Visa Waiver Program: Limitations with Department of Homeland Security's Plan to Verify Departure of Foreign Nationals
Published: 2008-02-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Visa Waiver Program, which enables citizens of participating countries to travel to the United States without first obtaining a visa, has many benefits, yet also presents security, law enforcement, and illegal immigration risks. In August 2007, Congress passed legislation that provides the Department of Homeland Security (DHS) with the authority to expand the program to additional countries whose nationals' applications for short-term business and tourism visas were refused between 3 and 10 percent of the time in the prior fiscal year. Countries must also meet certain conditions, and DHS must first complete and certify a number of required actions aimed at enhancing the security of the program. This testimony will focus on one of these required actions--namely, that a system be in place that can verify the departure of 97 percent of foreign nationals who depart through U.S. airports (referred to as an air exit system). Our observations are based on our review of relevant legislation, regulations and agency operating procedures, and prior GAO reports on the Visa Waiver Program and immigrant and visitor entry and exit tracking systems, as well as on discussions with federal agency officials. In commenting on a draft of this statement, DHS emphasized that it had not finalized its plan for certifying the "97 percent" requirement, but that the department believes the current plan would meet the legislative requirement. The Department of State also provided technical comments, which we incorporated, as appropriate.
section_title: What GAO Found
paragraphs: On December 12, 2007, DHS reported to us that it will match records of foreign nationals departing the country, as reported by airlines, to the department's existing records of any prior arrivals, immigration status changes, or prior departures from the United States. Using this formula, DHS stated that it can attain a match rate above 97 percent, based on August 2007 data, to certify compliance with the legislative air exit system requirement. DHS told us that it believes this methodology would meet the statutory requirement. On February 21, 2008, DHS indicated that it had not finalized its decision on the methodology the department would use to certify compliance. Nevertheless, the department confirmed that the basic structure of its methodology would not change, and that it would use departure records as the starting point. There are several limitations with this methodology. For example, DHS's methodology does not begin with arrival records and determine if these foreign nationals stayed in the United States beyond their authorized periods of admission (referred to as overstays). Therefore, this methodology will not inform overall and country-specific overstay rates--key factors in determining illegal immigration risks of the Visa Waiver Program. Although most long-term overstays are likely motivated by economic opportunities, a few overstays have been identified as terrorists or involved in terrorist-related activity, including some of the September 11, 2001, hijackers. In addition, DHS's current methodology does not address the accuracy of airlines' transmissions of departure records, and DHS acknowledges that there are weaknesses in the departure data. For example, there may be some visitors who did not leave the country by air even though they were recorded on airlines' manifest data as having departed. The inability of the U.S. government to track the status of visitors in the country, to identify those who overstay their authorized period of visit, and to use this data to compute overstay rates have been longstanding weaknesses in the oversight of the Visa Waiver Program. DHS's plan to meet the "97 percent" requirement in the visa waiver expansion legislation will not address these weaknesses.

section_title: Letter
paragraphs: I am pleased to be here to discuss an important aspect of our ongoing  work on the Department of Homeland Security’s (DHS) oversight of the  Visa Waiver Program and executive branch plans to expand the  program—namely, a newly enacted legislative requirement that a system  be in place that can verify the departure of 97 percent of foreign nationals  who depart the United States through airports (referred to as an air exit  system). The Visa Waiver Program enables citizens of 27 participating  countries to travel to the United States for tourism or business for 90 days  or less without first obtaining a visa from U.S. embassies and consulates.  The program has many benefits, including facilitating international travel  for millions of foreign nationals seeking to visit the United States each  year, creating substantial economic benefits to the United States, and  allowing the Department of State (State) to allocate resources to visa- issuing posts in countries with higher-risk applicant pools.
However, as we have reported, the program also poses inherent security,  law enforcement, and illegal immigration risks to the United States. In  particular, visa waiver travelers are not subject to the same degree of  screening as those with visas because they are not interviewed by a  consular officer before arriving at a U.S. port of entry. Therefore, the  program could be exploited to gain illegal entry into the United States. In  addition to these concerns, weaknesses in the U.S. government’s system to  track foreign visitors may hamper efforts to track foreign nationals who  enter the country illegally, as well as those who enter legally yet overstay  their authorized period of admission (referred to as overstays). Although  most long-term overstays are likely motivated by economic opportunities,  a few overstays have been identified as terrorists or involved in terrorist- related activity, including some of the September 11, 2001, hijackers.
Until recently, U.S. law required that a country may be considered for  admission into the Visa Waiver Program if the refusal rate for its nationals’  business and tourism visas was less than 3 percent in the prior fiscal year.  The executive branch has supported more flexible criteria for admission,  and, in August 2007, Congress passed legislation that provides DHS with  the authority to admit countries with refusal rates between 3 percent and  10 percent, if the countries meet certain conditions. For example,  countries must meet all mandated Visa Waiver Program security  requirements and cooperate with the United States on counterterrorism  initiatives. Before DHS can exercise this new authority, the legislation  requires that the department complete certain actions aimed at enhancing  security of the Visa Waiver Program.
As requested, my testimony today will focus on one of these requirements  placed on DHS—namely that an air exit system is in place that can verify  the departure of not less than 97 percent of foreign nationals who depart  through U.S. airports. Our observations are derived from our ongoing  review of the Visa Waiver Program based on a request from this  subcommittee.
In the course of this work, we reviewed documentation, including the laws  governing the Visa Waiver Program and its expansion, relevant regulations  and agency operating procedures, and prior GAO reports on immigrant  and visitor entry and exit tracking systems. (A list of related GAO products  appears at the end of this testimony.) Specifically, we collected and  analyzed documentation and interviewed officials from several DHS  components—including Customs and Border Protection (CBP) and the  U.S. Visitor and Immigrant Status and Indicator Technology (US-VISIT)
Program Office—on the department’s plans for the air exit system. We  conducted this performance audit from September 2007 through January  2008, in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives. We will be reporting later  this year on other aspects of the Visa Waiver Program, including the  actions that DHS has taken to implement recommendations from our 2006  report.
subsections: section_title: Background
paragraphs: In 2007, almost 13 million citizens from 27 countries entered the United  States under the Visa Waiver Program. The program was created to  promote the effective use of government resources and to facilitate  international travel without jeopardizing U.S. national security. The United  States last expanded the Visa Waiver Program’s membership in 1999 with  the addition of Portugal, Singapore, and Uruguay; since then, other  countries have expressed a desire to become members. In recent years,  Members of Congress have introduced bills calling for the expansion of  the program. In February 2005, President Bush announced that DHS and  State would develop a strategy, or “Road Map Initiative,” to clarify the  statutory requirements for designation as a participating country.  According to DHS, some of the countries seeking admission to the  program are U.S. partners in the war in Iraq and have high expectations  that they will join the program due to their close economic, political, and  military ties to the United States.
In July 2006, we reported that DHS and State were consulting with 13  “Road Map” countries seeking admission into the Visa Waiver Program— Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia,  Lithuania, Malta, Poland, Romania, Slovakia, and South Korea. In  September 2007, State nominated Greece for admission into the program,  and DHS is currently reviewing this nomination to assess the impact of  Greece’s participation on U.S. security, law enforcement, and illegal  immigration interests. In fiscal year 2006, Greece was one of three  countries (along with Cyprus and Malta) with a refusal rate below 3  percent. Three other “Road Map” countries have refusal rates between 3  and 10 percent, while seven others have rates above 10 percent   (see table 1).
We plan to report later this year on the other aspects of our ongoing work  for the subcommittee, including the status of DHS’s plans to expand the  Visa Waiver Program to other “Road Map” countries and the extent to  which DHS has implemented other provisions in the August 2007  legislation, including an electronic travel authorization system. In addition,  we plan to report this year on the cost and resource implications for  State’s consular operations of changes in the countries that participate in  the Visa Waiver Program.
section_title: DHS’s Current Plan to Certify Air Exit System Requirement Will Not Address All Potential Risks of An Expanded Visa Waiver Program
paragraphs: In response to our inquiries, on December 12, 2007, DHS reported to us that it  will match records of foreign nationals’ departures that airlines reported to  the department to records of any prior arrival, change of status action, or  prior departure from the United States to certify the air exit system  requirement (see fig. 1). Using this methodology, DHS stated that it can  achieve a 97.10 percent match rate, based on data from August 2007. Although  DHS acknowledged there are weaknesses with this methodology, the  department told us that it had no intention of altering its plans for certifying  the air exit system requirement. On January 23, 2008, the assistant secretary  for policy development noted that DHS may use more current departure  manifest data prior to certification. On February 21, 2008, in commenting on a  draft of this testimony, DHS indicated that it had not finalized its decision on  which methodology the department would use to certify compliance;  however, the department confirmed that all methodologies under  consideration would match foreign nationals’ departure records against prior  records “to determine that the person is a foreign national, and that the  person did depart the country through a U.S. airport.”
There are several weaknesses with this approach. First, DHS’s  methodology does not begin with arrival records to determine if those  foreign nationals departed or remained in the United States beyond their  authorized periods of admission—more useful data for oversight of the  Visa Waiver Program and consideration of its expansion. Furthermore,  DHS’s methodology will not inform overall or country-specific overstay  rates, which are key factors in determining illegal immigration risks in the  Visa Waiver Program. An alternate approach would be to track air arrivals  from a given point in time and determine whether those foreign nationals  have potentially overstayed. Figure 2 compares DHS’s plan to match  visitor records using departure data as a starting point to a methodology  that would track foreign nationals using arrival data as a starting point.
Second, for the purposes of this provision, we do not see the value in  verifying that a foreign national leaving the United States had also  departed at a prior point in time—in other words, matching a new  departure record back to a previous departure record from the country.  If, however, DHS attempted to match records of air departures in August  2007 back to records of prior entries alone, US-VISIT data for that month  show that DHS would only achieve a 92.8 percent match rate. DHS’s  assistant secretary for policy development told us in January 2008 that the  department chose to include previous departure and change of  immigration status records in its methodology because this method  allowed the department to achieve a match rate of 97 percent or greater.
Third, DHS’s methodology does not address the accuracy of airlines’  transmissions of departure records, and DHS acknowledges that there are  weaknesses in the departure data. Foreign nationals who enter the United  States by air are inspected by DHS officers—a process that provides  information that can be used to verify arrival manifest data—and, since  2004, DHS has implemented the US-VISIT program to collect biometric  information on foreign nationals arriving in the United States. However,  the department has not completed the exit portion of this tracking system;  thus, there is no corresponding check on the accuracy and completeness  of the departure manifest information supplied by the airlines. As a result,  according to DHS, it cannot be certain that visitors listed on airlines’  manifest data as departing the country did in fact physically depart.  Furthermore, there may be some visitors who did leave the country by air,  but were not recorded on airlines’ manifest data as having departed.  According to DHS, the department works with air carriers to try to  improve both the timeliness and comprehensiveness of manifest records,  and fines carriers that provide incomplete or inaccurate information. If  DHS could evaluate these data, and validate the extent to which they are  accurate and complete, the department would be able to identify problems  and work with the airlines to further improve the data.
DHS reported to us that it had used its methodology for meeting the “97  percent” requirement to match records in the past; however, we were  unable to identify an instance when DHS had used this particular  methodology. We noted that DHS has used a similar methodology since  2004 in its annual report to the Committees on the Judiciary in the U.S.  Senate and House of Representatives on the matching of visitor arrival and  departure records using biographic and biometric data gathered through  US-VISIT. However, the methodology used in these annual reports is  different from what DHS told us it intends to use to certify the “97 percent”  provision. In these prior annual reports, DHS matched departure records  to records of prior arrivals into the United States. For example, for the  period of January 5, 2004, through September 30, 2004, DHS was able to  match 71 percent of recorded departures from air and sea ports of entry to  records of prior arrivals. In its May 2007 report on its integrated entry and  exit data system, DHS was able to match 88.1 percent of recorded  departures from air and sea ports of entry to records of prior arrivals.  While these reports have shown that DHS’s ability to match departure  records has improved since US-VISIT was established in 2004, this  methodology does not account for foreign nationals who have not left the  United States.
Moreover, DHS’s plans to certify the “97 percent” requirement will not  further its efforts in responding to Congress’s longstanding calls for the  development of an automated entry and exit control system to track  visitors to the United States and identify those visitors who have remained  in the country illegally. We testified in June 2007 that the prospects for  successfully delivering a biometric exit system were as uncertain then as  they were when US-VISIT was first implemented in 2004. Without the  capability to verify departures, DHS cannot ensure the integrity of the  immigration system by identifying visitors who have overstayed their  original period of admission.
In October 2007, DHS officials told us that data on overstay rates would be  very useful for oversight of the Visa Waiver Program. As we have reported,  overstays are a significant part of the larger problem of illegal  immigration. For example, overstay rates would inform decision makers  of illegal immigration risks associated with adding new countries to the  program. However, according to the department, it cannot generate  accurate overstay rates for visitors from visa waiver countries due to  weaknesses in the data that indicate who has departed the United States,  as previously mentioned. Moreover, the department has not designated an  office with the responsibility of developing such data for the purposes of  this program. Nevertheless, we identified an office within US-VISIT, the  Data Integrity Group, which develops limited data on overstay rates that  may be useful information for oversight of the Visa Waiver Program. This  office provides information to DHS’s Immigration and Customs  Enforcement on visitors who have potentially overstayed the terms of  their admission into the country. Immigration enforcement officials told us  they use these data regularly during investigations of potential illegal  immigrants. The Data Integrity Group also provides similar information to  the department’s Office of Immigration Statistics, as well as the Visa  Waiver Program Office. While these are positive actions, DHS  acknowledges that there are significant limitations in these data because  of weaknesses in the multiple systems that the Data Integrity Group uses.  For example, an unknown portion of reported overstays may be false  because DHS could not match an arrival record to a departure or change  of status record (for example, a visitor may have departed via a land  border and not generated a departure record).
section_title: Conclusion
paragraphs: An air exit system that facilitates the development of overstay rate data is  important to managing potential risks in expanding the Visa Waiver  Program. DHS’s planned methodology for meeting the “97 percent  provision” so it can move forward with program expansion will not  demonstrate improvements in the air exit system or help the department  identify overstays or develop overstay rates.
Chairman Feinstein, this completes my prepared statement. I would be  happy to respond to any questions you or other Members of the  Subcommittee may have at this time.
section_title: Contact and Acknowledgments
paragraphs: For further information about this statement, please contact Jess Ford at  (202) 512-4128 or fordj@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this statement. In addition, John Brummet, Assistant Director; Teresa  Abruzzo; Kathryn Bernet; Joseph Carney; Etana Finkler; and Eric Larson  made key contributions to this statement.
section_title: Related GAO Reports
paragraphs: Homeland Security: U.S. Visitor and Immigrant Status Program’s Long- standing Lack of Strategic Direction and Management Controls Needs to  Be Addressed. GAO-07-1065. August 31, 2007.
Homeland Security: Prospects For Biometric US-VISIT Exit Capability  Remain Unclear. GAO-07-1044T. June 28, 2007.
Homeland Security: US-VISIT Program Faces Operational,  Technological, and Management Challenges. GAO-07-632T. March 20,  2007.
Homeland Security: US-VISIT Has Not Fully Met Expectations and  Longstanding Program Management Challenges Need to Be Addressed.  GAO-07-499T. February 16, 2007.
Homeland Security: Planned Expenditures for U.S. Visitor and  Immigrant Status Program Need to Be Adequately Defined and  Justified. GAO-07-278. February 14, 2007.
Border Security: US-VISIT Program Faces Strategic, Operational, and  Technological Challenges at Land Ports of Entry. GAO-07-248.   December 6, 2006.
Border Security: Continued Weaknesses in Screening Entrants into the  United States. GAO-06-976T. August 2, 2006.
Border Security: Stronger Actions Needed to Assess and Mitigate Risks  of the Visa Waiver Program. GAO-06-854. July 28, 2006.
Process for Admitting Additional Countries into the Visa Waiver  Program. GAO-06-835R. July 28, 2006.
Homeland Security: Recommendations to Improve Management of Key  Border Security Program Need to Be Implemented. GAO-06-296.   February 14, 2006.
Homeland Security: Some Progress Made, but Many Challenges Remain  on U.S. Visitor and Immigrant Status Indicator Technology Program.  GAO-05-202. February 23, 2005.
Overstay Tracking: A Key Component of Homeland Security and a  Layered Defense. GAO-04-82. May 21, 2004.
Homeland Security: Overstay Tracking Is a Key Component of a Layered  Defense. GAO-04-170T. October 16, 2003.
Homeland Security: Risks Facing Key Border and Transportation  Security Program Need to Be Addressed. GAO-03-1083. September 19,  2003.
Information Technology: Homeland Security Needs to Improve Entry  Exit System Expenditure Planning. GAO-03-563. June 9, 2003.
Illegal Immigration: INS Overstay Estimation Methods Need  Improvement. PEMD-95-20. September 26, 1995.
Illegal Aliens: Despite Data Limitations, Current Methods Provide Better  Population Estimates. PEMD-93-25. August 5, 1993.
Border Security: Challenges in Implementing Border Technology.  GAO 03-546T. March 12, 2003.
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