.’’. 

4 (c) CONTINUING DESIGNATION.—Section 

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

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

7 as follows: 

8 ‘‘(II) shall determine, based upon 

9 the evaluation in subclause (I), wheth10 er any such designation under sub11 section (d) or (f), or probation under 

12 subsection (f), ought to be continued 

13 or terminated;’’. 

14 (d) COMPUTATION OF VISA REFUSAL RATES; JUDI15 CIAL REVIEW.—Section 217(c)(6) of the Immigration and 

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

17 as follows: 

18 ‘‘(6) COMPUTATION OF VISA REFUSAL RATES

19 AND JUDICIAL REVIEW.— 

20 ‘‘(A) COMPUTATION OF VISA REFUSAL

21 RATES.—For purposes of determining the eligi22 bility of a country to be designated as a pro23 gram country, the calculation of visa refusal 

24 rates shall not include any visa refusals which 

25 incorporate any procedures based on, or are 


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1 otherwise based on, race, sex, or disability, un2 less otherwise specifically authorized by law or 

3 regulation. 

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

5 have jurisdiction under this section to review 

6 any visa refusal, the Secretary of State’s com7 putation of a visa refusal rate, the Secretary of 

8 Homeland Security’s computation of an over9 stay rate, or the designation or nondesignation 

10 of a country as a program country.’’. 

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

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

13 1187(c)(7)) is amended— 

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

15 and 

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

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

18 ‘‘WAIVER INFORMATION—In refusing’’. 

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

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

21 is amended to read as follows: 

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

23 Homeland Security, in consultation with the Sec24 retary of State, may waive the application of para25 graph (2)(A)(i) for a country if— 


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1 ‘‘(A) the country meets all other require2 ments of paragraph (2); 

3 ‘‘(B) the Secretary of Homeland Security 

4 determines that the totality of the country’s se5 curity risk mitigation measures provide assur6 ance that the country’s participation in the pro7 gram would not compromise the law enforce8 ment, security interests, or enforcement of the 

9 immigration laws of the United States; 

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

11 trend in the percentage of nationals of the 

12 country refused nonimmigrant visas under sec13 tion 101(a)(15)(B); 

14 ‘‘(D) the country consistently cooperated 

15 with the Government of the United States on 

16 counterterrorism initiatives, information shar17 ing, preventing terrorist travel, and extradition 

18 of the country’s nationals to the United States 

19 before the date of its designation as a program 

20 country, and the Secretary of Homeland Secu21 rity and the Secretary of State assess that such 

22 cooperation is likely to continue; and 

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

24 country refused a nonimmigrant visa under sec25 tion 101(a)(15)(B) during the previous full fisVerDate Mar 15 2010 01:49 Feb 01, 2012 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2046.IS S2046

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1 cal year was not more than 10 percent of the 

2 total number of nationals of that country who 

3 were granted or refused such nonimmigrant 

4 visas.’’. 

5 SEC. 4. TERMINATION OF DESIGNATION; PROBATION. 

6 Section 217(f) of the Immigration and Nationality 

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

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

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

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

11 ‘probationary period’ means the fiscal year in 

12 which a probationary country is placed in pro13 bationary status under this subsection. 

14 ‘‘(B) PROGRAM COUNTRY.—The term ‘pro15 gram country’ has the meaning given that term 

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

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

18 PROBATIONARY PERIOD.— 

19 ‘‘(A) DETERMINATION OF PROBATIONARY

20 STATUS AND NOTICE OF NONCOMPLIANCE.—As 

21 part of each program country’s periodic evalua22 tion required by subsection (c)(5)(A), the Sec23 retary of Homeland Security shall determine 

24 whether a program country is in compliance 


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1 with the program requirements under subpara2 graphs (A)(ii) through (F) of subsection (c)(2). 

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

4 the Secretary of Homeland Security determines 

5 that a program country visa is not in compli6 ance with the program requirements under sub7 paragraphs (A)(ii) through (F) of subsection 

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

9 shall place the program country in probationary 

10 status for the fiscal year following the fiscal 

11 year in which the periodic evaluation is com12 pleted. 

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

14 PROBATIONARY PERIOD.—At the end of the initial 

15 probationary period of a country under paragraph 

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

17 take 1 of the following actions: 

18 ‘‘(A) COMPLIANCE DURING INITIAL PROBA19 TIONARY PERIOD.—If the Secretary determines 

20 that all instances of noncompliance with the 

21 program requirements under subparagraphs 

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

23 were identified in the latest periodic evaluation 

24 have been remedied by the end of the initial 


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1 probationary period, the Secretary shall end the 

2 country’s probationary period. 

3 ‘‘(B) NONCOMPLIANCE DURING INITIAL

4 PROBATIONARY PERIOD.—If the Secretary de5 termines that any instance of noncompliance 

6 with the program requirements under subpara7 graphs (A)(ii) through (F) of subsection (c)(2) 

8 that were identified in the latest periodic eval9 uation has not been remedied by the end of the 

10 initial probationary period— 

11 ‘‘(i) the Secretary may terminate the 

12 country’s participation in the program; or 

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

14 may continue the country’s probationary 

15 status if the Secretary, in consultation 

16 with the Secretary of State, determines 

17 that the country’s continued participation 

18 in the program is in the national interest 

19 of the United States. 

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

21 PROBATIONARY PERIODS.—At the end of all proba22 tionary periods granted to a country pursuant to 

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

24 the following actions: 


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1 ‘‘(A) COMPLIANCE DURING ADDITIONAL

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

3 probationary status if the Secretary determines 

4 during the latest periodic evaluation required by 

5 subsection (c)(5)(A) that the country is in com6 pliance with the program requirements under 

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

8 (c)(2). 

9 ‘‘(B) NONCOMPLIANCE DURING ADDI10 TIONAL PERIODS.—The Secretary shall termi11 nate the country’s participation in the program 

12 if the Secretary determines during the latest 

13 periodic evaluation required by subsection 

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

15 be in non-compliance with the program require16 ments under subparagraphs (A)(ii) through (F) 

17 of subsection (c)(2). 

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

19 country’s participation in the program under para20 graph (3)(B) or (4)(B) shall take effect on the first 

21 day of the first fiscal year following the fiscal year 

22 in which the Secretary determines that such partici23 pation shall be terminated. Until such date, nation24 als of the country shall remain eligible for a waiver 

25 under subsection (a). 


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1 ‘‘(6) TREATMENT OF NATIONALS AFTER TERMI2 NATION.—For purposes of this subsection and sub3 section (d)— 

4 ‘‘(A) nationals of a country whose designa5 tion is terminated under paragraph (3) or (4) 

6 shall remain eligible for a waiver under sub7 section (a) until the effective date of such ter8 mination; and 

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

10 provided to such a national for a period de11 scribed in subsection (a)(1) shall not, by such 

12 termination, be deemed to have been rescinded 

13 or otherwise rendered invalid, if the waiver is 

14 granted prior to such termination. 

15 ‘‘(7) CONSULTATIVE ROLE OF THE SECRETARY

16 OF STATE.—In this subsection, references to sub17 paragraphs (A)(ii) through (F) of subsection (c)(2) 

18 and subsection (c)(5)(A) carry with them the con19 sultative role of the Secretary of State as provided 

20 in those provisions.’’. 

21 SEC. 5. REVIEW OF OVERSTAY TRACKING METHODOLOGY. 

22 Not later than 180 days after the date of the enact23 ment of this Act, the Comptroller General of the United 

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

25 Secretary of Homeland Security— 


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1 (1) to track aliens entering and exiting the 

2 United States; and 

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

4 than such alien’s period of authorized admission. 

Æ 


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