II 

112TH CONGRESS 

1ST SESSION S. 497 

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 

MARCH 7, 2011 

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 ‘‘Secure Travel and 

5 Counterterrorism Partnership Program Act of 2011’’. 

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: 


rfrederick on DSKD9S0YB1PROD with BILLS
2 

•S 497 IS

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) PROGRAM COUNTRY.—The term 

23 ‘program country’ means a country des24 ignated as a program country under sub25 paragraph (A). 


rfrederick on DSKD9S0YB1PROD with BILLS
3 

•S 497 IS

1 ‘‘(iii) VISA OVERSTAY RATE.— 

2 ‘‘(I) IN GENERAL.—The term 

3 ‘visa overstay rate’ means, with re4 spect to a country, the ratio of— 

5 ‘‘(aa) the total number of 

6 nationals of that country who 

7 were admitted to the United 

8 States on the basis of a non9 immigrant visa whose periods of 

10 authorized stay ended during a 

11 fiscal year but who remained un12 lawfully in the United States be13 yond such periods; to 

14 ‘‘(bb) the total number of 

15 nationals of that country who 

16 were admitted to the United 

17 States on the basis of a non18 immigrant visa during that fiscal 

19 year. 

20 ‘‘(iv) COMPUTATION OF VISA OVER21 STAY RATE.—In determining the visa over22 stay rate for a country the Secretary of 

23 Homeland Security— 


rfrederick on DSKD9S0YB1PROD with BILLS
4 

•S 497 IS

1 ‘‘(I) shall utilize information 

2 from all available databases to ensure 

3 the accuracy of such rate; and 

4 ‘‘(II) shall not include any visa 

5 overstay which incorporates any pro6 cedures based on, or are otherwise 

7 based on, race, sex, or disability, un8 less otherwise specifically authorized 

9 by law or regulation.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

11 Section 217(c) of the Immigration and Nationality Act (8 

12 U.S.C. 1187(c)) is amended as follows: 

13 (1) In paragraph (2)(C)— 

14 (A) in the matter preceding clause (i), by 

15 striking ‘‘Attorney General,’’ and inserting 

16 ‘‘Secretary of Homeland Security,’’; and 

17 (B) in clause (iii), by striking ‘‘Committee 

18 on the Judiciary and the Committee on Inter19 national Relations of the House of Representa20 tives and the Committee on the Judiciary and 

21 the Committee on Foreign Relations of the Sen22 ate’’ and inserting ‘‘appropriate congressional 

23 committees’’. 

24 (2) In paragraph (5)(A)(i)(III), by striking 

25 ‘‘the Committee on the Judiciary, the Committee on 


rfrederick on DSKD9S0YB1PROD with BILLS
5 

•S 497 IS

1 Foreign Affairs, and the Committee on Homeland 

2 Security, of the House of Representatives and the 

3 Committee on the Judiciary, the Committee on For4 eign Relations, and the Committee on Homeland Se5 curity and Governmental Affairs of the Senate’’ and 

6 inserting ‘‘appropriate congressional committees’’. 

7 (3) In paragraph (7)— 

8 (A) in subparagraph (D), by striking ‘‘At9 torney General’’ both places that term appears 

10 and inserting ‘‘Secretary of Homeland Secu11 rity’’; and 

12 (B) by striking subparagraph (E). 

13 SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON 

14 VISA OVERSTAY RATES. 

15 (a) IN GENERAL.—Section 217(c)(2)(A) of the Immi16 gration and Nationality Act (8 U.S.C. 1187(c)(2)(A)) is 

17 amended to read as follows: 

18 ‘‘(A) LOW NONIMMIGRANT VISA OVERSTAY

19 RATE.—The visa overstay rate for that country 

20 was not more than 3 percent during the pre21 vious fiscal year.’’. 

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

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

24 1187(c)(3)) is amended to read as follows: 


rfrederick on DSKD9S0YB1PROD with BILLS
6 

•S 497 IS

1 ‘‘(3) QUALIFICATION CRITERIA.—For each fis2 cal year after the initial period, a country may not 

3 be designated as a program country unless require4 ments of paragraph (2)(A) are met.’’. 

5 (c) JUDICIAL REVIEW.—Section 217(c)(6) of the Im6 migration and Nationality Act (8 U.S.C. 1187(c)(6)) is 

7 amended to read as follows: 

8 ‘‘(6) INAPPLICABILITY OF JUDICIAL REVIEW.— 

9 No court shall have jurisdiction to review the denial 

10 of admission to the United States of any alien by the 

11 Secretary of Homeland Security, the Secretary’s 

12 computation of a visa overstay rate, or the designa13 tion or nondesignation of a country as a program 

14 country.’’. 

15 (d) REPORTING REQUIREMENTS.—Section 217(c)(7) 

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

17 1187(c)(7)), as amended by section 2(b)(3), is further 

18 amended— 

19 (1) in the heading, by striking ‘‘VISA WAIVER

20 INFORMATION.—’’ and inserting ‘‘REPORTING RE21 QUIREMENT.—’’; 

22 (2) by striking subparagraph (A); 

23 (3) by redesignating subparagraphs (B), (C), 

24 and (D) as subparagraphs (A), (B), and (C), respec25 tively; 


rfrederick on DSKD9S0YB1PROD with BILLS
7 

•S 497 IS

1 (4) in subparagraph (A), as so redesignated— 

2 (A) in the heading, by striking ‘‘REPORT3 ING REQUIREMENT.—’’ and inserting ‘‘IN GEN4 ERAL.—’’; 

5 (B) in clause (iii), by striking ‘‘were re6 fused’’ and inserting ‘‘overstayed’’; 

7 (C) in clause (iv)— 

8 (i) by striking ‘‘who were refused’’ 

9 and inserting ‘‘who overstayed’’; and 

10 (ii) by striking ‘‘refused; and’’ and in11 serting ‘‘issued.’’; and 

12 (D) by striking clause (v); 

13 (5) in subparagraph (B), as so redesignated, by 

14 striking ‘‘subparagraph (B)’’ and inserting ‘‘sub15 paragraph (A)’’; and 

16 (6) in subparagraph (C), as so redesignated, by 

17 striking ‘‘subparagraph (B)’’ and inserting ‘‘sub18 paragraph (A)’’. 

19 (e) 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) for a country if— 


rfrederick on DSKD9S0YB1PROD with BILLS
8 

•S 497 IS

1 ‘‘(A) the country meets all security re2 quirements of this section; 

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; and 

10 ‘‘(C) the country cooperated with the Gov11 ernment of the United States on counterter12 rorism initiatives, information sharing, and pre13 venting terrorist travel before the date of its 

14 designation as a program country, and the Sec15 retary of Homeland Security and the Secretary 

16 of State determine that such cooperation will 

17 continue.’’. 

18 SEC. 4. TERMINATION OF DESIGNATION; PROBATION. 

19 Section 217(f) of the Immigration and Nationality 

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

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

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

23 ‘‘(A) PROBATIONARY COUNTRY.—The term 

24 ‘probationary country’ means a program counVerDate Mar 15 2010 04:10 Mar 08, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S497.IS S497

rfrederick on DSKD9S0YB1PROD with BILLS
9 

•S 497 IS

1 try placed in probationary status under para2 graph (2)(B). 

3 ‘‘(B) PROBATIONARY PERIOD.—The term 

4 ‘probationary period’ means the fiscal year in 

5 which a probationary country is placed in pro6 bationary status under paragraph (2)(B). 

7 ‘‘(C) PROGRAM COUNTRY.—The term ‘pro8 gram country’ has the meaning given that term 

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

10 ‘‘(D) VISA OVERSTAY RATE.—The term 

11 ‘visa overstay rate’ has the meaning given that 

12 term in subsection (c)(1)(B). 

13 ‘‘(2) DETERMINATION AND NOTICE OF DIS14 QUALIFICATION.— 

15 ‘‘(A) DETERMINATION.—Upon a deter16 mination by the Secretary of Homeland Secu17 rity that a program country’s visa overstay rate 

18 was more than 3 percent for the preceding fis19 cal year or that the program country is not in 

20 compliance with all other program requirements 

21 under subsection (c)(2), the Secretary shall no22 tify the Secretary of State. 

23 ‘‘(B) PROBATIONARY STATUS.—If the Sec24 retary of Homeland Security makes a deter25 mination under subparagraph (A) for a proVerDate Mar 15 2010 04:10 Mar 08, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S497.IS S497

rfrederick on DSKD9S0YB1PROD with BILLS
10 

•S 497 IS

1 gram country, the Secretary of Homeland Secu2 rity shall place the program country in proba3 tionary status for the fiscal year following the 

4 fiscal year for which such determination was 

5 made. 

6 ‘‘(3) ACTIONS AT TERMINATION OF THE PROBA7 TIONARY PERIOD.—At the end of the probationary 

8 period of a probationary country, the Secretary of 

9 Homeland Security shall take one of the following 

10 actions: 

11 ‘‘(A) COMPLIANCE DURING PROBATIONARY

12 PERIOD.—The Secretary shall redesignate the 

13 probationary country as a program country if 

14 the Secretary determines that during the proba15 tionary period the probationary country— 

16 ‘‘(i) had a visa overstay rate not more 

17 than 3 percent; and 

18 ‘‘(ii) was in compliance with all other 

19 program requirements under subsection 

20 (c)(2). 

21 ‘‘(B) COMPLIANCE WITH VISA OVERSTAY

22 RATE.—The Secretary may redesignate the pro23 bationary country as a program country if the 

24 Secretary determines that during the probaVerDate Mar 15 2010 04:10 Mar 08, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S497.IS S497

rfrederick on DSKD9S0YB1PROD with BILLS
11 

•S 497 IS

1 tionary period the probationary country had a 

2 visa overstay rate of not more than 3 percent. 

3 ‘‘(C) NONCOMPLIANCE WITH VISA OVER4 STAY RATE.— 

5 ‘‘(i) IN GENERAL.—Subject to clause 

6 (ii), the Secretary shall terminate the pro7 bationary country’s participation in the 

8 program if the Secretary determines that 

9 during the probationary period the proba10 tionary country had a visa overstay rate of 

11 more than 3 percent. 

12 ‘‘(ii) ADDITIONAL PROBATIONARY PE13 RIOD.—The Secretary may waive the appli14 cation of clause (i) for the probationary 

15 country if the Secretary, in consultation 

16 with the Director of National Intelligence, 

17 certifies that the probationary country’s 

18 continued participation in the program 

19 does not pose a threat to law enforcement, 

20 security, or enforcement of immigration 

21 laws, and place the country in probationary 

22 status for one additional fiscal year. 

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

24 PROBATIONARY PERIOD.—At the end of the addi25 tional 1-year period of probation granted to a probaVerDate Mar 15 2010 04:10 Mar 08, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S497.IS S497

rfrederick on DSKD9S0YB1PROD with BILLS
12 

•S 497 IS

1 tionary country pursuant to subparagraph (C)(ii), 

2 the Secretary shall take one of the following actions: 

3 ‘‘(A) COMPLIANCE DURING ADDITIONAL

4 PERIOD.—The Secretary shall redesignate the 

5 probationary country as a program country if 

6 the Secretary determines that during such addi7 tional period the probationary country had a 

8 visa overstay rate not more than 3 percent. 

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

12 the program if the Secretary determines that 

13 during such additional period the probationary 

14 country had a visa overstay rate of more than 

15 3 percent. 

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

17 country’s participation in the program under para18 graph (3) or (4) shall take effect on the first day of 

19 the first fiscal year following the fiscal year in which 

20 the Secretary determines that such participation 

21 shall be terminated. Until such date, nationals of the 

22 country shall remain eligible for a waiver under sub23 section (a). 

24 ‘‘(6) NONAPPLICABILITY OF CERTAIN PROVI25 SIONS.—Paragraphs (3) and (4) shall not apply to 


rfrederick on DSKD9S0YB1PROD with BILLS
13 

•S 497 IS

1 a program country unless the total number of na2 tionals of the program country that entered the 

3 United States during the prior fiscal year exceeds 

4 100. 

5 ‘‘(7) EMERGENCY TERMINATION.— 

6 ‘‘(A) IN GENERAL.—In the case of a pro7 gram country in which an emergency occurs 

8 that the Secretary of Homeland Security, in 

9 consultation with the Secretary of State, deter10 mines threatens the law enforcement or security 

11 interests of the United States (including the in12 terest in enforcement of the immigration laws 

13 of the United States), the Secretary of Home14 land Security shall immediately terminate the 

15 designation of the country as a program coun16 try. 

17 ‘‘(B) EMERGENCY DEFINED.—In this 

18 paragraph, the term ‘emergency’ means— 

19 ‘‘(i) the overthrow of a democratically 

20 elected government in the program coun21 try; 

22 ‘‘(ii) war (including undeclared war, 

23 civil war, or other military activity) on the 

24 territory of the program country; 


rfrederick on DSKD9S0YB1PROD with BILLS
14 

•S 497 IS

1 ‘‘(iii) a severe breakdown in law and 

2 order affecting a significant portion of the 

3 program country’s territory; 

4 ‘‘(iv) a severe economic collapse in the 

5 program country; or 

6 ‘‘(v) any other extraordinary event in 

7 the program country that threatens the 

8 law enforcement or security interests of the 

9 United States (including the interest in en10 forcement of the immigration laws of the 

11 United States) and where the country’s 

12 participation in the program could con13 tribute to that threat. 

14 ‘‘(C) REDESIGNATION.—The Secretary of 

15 Homeland Security may redesignate the coun16 try as a program country, without regard to 

17 paragraph (3) or (4) or subsection (c)(2), if the 

18 Secretary, in consultation with the Secretary of 

19 State, determines that— 

20 ‘‘(i) at least 6 months have elapsed 

21 since the effective date of the emergency 

22 termination under subparagraph (A); 

23 ‘‘(ii) the emergency that caused the 

24 termination has ended; and 


rfrederick on DSKD9S0YB1PROD with BILLS
15 

•S 497 IS

1 ‘‘(iii) the average visa overstay rate 

2 for that country during the period of ter3 mination under this subparagraph was not 

4 more than 3 percent. 

5 ‘‘(D) PROGRAM SUSPENSION AUTHOR6 ITY.—The Director of National Intelligence 

7 shall immediately inform the Secretary of 

8 Homeland Security of any current and credible 

9 threat which poses an imminent danger to the 

10 United States or its citizens and originates 

11 from a country participating in the visa waiver 

12 program. Upon receiving such notification, the 

13 Secretary, in consultation with the Secretary of 

14 State— 

15 ‘‘(i) may suspend a program country 

16 from the visa waiver program without prior 

17 notice; 

18 ‘‘(ii) shall notify any country sus19 pended under clause (i) and, to the extent 

20 practicable without disclosing sensitive in21 telligence sources and methods, provide 

22 justification for the suspension; and 

23 ‘‘(iii) shall restore the suspended 

24 country’s participation in the visa waiver 

25 program upon a determination that the 


rfrederick on DSKD9S0YB1PROD with BILLS
16 

•S 497 IS

1 threat no longer poses an imminent danger 

2 to the United States or its citizens. 

3 ‘‘(8) TREATMENT OF NATIONALS AFTER TERMI4 NATION.—For purposes of this subsection and sub5 section (d)— 

6 ‘‘(A) nationals of a country whose designa7 tion is terminated under paragraph (3), (4), or 

8 (7) shall remain eligible for a waiver under sub9 section (a) until the effective date of such ter10 mination; and 

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

12 provided to such a national for a period de13 scribed in subsection (a)(1) shall not, by such 

14 termination, be deemed to have been rescinded 

15 or otherwise rendered invalid, if the waiver is 

16 granted prior to such termination.’’. 

17 SEC. 5. REVIEW OF OVERSTAY TRACKING METHODOLOGY. 

18 Not later than 180 days after the date of the enact19 ment of this Act, the Comptroller General of the United 

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

21 Secretary of Homeland Security— 

22 (1) to track aliens entering and exiting the 

23 United States; and 


rfrederick on DSKD9S0YB1PROD with BILLS
17 

•S 497 IS

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

2 than such alien’s period of authorized admission. 

Æ 


rfrederick on DSKD9S0YB1PROD with BILLS