Visa Waiver Program Updated June 29, 2020 Congressional Research Service https://crsreports.congress.gov RL32221 SUMMARY RL32221 Visa Waiver Program June 29, 2020 The Visa Waiver Program (VWP), originally established in 1986 as a trial program and made permanent in 2000 (P.L. 106-396), allows nationals from 39 countries, many of which are in Abigail F. Kolker Europe, to enter the United States as temporary visitors (nonimmigrants) for business or pleasure Analyst in Immigration without first obtaining a visa. Generally, temporary visitors for business or pleasure from non- Policy VWP countries must obtain a visa from Department of State (DOS) officers at a consular post abroad before traveling to the United States. Some observers argue that the VWP strengthens national security because it sets standards for travel documents, requires information sharing between the member countries and the United States on criminal and security concerns, and mandates reporting of lost and stolen travel documents. VWP travelers have to present e-passports (i.e., passports with a data chip containing biometric information), which tend to be more difficult to alter than other types of passports. Nevertheless, some observers of the program have raised concerns about the possibility that terrorists will enter the United States under the VWP because those entering under the VWP undergo a biographic, rather than a biometric (i.e., fingerprint and digital photograph), security screening and do not need to interview in person with a U.S. consular official before embarking for the United States. There is also interest in the VWP as a mechanism to promote tourism and commerce. In FY2018, there were more than 22.8 million admissions to the United States under this program, constituting nearly a third of all visitor admissions. The inclusion of countries in the VWP indicates a shared approach to national security and eases consular workloads abroad. To qualify for the VWP, a country must offer reciprocal travel privileges to U.S. citizens; have had a nonimmigrant visa refusal rate of less than 3% for the previous year; issue their nationals machine-readable passports that incorporate biometric identifiers; issue tamper-resistant, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country’s port of entry; report the loss and theft of passports; share specified information regarding nationals of the country who represent a threat to U.S. security; and not compromise the law enforcement or security interests of the United States by its inclusion in the program. Countries can be terminated from the VWP if they fail to meet any of these conditions or otherwise threaten the United States’ security or immigration interests. All foreign nationals (i.e., aliens) entering under the VWP must present passports that contain electronic data chips (e- passports). Under Department of Homeland Security (DHS) regulations, travelers who seek to enter the United States through the VWP are subject to the biometric requirements of the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program. In addition, aliens seeking to travel to the United States under the VWP must get an approval from the Electronic System for Travel Authorization (ESTA), a web-based system that checks the alien’s information against relevant law enforcement and security databases, before they can board a plane to the United States. Under statute, the Secretary of Homeland Security has the authority to waive the nonimmigrant visa refusal rate requirement, provided certain conditions are met. However, the waiver authority was suspended on July 1, 2009, because DHS had not fully implemented an air-exit system that incorporates biometric identifiers. The waiver will not be available until such a system is implemented, and it is unknown when and if a biometric exit system will be fully implemented. Activity in the 116th Congress related to the VWP seeks to expand the number of countries by changing the criteria or by designating specific countries. Other bills would rename the VWP to “Secure Travel Partnership” to reflect one of the program’s main goals of securing travel to the United States. Legislation in the 116th Congress would also address the ESTA fee paid by VWP applicants. In December 2019, Congress authorized the continued use of the ESTA fee to partially fund Brand USA, a national tourism promotion program, through September 30, 2027. Congress also raised the ESTA fee from $14 to $21 (Division I, Title 8 of P.L. 116-94). The effective date of the new ESTA fee has not yet been announced. Congressional Research Service Visa Waiver Program Contents Introduction ................................................................................................................... 1 Current Policy ................................................................................................................ 1 VWP Qualifying Criteria ............................................................................................ 5 Nonimmigrant Visa Refusal Rate Waiver....................................................................... 7 Electronic System for Travel Authorization ................................................................... 8 Arrival and Departure Inspections .............................................................................. 10 Trends in Use of the VWP ........................................................................................ 12 Policy Issues ................................................................................................................ 13 Security ................................................................................................................. 13 Debate over Biometric Exit Capacity..................................................................... 15 Information Sharing............................................................................................ 15 Terrorism, Foreign Fighters, and the VWP ............................................................. 16 Adding Countries to the VWP ................................................................................... 17 EU and Reciprocity ............................................................................................ 19 Overstays ............................................................................................................... 19 Legislation in the 116th Congress ..................................................................................... 20 Figures Figure 1. Number of Visa Waiver Program (VWP) Admissions, FY2009-FY2018, and Percentage of Visitor Admissions That Were VWP .......................................................... 12 Appendixes Appendix. Legislative History and Selected Administrative Action ....................................... 22 Contacts Author Information ....................................................................................................... 30 Congressional Research Service Visa Waiver Program Introduction The Visa Waiver Program (VWP) allows nationals from certain countries to enter the United States as temporary visitors for business or pleasure without first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business or pleasure from non-VWP countries1 must obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to the United States. Two main goals of the VWP are increasing tourism and strengthening national security. While there tends to be agreement that the VWP benefits the U.S. economy by facilitating legitimate travel, there is disagreement on the VWP’s impact on national security.2 Proponents of the program say the VWP strengthens U.S. national security because it sets standards for travel documents, requires information sharing between member countries and the United States on criminal and security concerns, and mandates reporting of lost and stolen travel documents.3 Critics of the program argue the VWP creates a security loophole because VWP travelers do not undergo the in-person screening generally required to receive a visa.4 Current Policy In general, temporary foreign visitors for business or pleasure from most countries must obtain a B nonimmigrant visa5 from DOS officers at a consular post abroad before coming to the United States.6 Personal interviews are generally required, and consular officers use the Consular Consolidated Database (CCD) to screen visa applicants. The CCD indicates the outcome of any prior visa application of the alien and facilitates the flagging of issues that may make the alien ineligible for a visa under the grounds of inadmissibility of the Immigration and Nationality Act (INA), which include criminal, terrorist, and public health grounds. Consular officers are required to check the background of all aliens in the “lookout” databases, including the Consular Lookout and Support System (CLASS) and TIPOFF databases. 1 The two exceptions are Canada and Bermuda; they do not participate in the VWP, but their citizens do not need to obtain a nonimmigrant visa except in specified circumstances. For more information, see U.S. State Department, Bureau of Consular Affairs, Citizens of Canada and Bermuda, at https://travel.state.gov/content/travel/en/us-visas/ tourism-visit/citizens-of-canada-and-bermuda.html. 2 See CRS Report R46300, Adding Countries to the Visa Waiver Program: Effects on National Security and Tourism . 3 For