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Proposed Changes to the Visa Waiver Program

By Theresa Cardinal Brown

Tuesday, December 8, 2015

Key Takeaways:

  • The White House and Congress have separately proposed several changes to the Visa Waiver Program (VWP) to further prevent the use of this means of travel from individuals who have traveled to countries like Syria and Iraq, become radicalized, and return to the west to conduct terrorist operations.
  • Although the proposed changes differ somewhat in detail between the administration, the House and the Senate, they cover similar aspects of the program.
  • These include efforts to enforce the requirement of the VWP that countries in the program secure their own passports and encourage them to improve their border technology to track terrorist travel.
  • Proposed changes also would bar persons who have traveled to Syria, Iraq, and other countries of concern from using the program; they would be required to apply for visas before coming to the United States.
  • The changes would also require more information from VWP travelers prior to travel, to allow for better vetting and screening.

Background

In response to the terrorist attacks in Paris last month, in which nationals from France and Belgium traveled to Syria and returned to Europe to conduct the attacks, Congress and the administration have both proposed changes to the Visa Waiver Program (VWP). The VWP is an existing Department of Homeland Security program that allows citizens of 38 countries (including many of the European Union countries) to visit the United States for up to 90 days without applying for a visa at a U.S. consulate or embassy. While the VWP program does include certain pre-travel screening requirements, including completing an electronic application form (Electronic System for Travel Authorization or ESTA) that is vetted against U.S. security databases, as well as the collection of passenger data provided by airlines and other transportation providers before arrival, concerns have been raised about the program’s ability to screen for those who may use the system to come to the United States and carry out attacks.

The improvements announced by the White House and proposed in the House (H.R. 158) and Senate (S. 2337) broadly make changes in the following areas:

Enforcing and enhancing rules of country participation in the VWP

The White House has proposed using more “sticks” to get VWP countries to improve their info-sharing with INTERPOL and the United States on individuals who may have traveled for terrorism purposes, including requiring more frequent ESTA applications for their citizens, or even putting the country on probation or removing it from the program. The House and Senate bills would make e-passports (passports with embedded chips containing biographic and/or biometric information) mandatory for VWP countries by next year; the Senate bill would require biometrics in those passports and require sharing of passenger travel information with the United States, an area of friction between the United States and Europe since the Bush administration. The House and Senate bills would require termination from the program if a country does not share passenger and terrorist information with the United States. The House legislation also would require countries to report lost or stolen passports within 24 hours of becoming aware of the theft or loss. Finally, both the House and Senate bills would require that VWP countries implement screening and vetting at their own ports of entry, including validating their own e-passports and those of other nations, checking all passports of travelers against the INTERPOL databases, and beginning biometric checks. The US would be authorized to assist countries in all of these measures, based on our own experiences.

ESTA improvements

The White House has already taken steps to require ESTA applicants to include on their application any travel to countries that constitute a terrorist safe haven. It should be noted that while the ESTA is required before traveling to the United States under the VWP, any concerns raised by the ESTA will prevent the individual from traveling on the VWP and require that they apply for a visa at a US consulate or embassy. In addition, the White House is proposing requiring more frequent ESTA submission or suspension of ESTA issuances for countries that are not meeting metrics on information sharing or screening. The House bill would also require the ESTA system to collect information on additional or former countries of citizenship for applicants.

Limitations for individuals that have traveled to Syria, Iraq, or other countries of concern

While the White House has stated they will request information from VWP travelers about their past travel, including travel to Iraq and Syria to vet them more closely, the House and Senate bills would affirmatively bar from the program individuals who have recently traveled to Iraq, Syria, or other areas of concern (with some exemptions). Such individuals would have to apply in person for a visa before traveling to the United States. The Senate bill would bar those who have traveled to those countries within the last five years before application from VWP entry; the House bill would bar those individuals who traveled to the designated countries any time on or after March 1, 2011, potentially impacting many more individuals. The House bill additionally would bar those who hold dual citizenship in a VWP country and Iraq, Syria, or another designated country of concern from using the VWP.

More information prior to travel to the United States

The Senate bill would require additional pre-departure information on visa waiver travelers in order to conduct vetting and security checks. The bill would require airlines to submit all passenger name record information on all travelers at least one hour prior to arrival in the United States. The Senate bill would also for the first time require collection of biometric data (photographs and fingerprints) from VWP travelers before departure for the United States within one year of enactment. Currently, all VWP applicants for admission must submit their biometrics upon arrival through the US-VISIT program.

Conclusion

While all of these efforts could significantly improve the ability of the Visa Waiver Program to screen for so-called “foreign terrorist fighters” with Western passports, there will be challenges in implementing these requirements. The European Union has resisted collecting and sharing their citizens’ passenger name record information for many years, and some countries have been slow to fully implement the biometric e-passports (e-passports with biometrics are issued throughout the European Union but many older passports are still in circulation.). Implementation of pre-departure biometric checks would require new infrastructure and perhaps new laws in some countries.

The ability of the United States to “require” countries in the VWP to make these changes will vary. The VWP program, in addition to being a convenience to the foreign travelers, is a boon to the United States. The VWP program enhances our foreign relations with strong allied countries, and permits millions of visitors to travel to (spend billions of dollars in) the United States annually. Threatening to cut off VWP access for any of these countries in exchange for compliance may have implications for the United States as well and should be carefully considered. However, given the current security situation in Europe, there may be more willingness from these countries to improve their processes for their own security interests, which would also benefit U.S national security.

KEYWORDS: 114TH CONGRESS, DEPARTMENT OF HOMELAND SECURITY, EUROPEAN UNION, FRANCE, INTERPOL, PARIS, SYRIA, WHITE HOUSE