II 

111TH CONGRESS 

2D SESSION S. 3544 

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 

JUNE 29, 2010 

Ms. MIKULSKI 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 Updated Framework and Enhanced Security Act of 

6 2010’’. 

7 SEC. 2. DEFINITIONS. 

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 of the Senate; 

14 ‘‘(II) the Committee on the Judi15 ciary of the Senate; 

16 ‘‘(III) the Committee on Foreign 

17 Affairs of the House of Representa18 tives; and 

19 ‘‘(IV) the Committee on the Ju20 diciary 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). 


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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— 


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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)(2)(C) of the Immigration and Nationality 

12 Act (8 U.S.C. 1187(c)(2)(C)) is amended— 

13 (1) by striking ‘‘Attorney General,’’ and insert14 ing ‘‘Secretary of Homeland Security,’’; and 

15 (2) in clause (iii), by striking ‘‘Committee on 

16 the Judiciary and the Committee on International 

17 Relations of the House of Representatives and the 

18 Committee on the Judiciary and the Committee on 

19 Foreign Relations of the Senate’’ and inserting ‘‘ap20 propriate congressional committees’’. 

21 SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON 

22 VISA OVERSTAY RATES. 

23 (a) IN GENERAL.—Section 217(c)(2)(A) of the Immi24 gration and Nationality Act (8 U.S.C. 1187(c)(2)) is 

25 amended to read as follows: 


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1 ‘‘(A) LOW NONIMMIGRANT VISA OVERSTAY

2 RATE.—The visa overstay rate for that country 

3 was not more than 3 percent during the pre4 vious fiscal year.’’. 

5 (b) CONFORMING AMENDMENTS.—Section 217(c) of 

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

7 is amended— 

8 (1) by amending paragraph (6) to read as fol9 lows: 

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

11 No court shall have jurisdiction to review the denial 

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

13 Secretary of Homeland Security, the Secretary’s 

14 computation of a visa overstay rate, or the designa15 tion or nondesignation of a country as a program 

16 country.’’; and 

17 (2) in paragraph (8)— 

18 (A) in subparagraph (B)— 

19 (i) in clause (iii), by striking ‘‘rate of 

20 refusals for nonimmigrant visas’’ and in21 serting ‘‘visa overstay rate’’; and 

22 (ii) by amending clause (v) to read as 

23 follows: 

24 ‘‘(v) the visa overstay rate for nation25 als of the country during the previous full 


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1 fiscal year was not more than 10 per2 cent.’’; and 

3 (B) by striking subparagraph (C). 

4 SEC. 4. ANNUAL REPORT ON PROGRAM COMPLIANCE. 

5 (a) ANNUAL REPORT ON PROGRAM.—Section 

6 217(c)(3) of the Immigration and Nationality Act (8 

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

8 ‘‘(3) ANNUAL REPORT ON PROGRAM COMPLI9 ANCE.— 

10 ‘‘(A) REQUIREMENT FOR ANNUAL RE11 PORT.—Not later than 180 days after the date 

12 of the enactment of the Visa Waiver Program 

13 Updated Framework and Enhanced Security 

14 Act of 2010, and not later than May 1 of each 

15 year thereafter, the Secretary of Homeland Se16 curity, in consultation with the Secretary of 

17 State, shall submit an annual report on the 

18 compliance with the program to appropriate 

19 congressional committees, the Committee on 

20 Homeland Security and Governmental Affairs 

21 of the Senate, and the Committee on Homeland 

22 Security of the House of Representatives. 

23 ‘‘(B) CONTENT.— 

24 ‘‘(i) INFORMATION REGARDING PRO25 GRAM COUNTRIES.—Each annual report 


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1 required under subparagraph (A) shall in2 clude, for each program country— 

3 ‘‘(I) an evaluation, after consid4 eration of the independent review of 

5 the program country conducted by the 

6 Director of National Intelligence 

7 under paragraph (7)(A), of the effect 

8 of the program country’s continued 

9 designation on the law enforcement 

10 and security interests of the United 

11 States, including— 

12 ‘‘(aa) the interest in enforce13 ment of the immigration laws of 

14 the United States; 

15 ‘‘(bb) the existence and ef16 fectiveness of its agreements and 

17 procedures for extraditing to the 

18 United States, individuals, in19 cluding its own nationals, who 

20 commit crimes that violate 

21 United States law; and 

22 ‘‘(cc) any other potential 

23 threat to the United States from 

24 the program country’s continued 

25 designation; 


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1 ‘‘(II) an assessment of the com2 pliance with the program require3 ments by the program country during 

4 the previous year; 

5 ‘‘(III) the visa overstay rate for 

6 the program country during the pre7 vious year; 

8 ‘‘(IV) the total of number of na9 tionals from the program country who 

10 entered the United States during the 

11 previous year; 

12 ‘‘(V) an assessment of the infor13 mation sharing required under this 

14 section with respect to the program 

15 country; and 

16 ‘‘(VI) a determination as to 

17 whether any such designation ought 

18 to be continued or terminated under 

19 subsection (d) or subsection (f) that 

20 includes an explanation of such deter21 mination and of the effects described 

22 in subclause (I). 

23 ‘‘(ii) OTHER INFORMATION.—Each 

24 annual report required under subpara25 graph (A) shall include an evaluation of— 


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1 ‘‘(I) the implementation of the 

2 electronic travel authorization system 

3 required under subsection (h)(3); and 

4 ‘‘(II) the effect of participation of 

5 new countries in the program pursu6 ant to a waiver under paragraph 

7 (5)(B).’’. 

8 ‘‘(C) CONSIDERATION OF COUNTRIES FOR

9 THE PROGRAM.—Upon notification by the Sec10 retary of Homeland Security that a country is 

11 under consideration for inclusion in the pro12 gram, the Secretary of State shall provide all 

13 appropriate information described in subpara14 graph (B) for such country to the Secretary of 

15 Homeland Security. 

16 ‘‘(D) CERTIFICATION.—Not later than 

17 May 1 of each year, the United States chief of 

18 mission, acting or permanent, to each country 

19 under consideration for inclusion in the pro20 gram shall— 

21 ‘‘(i) certify that the information pro22 vided under subparagraph (C) for such 

23 country is accurate; and 

24 ‘‘(ii) submit such certification to the 

25 appropriate congressional committees.’’. 


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1 (b) CONFORMING AMENDMENTS.—Section 217(c) of 

2 the Immigration and Nationality Act (8 U.S.C. 1187) is 

3 amended— 

4 (1) by striking paragraphs (4), (5), and (7); 

5 (2) by redesignating paragraphs (6) (as amend6 ed by section 3(b)(1)), (8) (as amended by section 

7 3(b)(2)), (9), (10), and (11), as paragraphs (4), (5), 

8 (6), and (7), respectively; 

9 (3) in paragraph (6), as redesignated by para10 graph (2), by striking ‘‘paragraph (8),’’ and insert11 ing ‘‘paragraph (5),’’; and 

12 (4) in subparagraph (A) of paragraph (7), as 

13 redesignated by paragraph (2), by striking ‘‘Prior to 

14 the admission of a new country into the program 

15 under this section, and in conjunction with the peri16 odic evaluations required under subsection 

17 (c)(5)(A),’’ and inserting ‘‘Prior to the designation 

18 of a new country as a program country and for each 

19 annual report submitted required under paragraph 

20 (3)(A),’’. 

21 SEC. 5. TERMINATION OF DESIGNATION; PROBATION. 

22 Section 217(f) of the Immigration and Nationality 

23 Act (8 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 COUNTRY.—The term 

2 ‘probationary country’ means a program coun3 try placed in probationary status under para4 graph (2)(B). 

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

6 ‘probationary period’ means the fiscal year in 

7 which a probationary country is placed in pro8 bationary status under paragraph (2)(B). 

9 ‘‘(C) PROGRAM COUNTRY.—The term ‘pro10 gram country’ has the meaning given that term 

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

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

13 ‘visa overstay rate’ has the meaning given that 

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

15 ‘‘(2) DETERMINATION AND NOTICE OF DIS16 QUALIFICATION.— 

17 ‘‘(A) DETERMINATION.—Upon a deter18 mination by the Secretary of Homeland Secu19 rity that a program country’s visa overstay rate 

20 was more than 3 percent for the preceding fis21 cal year or that the program country is not in 

22 compliance with all other program requirements 

23 under subsection (c)(2), the Secretary shall no24 tify the Secretary of State. 


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1 ‘‘(B) PROBATIONARY STATUS.—If the Sec2 retary of Homeland Security makes a deter3 mination under subparagraph (A) for a pro4 gram country, the Secretary of Homeland Secu5 rity shall place the program country in proba6 tionary status for the fiscal year following the 

7 fiscal year for which such determination was 

8 made. 

9 ‘‘(3) ACTIONS AT TERMINATION OF THE PROBA10 TIONARY PERIOD.—At the end of the probationary 

11 period of a probationary country, the Secretary of 

12 Homeland Security shall take one of the following 

13 actions: 

14 ‘‘(A) COMPLIANCE DURING PROBATIONARY

15 PERIOD.—The Secretary shall redesignate the 

16 probationary country as a program country if 

17 the Secretary determines that during the proba18 tionary period the probationary country— 

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

20 than 3 percent; and 

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

22 program requirements under subsection 

23 (c)(2). 

24 ‘‘(B) COMPLIANCE WITH VISA OVERSTAY

25 RATE.—The Secretary may redesignate the proVerDate Mar 15 2010 21:18 Jun 30, 2010 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3544.IS S3544

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1 bationary country as a program country if the 

2 Secretary determines that during the proba3 tionary period the probationary country had a 

4 visa overstay rate of not more than 3 percent. 

5 ‘‘(C) NONCOMPLIANCE WITH VISA OVER6 STAY RATE.— 

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

8 (ii), the Secretary shall terminate the pro9 bationary country’s participation in the 

10 program if the Secretary determines that 

11 during the probationary period the proba12 tionary country had a visa overstay rate of 

13 more than 3 percent. 

14 ‘‘(ii) ADDITIONAL PROBATIONARY PE15 RIOD.—The Secretary may waive the appli16 cation of clause (i) for the probationary 

17 country if the Secretary, in consultation 

18 with the Director of National Intelligence, 

19 certifies that the probationary country’s 

20 continued participation in the program 

21 does not pose a threat to law enforcement, 

22 security, or enforcement of immigration 

23 laws, and place the country in probationary 

24 status for one additional fiscal year. 


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

2 PROBATIONARY PERIOD.—At the end of the addi3 tional 1-year period of probation granted to a proba4 tionary country pursuant to subparagraph (C)(ii), 

5 the Secretary shall take one of the following actions: 

6 ‘‘(A) COMPLIANCE DURING ADDITIONAL

7 PERIOD.—The Secretary shall redesignate the 

8 probationary country as a program country if 

9 the Secretary determines that during such addi10 tional period the probationary country had a 

11 visa overstay rate not more than 3 percent. 

12 ‘‘(B) NONCOMPLIANCE DURING ADDI13 TIONAL PERIOD.—The Secretary shall termi14 nate the probationary country’s participation in 

15 the program if the Secretary determines that 

16 during such additional period the probationary 

17 country had a visa overstay rate of more than 

18 3 percent. 

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

20 country’s participation in the program under para21 graph (3) or (4) shall take effect on the first day of 

22 the first fiscal year following the fiscal year in which 

23 the Secretary determines that such participation 

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


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1 country shall remain eligible for a waiver under sub2 section (a). 

3 ‘‘(6) NONAPPLICABILITY OF CERTAIN PROVI4 SIONS.—Paragraphs (3) and (4) shall not apply to 

5 a program country unless the total number of na6 tionals of the program country that entered the 

7 United States during the prior fiscal year exceeds 

8 100. 

9 ‘‘(7) EMERGENCY TERMINATION.— 

10 ‘‘(A) IN GENERAL.—In the case of a pro11 gram country in which an emergency occurs 

12 that the Secretary of Homeland Security, in 

13 consultation with the Secretary of State, deter14 mines threatens the law enforcement or security 

15 interests of the United States (including the in16 terest in enforcement of the immigration laws 

17 of the United States), the Secretary of Home18 land Security shall immediately terminate the 

19 designation of the country as a program coun20 try. 

21 ‘‘(B) EMERGENCY DEFINED.—In this 

22 paragraph, the term ‘emergency’ means— 

23 ‘‘(i) the overthrow of a democratically 

24 elected government in the program coun25 try; 


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

2 civil war, or other military activity) on the 

3 territory of the program country; 

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

5 order affecting a significant portion of the 

6 program country’s territory; 

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

8 program country; or 

9 ‘‘(v) any other extraordinary event in 

10 the program country that threatens the 

11 law enforcement or security interests of the 

12 United States (including the interest in en13 forcement of the immigration laws of the 

14 United States) and where the country’s 

15 participation in the program could con16 tribute to that threat. 

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

18 Homeland Security may redesignate the coun19 try as a program country, without regard to 

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

21 Secretary, in consultation with the Secretary of 

22 State, determines that— 

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

24 since the effective date of the emergency 

25 termination under subparagraph (A); 


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1 ‘‘(ii) the emergency that caused the 

2 termination has ended; and 

3 ‘‘(iii) the average visa overstay rate 

4 for that country during the period of ter5 mination under this subparagraph was not 

6 more than 3 percent. 

7 ‘‘(D) PROGRAM SUSPENSION AUTHOR8 ITY.—The Director of National Intelligence 

9 shall immediately inform the Secretary of 

10 Homeland Security of any current and credible 

11 threat which poses an imminent danger to the 

12 United States or its citizens and originates 

13 from a country participating in the visa waiver 

14 program. Upon receiving such notification, the 

15 Secretary, in consultation with the Secretary of 

16 State— 

17 ‘‘(i) may suspend a program country 

18 from the visa waiver program without prior 

19 notice; 

20 ‘‘(ii) shall notify any country sus21 pended under clause (i) and, to the extent 

22 practicable without disclosing sensitive in23 telligence sources and methods, provide 

24 justification for the suspension; and 


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1 ‘‘(iii) shall restore the suspended 

2 country’s participation in the visa waiver 

3 program upon a determination that the 

4 threat no longer poses an imminent danger 

5 to the United States or its citizens. 

6 ‘‘(8) TREATMENT OF NATIONALS AFTER TERMI7 NATION.—For purposes of this subsection and sub8 section (d)— 

9 ‘‘(A) nationals of a country whose designa10 tion is terminated under paragraph (3), (4), or 

11 (7) shall remain eligible for a waiver under sub12 section (a) until the effective date of such ter13 mination; and 

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

15 provided to such a national for a period de16 scribed in subsection (a)(1) shall not, by such 

17 termination, be deemed to have been rescinded 

18 or otherwise rendered invalid, if the waiver is 

19 granted prior to such termination.’’. 

20 SEC. 6. REVIEW OF OVERSTAY TRACKING METHODOLOGY. 

21 Not later than 180 days after the date of the enact22 ment of this Act, the Comptroller General of the United 

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

24 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. 

5 SEC. 7. REPORTING OF LOST OR STOLEN PASSPORTS. 

6 (a) ENFORCEMENT OF REQUIREMENT FOR AGREE7 MENTS TO REPORT LOST OR STOLEN PASSPORTS.—Not 

8 later than 180 days after the date of the enactment of 

9 this Act, each country designated as a program country 

10 under section 217(c) of the Immigration and Nationality 

11 Act (8 U.S.C. 1187(c)) shall have in effect an agreement 

12 with the United States as required under paragraph 

13 (2)(D) of such section 217(c). 

14 (b) INTEGRATION OF DATABASES.—The Secretary of 

15 Homeland Security shall integrate all Department of 

16 Homeland Security databases that contain information on 

17 lost or stolen passports into the Electronic System on 

18 Travel Authorization. 

19 SEC. 8. INFORMATION SHARING WITH LAW ENFORCEMENT. 

20 The Secretary of Homeland Security shall make in21 formation regarding any alien who stays in the United 

22 States longer than such alien’s authorized period of admis23 sion available to State and local law enforcement agencies. 

Æ 


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