Strengthening security of the visa waiver program

(a)

Short title

This section may be cited as— (1)the

Secure Visa Waiver and Preventing Terrorist Travel Partnership Act

; or (2)the Secure Visa Waiver Travel Act. (b)

Sense of Congress

It is the sense of the Congress that— (1)the United States should improve the Nation’s homeland security by strengthening the security of the visa waiver program by— (A)enhancing program security requirements; and (B)extending visa-free travel privileges to nationals of foreign countries— (i)that are actively cooperating with the United States to prevent terrorist travel, including sharing counterterrorism and law enforcement information; and (ii)whose nationals have demonstrated their compliance with the provisions of the Immigration and Nationality Act regarding the purpose and duration of their admission to the United States; and (2)the improvements 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. (c)

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 a biometric air exit border security 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 the 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— (i)if— (I)the country meets all existing security requirements and enhanced security requirements described in the Secure Visa Waiver Travel Act; (II)the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, determines that the totality of the country’s security risk mitigation measures provides assurance that the country’s participation in the program would not compromise the homeland security, law enforcement, 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 actively cooperated with the Government of the United States to prevent terrorist travel and enhance our border security, including sharing counterterrorism and law enforcement information, 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; and (ii)if— (I)the average number of refusals of nonimmigrant visitor visas under section 101(a)(15)(B) for nationals of that country during the previous full fiscal year was less than 6 percent; or (II)the total number of nationals of that country who were denied admission or who withdrew their application for admission to the United States, combined with the total number of nationals of that country who were admitted as nonimmigrant visitors but who violated the terms of such admission, thereby presenting a potential security risk, was less that 2 percent of the total number of nationals of that country who applied for admission to the United States as nonimmigrant visitors during the previous full fiscal year. (9)

Discretionary security-related considerations

(A)

In general

In determining whether to waive the application of paragraph (2)(A) for a country under paragraph (8), the Secretary of Homeland Security, in consultation with the Secretary of State, shall take into consideration other factors affecting the homeland 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 designate a country as a program country, the Secretary of Homeland Security shall consider whether the estimated rate at which nationals of the country overstay their authorized period of stay in the United States exceeds 2 percent.

(d)

Security enhancements to the visa waiver program

(1)

In general

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

(10)

Electronic transmission of identification information

Operators of aircraft

; and

(ii)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 to the system biographical information and such other information as the Secretary of Homeland Security shall deem necessary to determine the eligibility of, and whether there exists a law enforcement or security risk in permitting, the alien to travel to the United States. Upon review of such information, the Secretary of Homeland Security shall determine whether the alien is eligible to travel to the United States under the program.

;

(B)in subsection (c), as amended by subsection (c) of this section— (i)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, not to exceed one week, and in a manner specified in the agreement.

; and

(II)by adding at the end the following:

(E)

Repatriation of aliens

The government of a 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.

;

(ii)in paragraph (5)— (I)by striking Attorney General each place such term appears and inserting Secretary of Homeland Security; and (II)in subparagraph (A)(i)— (aa)in subclause (II), by striking and at the end; (bb)in subclause (III)— (AA)by striking the period at the end and inserting ; and; and (BB)by striking Committee on International Relations and inserting Committee on Foreign Affairs; and (cc)by adding at the end the following:

(IV)shall submit to the Congress a report regarding the participation of new countries in the program through a waiver under paragraph (8).

; and

(iii)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. The Secretary of Homeland Security shall ensure that the program office within the Department of Homeland Security is adequately staffed and has resources to be able to provide such technical assistance, in addition to its duties to effectively monitor compliance of the countries participating in the program with all the requirements of the program, including the new requirements imposed under the amendments to this section made by the Secure Visa Waiver Travel Act.

;

(C)in subsection (f)(5), by striking of blank and inserting or loss of; and (D)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 biographical and other information as the Secretary of Homeland Security determines to be necessary to determine, in advance of travel, whether an alien may present a law enforcement or security risk and is eligible to travel to the United States under the program. (B)

Regulations

The Secretary of Homeland Security shall promulgate regulations describing this System and the information to be collected before implementation of the System. (C)

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. (D)

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 and shall revoke such determination if the country of the traveler’s nationality becomes no longer qualified to continue in the program. (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)

Not a determination of visa eligibility

A determination by the Secretary of Homeland Security that an alien who applied for authorization to travel to the United States through the System is not eligible to travel under the program is not a determination of ineligibility for a visa to travel to the United States and shall not preclude the alien from applying for a visa. (iv)

Judicial review

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

Reports on the electronic travel authorization system

(i)

Initial report

Not later than 60 days before publishing regulations regarding the implementation of the System in the Federal Register, the Secretary of Homeland Security shall submit a report to the Congress regarding the implementation of the System. (ii)

Second report

The Secretary shall also report to the Congress on the implementation of the system 18 months after implementation.

(2)

Effective date

Section 217(a)(11) of the Immigration and Nationality Act, as added by paragraph (1)(A)(ii), 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 under such paragraph. (e)

Exit system

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall establish a biometric exit system that records the departure on a flight leaving the United States of every alien who departs by air who is participating in the visa waiver program established under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187). (2)

System requirements

The system established under paragraph (1) shall— (A)match biometric information of the alien against relevant watch lists and immigration information; and (B)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. (3)

Report on exit system

Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Congress that describes— (A)the progress made in developing and deploying the exit system established under this subsection; and (B)the procedures by which the Secretary will improve the manner of calculating the rates of nonimmigrants who overstay their authorized period of stay in the United States. (4)

Annual report on exit data

Commencing not later than 2 years after the date of the enactment of this Act, the Secretary shall submit an annual report to the Congress that provides entry and exit data and overstay rates for nationals of each of the countries participating in the visa waiver program. The report shall also designate which, if any, countries are no longer eligible to participate in the such program under the provisions of section 217(c)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(3)(A)). (f)

Reports to Congress

Any report to the Congress required by this section, or any amendment made by this section, shall be made to the following committees: (1)The Committee on Homeland Security and Governmental Affairs of the Senate. (2)The Committee on the Judiciary of the Senate. (3)The Select Committee on Intelligence of the Senate. (4)The Committee on Appropriations of the Senate. (5)The Committee on Homeland Security of the House of Representatives. (6)The Committee on the Judiciary of the House of Representatives. (7)The Permanent Select Committee on Intelligence of the House of Representatives. (8)The Committee on Appropriations of the House of Representatives. (9)The Committee on Foreign Affairs of the House of Representatives. (10)The Committee on Foreign Relations of the Senate. (g)

Authorization of appropriations

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