Short title

This Act may be cited as the

Visa Waiver Modernization Act

Sense of Congress

It is the sense of Congress that— (1)the United States should modernize the visa waiver program by simultaneously— (A)enhancing program security requirements; and (B)extending visa-free travel privileges to nationals of foreign countries that are allies in the war on terrorism; and (2)the expansion described in paragraph (1) will— (A)enhance bilateral cooperation on critical counterterrorism and information sharing initiatives; (B)support and expand tourism and business opportunities to enhance long-term economic competitiveness; and (C)strengthen bilateral relationships.

Discretionary visa waiver program expansion

Section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) is amended by adding at the end the following:

(8)

Nonimmigrant visa refusal rate flexibility

(A)

Certification

On the date on which an air exit system is in place that can verify the departure of not less than 97 percent of foreign nationals that exit through airports of the United States, the Secretary of Homeland Security shall certify to Congress that such air exit system is in place. (B)

Waiver

After certification by the Secretary under subparagraph (A), the Secretary of Homeland Security, in consultation with the Secretary of State, may waive the application of paragraph (2)(A) for a country if— (i)the country meets all existing security requirements and enhanced security requirements described in section 4 of the Secure Travel and Counterterrorism Partnership Act; (ii)the Secretary of Homeland Security determines that the totality of the country’s security risk mitigation measures provide assurance that the country’s participation in the program would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States; (iii)there has been a sustained reduction in visa refusal rates for aliens from the country and conditions exist to continue such reduction; and (iv)the country cooperated with the Government of the United States on counterterrorism initiatives and information sharing before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State expect such cooperation will continue. (9)

Discretionary security-related considerations

(A)

In general

In determining whether to waive the application of paragraph (2)(A) for a country, pursuant to paragraph (8), the Secretary of Homeland Security, in consultation with the Secretary of State, shall take into consideration other factors affecting the security of the United States, including— (i)airport security standards in the country; (ii)whether the country assists in the operation of an effective air marshal program; (iii)the standards of passports and travel documents issued by the country; and (iv)other security-related factors. (B)

Overstay rates

In determining whether to permit a country to participate in the program, the Secretary of Homeland Security shall consider the estimated rate at which

Security enhancements to the visa waiver program

(a)

In general

Section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) is amended— (1)in subsection (a)— (A)by striking Operators of aircraft and inserting the following:

(10)

Electronic transmission of identification information

Operators of aircraft

; and

(B)by adding at the end the following:

(11)

Eligibility determination under the electronic travel authorization system

Beginning on the date on which the electronic travel authorization system developed under subsection (h)(3) is fully operational, each alien traveling under the program shall, before applying for admission, electronically provide basic biographical information to the system. Upon review of such biographical information, the Secretary of Homeland Security shall determine whether the alien is eligible to travel to the United States under the program.

;

(2)in subsection (c), as amended by section 3 of this Act— (A)in paragraph (2)— (i)by amending subparagraph (D) to read as follows:

(D)

Reporting lost and stolen passports

The government of the country enters into an agreement with the United States to report, or make available through Interpol, to the United States Government information about the theft or loss of passports within a strict time limit and in a manner specified in the agreement.

; and

(ii)by adding at the end the following:

(E)

Repatriation of aliens

The government of the country accepts for repatriation any citizen, former citizen, or national against whom a final executable order of removal is issued not later than 3 weeks after the issuance of the final order of removal. Nothing in this subparagraph creates any duty for the United States or any right for any alien with respect to removal or release. Nothing in this subparagraph gives rise to any cause of action or claim under this paragraph or any other law against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien. (F)

Passenger information exchange

The government of the country enters into an agreement with the United States to share information regarding whether nationals of that country traveling to the United States represent a threat to the security or welfare of the United States or its citizens.

(B)in paragraph (5)— (i)by striking Attorney General each place it appears and inserting Secretary of Homeland Security; and (ii)in subparagraph (A)(i)— (I)in subclause (II), by striking and at the end; (II)in subclause (III), by striking the period at the end and inserting ; and; and (III)by adding at the end the following:

(IV)shall submit to Congress a report regarding the implementation of the electronic travel authorization system under subsection (h)(3) and the participation of new countries in the program through a waiver under paragraph (8).

; and

(C)by adding at the end the following:

(10)

Technical assistance

The Secretary of Homeland Security, in consultation with the Secretary of State, shall provide technical assistance to program countries to assist those countries in meeting the requirements under this section.

;

(3)in subsection (f)(5), by striking of blank and inserting or loss of; and (4)in subsection (h), by adding at the end the following:

(3)

Electronic travel authorization system

(A)

System

The Secretary of Homeland Security, in consultation with the Secretary of State, is authorized to develop and implement a fully automated electronic travel authorization system (referred to in this paragraph as the System) to collect such basic biographical information as the Secretary of Homeland Security determines to be necessary to determine, in advance of travel, the eligibility of an alien to travel to the United States under the program. (B)

Fees

The Secretary of Homeland Security may charge a fee for the use of the System, which shall be— (i)set at a level that will ensure recovery of the full costs of providing and administering the System; and (ii)available to pay the costs incurred to administer the System. (C)

Validity

(i)

Period

The Secretary of Homeland Security, in consultation with the Secretary of State shall prescribe regulations that provide for a period, not to exceed 3 years, during which a determination of eligibility to travel under the program will be valid. Notwithstanding any other provision under this section, the Secretary of Homeland Security may revoke any such determination at any time and for any reason. (ii)

Limitation

A determination that an alien is eligible to travel to the United States under the program is not a determination that the alien is admissible to the United States. (iii)

Judicial review

Notwithstanding any other provision of law, no court shall have jurisdiction to review an eligibility determination under the System. (D)

Report

Not later than 60 days before publishing notice regarding the implementation of the System in the Federal Register, the Secretary of Homeland Security shall submit a report regarding the implementation of the System to— (i)the Committee on Homeland Security and Governmental Affairs of the Senate; (ii)the Committee on the Judiciary of the Senate; (iii)the Select Committee on Intelligence of the Senate; (iv)the Committee on Appropriations of the Senate; (v)the Committee on Homeland Security of the House of Representatives; (vi)the Committee on the Judiciary of the House of Representatives; (vii)the Permanent Select Committee on Intelligence of the House of Representatives; and (viii)the Committee on Appropriations of the House of Representatives.

(b)

Effective date

Section 217(a)(11) of the Immigration and Nationality Act, as added by subsection (a)(1)(B) shall take effect on the date which is 60 days after the date on which the Secretary of Homeland Security publishes notice in the Federal Register of the requirement of such paragraph.

Exit system

(a)

In general

Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall establish an exit system that records the departure on a flight leaving the United States of every alien participating in the visa waiver program established under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187). (b)

System requirements

The system established under subsection (a) shall— (1)match biometric information of the alien against relevant watch lists and immigration information; and (2)compare such biometric information against manifest information collected by air carriers on passengers departing the United States to confirm such individuals have departed the United States. (c)

Report

Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to Congress that describes— (1)the progress made in developing and deploying the exit system established under this section; and (2)the procedures by which the Secretary will improve the manner of calculating the rates of nonimmigrants who violate the terms of their visas by remaining in the United States after the expiration of such visas.

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this Act, and the amendments made by this Act.