I 

113TH CONGRESS 

1ST SESSION H. R. 490 

To amend section 217 of the Immigration and Nationality Act to modify 

the visa waiver program, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 4, 2013 

Mr. QUIGLEY (for himself, Mr. CHABOT, Mr. SCHNEIDER, Mr. HIGGINS, Ms. 

KAPTUR, Mr. KINZINGER of Illinois, Mr. LIPINSKI, Ms. SCHAKOWSKY, 

Mr. SCHOCK, Mr. SHIMKUS, Mr. GUTIERREZ, Mr. KEATING, Mr. AMASH, 

Mr. HECK of Nevada, Ms. NORTON, Mr. SMITH of Washington, Ms. 

WASSERMAN SCHULTZ, Mrs. CAROLYN B. MALONEY of New York, and 

Mr. FOSTER) introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To amend section 217 of the Immigration and Nationality 

Act to modify 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’’. 


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1 SEC. 2. VISA WAIVER PROGRAM ENHANCED SECURITY AND 

2 REFORM. 

3 (a) DEFINITIONS.—Section 217(c)(1) of the Immi4 gration and Nationality Act (8 U.S.C. 1187(c)(1)) is 

5 amended to read as follows: 

6 ‘‘(1) AUTHORITY TO DESIGNATE; DEFINI7 TIONS.— 

8 ‘‘(A) AUTHORITY TO DESIGNATE.—The 

9 Secretary of Homeland Security, in consultation 

10 with the Secretary of State, may designate any 

11 country as a program country if that country 

12 meets the requirements under paragraph (2). 

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

14 ‘‘(i) APPROPRIATE CONGRESSIONAL

15 COMMITTEES.—The term ‘appropriate con16 gressional committees’ means— 

17 ‘‘(I) the Committee on Foreign 

18 Relations, the Committee on Home19 land Security and Governmental Af20 fairs, and the Committee on the Judi21 ciary of the Senate; and 

22 ‘‘(II) the Committee on Foreign 

23 Affairs, the Committee on Homeland 

24 Security, and the Committee on the 

25 Judiciary of the House of Representa26 tives. 


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1 ‘‘(ii) OVERSTAY RATE.— 

2 ‘‘(I) INITIAL DESIGNATION.—The 

3 term ‘overstay rate’ means, with re4 spect to a country being considered 

5 for designation in the program, the 

6 ratio of— 

7 ‘‘(aa) the number of nation8 als of that country who were ad9 mitted to the United States on 

10 the basis of a nonimmigrant visa 

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

12 whose periods of authorized stay 

13 ended during a fiscal year but 

14 who remained unlawfully in the 

15 United States beyond such peri16 ods; to 

17 ‘‘(bb) the number of nation18 als of that country who were ad19 mitted to the United States on 

20 the basis of a nonimmigrant visa 

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

22 whose periods of authorized stay 

23 ended during that fiscal year. 

24 ‘‘(II) CONTINUING DESIGNA25 TION.—The term ‘overstay rate’ 


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1 means, for each fiscal year after ini2 tial designation under this section 

3 with respect to a country, the ratio 

4 of— 

5 ‘‘(aa) the number of nation6 als of that country who were ad7 mitted to the United States 

8 under this section or on the basis 

9 of a nonimmigrant visa under 

10 section 101(a)(15)(B) whose pe11 riods of authorized stay ended 

12 during a fiscal year but who re13 mained unlawfully in the United 

14 States beyond such periods; to 

15 ‘‘(bb) the number of nation16 als of that country who were ad17 mitted to the United States 

18 under this section or on the basis 

19 of a nonimmigrant visa under 

20 section 101(a)(15)(B) whose pe21 riods of authorized stay ended 

22 during that fiscal year. 

23 ‘‘(III) COMPUTATION OF OVER24 STAY RATE.—In determining the over25 stay rate for a country, the Secretary 


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1 of Homeland Security may utilize in2 formation from any available data3 bases to ensure the accuracy of such 

4 rate. 

5 ‘‘(iii) PROGRAM COUNTRY.—The term 

6 ‘program country’ means a country des7 ignated as a program country under sub8 paragraph (A).’’. 

9 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

10 Section 217 of the Immigration and Nationality Act (8 

11 U.S.C. 1187) is amended— 

12 (1) by striking ‘‘Attorney General’’ each place 

13 the term appears (except in subsection (c)(11)(B)) 

14 and inserting ‘‘Secretary of Homeland Security’’; 

15 and 

16 (2) in subsection (c)— 

17 (A) in paragraph (2)(C)(iii), by striking 

18 ‘‘Committee on the Judiciary and the Com19 mittee on International Relations of the House 

20 of Representatives and the Committee on the 

21 Judiciary and the Committee on Foreign Rela22 tions of the Senate’’ and inserting ‘‘appropriate 

23 congressional committees’’; 

24 (B) in paragraph (5)(A)(i)(III), by striking 

25 ‘‘Committee on the Judiciary, the Committee on 


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1 Foreign Affairs, and the Committee on Home2 land Security, of the House of Representatives 

3 and the Committee on the Judiciary, the Com4 mittee on Foreign Relations, and the Com5 mittee on Homeland Security and Govern6 mental Affairs of the Senate’’ and inserting 

7 ‘‘appropriate congressional committees’’; and 

8 (C) in paragraph (7), by striking subpara9 graph (E). 

10 (c) DESIGNATION OF PROGRAM COUNTRIES BASED

11 ON OVERSTAY RATES.— 

12 (1) IN GENERAL.—Section 217(c)(2)(A) of the 

13 Immigration and Nationality Act (8 U.S.C. 

14 1187(c)(2)(A)) is amended to read as follows: 

15 ‘‘(A) GENERAL NUMERICAL LIMITA16 TIONS.— 

17 ‘‘(i) LOW NONIMMIGRANT VISA RE18 FUSAL RATE.—The percentage of nationals 

19 of that country refused nonimmigrant visas 

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

21 previous full fiscal year was not more than 

22 3 percent of the total number of nationals 

23 of that country who were granted or re24 fused nonimmigrant visas under such sec25 tion during such year. 


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1 ‘‘(ii) LOW NONIMMIGRANT OVERSTAY

2 RATE.—The overstay rate for that country 

3 was not more than 3 percent during the 

4 previous fiscal year.’’. 

5 (2) QUALIFICATION CRITERIA.—Section 

6 217(c)(3) of such Act (8 U.S.C. 1187(c)(3)) is 

7 amended to read as follows: 

8 ‘‘(3) QUALIFICATION CRITERIA.—After designa9 tion as a program country under section 217(c)(2), 

10 a country may not continue to be designated as a 

11 program country unless the Secretary of Homeland 

12 Security, in consultation with the Secretary of State, 

13 determines, pursuant to the requirements under 

14 paragraph (5), that the designation will be contin15 ued.’’. 

16 (3) INITIAL PERIOD.—Section 217(c) of such 

17 Act is further amended by striking subsection (c)(4). 

18 (4) CONTINUING DESIGNATION.—Section 

19 217(c)(5)(A)(i)(II) of such Act (8 U.S.C. 

20 1187(c)(5)(A)(i)(II)) is amended to read as follows: 

21 ‘‘(II) shall determine, 

22 based upon the evaluation in 

23 subclause (I), whether any 

24 such designation under sub25 section (d) or (f), or probaVerDate Mar 15 2010 23:33 Feb 11, 2013 Jkt 029200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H490.IH H490

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1 tion under subsection (f), 

2 ought to be continued or ter3 minated;’’. 

4 (5) COMPUTATION OF VISA REFUSAL RATES; 

5 JUDICIAL REVIEW.—Section 217(c)(6) of such Act 

6 (8 U.S.C. 1187(c)(6)) is amended to read as follows: 

7 ‘‘(6) COMPUTATION OF VISA REFUSAL RATES

8 AND JUDICIAL REVIEW.— 

9 ‘‘(A) COMPUTATION OF VISA REFUSAL

10 RATES.—For purposes of determining the eligi11 bility of a country to be designated as a pro12 gram country, the calculation of visa refusal 

13 rates shall not include any visa refusals which 

14 incorporate any procedures based on, or are 

15 otherwise based on, race, sex, or disability, un16 less otherwise specifically authorized by law or 

17 regulation. 

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

19 have jurisdiction under this section to review 

20 any visa refusal, the Secretary of State’s com21 putation of a visa refusal rate, the Secretary of 

22 Homeland Security’s computation of an over23 stay rate, or the designation or nondesignation 

24 of a country as a program country.’’. 


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1 (6) VISA WAIVER INFORMATION.—Section 

2 217(c)(7) of such Act (8 U.S.C. 1187(c)(7)) is 

3 amended— 

4 (A) by striking subparagraphs (B) through 

5 (D); and 

6 (B) by striking ‘‘WAIVER INFORMATION.— 

7 ’’ and all that follows through ‘‘In refusing’’ 

8 and inserting ‘‘WAIVER INFORMATION.—In re9 fusing’’. 

10 (7) WAIVER AUTHORITY.—Section 217(c)(8) of 

11 such Act (8 U.S.C. 1187(c)(8)) is amended to read 

12 as follows: 

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

14 Homeland Security, in consultation with the Sec15 retary of State, may waive the application of para16 graph (2)(A)(i) for a country if— 

17 ‘‘(A) the country meets all other require18 ments of paragraph (2); 

19 ‘‘(B) the Secretary of Homeland Security 

20 determines that the totality of the country’s se21 curity risk mitigation measures provide assur22 ance that the country’s participation in the pro23 gram would not compromise the law enforce24 ment, security interests, or enforcement of the 

25 immigration laws of the United States; 


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

2 trend in the percentage of nationals of the 

3 country refused nonimmigrant visas under sec4 tion 101(a)(15)(B); 

5 ‘‘(D) the country consistently cooperated 

6 with the Government of the United States on 

7 counterterrorism initiatives, information shar8 ing, preventing terrorist travel, and extradition 

9 to the United States of individuals (including 

10 the country’s own nationals) who commit 

11 crimes that violate United States law before the 

12 date of its designation as a program country, 

13 and the Secretary of Homeland Security and 

14 the Secretary of State assess that such coopera15 tion is likely to continue; and 

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

17 country refused a nonimmigrant visa under sec18 tion 101(a)(15)(B) during the previous full fis19 cal year was not more than 10 percent of the 

20 total number of nationals of that country who 

21 were granted or refused such nonimmigrant 

22 visas.’’. 

23 (d) TERMINATION OF DESIGNATION; PROBATION.— 

24 Section 217(f) of the Immigration and Nationality Act (8 

25 U.S.C. 1187(f)) is amended to read as follows: 


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

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

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

4 ‘probationary period’ means the fiscal year in 

5 which a probationary country is placed in pro6 bationary status under this subsection. 

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

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

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

11 PROBATIONARY PERIOD.— 

12 ‘‘(A) DETERMINATION OF PROBATIONARY

13 STATUS AND NOTICE OF NONCOMPLIANCE.—As 

14 part of each program country’s periodic evalua15 tion required by subsection (c)(5)(A), the Sec16 retary of Homeland Security shall determine 

17 whether a program country is in compliance 

18 with the program requirements under subpara19 graphs (A)(ii) through (F) of subsection (c)(2). 

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

21 the Secretary of Homeland Security determines 

22 that a program country is not in compliance 

23 with the program requirements under subpara24 graphs (A)(ii) through (F) of subsection (c)(2), 

25 the Secretary of Homeland Security shall place 


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1 the program country in probationary status for 

2 the fiscal year following the fiscal year in which 

3 the periodic evaluation is completed. 

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

5 PROBATIONARY PERIOD.—At the end of the initial 

6 probationary period of a country under paragraph 

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

8 take 1 of the following actions: 

9 ‘‘(A) COMPLIANCE DURING INITIAL PROBA10 TIONARY PERIOD.—If the Secretary determines 

11 that all instances of noncompliance with the 

12 program requirements under subparagraphs 

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

14 were identified in the latest periodic evaluation 

15 have been remedied by the end of the initial 

16 probationary period, the Secretary shall end the 

17 country’s probationary period. 

18 ‘‘(B) NONCOMPLIANCE DURING INITIAL

19 PROBATIONARY PERIOD.—If the Secretary de20 termines that any instance of noncompliance 

21 with the program requirements under subpara22 graphs (A)(ii) through (F) of subsection (c)(2) 

23 that were identified in the latest periodic eval24 uation has not been remedied by the end of the 

25 initial probationary period— 


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1 ‘‘(i) the Secretary may terminate the 

2 country’s participation in the program; or 

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

4 may continue the country’s probationary 

5 status if the Secretary, in consultation 

6 with the Secretary of State, determines 

7 that the country’s continued participation 

8 in the program is in the national interest 

9 of the United States. 

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

11 PROBATIONARY PERIODS.—At the end of all proba12 tionary periods granted to a country pursuant to 

13 paragraph (3)(B)(ii), the Secretary shall take 1 of 

14 the following actions: 

15 ‘‘(A) COMPLIANCE DURING ADDITIONAL

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

17 probationary status if the Secretary determines 

18 during the latest periodic evaluation required by 

19 subsection (c)(5)(A) that the country is in com20 pliance with the program requirements under 

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

22 (c)(2). 

23 ‘‘(B) NONCOMPLIANCE DURING ADDI24 TIONAL PERIODS.—The Secretary shall termi25 nate the country’s participation in the program 


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1 if the Secretary determines during the latest 

2 periodic evaluation required by subsection 

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

4 be in noncompliance with the program require5 ments under subparagraphs (A)(ii) through (F) 

6 of subsection (c)(2). 

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

8 country’s participation in the program under para9 graph (3)(B) or (4)(B) shall take effect on the first 

10 day of the first fiscal year following the fiscal year 

11 in which the Secretary determines that such partici12 pation shall be terminated. Until such date, nation13 als of the country shall remain eligible for a waiver 

14 under subsection (a). 

15 ‘‘(6) TREATMENT OF NATIONALS AFTER TERMI16 NATION.—For purposes of this subsection and sub17 section (d)— 

18 ‘‘(A) nationals of a country whose designa19 tion is terminated under paragraph (3) or (4) 

20 shall remain eligible for a waiver under sub21 section (a) until the effective date of such ter22 mination; and 

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

24 provided to such a national for a period de25 scribed in subsection (a)(1) shall not, by such 


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1 termination, be deemed to have been rescinded 

2 or otherwise rendered invalid, if the waiver is 

3 granted prior to such termination. 

4 ‘‘(7) CONSULTATIVE ROLE OF THE SECRETARY

5 OF STATE.—In this subsection, references to sub6 paragraphs (A)(ii) through (F) of subsection (c)(2) 

7 and subsection (c)(5)(A) carry with them the con8 sultative role of the Secretary of State as provided 

9 in those provisions.’’. 

10 (e) REVIEW OF OVERSTAY TRACKING METHOD11 OLOGY.—Not later than 180 days after the date of the 

12 enactment of this Act, the Comptroller General of the 

13 United States shall conduct a review of the methods used 

14 by the Secretary of Homeland Security— 

15 (1) to track aliens entering and exiting the 

16 United States; and 

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

18 than such alien’s period of authorized admission. 

19 (f) EVALUATION OF ELECTRONIC SYSTEM FOR

20 TRAVEL AUTHORIZATION.—Not later than 90 days after 

21 the date of the enactment of this Act, the Secretary of 

22 Homeland Security shall submit to Congress— 

23 (1) an evaluation of the security risks of aliens 

24 who enter the United States without an approved 


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1 Electronic System for Travel Authorization 

2 verification; and 

3 (2) a description of any improvements needed 

4 to minimize the number of aliens who enter the 

5 United States without the verification described in 

6 paragraph (1). 

7 (g) SENSE OF CONGRESS ON PRIORITY FOR REVIEW

8 OF PROGRAM COUNTRIES.—It is the sense of Congress 

9 that the Secretary of Homeland Security, in the process 

10 of conducting evaluations of countries participating in the 

11 visa waiver program under section 217 of the Immigration 

12 and Nationality Act (8 U.S.C. 1187), should prioritize the 

13 reviews of countries in which circumstances indicate that 

14 such a review is necessary or desirable. 

Æ 


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