II 114th CONGRESS 1st Session S. 2337 IN THE SENATE OF THE UNITED STATES December 1, 2015 Mrs. Feinstein (for herself, Mr. Flake , Ms. Heitkamp , Mr. Coats , Mr. Heinrich , Mr. Johnson , Mr. Bennet , Ms. Ayotte , Mr. Warner , Ms. Baldwin , Mr. Tester , Mr. King , Ms. Klobuchar , Mrs. Boxer , Mr. Blumenthal , Ms. Collins , and Mr. Franken ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To improve homeland security by enhancing the requirements for participation in the Visa Waiver Program, and for other purposes.

1. Short title This Act may be cited as the Visa Waiver Program Security Enhancement Act . 2. Visa required for aliens who recently traveled to Iraq, Syria, or certain other destinations Section 217(a) of the Immigration and Nationality Act ( 8 U.S.C. 1187(a) ) is amended by adding at the end the following: (12) Visa required for aliens who have recently traveled to Iraq or Syria (A) In general A national of a program country is ineligible to travel to the United States under the program if the national has traveled to Iraq or to Syria at any time during the most recent 5-year period. (B) Other travel restrictions The Secretary of Homeland Security may prohibit a national of a program country from traveling to the United States under the program if the Secretary determines that such national has traveled during the past 5 years to a country in which— (i) a designated foreign terrorist organization has a significant presence; and (ii) prohibiting such national from traveling to the United States under the program is in the national security interests of the United States. (C) Rule of construction Nothing in this paragraph may be construed to otherwise limit the authority of the Secretary of Homeland Security. . 3. Electronic passports required for visa waiver program (a) Requiring the universal use of electronic passports for participating Visa Waiver Program countries (1) In general Section 217 of the Immigration and Nationality Act ( 8 U.S.C. 1187 ) is amended— (A) in subsection (a), by amending paragraph (3) to read as follows: (3) Machine-readable, electronic passport The alien, at the time of application for admission, is in possession of a valid, unexpired, tamper-resistant, machine-readable passport that incorporates biometric and document authentication identifiers that comply with the applicable biometric and document identifying standards established by the International Civil Aviation Organization. ; and (B) in subsection (c)(2), by amending subparagraph (B) to read as follows: (B) Machine-readable, electronic passport program The government of the country certifies that it issues to its citizens machine-readable, electronic passports that comply with the requirements set forth in subsection (a)(3). . (2) Effective date The amendments made by paragraph (1) shall take effect on the date that is 90 days after the date of the enactment of this Act. (3) Certification requirement Section 303(c) of the Enhanced Border Security and Visa Entry Reform Act of 2002 ( 8 U.S.C. 1732(c) ) is amended— (A) in paragraph (1), by striking Not later than October 26, 2005, the and inserting The ; and (B) by amending paragraph (2) to read as follows: (2) Use of technology standard Any alien applying for admission under the Visa Waiver Program established under section 217 of the Immigration and Nationality Act ( 8 U.S.C. 1187 ) shall present a passport that meets the requirements described in paragraph (1). . 4. Information sharing and cooperation by Visa Waiver Program countries (a) Required information sharing for Visa Waiver Program countries (1) Information sharing agreements (A) Full implementation Section 217(c)(2)(F) of the Immigration and Nationality Act ( 8 U.S.C. 1187(c)(2)(F) ) is amended by inserting , and fully implements within the time frame determined by the Secretary of Homeland Security, after country enters into . (B) Federal air marshal agreement Section 217(c) of such Act, as amended by subparagraph (A), is further amended— (i) in paragraph (2), by adding at the end the following: (G) Federal air marshal agreement The government of the country enters into, and complies with, an agreement with the United States to assist in the operation of an effective Air Marshal Program. (H) Aviation standards The government of the country complies with United States aviation and airport security standards, as determined by the Secretary of Homeland Security. ; and (ii) in paragraph (9)— (I) by striking subparagraph (B); and (II) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively. (C) Failure to fully implement information sharing agreement Section 217(c)(5) of such Act ( 8 U.S.C. 1187(c)(5) ) is amended— (i) by redesignating subparagraph (C) as subparagraph (D); and (ii) by inserting after subparagraph (B) the following: (C) Failure to fully implement information sharing agreement (i) Determination If the Secretary of Homeland Security, in consultation with the Secretary of State, determines that the government of a program country has failed to fully implement the agreements set forth in paragraph (2)(F), the country shall be terminated as a program country. (ii) Redesignation Not sooner than 90 days after the Secretary of Homeland Security, in consultation with the Secretary of State, determines that a country that has been terminated as a program country pursuant to clause (i) is now in compliance with the requirement set forth in paragraph (2)(F), the Secretary of Homeland Security may redesignate such country as a program country. . (2) Advance passenger information earlier than 1 hour before arrival (A) In general Section 217(a)(10) of such Act ( 8 U.S.C. 1187(a)(10) ) is amended by striking not less than one hour prior to arrival and inserting as soon as practicable, but not later than 1 hour before arriving . (B) Technical amendment Section 217(c)(3) of such Act is amended, in the matter preceding subparagraph (A), by striking the initial period and inserting fiscal year 1989 . (b) Factors the Department of Homeland Security shall consider for Visa Waiver Countries (1) Consideration of country’s capacity to identify dangerous individuals Section 217(c)(4) of the Immigration and Nationality Act ( 8 U.S.C. 1187(c)(4) ), is amended to read as follows: (4) Required security considerations for program designation and continuation In determining whether a country should be designated as a program country or whether a program country should retain its designation as a program country, the Secretary of Homeland Security shall consider the following: (A) Capacity to collect, analyze, and share data concerning dangerous individuals Whether the government of the country— (i) collects and analyzes the information described in subsection (a)(10), including advance passenger information and passenger name records, and similar information pertaining to flights not bound for the United States, to identify potentially dangerous individuals who may attempt to travel to the United States; and (ii) shares such information and the results of such analyses with the Government of the United States. (B) Screening of traveler passports Whether the government of the country— (i) regularly screens passports of air travelers against INTERPOL’s global database of Stolen and Lost Travel Documents before allowing such travelers to enter or board a flight arriving in or departing from that country, including a flight destined for the United States; and (ii) regularly and promptly shares information concerning lost or stolen travel documents with INTERPOL. (C) Biometric exchanges Whether the government of the country, in addition to meeting the mandatory qualifications set forth in paragraph (2)— (i) collects and analyzes biometric and other information about individuals other than United States nationals who are applying for asylum, refugee status, or another form of non-refoulment protection in such country; and (ii) shares the information and the results of such analyses with the Government of the United States. (D) Information sharing about foreign terrorist fighters Whether the government of the country shares intelligence about foreign fighters with the United States and with multilateral organizations, such as INTERPOL and EUROPOL. . (2) Failure to report stolen passports Section 217(f)(5) of such Act is amended by inserting frequently and promptly before reporting the theft . 5. Biometric submission before entry (a) In general Section 217(a) of the Immigration and Nationality Act ( 8 U.S.C. 1187(a) ), as amended by section 2, is further amended by adding at the end the following: (13) Submission of biometric information The Secretary of Homeland Security shall ensure that each alien traveling to the United States under an approved Electronic System for Travel Authorization has submitted biometric information, including photographs and fingerprints, before boarding a conveyance bound for the United States. . (b) Implementation of biometric submission (1) Prioritization The Secretary of Homeland Security, in consultation with the Secretary of State, shall prioritize the implementation of the requirements under section 217(a)(13) of the Immigration and Nationality Act, as added by subsection (a), in Visa Waiver Program countries that have a significant number of nationals who have traveled to fight with, or to assist, the group known as the Islamic State of Iraq and the Levant (ISIL). (2) Effective date The requirements referred to in paragraph (1) shall take effect for all Visa Waiver Program countries not later than 1 year after the date of the enactment of this Act, except that the Secretary of Homeland Security may extend the effective date for additional periods of 6 months (not to exceed a total of 24 months) for particular countries if the Secretary determines that an extension for such a country does not present a significant risk to the national security of the United States. (3) Inclusion of biometric information Not later than 5 years after the date of the enactment of this Act, the Secretary of Homeland Security shall ensure that the information submitted under section 217(a)(13) of the Immigration and Nationality Act includes photographs and fingerprints. (4) Compliance The Secretary of Homeland Security may determine that a Visa Waiver Program country is in compliance with section 217(a)(13) of the Immigration and Nationality Act, as added by subsection (a), if the country signs and implements an agreement— (A) to collect biometric information from each individual seeking to travel to the United States through the Visa Waiver Program and to share such information with the United States; (B) to compare the biometric information described in subparagraph (A) against the information, including the biometric information, on the prospective traveler’s machine readable, electronic passport, before the prospective traveler boards a conveyance bound for the United States; and (C) to inform the Department of Homeland Security of— (i) the results of the comparison described in subparagraph (B) before the prospective traveler boards a conveyance bound for the United States, and (ii) any other information indicating that the prospective traveler may pose a threat to the United States. 6. Visa waiver program administration Section 217(h)(3)(B) of the Immigration and Nationality Act ( 8 U.S.C. 1187(h)(3)(B) ) is amended— (1) in clause (i), by amending subclause (II) to read as follows: (II) an amount to ensure recovery of the full costs of providing and administering the System and implementing the improvements to the program provided in the Visa Waiver Program Security Enhancement Act . ; and (2) by amending clause (ii) to read as follows: (ii) Disposition of amounts collected Amounts collected under clause (i)(I) shall be credited to the Travel Promotion Fund established under subsection (d) of the Trade Promotion Act of 2009 ( 22 U.S.C. 2131(d) ). Amounts collected under clause (i)(II) shall be transferred to the general fund of the Treasury and made available to pay the costs incurred to administer the System and the improvements made by the Visa Waiver Program Security Enhancement Act . The portion of the fee collected under clause (i)(II) to recover the costs of implementing such improvements may only be used for that purpose. .