[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3544 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3544

To amend the Immigration and Nationality Act to modify the requirements 
           of the visa waiver program and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 29, 2010

 Ms. Mikulski introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend the Immigration and Nationality Act to modify the requirements 
           of the visa waiver program and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Visa Waiver Program Updated 
Framework and Enhanced Security Act of 2010''.

SEC. 2. DEFINITIONS.

    (a) Definitions.--Section 217(c)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(1)) is amended to read as follows:
            ``(1) Authority to designate; definitions.--
                    ``(A) Authority to designate.--The Secretary of 
                Homeland Security, in consultation with the Secretary 
                of State, may designate any country as a program 
                country if that country meets the requirements under 
                paragraph (2).
                    ``(B) Definitions.--In this subsection:
                            ``(i) Appropriate congressional 
                        committees.--The term `appropriate 
                        congressional committees' means--
                                    ``(I) the Committee on Foreign 
                                Relations of the Senate;
                                    ``(II) the Committee on the 
                                Judiciary of the Senate;
                                    ``(III) the Committee on Foreign 
                                Affairs of the House of 
                                Representatives; and
                                    ``(IV) the Committee on the 
                                Judiciary of the House of 
                                Representatives.
                            ``(ii) Program country.--The term `program 
                        country' means a country designated as a 
                        program country under subparagraph (A).
                            ``(iii) Visa overstay rate.--
                                    ``(I) In general.--The term `visa 
                                overstay rate' means, with respect to a 
                                country, the ratio of--
                                            ``(aa) the total number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States on the basis of a 
                                        nonimmigrant visa whose periods 
                                        of authorized stay ended during 
                                        a fiscal year but who remained 
                                        unlawfully in the United States 
                                        beyond such periods; to
                                            ``(bb) the total number of 
                                        nationals of that country who 
                                        were admitted to the United 
                                        States on the basis of a 
                                        nonimmigrant visa during that 
                                        fiscal year.
                            ``(iv) Computation of visa overstay rate.--
                        In determining the visa overstay rate for a 
                        country the Secretary of Homeland Security--
                                    ``(I) shall utilize information 
                                from all available databases to ensure 
                                the accuracy of such rate; and
                                    ``(II) shall not include any visa 
                                overstay which incorporates any 
                                procedures based on, or are otherwise 
                                based on, race, sex, or disability, 
                                unless otherwise specifically 
                                authorized by law or regulation.''.
    (b) Technical and Conforming Amendments.--Section 217(c)(2)(C) of 
the Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(C)) is 
amended--
            (1) by striking ``Attorney General,'' and inserting 
        ``Secretary of Homeland Security,''; and
            (2) in clause (iii), by striking ``Committee on the 
        Judiciary and the Committee on International Relations of the 
        House of Representatives and the Committee on the Judiciary and 
        the Committee on Foreign Relations of the Senate'' and 
        inserting ``appropriate congressional committees''.

SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON VISA OVERSTAY RATES.

    (a) In General.--Section 217(c)(2)(A) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(2)) is amended to read as follows:
                    ``(A) Low nonimmigrant visa overstay rate.--The 
                visa overstay rate for that country was not more than 3 
                percent during the previous fiscal year.''.
    (b) Conforming Amendments.--Section 217(c) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)) is amended--
            (1) by amending paragraph (6) to read as follows:
            ``(6) Inapplicability of judicial review.--No court shall 
        have jurisdiction to review the denial of admission to the 
        United States of any alien by the Secretary of Homeland 
        Security, the Secretary's computation of a visa overstay rate, 
        or the designation or nondesignation of a country as a program 
        country.''; and
            (2) in paragraph (8)--
                    (A) in subparagraph (B)--
                            (i) in clause (iii), by striking ``rate of 
                        refusals for nonimmigrant visas'' and inserting 
                        ``visa overstay rate''; and
                            (ii) by amending clause (v) to read as 
                        follows:
                            ``(v) the visa overstay rate for nationals 
                        of the country during the previous full fiscal 
                        year was not more than 10 percent.''; and
                    (B) by striking subparagraph (C).

SEC. 4. ANNUAL REPORT ON PROGRAM COMPLIANCE.

    (a) Annual Report on Program.--Section 217(c)(3) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(3)) is amended to read as 
follows:
            ``(3) Annual report on program compliance.--
                    ``(A) Requirement for annual report.--Not later 
                than 180 days after the date of the enactment of the 
                Visa Waiver Program Updated Framework and Enhanced 
                Security Act of 2010, and not later than May 1 of each 
                year thereafter, the Secretary of Homeland Security, in 
                consultation with the Secretary of State, shall submit 
                an annual report on the compliance with the program to 
                appropriate congressional committees, the Committee on 
                Homeland Security and Governmental Affairs of the 
                Senate, and the Committee on Homeland Security of the 
                House of Representatives.
                    ``(B) Content.--
                            ``(i) Information regarding program 
                        countries.--Each annual report required under 
                        subparagraph (A) shall include, for each 
                        program country--
                                    ``(I) an evaluation, after 
                                consideration of the independent review 
                                of the program country conducted by the 
                                Director of National Intelligence under 
                                paragraph (7)(A), of the effect of the 
                                program country's continued designation 
                                on the law enforcement and security 
                                interests of the United States, 
                                including--
                                            ``(aa) the interest in 
                                        enforcement of the immigration 
                                        laws of the United States;
                                            ``(bb) the existence and 
                                        effectiveness of its agreements 
                                        and procedures for extraditing 
                                        to the United States, 
                                        individuals, including its own 
                                        nationals, who commit crimes 
                                        that violate United States law; 
                                        and
                                            ``(cc) any other potential 
                                        threat to the United States 
                                        from the program country's 
                                        continued designation;
                                    ``(II) an assessment of the 
                                compliance with the program 
                                requirements by the program country 
                                during the previous year;
                                    ``(III) the visa overstay rate for 
                                the program country during the previous 
                                year;
                                    ``(IV) the total of number of 
                                nationals from the program country who 
                                entered the United States during the 
                                previous year;
                                    ``(V) an assessment of the 
                                information sharing required under this 
                                section with respect to the program 
                                country; and
                                    ``(VI) a determination as to 
                                whether any such designation ought to 
                                be continued or terminated under 
                                subsection (d) or subsection (f) that 
                                includes an explanation of such 
                                determination and of the effects 
                                described in subclause (I).
                            ``(ii) Other information.--Each annual 
                        report required under subparagraph (A) shall 
                        include an evaluation of--
                                    ``(I) the implementation of the 
                                electronic travel authorization system 
                                required under subsection (h)(3); and
                                    ``(II) the effect of participation 
                                of new countries in the program 
                                pursuant to a waiver under paragraph 
                                (5)(B).''.
                    ``(C) Consideration of countries for the program.--
                Upon notification by the Secretary of Homeland Security 
                that a country is under consideration for inclusion in 
                the program, the Secretary of State shall provide all 
                appropriate information described in subparagraph (B) 
                for such country to the Secretary of Homeland Security.
                    ``(D) Certification.--Not later than May 1 of each 
                year, the United States chief of mission, acting or 
                permanent, to each country under consideration for 
                inclusion in the program shall--
                            ``(i) certify that the information provided 
                        under subparagraph (C) for such country is 
                        accurate; and
                            ``(ii) submit such certification to the 
                        appropriate congressional committees.''.
    (b) Conforming Amendments.--Section 217(c) of the Immigration and 
Nationality Act (8 U.S.C. 1187) is amended--
            (1) by striking paragraphs (4), (5), and (7);
            (2) by redesignating paragraphs (6) (as amended by section 
        3(b)(1)), (8) (as amended by section 3(b)(2)), (9), (10), and 
        (11), as paragraphs (4), (5), (6), and (7), respectively;
            (3) in paragraph (6), as redesignated by paragraph (2), by 
        striking ``paragraph (8),'' and inserting ``paragraph (5),''; 
        and
            (4) in subparagraph (A) of paragraph (7), as redesignated 
        by paragraph (2), by striking ``Prior to the admission of a new 
        country into the program under this section, and in conjunction 
        with the periodic evaluations required under subsection 
        (c)(5)(A),'' and inserting ``Prior to the designation of a new 
        country as a program country and for each annual report 
        submitted required under paragraph (3)(A),''.

SEC. 5. TERMINATION OF DESIGNATION; PROBATION.

    Section 217(f) of the Immigration and Nationality Act (8 U.S.C. 
1187(f)) is amended to read as follows:
    ``(f) Termination of Designation; Probation.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Probationary country.--The term `probationary 
                country' means a program country placed in probationary 
                status under paragraph (2)(B).
                    ``(B) Probationary period.--The term `probationary 
                period' means the fiscal year in which a probationary 
                country is placed in probationary status under 
                paragraph (2)(B).
                    ``(C) Program country.--The term `program country' 
                has the meaning given that term in subsection 
                (c)(1)(B).
                    ``(D) Visa overstay rate.--The term `visa overstay 
                rate' has the meaning given that term in subsection 
                (c)(1)(B).
            ``(2) Determination and notice of disqualification.--
                    ``(A) Determination.--Upon a determination by the 
                Secretary of Homeland Security that a program country's 
                visa overstay rate was more than 3 percent for the 
                preceding fiscal year or that the program country is 
                not in compliance with all other program requirements 
                under subsection (c)(2), the Secretary shall notify the 
                Secretary of State.
                    ``(B) Probationary status.--If the Secretary of 
                Homeland Security makes a determination under 
                subparagraph (A) for a program country, the Secretary 
                of Homeland Security shall place the program country in 
                probationary status for the fiscal year following the 
                fiscal year for which such determination was made.
            ``(3) Actions at termination of the probationary period.--
        At the end of the probationary period of a probationary 
        country, the Secretary of Homeland Security shall take one of 
        the following actions:
                    ``(A) Compliance during probationary period.--The 
                Secretary shall redesignate the probationary country as 
                a program country if the Secretary determines that 
                during the probationary period the probationary 
                country--
                            ``(i) had a visa overstay rate not more 
                        than 3 percent; and
                            ``(ii) was in compliance with all other 
                        program requirements under subsection (c)(2).
                    ``(B) Compliance with visa overstay rate.--The 
                Secretary may redesignate the probationary country as a 
                program country if the Secretary determines that during 
                the probationary period the probationary country had a 
                visa overstay rate of not more than 3 percent.
                    ``(C) Noncompliance with visa overstay rate.--
                            ``(i) In general.--Subject to clause (ii), 
                        the Secretary shall terminate the probationary 
                        country's participation in the program if the 
                        Secretary determines that during the 
                        probationary period the probationary country 
                        had a visa overstay rate of more than 3 
                        percent.
                            ``(ii) Additional probationary period.--The 
                        Secretary may waive the application of clause 
                        (i) for the probationary country if the 
                        Secretary, in consultation with the Director of 
                        National Intelligence, certifies that the 
                        probationary country's continued participation 
                        in the program does not pose a threat to law 
                        enforcement, security, or enforcement of 
                        immigration laws, and place the country in 
                        probationary status for one additional fiscal 
                        year.
            ``(4) Actions at the end of additional probationary 
        period.--At the end of the additional 1-year period of 
        probation granted to a probationary country pursuant to 
        subparagraph (C)(ii), the Secretary shall take one of the 
        following actions:
                    ``(A) Compliance during additional period.--The 
                Secretary shall redesignate the probationary country as 
                a program country if the Secretary determines that 
                during such additional period the probationary country 
                had a visa overstay rate not more than 3 percent.
                    ``(B) Noncompliance during additional period.--The 
                Secretary shall terminate the probationary country's 
                participation in the program if the Secretary 
                determines that during such additional period the 
                probationary country had a visa overstay rate of more 
                than 3 percent.
            ``(5) Effective date.--The termination of a country's 
        participation in the program under paragraph (3) or (4) shall 
        take effect on the first day of the first fiscal year following 
        the fiscal year in which the Secretary determines that such 
        participation shall be terminated. Until such date, nationals 
        of the country shall remain eligible for a waiver under 
        subsection (a).
            ``(6) Nonapplicability of certain provisions.--Paragraphs 
        (3) and (4) shall not apply to a program country unless the 
        total number of nationals of the program country that entered 
        the United States during the prior fiscal year exceeds 100.
            ``(7) Emergency termination.--
                    ``(A) In general.--In the case of a program country 
                in which an emergency occurs that the Secretary of 
                Homeland Security, in consultation with the Secretary 
                of State, determines threatens the law enforcement or 
                security interests of the United States (including the 
                interest in enforcement of the immigration laws of the 
                United States), the Secretary of Homeland Security 
                shall immediately terminate the designation of the 
                country as a program country.
                    ``(B) Emergency defined.--In this paragraph, the 
                term `emergency' means--
                            ``(i) the overthrow of a democratically 
                        elected government in the program country;
                            ``(ii) war (including undeclared war, civil 
                        war, or other military activity) on the 
                        territory of the program country;
                            ``(iii) a severe breakdown in law and order 
                        affecting a significant portion of the program 
                        country's territory;
                            ``(iv) a severe economic collapse in the 
                        program country; or
                            ``(v) any other extraordinary event in the 
                        program country that threatens the law 
                        enforcement or security interests of the United 
                        States (including the interest in enforcement 
                        of the immigration laws of the United States) 
                        and where the country's participation in the 
                        program could contribute to that threat.
                    ``(C) Redesignation.--The Secretary of Homeland 
                Security may redesignate the country as a program 
                country, without regard to paragraph (3) or (4) or 
                subsection (c)(2), if the Secretary, in consultation 
                with the Secretary of State, determines that--
                            ``(i) at least 6 months have elapsed since 
                        the effective date of the emergency termination 
                        under subparagraph (A);
                            ``(ii) the emergency that caused the 
                        termination has ended; and
                            ``(iii) the average visa overstay rate for 
                        that country during the period of termination 
                        under this subparagraph was not more than 3 
                        percent.
                    ``(D) Program suspension authority.--The Director 
                of National Intelligence shall immediately inform the 
                Secretary of Homeland Security of any current and 
                credible threat which poses an imminent danger to the 
                United States or its citizens and originates from a 
                country participating in the visa waiver program. Upon 
                receiving such notification, the Secretary, in 
                consultation with the Secretary of State--
                            ``(i) may suspend a program country from 
                        the visa waiver program without prior notice;
                            ``(ii) shall notify any country suspended 
                        under clause (i) and, to the extent practicable 
                        without disclosing sensitive intelligence 
                        sources and methods, provide justification for 
                        the suspension; and
                            ``(iii) shall restore the suspended 
                        country's participation in the visa waiver 
                        program upon a determination that the threat no 
                        longer poses an imminent danger to the United 
                        States or its citizens.
            ``(8) Treatment of nationals after termination.--For 
        purposes of this subsection and subsection (d)--
                    ``(A) nationals of a country whose designation is 
                terminated under paragraph (3), (4), or (7) shall 
                remain eligible for a waiver under subsection (a) until 
                the effective date of such termination; and
                    ``(B) a waiver under this section that is provided 
                to such a national for a period described in subsection 
                (a)(1) shall not, by such termination, be deemed to 
                have been rescinded or otherwise rendered invalid, if 
                the waiver is granted prior to such termination.''.

SEC. 6. REVIEW OF OVERSTAY TRACKING METHODOLOGY.

    Not later than 180 days after the date of the enactment of this 
Act, the Comptroller General of the United States shall conduct a 
review of the methods used by the Secretary of Homeland Security--
            (1) to track aliens entering and exiting the United States; 
        and
            (2) to detect any such alien who stays longer than such 
        alien's period of authorized admission.

SEC. 7. REPORTING OF LOST OR STOLEN PASSPORTS.

    (a) Enforcement of Requirement for Agreements To Report Lost or 
Stolen Passports.--Not later than 180 days after the date of the 
enactment of this Act, each country designated as a program country 
under section 217(c) of the Immigration and Nationality Act (8 U.S.C. 
1187(c)) shall have in effect an agreement with the United States as 
required under paragraph (2)(D) of such section 217(c).
    (b) Integration of Databases.--The Secretary of Homeland Security 
shall integrate all Department of Homeland Security databases that 
contain information on lost or stolen passports into the Electronic 
System on Travel Authorization.

SEC. 8. INFORMATION SHARING WITH LAW ENFORCEMENT.

    The Secretary of Homeland Security shall make information regarding 
any alien who stays in the United States longer than such alien's 
authorized period of admission available to State and local law 
enforcement agencies.
                                 <all>