II 111th CONGRESS 2d Session S. 3544 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.

1.

Short title

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

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.

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).

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),.

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. .

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.

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.

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.