II 

113TH CONGRESS 

1ST SESSION S. 223 

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

the visa waiver program, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 4, 2013 

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 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’’. 

6 SEC. 2. VISA WAIVER PROGRAM ENHANCED SECURITY AND 

7 REFORM. 

8 (a) DEFINITIONS.—Section 217(c)(1) of the Immi9 gration and Nationality Act (8 U.S.C. 1187(c)(1)) is 

10 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— 

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

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

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

11 and 

12 (2) in subsection (c)— 

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

14 ‘‘Committee on the Judiciary and the Com15 mittee on International Relations of the House 

16 of Representatives and the Committee on the 

17 Judiciary and the Committee on Foreign Rela18 tions of the Senate’’ and inserting ‘‘appropriate 

19 congressional committees’’; 

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

21 ‘‘Committee on the Judiciary, the Committee on 

22 Foreign Affairs, and the Committee on Home23 land Security, of the House of Representatives 

24 and the Committee on the Judiciary, the Com25 mittee on Foreign Relations, and the ComVerDate Mar 15 2010 02:15 Feb 09, 2013 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S223.IS S223

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1 mittee on Homeland Security and Govern2 mental Affairs of the Senate’’ and inserting 

3 ‘‘appropriate congressional committees’’; and 

4 (C) in paragraph (7), by striking subpara5 graph (E). 

6 (c) DESIGNATION OF PROGRAM COUNTRIES BASED

7 ON OVERSTAY RATES.— 

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

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

10 1187(c)(2)(A)) is amended to read as follows: 

11 ‘‘(A) GENERAL NUMERICAL LIMITA12 TIONS.— 

13 ‘‘(i) LOW NONIMMIGRANT VISA RE14 FUSAL RATE.—The percentage of nationals 

15 of that country refused nonimmigrant visas 

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

17 previous full fiscal year was not more than 

18 3 percent of the total number of nationals 

19 of that country who were granted or re20 fused nonimmigrant visas under such sec21 tion during such year. 

22 ‘‘(ii) LOW NONIMMIGRANT OVERSTAY

23 RATE.—The overstay rate for that country 

24 was not more than 3 percent during the 

25 previous fiscal year.’’. 


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1 (2) QUALIFICATION CRITERIA.—Section 

2 217(c)(3) of such Act (8 U.S.C. 1187(c)(3)) is 

3 amended to read as follows: 

4 ‘‘(3) QUALIFICATION CRITERIA.—After designa5 tion as a program country under section 217(c)(2), 

6 a country may not continue to be designated as a 

7 program country unless the Secretary of Homeland 

8 Security, in consultation with the Secretary of State, 

9 determines, pursuant to the requirements under 

10 paragraph (5), that the designation will be contin11 ued.’’. 

12 (3) INITIAL PERIOD.—Section 217(c) is further 

13 amended by striking subsection (c)(4). 

14 (4) CONTINUING DESIGNATION.—Section 

15 217(c)(5)(A)(i)(II) of such Act (8 U.S.C. 

16 1187(c)(5)(A)(i)(II)) is amended to read as follows: 

17 ‘‘(II) shall determine, 

18 based upon the evaluation in 

19 subclause (I), whether any 

20 such designation under sub21 section (d) or (f), or proba22 tion under subsection (f), 

23 ought to be continued or ter24 minated;’’. 


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1 (5) COMPUTATION OF VISA REFUSAL RATES; 

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

3 (8 U.S.C. 1187(c)(6)) is amended to read as follows: 

4 ‘‘(6) COMPUTATION OF VISA REFUSAL RATES

5 AND JUDICIAL REVIEW.— 

6 ‘‘(A) COMPUTATION OF VISA REFUSAL

7 RATES.—For purposes of determining the eligi8 bility of a country to be designated as a pro9 gram country, the calculation of visa refusal 

10 rates shall not include any visa refusals which 

11 incorporate any procedures based on, or are 

12 otherwise based on, race, sex, or disability, un13 less otherwise specifically authorized by law or 

14 regulation. 

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

16 have jurisdiction under this section to review 

17 any visa refusal, the Secretary of State’s com18 putation of a visa refusal rate, the Secretary of 

19 Homeland Security’s computation of an over20 stay rate, or the designation or nondesignation 

21 of a country as a program country.’’. 

22 (6) VISA WAIVER INFORMATION.—Section 

23 217(c)(7) of such Act (8 U.S.C. 1187(c)(7)) is 

24 amended— 


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1 (A) by striking subparagraphs (B) through 

2 (D); and 

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

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

5 and inserting ‘‘WAIVER INFORMATION.—In re6 fusing’’. 

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

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

9 as follows: 

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

11 Homeland Security, in consultation with the Sec12 retary of State, may waive the application of para13 graph (2)(A)(i) for a country if— 

14 ‘‘(A) the country meets all other require15 ments of paragraph (2); 

16 ‘‘(B) the Secretary of Homeland Security 

17 determines that the totality of the country’s se18 curity risk mitigation measures provide assur19 ance that the country’s participation in the pro20 gram would not compromise the law enforce21 ment, security interests, or enforcement of the 

22 immigration laws of the United States; 

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

24 trend in the percentage of nationals of the 


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1 country refused nonimmigrant visas under sec2 tion 101(a)(15)(B); 

3 ‘‘(D) the country consistently cooperated 

4 with the Government of the United States on 

5 counterterrorism initiatives, information shar6 ing, preventing terrorist travel, and extradition 

7 to the United States of individuals (including 

8 the country’s own nationals) who commit 

9 crimes that violate United States law before the 

10 date of its designation as a program country, 

11 and the Secretary of Homeland Security and 

12 the Secretary of State assess that such coopera13 tion is likely to continue; and 

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

15 country refused a nonimmigrant visa under sec16 tion 101(a)(15)(B) during the previous full fis17 cal year was not more than 10 percent of the 

18 total number of nationals of that country who 

19 were granted or refused such nonimmigrant 

20 visas.’’. 

21 (d) TERMINATION OF DESIGNATION; PROBATION.— 

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

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

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

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


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

2 ‘probationary period’ means the fiscal year in 

3 which a probationary country is placed in pro4 bationary status under this subsection. 

5 ‘‘(B) PROGRAM COUNTRY.—The term ‘pro6 gram country’ has the meaning given that term 

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

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

9 PROBATIONARY PERIOD.— 

10 ‘‘(A) DETERMINATION OF PROBATIONARY

11 STATUS AND NOTICE OF NONCOMPLIANCE.—As 

12 part of each program country’s periodic evalua13 tion required by subsection (c)(5)(A), the Sec14 retary of Homeland Security shall determine 

15 whether a program country is in compliance 

16 with the program requirements under subpara17 graphs (A)(ii) through (F) of subsection (c)(2). 

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

19 the Secretary of Homeland Security determines 

20 that a program country is not in compliance 

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

23 the Secretary of Homeland Security shall place 

24 the program country in probationary status for 


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1 the fiscal year following the fiscal year in which 

2 the periodic evaluation is completed. 

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

4 PROBATIONARY PERIOD.—At the end of the initial 

5 probationary period of a country under paragraph 

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

7 take 1 of the following actions: 

8 ‘‘(A) COMPLIANCE DURING INITIAL PROBA9 TIONARY PERIOD.—If the Secretary determines 

10 that all instances of noncompliance with the 

11 program requirements under subparagraphs 

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

13 were identified in the latest periodic evaluation 

14 have been remedied by the end of the initial 

15 probationary period, the Secretary shall end the 

16 country’s probationary period. 

17 ‘‘(B) NONCOMPLIANCE DURING INITIAL

18 PROBATIONARY PERIOD.—If the Secretary de19 termines that any instance of noncompliance 

20 with the program requirements under subpara21 graphs (A)(ii) through (F) of subsection (c)(2) 

22 that were identified in the latest periodic eval23 uation has not been remedied by the end of the 

24 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 non-compliance 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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