[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 497 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 497

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

                             March 7, 2011

Ms. Mikulski (for herself and Mr. Kirk) 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 ``Secure Travel and Counterterrorism 
Partnership Program Act of 2011''.

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, the Committee on Homeland 
                                Security and Governmental Affairs, and 
                                the Committee on the Judiciary of the 
                                Senate; and
                                    ``(II) the Committee on Foreign 
                                Affairs, the Committee on Homeland 
                                Security, and 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) of the 
Immigration and Nationality Act (8 U.S.C. 1187(c)) is amended as 
follows:
            (1) In paragraph (2)(C)--
                    (A) in the matter preceding clause (i), by striking 
                ``Attorney General,'' and inserting ``Secretary of 
                Homeland Security,''; and
                    (B) 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''.
            (2) In paragraph (5)(A)(i)(III), by striking ``the 
        Committee on the Judiciary, the Committee on Foreign Affairs, 
        and the Committee on Homeland Security, of the House of 
        Representatives and the Committee on the Judiciary, the 
        Committee on Foreign Relations, and the Committee on Homeland 
        Security and Governmental Affairs of the Senate'' and inserting 
        ``appropriate congressional committees''.
            (3) In paragraph (7)--
                    (A) in subparagraph (D), by striking ``Attorney 
                General'' both places that term appears and inserting 
                ``Secretary of Homeland Security''; and
                    (B) by striking subparagraph (E).

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)(A)) 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) Qualification Criteria.--Section 217(c)(3) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(3)) is amended to read as 
follows:
            ``(3) Qualification criteria.--For each fiscal year after 
        the initial period, a country may not be designated as a 
        program country unless requirements of paragraph (2)(A) are 
        met.''.
    (c) Judicial Review.--Section 217(c)(6) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(6)) is amended 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.''.
    (d) Reporting Requirements.--Section 217(c)(7) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(7)), as amended by section 
2(b)(3), is further amended--
            (1) in the heading, by striking ``Visa waiver 
        information.--'' and inserting ``Reporting requirement.--'';
            (2) by striking subparagraph (A);
            (3) by redesignating subparagraphs (B), (C), and (D) as 
        subparagraphs (A), (B), and (C), respectively;
            (4) in subparagraph (A), as so redesignated--
                    (A) in the heading, by striking ``Reporting 
                requirement.--'' and inserting ``In general.--'';
                    (B) in clause (iii), by striking ``were refused'' 
                and inserting ``overstayed'';
                    (C) in clause (iv)--
                            (i) by striking ``who were refused'' and 
                        inserting ``who overstayed''; and
                            (ii) by striking ``refused; and'' and 
                        inserting ``issued.''; and
                    (D) by striking clause (v);
            (5) in subparagraph (B), as so redesignated, by striking 
        ``subparagraph (B)'' and inserting ``subparagraph (A)''; and
            (6) in subparagraph (C), as so redesignated, by striking 
        ``subparagraph (B)'' and inserting ``subparagraph (A)''.
    (e) Waiver Authority.--Section 217(c)(8) of the Immigration and 
Nationality Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:
            ``(8) Waiver authority.--The Secretary of Homeland 
        Security, in consultation with the Secretary of State, may 
        waive the application of paragraph (2)(A) for a country if--
                    ``(A) the country meets all security requirements 
                of this section;
                    ``(B) 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; and
                    ``(C) the country cooperated with the Government of 
                the United States on counterterrorism initiatives, 
                information sharing, and preventing terrorist travel 
                before the date of its designation as a program 
                country, and the Secretary of Homeland Security and the 
                Secretary of State determine that such cooperation will 
                continue.''.

SEC. 4. 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. 5. 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.
                                 <all>