[Senate Hearing 110-473]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-473
 
  WEAKNESSES IN THE VISA WAIVER PROGRAM: ARE THE NEEDED SAFEGUARDS IN 
                       PLACE TO PROTECT AMERICA?

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON TERRORISM,
                    TECHNOLOGY AND HOMELAND SECURITY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 28, 2008

                               __________

                          Serial No. J-110-77

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel
                                 ------                                

      Subcommittee on Terrorism, Technology and Homeland Security

                 DIANNE FEINSTEIN, California, Chairman
EDWARD M. KENNEDY, Massachusetts     JON KYL, Arizona
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         JOHN CORNYN, Texas
RICHARD J. DURBIN, Illinois          SAM BROWNBACK, Kansas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
                      Jennifer Duck, Chief Counsel
               Stephen Higgins, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     1
    prepared statement...........................................    94
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    15
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     5

                               WITNESSES

Edson, Stephen A. ``Tony'', Deputy Assistant Secretary for Visa 
  Services, Department of State, Washington, D.C.................     7
Ford, Jess T., Director, International Affairs and Trade, 
  Government Accountability Office, Washington, D.C..............     8
Ginsburg, Susan, Director, Mobility and Security Program, 
  Migration Policy Institute, Washington, D.C....................    10
Rosenzweig, Paul, Acting Assistant Secretary for International 
  Affairs, and Deputy Assistant Secretary for Policy, Department 
  of Homeland Security, Washington, D.C..........................     5
Vaughan, Jessica M., Senior Policy Analyst, Center for 
  Immigration Studies, Washington, D.C...........................    13

                         QUESTIONS AND ANSWERS

Responses of Stephen Edson to questions submitted by Senators 
  Hatch, Cornyn and Feinstein....................................    29
Responses of Jess T. Ford to questions submitted by Senators 
  Hatch and Feinstein............................................    48
Responses of Paul Rosenzweig to questions submitted by Senators 
  Hatch, Cornyn, Feinstein and Brownback.........................    52

                       SUBMISSIONS FOR THE RECORD

Berkley, Hon. Shelley, a U.S. Representative in Congress from the 
  State of Nevada, statement.....................................    76
Connors, Bill, Executive Director and Chief Operating Officer, 
  National Business Travel Association, Alexandria, Virginia, 
  statement......................................................    78
Dow, Roger, President and CEO of the Travel Industry Association, 
  Washington, D.C., statement....................................    79
Edson, Stephen A. ``Tony'', Deputy Assistant Secretary for Visa 
  Services, Department of State, Washington, D.C., statement and 
  attachments....................................................    83
Ford, Jess T., Director, International Affairs and Trade, 
  Government Accountability Office, Washington, D.C., statement..    99
Ginsburg, Susan, Director, Mobility and Security Program, 
  Migration Policy Institute, Washington, D.C., statement........   115
Rosenzweig, Paul, Acting Assistant Secretary for International 
  Affairs, and Deputy Assistant Secretary for Policy, Department 
  of Homeland Security, Washington, D.C., statement..............   124
SITA, executive summary..........................................   131
Vaughan, Jessica M., Senior Policy Analyst, Center for 
  Immigration Studies, Washington, D.C., statement...............   135


  WEAKNESSES IN THE VISA WAIVER PROGRAM: ARE THE NEEDED SAFEGUARDS IN 
                       PLACE TO PROTECT AMERICA?

                              ----------                              


                      THURSDAY, FEBRUARY 28, 2008

                                       U.S. Senate,
                      Subcommittee on Terrorism, Technology
         and Homeland Security, Committee on the Judiciary,
                                                   Washington, D.C.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Dianne 
Feinstein, Chairman of the Subcommittee, presiding.
    Present: Senators Feinstein, Kyl, and Sessions.

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM 
                    THE STATE OF CALIFORNIA

    Chairman Feinstein. I would like to call the meeting to 
order. The Ranking Member, my friend and colleague Senator Kyl, 
said sometime ago that he is going to be a little bit late. I 
know he is on his way, and his staff has said go ahead and 
begin. So I will at least get my remarks out of the way.
    I want to begin by welcoming our witnesses. I also want to 
indicate to you that I am not a fan of the Visa Waiver Program. 
I actually believe it is the soft underbelly of this country. 
And if I understand correctly, 27 countries, 16 million people 
in 2007, 15 million people in 2006, a total of 31 million 
people in 2 years come into the United States without a visa; 
and we today do not yet know whether they have left or not. And 
this presents all kinds of hazards.
    For the citizens of these 27 select countries, including 
Australia, Singapore, Slovenia, and the U.K., entering the 
United States is as simple as purchasing an airline ticket and 
then arriving at the airport with a valid passport in hand. No 
visa is required because they are from countries that are part 
of this program, the Visa Waiver Program. Thousands, I think 
tens of thousands, of these people overstay their authorized 
visit. Many just simply disappear into the shadows.
    It is estimated that 40 percent of the current undocumented 
population in this Nation are people who have overstayed their 
visas--not come across the border but come into the country 
legally, and then they do not go home when they are supposed 
to. So there is no doubt in my mind that hundreds of thousands 
of the illegal population came through the Visa Waiver Program 
over many years.
    The Visa Waiver Program also provides an attractive option 
to terrorists looking to do Americans harm. At a Senate 
Judiciary Committee hearing on September 25th this past year, 
DNI Director Mike McConnell testified that al Qaeda is 
purposefully recruiting Europeans because they do not require a 
visa to come into this country. As Director McConnell said, 
this tactic gives al Qaeda ``an extra edge in getting an 
operative or two or three into the country, with an ability to 
carry out an attack that might be reminiscent of 9/11.''
    Secretary Chertoff reiterated these concerns last month 
when he stated that, ``Terrorists are increasingly looking to 
Europe as both a target and a platform for terrorist attacks'' 
against the United States.
    In an interview with BBC World News, Secretary Chertoff 
acknowledged, and again I quote, ``The first time we encounter 
visa waiver travelers is when they arrive in the United States, 
and that creates a very small window of opportunity to check 
them out.''
    So, clearly, the Visa Waiver Program leaves open both a 
major gap in our domestic security and a way to exploit and 
countervene our immigration laws. And we know there have been 
thousands of stolen travel documents in Europe, stolen fraud-
proof passports, stolen Geneva Convention documents, stolen 
international driver's licenses. So one wonders what happens to 
those.
    Congress and the Department of Homeland Security have been 
focused on immigration enforcement. In fact, Congress 
appropriated $3 billion in 2008 for this purpose. The 
Department of Homeland Security is using this money to build a 
border fence, to hire thousands more Border Patrol agents, to 
conduct immigration raids at farms and factories and homes 
across the country.
    Now, despite the money and the resources the Department is 
devoting to immigration enforcement, it continues to ignore the 
longstanding directive to track people who overstay their 
visas. In 1986, as a pre-condition to implementing the Visa 
Waiver Pilot Program, the Attorney General was required to 
certify that there was a system in place that could track 
arrivals and departures. Since then, in no less than 12 pieces 
of legislation, Congress has directed the executive branch over 
and over again to create a way to track who is coming in and 
leaving our country. Congress has appropriated millions of 
dollars, and deadline after deadline has been missed; but, 
still, the executive branch has failed to act.
    This Subcommittee held a hearing on the US-VISIT entry-exit 
system last January. At that point it was clear that the 
Department of Homeland Security was failing to meet the mandate 
to develop a way to track who is coming in and going out of the 
United States at all our ports of entry.
    Now, today it seems that the Department is moving full 
steam ahead to admit even more countries to the Visa Waiver 
Program. In fact, just on Tuesday, DHS signed a Memorandum of 
Understanding to bring yet another country, the Czech Republic, 
into the Visa Waiver Program. Once again, they are doing so 
without meeting the mandates that Congress has laid out for 
them.
    Just last week, Secretary Chertoff gave a press briefing on 
the Department of Homeland Security's efforts to strengthen 
border security and immigration reform. He stated, and I quote, 
``Congress didn't give us a comprehensive immigration reform, 
so we are going to do what we can with the tools we have.''
    Let me be clear. Congress has given DHS tools to fix our 
immigration and security problems in the 9/11 legislation. That 
law has two straightforward requirements:
    First, DHS cannot admit new countries into the program 
until it has a way to track who is coming and going from our 
country's airports until it can verify the departure of 97 
percent of travelers leaving United States airports. It cannot 
do so today.
    Second, DHS cannot admit new countries into the program 
until it has a fully operational electronic travel 
authorization system, a system that every visa waiver traveler 
must use. This means that every visa waiver traveler must 
provide their biographical information to the Department of 
Homeland Security before they get on a plane to the United 
States. DHS cannot do that today. By all accounts, the 
Department of Homeland Security cannot yet meet either 
requirement, but it is moving, contrary to law, to admit new 
countries and even more travelers into this program by this 
fall.
    I believe that what we will hear today is that rather than 
develop a meaningful exit program, DHS is so determined to 
certify that it can verify the departure of 97 percent of 
airport travelers that it has developed a false calculation of 
the departure rate. I have also heard that although the 
administration is developing an electronic travel authorization 
system, it does not intend that all visa waiver travelers must 
use it initially -in clear contraindication of the statute. 
Frankly, I hope these reports are untrue. I intend to flesh it 
out. I would not like to begin to believe that the Department 
of Homeland Security, which has exposed the way that terrorist 
operatives and illegal immigrants intend to exploit the Visa 
Waiver Program is the same agency that is moving full steam 
ahead to admit at least four and as many as eight new countries 
into the program without the necessary controls in place.
    So I hope that today we can have an open discussion about 
the administration's intentions with respect to expanding the 
Visa Waiver Program.
    I have been at this for a long time, and I have followed it 
for a long time. And I would just ask the staff to show those 
charts, if you would for a minute.
    But these charts are pretty clear. As you know, the refusal 
rate is 10 percent. These are countries above that line. Those 
are the countries that are above the 10 percent at the end, and 
then the 3-percent rate, these are all the countries that are 
above the 3-percent rate, each one--and this is essentially the 
same kind of thing.
    So I was prepared to do an amendment on the floor on the 
bill, and I compromised with the Homeland Security Program with 
a view that these strictures that they put in that the two 
tests be met and changing the refusal rate to 10 percent, that 
the Department would abide by it. And so I am really concerned 
that everything I hear indicates that the Department is finding 
ways to get around it rather than carry out the mandate.
    [The prepared statement of Senator Feinstein appears as a 
submission for the record.]
    So that is really the subject of this hearing, and I note 
that Senator Kyl is not yet present. Shall I just go ahead? OK. 
I will just go ahead then and introduce the panel. The panel 
consists of Mr. Paul Rosenzweig, the Deputy Assistant 
Secretary, Office of Policy of DHS. Mr. Rosenzweig is the 
Deputy Assistant Secretary. Prior to joining the Department, he 
was a senior legal research fellow in the Center for Legal and 
Judicial Studies at the Heritage Foundation, where he focused 
on issues of civil liberties, national security, and criminal 
law. He is also an adjunct professor of law at George Mason 
University School of Law.
    Tony Edson is the Deputy Assistant Secretary for Visa 
Services, Department of State. He joined the Foreign Service in 
1981 and is currently serving as Deputy Assistant Secretary of 
State for Visa Services in the State Department's Bureau of 
Consular Affairs. Prior to that, Mr. Edson served as Managing 
Director of Visa Services and Senior Advisor for Strategic 
Planning to the Visa Services Directorate from 2001 to 2005. He 
served as Consul General at the United States Embassy in 
Jakarta from June 1998 to 2001, and he has also held overseas 
diplomatic assignments in Naha, Tokyo, Bangkok, and Mumbai.
    Jess Ford is Director, International Affairs and Trade, the 
Government Accountability Office, which we fondly call the 
``GAO.'' He joined GAO in 1973 and has worked extensively in 
the national security and international affairs area concerning 
trade, foreign assistance, and foreign policy issues. He has 
managed GAO audits of AID, the State Department, and DOD. He 
has directed the completion of numerous studies on U.S. 
national security issues, foreign assistance, counternarcotics, 
border security, public diplomacy. He is very well fit by 
biographical information, and he has received numerous awards.
    Susan Ginsburg is Director of Programs on Mobility and 
Security, the Migration Policy Institute. She is the Director 
of this. She is a member of the Secure Borders and Open Doors 
Advisory Committee established by Secretary Rice and Secretary 
Chertoff. Since 2004, Ms. Ginsburg has provided consultation 
for the 9/11 Public Discourse Project, testified before 
Congress, and written strategic policy. We welcome her.
    And the final, last but not least, Jessica Vaughan, Senior 
Policy Analyst, the Center for Immigration Studies. She is a 
Senior Policy Analyst for the center, and the center examines 
the impact of immigration on American society. She has been 
with the center since 1992, and her area of expertise is 
immigration policy and operations, particularly visa programs, 
immigration benefits, and immigration law enforcement. She was 
a Foreign Service officer with the Department of State.
    So, with that, I would welcome the witnesses, and I would 
also note the attendance of the very distinguished Senator from 
Alabama, Senator Sessions.
    Senator Sessions. Thank you. Good to be with you.
    Chairman Feinstein. Good to be with you. Shall I proceed or 
do you wish to say something?
    Senator Sessions. Yes, you proceed.
    Chairman Feinstein. All right. I have made an opening 
statement. Senator--
    Senator Sessions. I would just say one thing.
    Chairman Feinstein. You go right ahead.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. And that would be that I am supportive of 
the Visa Waiver Program in general. I think it needs to be 
monitored carefully. But my concern is the failure to have an 
effective U.S. visa exit system, a failure to have fingerprint 
documentation, which I consider to be critical to any effective 
biometric program of identification. So those are the things I 
will be asking about because it is one thing to have a system, 
but if you do not have the mechanics, the details to come 
together effectively, then it can nullify all these wonderful 
things we talk about.
    Chairman Feinstein. Thank you, Senator. I agree with you 
100 percent. I would like to ask the witnesses if you could 
confine your remarks to 5 minutes. We would like to have your 
written testimony. We have some of it, but not all of it. And 
so if you would confine your remarks, this little gizmo will 
give you the result of your exposition. And then we will be 
able to have a conversation.
    So, please, Mr. Rosenzweig, please begin.

 STATEMENT OF PAUL ROSENZWEIG, ACTING ASSISTANT SECRETARY FOR 
   INTERNATIONAL AFFAIRS, AND DEPUTY ASSISTANT SECRETARY FOR 
   POLICY, DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Rosenzweig. I am going to assume that my staff has 
succeeded in getting you our written testimony, which I would 
ask to be made a part of the record.
    Chairman Feinstein. Yes, it will be part of the record.
    Mr. Rosenzweig. Senator Feinstein, Senator Sessions, thank 
you very much for the opportunity to appear before the 
Committee today to discuss the Visa Waiver Program and examine 
how the Department of Homeland Security intends to implement 
the modifications made by the ``Implementing Recommendations of 
the 9/11 Commission Act of 2007''.
    The Department supports a Visa Waiver Program that promotes 
legitimate travel to the United States without compromising, 
and in our judgment even strengthening, our country's national 
security, law enforcement, and immigration interests. Those are 
a clear top priority of the administration. Section 711 of the 
Act accomplishes this objective by concurrently enhancing the 
Visa Waiver Program's security requirements and creating 
flexibility that expands opportunities for new countries to 
join the Visa Waiver Program while imposing new security 
requirements on existing visa waiver countries.
    These twin goals of security and flexibility are 
complementary, in our judgment: the prospect of VWP membership 
creates tremendous incentives for improved security postures in 
aspirant or ``road map'' countries. In many respects, we will 
end up with an even stronger travel security cooperation with 
VWP countries than with non-VWP countries where visas remain 
required.
    Let me spend a brief moment updating you on the steps we 
have taken so far to strengthen the VWP. To ensure that current 
VWP members, ``road map'' countries, and the European Union 
understand the legislative changes and the enhanced security 
standards that have been enacted, we have implemented an 
aggressive outreach and engagement strategy. This strategy will 
allow the new standards to be brought online expeditiously.
    Since the summer of 2007 and the passage of the law, DHS 
has informally met with current and aspirant VWP countries 
alike to explain exactly what the enhanced security measures 
entail. This outreach effort has involved both high-level 
consultation and working-level technical conversations between 
DHS personnel and their foreign counterparts. More recently, 
the Department has formalized all seven of the security 
enhancements contained in the new legislation into draft 
memoranda of understanding. Each member and aspirant country 
must sign a memorandum of understanding as well as conclude 
appropriate implementing arrangements that will detail the 
terms of the new security measures. Those countries seeking to 
join the VWP will have to comply with the new security measures 
prior to admission. More significantly, current participants 
will also have to meet those new requirements, including some 
of the discretionary requirements, by October of 2009. 
Staggering the times for compliance in this way best enables us 
to ensure a smooth transition to uniform security standards for 
all VWP members. As we have stated many times, uniform security 
standards are essential because the terrorist threat is not 
confined to particular corners of the globe.
    To enable the expeditious adoption of these new security 
measures, we have led teams throughout Europe and Asia. We have 
been in the Czech Republic, Estonia, Germany, Greece, South 
Korea, and the United Kingdom. We have, as you noted, concluded 
a memorandum of understanding with the Czech Republic. We will 
soon begin formal consultations with Hungary, Slovakia, Latvia, 
and Lithuania. We expect to travel to their respective capitals 
in the next few months. We believe that these information-
sharing arrangements, as detailed in the memoranda of 
understanding, enhance American security by allowing us to 
ensure that we are making determinations about who is coming to 
the United States not on a blunt country-by-country basis but, 
rather, on an individual specific based upon the best available 
information held both by the United States and by the country 
from which they originate.
    Now, as we have said, and as you noted in your opening 
remarks, Madam Chairman, the law gives the Secretary greater 
flexibility to do this only after he certifies that an air exit 
system is in place that can verify the departure of 97 percent 
of foreign nationals and implementations an Electronic Travel 
Authorization system. I am sure we will get into the details of 
this discussion as we go forward, but let me take the 
opportunity in my oral statement to assure you that the 
Department of Homeland Security intends to and will comply with 
the legal requirements imposed upon it in law prior to the 
admission of any new entrant country into the Visa Waiver 
Program. That is what we will do, and we intend to--we will not 
permit the Secretary to certify to a false set of data, I 
assure you of that.
    In short, we believe that Section 711 of the Act provides 
us with enhanced flexibility that will allow us to strengthen 
the VWP in a substantive way and also serve our global 
interests by bringing new members into the program. Ensuring 
that secure, legitimate, visa-free travel to the United States 
is available to our allies is a goal, I submit, we can all and 
should all agree upon.
    Madam Chairman, members of the Committee, I want to thank 
you for the opportunity to present my testimony today. I would 
be pleased to respond to any questions you might have.
    [The prepared statement of Mr. Rosenzweig appears as a 
submission for the record.]
    Chairman Feinstein. Thank you very much, Mr. Rosenzweig.
    Mr. Edson, please proceed.

   STATEMENT OF STEPHEN A. ``TONY'' EDSON, DEPUTY ASSISTANT 
 SECRETARY FOR VISA SERVICES, DEPARTMENT OF STATE, WASHINGTON, 
                              D.C.

    Mr. Edson. Thank you, Chairman Feinstein, Senator Sessions. 
I am delighted likewise to be here this afternoon and 
appreciate this opportunity to discuss the role the Department 
of State plays in the Visa Waiver Program under these new 
legislative requirements of Section 711 of the Implementing the 
9/11 Commission Recommendations Act of 2007, as well as some of 
the implications of the potential expansion of the VWP on our 
international relations.
    In November of 2006, in Tallinn, Estonia, President Bush 
announced his initiative to revamp and strengthen the VWP. With 
the passage of the 9/11 Act last summer, we welcomed the 
legislative concurrence on modernization of the program, 
particularly the additional security measures. The new law not 
only strengthens the security framework of the program but also 
creates a path for expansion of the program to include some of 
our closest allies. Those enhancements help secure U.S. borders 
and will promote a safer international travel environment. The 
State Department is convinced that dialog with countries hoping 
to join the program will speed their enactment of travel 
security requirements and will strengthen our ties with those 
partners.
    As I have testified previously, together with our 
colleagues at the Department of Homeland Security, we strive 
constantly both to protect America's borders and preserve 
America's welcome to legitimate international visitors. Section 
711 of the 9/11 Act, ``Modernization of the Visa Waiver 
Program,'' supports these efforts by making clear that the 
security provisions of the VWP must be enhanced before VWP 
participation can be extended to any additional countries. 
Armed with this legislative mandate, we are seeking ways to 
deepen security partnerships with aspirant as well as current 
VWP members in order to facilitate secure, legitimate 
international travel.
    With the advancement of both new security technologies and 
new security risks, we can and must ensure that for VWP 
participants and aspirant countries, we are able to assess the 
risks posed by individuals, and not countries, as threats. The 
changes in the VWP in the 9/11 Act give us the tools to do 
that.
    By statute, DHS has the lead for the VWP program and works 
in close coordination with the Department of State to evaluate 
compliance with each of these requirements during DHS' 
statutorily mandated country reviews for both initial and 
continuing participation. Historically, the Department of State 
has had responsibility for formally nominating a country for 
consideration for membership. We also provide input on the 
evaluations of a VWP aspirant country's law enforcement, 
immigration, and security cooperation. We are the primary 
conduit for guidance to our posts abroad on VWP issues, and we 
consult with aspirant governments on a regular basis. In fact, 
we have been in frequent consultations throughout the fall with 
what are described as the ``road map'' countries to give them 
guidance on meeting these new statutory requirements.
    The revised VWP legislation also gives the Department the 
means to increase security-related information sharing with our 
closest allies. The U.S. Government is negotiating memoranda of 
understanding with all VWP governments, both existing and 
prospective, as was discussed before. As part of the State 
Department's responsibility for Homeland Security Presidential 
Directive 6 agreements on the integration and use of terrorist 
screening information, we have provided significant comments on 
the template memorandum that we and DHS are using, and we are 
part of the negotiating teams with our DHS colleagues. We 
currently have eight signed HSPD-6 arrangements on terrorist 
information sharing and are in negotiation to complete 
arrangements in more than a dozen other countries. The success 
in getting these agreements and the increased level of 
cooperation we believe is a direct result of the dialog on VWP.
    In closing, the Department appreciates the congressional 
passage of the VWP provisions in the 9/11 Act. We see the new 
requirements as a positive means to strengthen the security of 
visa-free travel, permit some of our close friends and allies 
to join the Visa Waiver Program, and thereby enhance our 
cooperation and ties with those countries over the long term. 
We look forward to working with our partner agencies and this 
Committee toward that goal. And, of course, I am happy to 
answer any questions.
    [The prepared statement of Mr. Edson appears as a 
submission for the record.]
    Chairman Feinstein. Thank you very much, Mr. Edson.
    Mr. Ford?

STATEMENT OF JESS T. FORD, DIRECTOR, INTERNATIONAL AFFAIRS AND 
   TRADE, GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, D.C.

    Mr. Ford. Chairman Feinstein, Senator Sessions, I am 
pleased to be here to discuss an important aspect of the Visa 
Waiver Program, which enables citizens of 27 participating 
countries to travel to the United States for tourism or 
business for 90 days or less without first obtaining a visa. At 
your request, we are currently reviewing DHS' implementation of 
the Visa Waiver Program.
    Last August, Congress passed legislation that provided DHS 
with the authority to consider expanding the program to 
additional countries with visa refusal rates between 3 and 10 
percent if DHS first completes and certifies a number of 
required actions. My statement today will focus on one of those 
requirements, namely, that a system is in place that can verify 
the departure of 97 percent of foreign nationals leaving the 
United States through airports.
    In December, DHS provided us with information on how it 
planned to certify compliance within the 97-percent 
requirement. As you can see on the posterboard--actually, it is 
on my left. I am going to get the right one here. DHS reported 
to us that--
    Senator Sessions. Can someone bring that a little further?
    Chairman Feinstein. Yes, would the--I dare not ask the 
press to do something.
    [Laughter.]
    Chairman Feinstein. Thank you very much.
    Senator Sessions. Maybe this one over here would be OK. 
Don't move that and block their view. This one would be fine.
    Mr. Ford. Actually, that is a different one, so I am going 
to explain that one.
    Senator Sessions. Go ahead.
    Mr. Ford. OK. The poster on my left is what DHS has 
reported to us that it is going to match records which are 
reported by the airlines of visitors that are departing the 
country by air to the Department's existing records based on 
records back through prior arrivals, changes in immigration 
status, or prior departures from the United States. In essence, 
this methodology will allow DHS to measure people who are 
leaving the country as to whether or not they can match it back 
through when they arrived. Using this methodology, DHS stated 
that it can attain a match rate of above 97 percent based on 
data that they looked at back in August of 2007, and that they 
will be able to use this to help certify compliance with the 
air exit system called for in the August legislation.
    In February, DHS indicated that it has not yet finalized 
the decision on its methodology, but the Department confirmed 
that all the methodologies currently under consideration would 
use the departure records as the starting point for the 
certification. DHS believes that this approach will satisfy the 
97-percent requirement since it will allow the Department to 
determine that a departing passenger is a foreign national who 
left the country through a U.S. airport. There are several 
limitations with this approach. Now I want to turn to the 
poster on my right-hand side.
    The DHS methodology does not begin with arrival records to 
determine which foreign nationals have stayed in the United 
States beyond their authorized periods of admission. This term 
is called ``overstays.'' Therefore, DHS' plan will not inform 
the overall and country-specific overstay rates--key factors in 
determining illegal immigration and security risks in the Visa 
Waiver Program. We believe that an alternate method could 
better facilitate DHS' assessment of security and illegal 
immigration risks. DHS could use foreign national arrival data 
as a starting point and review subsequent DHS records to 
determine whether these foreign nationals are still in the 
country.
    For example, if 100 foreign nationals arrive in the United 
States on an international flight, DHS could track those same 
100 foreign nationals to determine if they have remained in the 
country beyond their authorized period of admission. This 
information could help DHS monitor illegal immigration and 
security risks in the Visa Waiver Program and its potential 
expansion. It would also be consistent with legislation that 
has tasked DHS with developing an overstay rate.
    In addition to providing limited information on overstays, 
DHS methodology does not address weaknesses in data that the 
airlines provide to DHS on visitors who are departing the 
United States by air. DHS has acknowledged that they have data 
weaknesses, and they are currently in the process of trying to 
address them.
    The inability of the U.S. Government to track the status of 
foreign nationals who arrive in the United States, to identify 
those who overstay their authorized period of visit and may 
still be in the United States, and to use these data to compute 
overstay rates has been a longstanding weakness in the 
oversight of the Visa Waiver Program.
    Chairman Feinstein. Would you repeat that sentence once 
again, please?
    Mr. Ford. OK. The inability of the U.S. Government to track 
the status of foreign nationals who arrive in the United 
States, to identify those that have overstayed their authorized 
period of visit and may still be in the United States, and to 
use these data to compute overstay rates has been a 
longstanding weakness in the oversight of the Visa Waiver 
Program. We believe that an air exit system that facilitates 
the development of an overstay rate is important to managing 
these risks; namely, such a system would help DHS to understand 
the current and potential visa waiver countries have higher 
rates of people who remain in the country illegally. DHS' 
planned methodology for meeting the 97-percent requirement will 
not help the Department develop overstay rates or identify 
foreign visitors who remain in the country illegally.
    That is all I have to say. I would be happy to answer any 
of your questions.
    [The prepared statement of Mr. Ford appears as a submission 
for the record.]
    Chairman Feinstein. Thank you very much, and I would 
commend your ``Visa Waiver Program: Limitations with Department 
of Homeland Security's Plan to Verify Departure of Foreign 
Nationals'' to everyone to read. I thank you. I think it is 
very good work. Thank you.
    Ms. Ginsburg, please.

 STATEMENT OF SUSAN GINSBURG, DIRECTOR, MOBILITY AND SECURITY 
     PROGRAM, MIGRATION POLICY INSTITUTE, WASHINGTON, D.C.

    Ms. Ginsburg. Chairman Feinstein, Ranking Member Kyl, 
Senator Sessions, thank you for the opportunity to testify 
today before this distinguished Subcommittee. I will speak 
briefly, and I have submitted my formal written statement for 
the record.
    Recognizing legitimate concerns that the Visa Waiver 
Program could pose security risks to the United States, it is 
important to examine the ways in which the program's is being 
modified to limit potential exposure while also maintaining its 
considerable benefits.
    As you said, Chairman Feinstein, terrorism experts are 
currently focused on Europe as a primary concern from where 
there is visa waiver access to the United States. Given this 
assessment, there is continuing reason to take seriously the 
risk that terrorists may exploit the Visa Waiver Program. Also, 
since Europe itself is a target, European governments and the 
European Union have a significant stake in cooperative 
mobility/security measures.
    In my view, the steps Congress authorized last year to 
modernize the Visa Waiver Program do have the potential to 
enable it to achieve greater security. But to build an 
effective system, there are several points I consider critical 
to be addressed. These are, in order: first, information 
sharing about individuals and travel documents; second, a 
working electronic travel authorization; and, third, a 
functioning exit system.
    These protective measures, with others, can work together 
to raise the level of confidence in the visa-free travel 
system. However, they must be developed with care, and they 
must actually be implemented.
    The United States must take reasonable risks because 
absolute protection against all risks is impossible. But it 
cannot rely on methods of protecting travel and homeland 
security that are invoked in principle but do not actually 
function. Congress is requiring the Homeland Security Secretary 
to certify that the partner country cooperates with the United 
States on information sharing. The reciprocal agreements under 
which countries provide information allowing for the detection 
of known or suspect terrorists should be paramount for this 
certification. According to the State Department's testimony, 
the United States has signed information agreements under HSPD-
6 with eight countries and is in the process of negotiating 
another dozen or so. These agreements should be signed with all 
countries in the Visa Waiver Program--should cover all 
countries in the Visa Waiver Program and any future partners, 
prioritized by risk of terrorism. Actual participation in the 
Visa Waiver Program should be recommenced or begin for the 
first time only when an implementation agreement is signed, not 
on the basis of a preliminary agreement.
    Information on lost and stolen passports is also critical, 
and the United States must be able to confer in real time with 
passport-issuing authorities. This allows U.S. officials to 
verify their findings and helps prevent legitimate travelers 
from being unnecessarily delayed.
    Regarding the Electronic Travel Authorization, the system 
does have the potential to be a rapid check that protects 
against security threats while preserving the convenience of 
travel. But the system has to be well designed. Depending on 
how the ETA check is done, it could generate many rejections or 
fewer rejections. If it generates too many rejections, the 
consular sections, which would then have to process at least 
some additional visa applications, would be overwhelmed. If it 
generates too few, travelers who should not be permitted to 
travel could travel anyway. The result: Inspectors and 
infrastructure at the ports of entry would be overwhelmed, with 
deleterious effects on the orderly and efficient flow of people 
and a higher likelihood that time pressure would lead to 
erroneous decisions. Either scenario would be troublesome.
    Also, if the ETA system sends a notably large percentage of 
travelers with Arabic names to apply for visas, the resulting 
ill will might well overcome the critical operational 
advantages that pre-travel screening clearly provides. 
Travelers who are rejected because of an initial name 
recognition problem and are later granted visas should be 
assured that the next time they seek to travel, they are not 
forced to reapply for a visa unless new concerns arise.
    In the long-term effort to reduce the lure of terrorism, it 
is important to ensure that Muslims and Arabs are not 
discriminated against in the travel and immigration system and 
that protective measures are perceived to be fair and 
reasonable for all. This is the only way to build trust and 
diminish the draw of terrorism.
    Regarding the exit system, Congress has pushed for it for 
over 20 years, and the time has come to take this mission 
seriously for immigration compliance, crime control, and 
counterterrorism purposes, to enable enhanced trusted traveler 
programs, and ultimately to increase opportunities for 
individuals to travel without visas.
    Congress has mandated that the exit system be biographic in 
the first phase and 97 percent effective in establishing who 
exits. The 97-percent formula only makes sense as a compliance 
verification mechanism if the effect is to match arrivals to 
departures for 97 percent of entering travelers.
    By 2009, Congress has mandated that the exit system be 
biometric. This would allow for a higher rate of accuracy and, 
therefore, make it easier to manage a trusted traveler program, 
for example. An effective of exit system would also be directly 
useful to counterterrorism officials as a tool in tracking 
suspects and terrorist networks. However, it must also be 
recognized that once exit violations are clear, enforcement 
needs concerning visa overstays will be clear as well. A 
working exit system alone will not fully address the visa 
overstay problem, which accounts for up to 40 percent of all 
illegal immigration. Therefore, it is appropriate to begin 
considering the design of the compliance and enforcement 
system, including the availability of real-time enforcement 
response capability at ports of entry. Fixing the visa overstay 
problem will also require the United States to redesign the 
visa laws so as to reduce the incentives to overstay.
    If anything has been learned in the past year of 
immigration debate, it is that security confidence and 
confidence in enforcement systems are essential to forward 
movement. An effective exit system can contribute to achieving 
broader reforms in immigration policy.
    As Congress oversees the Visa Waiver Program, it is 
important to remember that continued expansion of opportunities 
for law-abiding citizens to travel and do business efficiently 
is an important way by which the United States demonstrates the 
appeal of an open, democratic society that is based on the 
recognition of individual rights and in contrast to the 
destructive visions perpetrated by terrorists.
    Chairman Feinstein. Ms. Ginsburg, you are 2 minutes over.
    Ms. Ginsburg. Thank you for the opportunity.
    [The prepared statement of Ms. Ginsburg appears as a 
submission for the record.]
    Chairman Feinstein. Thank you very much.
    Ms. Vaughan?

STATEMENT OF JESSICA M. VAUGHAN, SENIOR POLICY ANALYST, CENTER 
           FOR IMMIGRATION STUDIES, WASHINGTON, D.C.

    Ms. Vaughan. Good afternoon, and thanks for the chance to 
be here today. My remarks this afternoon are a summary of my 
written statement that was submitted in advance.
    The weaknesses in the Visa Waiver Program are very 
important to consider as the Department of Homeland Security 
moves to expand the program rapidly. We all know that the 
program benefits certain interests--the travel industry, the 
State Department in its workload reduction, and, of course, 
travelers themselves. We know the risks as well. Americans will 
be more vulnerable to terrorist attack, more exposed to 
organized criminal enterprises, and will experience even more 
illegal immigration, all of which comes at enormous fiscal and 
social costs to the Nation. The challenge is to find a way to 
reap the benefits and manage the risks.
    But DHS is moving forward to add too many countries too 
quickly before it can show that it can even gauge the risks, 
much less manage them, and before we have a robust interior 
enforcement system in place to minimize the cost of the 
inevitable increases in crime and illegal immigration that will 
come from people taking advantage of the expansion of the 
program.
    One of the missing pieces is overstay reporting. We have 
all understood for well over a decade that visa overstayers 
represent a significant share of the illegal alien population. 
It is probably 4 to 6 million illegal aliens. They present a 
possible national security risk. They commit crimes. And like 
other illegal immigrants, they are costly to taxpayers. Since 
the total net cost of illegal immigration runs about $10 
billion a year after taxes are accounted for, the share of that 
cost that is attributable to visa overstayers is likely $3 to 
$5 billion a year. And this has to be weighed against any 
additional revenues that we might hope to reap from additional 
travelers coming from overseas.
    So with all we know about the risks and costs associated 
with overstayers, it is hard to understand why DHS has 
displayed so little curiosity about this population and made so 
little progress over the years in getting a handle on who is 
overstaying. Developing the capacity to count overstayers and 
identify nationality and, ideally, category of entry simply has 
to be prerequisite for expanding the Visa Waiver Program or any 
visa program.
    Clearly, the biographical matching system that has been 
discussed by DHS is not a true entry-exit system, and I commend 
the GAO for pointing this out and for all the work that it has 
done over the years in drawing attention to the overstay 
problem. But DHS does have other tools that it can use at its 
disposal. It has got the beginnings of a biometric system that 
gets information on arrivals, and DHS uses this information and 
shares it with other agencies for law enforcement purposes and 
other analysis. And so if the agency is so confident that these 
road map countries are ready for the program, why has it not 
shared with us information on their overstays from their 
admittedly imperfect systems that they do have?
    One of the other features that has been touted as a major 
security enhancement is the Electronic Travel Authorization. 
And this process may well succeed in alerting officials to the 
pending arrival of people who might be of interest, but we 
should not pretend that this is a way for the agency to 
determine visitors' actual eligibility to visit the United 
States, as DHS has claimed. Qualifying for admission to the 
United States is not just a matter of proving that you are not 
a terrorist and not a criminal. You have to demonstrate that 
you have got a legitimate purpose for visiting and that you are 
going to go home when your time has expired. And unless the ETA 
system that we are planning can actually read people's minds, 
it is going to be a very limited use in minimizing the risks of 
expanding the program.
    The best way to gauge somebody's eligibility for admission 
is still for consular officers and immigration inspectors to 
talk to them. The 9/11 Commission study and others done by my 
organization have shown that the exercise of professional 
judgment by well-trained officers has done more to thwart plots 
against America than any technological advances, even though 
they certainly do help. And the reality is that a number of the 
fast-track road map countries on the DHS list just simply are 
not in the same league as other countries that are now in the 
program.
    For instance, most of the countries on the expansion list 
have per capita incomes that are less than half of the United 
States, and they are half to two-thirds of the other European 
countries in the program. Lithuania, in particular, presents a 
number of concerns in terms of visa compliance organized crime, 
et cetera. The number of asylum applicants, the number of 
people who apply for the visa lottery, these are all indicators 
of demand and interest in permanent migration to the United 
States. And reports from U.S. and international law enforcement 
agencies suggest that many of the other countries also present 
significant concerns, whether it is crime syndicates, drug 
trafficking, prostitution rings, noncompliance with visa laws, 
et cetera.
    All of this would be less of a concern if we had the means 
to easily correct our visa mistakes, and, unfortunately, ICE 
does not have the resources nor the staff to remove more than a 
fraction of the illegal population. They have improved in the 
last year or two, but they really are not capable of removing 
more than about 250,000 people a year, and that is just a drop 
in the bucket of the illegal population. And we still lack the 
compliance systems that would lead more illegal immigrants to 
return home on their own. It is still far too easy for an 
illegal alien to get a job, a driver's license, a bank account, 
a mortgage, et cetera.
    So, in conclusion, while the expansion of the Visa Waiver 
Program may serve foreign policy goals and benefit travelers, 
the expansion comes at a price, and it is up to Congress to do 
what it can to try to reduce the security and fiscal costs of 
the program.
    In addition, and while there is no requirement to do this, 
the expansion of the program should be accompanied by an 
infusion of additional resources for ICE for interior 
enforcement.
    Thank you.
    [The prepared statement of Ms. Vaughan appears as a 
submission for the record.]
    Chairman Feinstein. Thank you very much, and let me thank 
all our witnesses.
    We are joined by my friend from a neighboring State, the 
great State of Arizona. We have worked on this Committee 
together for, oh, I think at least 10 years now.
    Senator Kyl. Actually, 13.
    Chairman Feinstein. Thirteen years, and exchanged the Chair 
and the Ranking. And I am delighted that he has joined us 
today, and thank you, Senator Kyl, and I would like to 
recognize you for an opening statement.

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Madam Chairman. Rather than making 
a lengthy opening statement, let me just thank you for holding 
this hearing. I note from our records that our last hearing on 
this subject was September of 2006, so it is time that we 
revisit the issue, especially since we have a new program that 
is underway and we have some potential ability to evaluate the 
system that is being contemplated here.
    I will put the statement that I had written in the record, 
but I was just struck--and I did read the testimony, and I 
apologize I was not here for the opening statement of all of 
you. But we have a real challenge, I think, to evaluate the 
tradeoffs that have been well stated.
    Ms. Vaughan, you stated them, and I suspect some of the 
others of you did, too. There are two big pressures for change 
here. There are a lot of countries--I was just in the Czech 
Republic, and there are a lot of countries that want to be part 
of our visa waiver system. It is the good--you know, that is 
the in thing to be, and there are a lot of advantages for 
citizens of a country to do that.
    And, second, it does--well, as a part of that, it certainly 
enhances travel opportunities, and there are a lot of interests 
in our country that support that. But the Secretary of Homeland 
Security also believes that it represents an opportunity to 
work out enhanced tracking that will assist in tracking 
criminals and terrorists. And I am sure that that is true.
    We also know, however, that there is a greater potential 
for visa overstayers given the countries that it is being 
expanded to, and that that in and of itself imposes costs in 
addition to the potential for a greater number of terrorists 
and criminals.
    So the question is, as Ms. Vaughan said: Is it worth it? 
And to me the answer is--I mean, first of all, you can never 
quantify what it is worth to catch a terrorist or two, but we 
can quantify the huge costs of visa overstayers in this 
country, and they are enormous. So to me, the only way you 
answer the question in the affirmative it is worth it is to 
ensure that you have a system in place to be able to comply 
with the law, to be able to track the visa overstayers, and, I 
would go a step further, to know who they are and inform 
Federal, State, and local law enforcement of who they are. In 
other words, a simple system--granted, it is totally incomplete 
because it only deals with the air exits out of the country. 
But 90 days, or whatever the visa date is, after an individual 
is supposed to have departed, if we do not have a record that 
the individual has departed, that information, that person's 
name goes out to everybody, all law enforcement throughout the 
entire country. And then if somebody gets picked up for a 
traffic stop or whatever, there is an immediate ability to at 
least identify that individual.
    But until we have a system in place that at least offers 
the potential to identify how many and who the individuals are 
that overstay, it seems to me that we are moving too fast and, 
frankly, in potential violation of the law that Congress 
passed.
    Sorry for that statement.
    [The prepared statement of Senator Kyl appears as a 
submission for the record.]
    Chairman Feinstein. Well, I thank you. I agree with you 100 
percent. I would delete the word ``potential'' violations. I 
think they are violating the law. And, you know, we are a 
period of time away from 9/11. Richard Reid, the Shoe Bomber, 
came in on a visa waiver. Zacarias Moussaoui came in on a visa 
waiver. I mean, how many lessons do we need to learn? And just 
so everybody knows, there are 13 road map countries; 7 of them 
exceed the rejection rate in the law. The rejection rate is 10 
percent, and this means that when somebody goes into an 
American consulate to get a visa, 10 percent of them are 
rejected. The reason they are rejected is very often because 
their economic circumstances are such that the consular officer 
interviewing them does not believe they are going to come back 
to the country. They are specifically Hungary, here 10.3 
percent of the people are rejected; Latvia, 11.8 percent; 
Slovakia, 12 percent; Lithuania, which was just mentioned, 12.9 
percent; Bulgaria, 14.3 percent; Poland, 25.2 percent; and 
Romania, 37.7 percent of people who go in to get a visa are 
rejected because the belief is they will not come back to the 
country. In Romania, there is an agreement with surrounding 
nations that allows somebody to come into the country, stay for 
24 hours, and then go out on a visa waiver. Now, how is that 
for security?
    I suspect the Department is under a lot of pressure from 
the American tour industry to push these, but I will tell you, 
1 day if it turns out there is another 9/11 and these people 
came in on the Visa Waiver Program--I do not know how to finish 
the sentence because I know how I would feel if I did not do my 
utmost to try to stop it.
    Let me ask this question of DHS, Mr. Rosenzweig: Will you 
be able to verify that 97 percent of the 16 or 17 million visa 
waiver entrants that we will have this year have left or 
overstayed before you bring in other countries? Yes or no, sir?
    Mr. Rosenzweig. I do not think that is the right question, 
ma'am. The question is whether or not--
    Chairman Feinstein. Well, it is my question.
    Mr. Rosenzweig. The statutory question is whether or not we 
will be able to verify 97 percent of departures of aliens. That 
does not necessarily equate to verifying the departure of the 
16 million entrants in a particular year.
    I can assure you that what we will be able to verify is the 
departure of 97 percent of foreign nationals as required by the 
statute, and that if we cannot do that, we will not so certify.
    Chairman Feinstein. Well, aren't these people that come in, 
they come in for a short stay and then they go out?
    Mr. Rosenzweig. Ma'am, again I would say that that is 
perhaps only a part of the story. I think that, frankly, Mr. 
Ford's chart is incomplete. If you are addressing an overstay 
question as opposed to a verification of--
    Chairman Feinstein. But to overstay, you have to come in.
    Mr. Rosenzweig. You have to enter, yes. But it does not--
but the key word on his chart is ``potentially.''
    Chairman Feinstein. I cannot see it.
    Mr. Rosenzweig. I am sorry. I can see it well. I can see it 
well. The key word is ``potentially'' overstay. But the 
verification of departure and the definition of overstay are 
different things. Between that entrance and that exit, there 
are any number of ways in which one could affect the overstay 
rate. I am almost tempted to draw on the chart here, but I will 
not.
    Chairman Feinstein. Go ahead. Do it if it helps you.
    Mr. Rosenzweig. One can exit by land--I have got a whole 
list. One could die; change a name that prevents a matching 
record; be a dual national who used more than--who used two 
different passports, one on the entry and one on the exit, as 
is permitted by law; be arrested and in jail in the United 
States and, therefore, not leaving; be arrested and have been 
deported already; most commonly, change status.
    Chairman Feinstein. Excuse me, but don't you think the 
Department of Homeland Security, who has the responsibility for 
letting these people come in, also has the responsibility to 
know where they go?
    Mr. Rosenzweig. Well, of course we do to some degree, 
ma'am, but--
    Chairman Feinstein. All right. Then why make all the 
excuses?
    Mr. Rosenzweig. I am not making any excuses, ma'am. 
However, Congress has not seen fit and we have not imposed land 
exit requirement on the United States. You, for example, I 
know, have the San Ysidro port of entry in your State, and if 
you have been there--and I know you have, as have I been--the 
amount of infrastructure development required to actually check 
people out at the land border is immense. We think it probably 
costs in the hundreds of millions of dollars at that port of 
entry alone.
    So I am not making excuses, but I am addressing the reality 
that we are not going to have land border exit with Canada and 
Mexico that is mandatory check-out of entrants for quite some 
time, and that if your question is has that person overstayed, 
the answer is no if they have left lawfully within the time. 
Flown into Los Angeles, departed through San Ysidro, that is a 
perfectly lawful act, and it is not captured in this 
definition.
    Chairman Feinstein. If you believe that Europe is becoming 
a platform for the entry of people who would do us harm in this 
Nation--and I am one that believes this based on what I know--
then our job is to protect America. And the way we protect 
America is being able to check everybody out thoroughly and 
have the requirements of the law in place before we admit 
additional people.
    Mr. Rosenzweig. Ma'am, the Visa Waiver Program changes that 
you have enacted will enhance security not by focusing on 
checking people out, since there are some who would say that a 
terrorist departing is a good thing; but, rather, by extending 
the security arrangements that we are developing to the 
existing visa waiver countries.
    Let me give you two numbers that kind of exemplify this: 4 
million and 10,000. Four million is the number of people who 
came on the Visa Waiver Program already this year from the 
United Kingdom. Ten thousand is the number of people who came 
with visas from Latvia last year, roughly.
    What we are getting in this new program, the huge benefit 
we are getting, is cooperative arrangements with the existing 
VWP countries as well as the new aspirant countries so that 
people traveling from those countries can be identified in 
advance of their travel, so that there will never be a day in 
which somebody departs from, say, Germany and is somebody that 
the Germans know to be a problem or a serious criminal threat, 
but that we do not know. We will get from the Germans 
additional data--or the Czechs or the Estonians--
    Chairman Feinstein. My time is just about up.
    Mr. Rosenzweig. I apologize for taking--
    Chairman Feinstein. Let me just frame my question a little 
quickly. It takes a yes or no answer, very simple. Will you 
have an air exit system in place by this fall?
    Mr. Rosenzweig. That is yet to be determined. We have not 
settled on a methodology for how to measure it, and so I cannot 
tell you that the Secretary will affirmatively assert that 
there is one. Clearly, if we do not have such a system in place 
by this fall, we will not admit any new entrant countries.
    Chairman Feinstein. Thank you.
    Senator Kyl?
    Senator Kyl. Thank you, Madam Chairman. I do want to get 
back to the point that, of course, Congress recognizes that 
without a land exit system, our system will necessarily be 
incomplete. We have tried to recognize that, as a practical 
matter, through seaports and airports primarily, we will at 
least have a handle on that which we can realistically monitor.
    I do not think it is an answer--well, first of all, about 
what percentage of the foreign nationals that are here on 
temporary visas are not from Canada and Mexico, who are here 
from visa waiver countries? It would be a substantial number.
    Mr. Rosenzweig. I am not sure I understand. There are 
roughly 16 million entrants in the past year from the visa 
waiver country program. We do not count Canadians separately 
because, as you know, we have never had an entry program even 
with Canada--
    Senator Kyl. Right.
    Mr. Rosenzweig.--much less an exit program.
    Senator Kyl. So the bottom line is there are an awful lot 
of those folks who are not from Mexico and Canada.
    Chairman Feinstein. Sixteen million.
    Mr. Rosenzweig. Sixteen million entrants from visa waiver 
countries, past year, yes.
    Senator Kyl. So let's forget about the land exit to Canada 
or Mexico. We are still talking about 16 million people here.
    Mr. Rosenzweig. That is correct for entrants, yes. Senator 
Kyl. OK, now, and I am also not particularly concerned about 
those who die while they are here, though there may be some. 
Certainly, as the Chairman pointed out, you would want to know 
those that are in custody in the United States and, therefore, 
cannot voluntarily leave. We should be able to track them. And 
we ought to be able to find out if people have changed their 
name if that precludes us from knowing whether they have 
departed. We ought to try to at least know that.
    So it seems to me that the question remains: Are we 
committed to understanding who has left by a sea-or airport? 
And can we do that with a 97-percent degree of certainty? And 
if we have not yet figured out the methodology that we are 
going to use to achieve that legislatively required goal, 
should we perhaps put on hold the rush to add more countries in 
order to beat the deadline? And if Congress has not been clear 
enough in the way that it has defined this, maybe you could 
recommend how we could be more clear?
    Mr. Rosenzweig. There is much in that question. The way I 
would answer it is this: Congress has afforded the Secretary 
certain flexibility and discretion in the law that it passed. 
We are making preparations for the admission of new countries 
in the event that the United States achieves its side of the 
obligations, that is, the development of the 97-percent 
verification system and the development of an Electronic Travel 
Authorization system. We are working to achieve those, but we 
have also made clear to all of our partners in Eastern Europe 
and in South Korea that the negotiations that we are having 
with them are contingent upon the U.S. completing its own 
homework and doing at the Department that which the law 
requires.
    They all have entered into these agreements in anticipation 
of that because they, too, will have much work to do. The 
Memorandum of Understanding, for example, we signed with the 
Czech Republic this past Tuesday will require the exchange of 
information on known and suspected terrorists. Agreeing to 
that--
    Senator Kyl. Right. Let me just interrupt and say that is a 
very positive aspect of this, and I think the Secretary is 
right to focus on that. But we also need to focus on the other 
part of this. Could you respond briefly to the comment I made 
in my opening statement before my time is up here about the 
ability to advise law enforcement throughout the country if we 
simply do not have knowledge that somebody has left? It does 
not mean that they have not left. It does not mean that they 
have not died. It does not mean that there is some legitimate 
reason why we do not have their name. But at least it would be 
an alert that we do not have an indication of departure and, 
therefore, it is worth checking out if we do have some reason 
to identify that individual in some other way, some other law 
enforcement way.
    Mr. Rosenzweig. That is clearly one of the interstitial 
objectives of this program that will become even more 
practicable once we have the biometric air exit portion of this 
in place. As I am sure you know, biographic programs have many 
false positive--
    Senator Kyl. Sure, they do. All right--
    Mr. Rosenzweig. We do not want to overwhelm the police 
looking for--
    Senator Kyl. Right. But let me just ask you, this system is 
going to be imperfect no matter what.
    Mr. Rosenzweig. Yes, sir.
    Senator Kyl. And so the question is: To make an imperfect 
system at least as good as you can, what is wrong with purely 
biographical information, the name and the other information 
you have, being given to Federal, State, and local law 
enforcement because we do not know that that individual has 
departed within the 90 days? It does not mean they have not, 
but that we do not have any record of it. What is wrong with 
that?
    Mr. Rosenzweig. I do not know in theory that anything is 
wrong with that. As we improve the biographical match so that 
there are fewer names--I mean, as you know, we stopped--we did 
not do this for years because our biographical match was at 70 
percent, 60 percent. We were just going to overwhelm the 
system. As we get to a point where we are verifying, say, 97 
percent departure, I believe the numbers would probably be 
manageable.
    Senator Kyl. I appreciate it.
    Chairman Feinstein. Thank you, Senator.
    Senator Sessions?
    Senator Sessions. Thank you, Madam Chairman, for your 
leadership, and I have enjoyed offering with you legislation 
that would really enhance penalties and take some real firm 
steps toward dealing with those who systematically and in large 
numbers commit fraud in immigration by documents and that kind 
of thing.
    Mr. Rosenzweig, I guess I am just somewhat dispirited by 
your comments and those of Mr. Edson in the sense that you 
speak for the U.S. Government, and I sense that you do not 
understand what the Congress expects and the American people 
expect. And I sense you have absolutely no intention of 
fulfilling those requirements.
    In my view, I have to say that this Secretary of State and 
this Secretary of Homeland Security, Mr. Chertoff, and the 
President are not committed to this. If they were committed to 
having this system working, they would have come to us, and 
they would have asked for the money, and they would have asked 
for the legislation to be able to successfully complete a visa 
exit system for our country.
    Now, do any of you know how many million transactions take 
place daily when people use credit cards to get money? I do not 
know, but it is millions. Is it too much to ask that somebody 
whom we have allowed to enter this country, a non-citizen, take 
2 minutes to put their fingers on a machine before they exit 
the country and to file a document so that that can be recorded 
as having exited the country? Is this going to cost us hundreds 
of millions of dollars? I do not think so. And if it does, we 
are prepared to pay that. We are prepared to pay a good bit 
more than that.
    Let me ask you, Mr. Rosenzweig, about this statute that was 
passed some years ago that required at airports and seaports, 
not later than December 31, 2003, the Attorney General, which 
now I understand is Homeland Security, shall implement an 
integrated entry and exit system at airports; and then not 
later than December 31, 2004, they shall implement an entry and 
exit data system at 50 land border ports, the large land border 
ports; and, finally, by December 31, 2005--2 years ago--the 
Attorney General shall fully implement the integrated entry 
data system throughout the land border system.
    Is this law not in effect? Has it been abrogated and--
    Mr. Rosenzweig. Excuse me, Senator. Pardon me for coughing.
    As far as I know, the law is still in effect, sir.
    Senator Sessions. What do you say about a citizen that said 
that Congress passed a law that said the Government is supposed 
to have this completed 2 years ago, why hasn't it been 
completed?
    Mr. Rosenzweig. I would answer a citizen by saying that 
though those goals are statutorily mandated, the costs of them 
have not been appropriated for in many instances, and in some 
instances, we have received contrary indications in subsequent 
laws, particularly with respect to land border entry and exit, 
most particularly on the Northern border--
    Senator Sessions. Well, let me ask this--OK. You say you 
could perhaps use some more money. Have you come to the 
Congress and indicated a desire to have more money so that you 
can complete the program that you were asked to complete?
    Mr. Rosenzweig. In each of the President's budgets over the 
last several years, we have requested money for various aspects 
of these programs. In many instances, they have been cut, 
moved, changed, as you know, through the appropriations 
process.
    Senator Sessions. No, I do not know. Are you testifying 
here under oath that the President's budget, if followed, would 
have provided you the money to complete the exit system?
    Mr. Rosenzweig. The good news is I was not sworn before I 
came here, but the answer to your question would be that I 
could not--
    Chairman Feinstein. I have the oath right here.
    [Laughter.]
    Mr. Rosenzweig. The good news, the honest answer is I could 
not tell you precisely which pieces of this were part of the 
President's--
    Senator Sessions. I do not think so. I will just tell you. 
Nobody that I have heard, the President of the United States or 
Homeland Security, has come here and said, look, you gave me 
this requirement, I need these additional funds and 
technologies to get there. And my time is up, but I would 
just--it is really dispiriting, I have to tell you, to have 
this talk and go now 2 years past this deadline and not be 
close to getting there, when to me it is an absolutely simple, 
essential part of a lawful system of immigration.
    Chairman Feinstein. Mr. Rosenzweig, I think we are going to 
do another round.
    Mr. Rosenzweig. Sure. I am ready.
    Chairman Feinstein. And I want to get you on the record. I 
am not going to make you raise your right hand, but you can 
think it.
    Mr. Rosenzweig. I am responding truthfully, notwithstanding 
the absence of the oath, ma'am.
    Chairman Feinstein. Let me ask this question: This fall--
and you alluded to this, but I want to finish the sentence. 
Before DHS admits new countries into the program, will you have 
an air exit system in place that can track overstays?
    Mr. Rosenzweig. If by tracking overstays you mean a system 
of the form that Mr. Ford has pointed to over here, the answer 
is I do not know yet.
    Chairman Feinstein. You do not know that?
    Mr. Rosenzweig. I do not know what methodology we will 
choose for verifying departure under the 97-percent air 
departure requirements. That has not been determined yet. The 
methodology Mr. Ford has alluded to on this on this side is one 
of the methodologies under consideration. The one on the other 
side is another, and there are at least three or four more that 
I could rattle off at this point.
    Chairman Feinstein. So then my conclusion would be that the 
answer is no. Now, let me ask another question. Under pre-
existing law, if more than 2 percent of a current Visa Waiver 
Program country's nationals overstay or otherwise violate this 
90-day visa, the country cannot continue to participate in the 
program. Is DHS or any other agency now tracking whether 
nationals of current visa waiver countries are overstaying 
their 90-day authorized stays?
    Mr. Rosenzweig. Prior to the development of the systems 
that we are talking about in the context of this legislation, 
the data was of, as Mr. Ford said, inadequate quality to allow 
us to use that as an effective measure. We are--
    Chairman Feinstein. So I would say the answer is no. Am I 
wrong?
    Mr. Rosenzweig. That would be your characterization. I 
would say that we have not been able to have adequate data to 
use that aspect. In fact--
    Chairman Feinstein. So there is no real enforcement--
    Mr. Rosenzweig. On the contrary.
    Chairman Feinstein.--in the program against a country--if 
more than 2 percent of a current visa waiver country's 
nationals violate their visas, the law says the country cannot 
continue to participate. And what I hear you saying is we have 
no way to know. So I would view the answer as no. Is that 
incorrect?
    Mr. Rosenzweig. That is not incorrect, ma'am, but that is a 
characterization. I have no sense at all under the current 
state of the data whether or not a country is violating or is 
not violating.
    Chairman Feinstein. But this is the whole police power of 
the law, that if a country's nationals are not complying with 
it, the country is dropped out of the program. So there has to 
be a measurement--and I am going to ask the GAO then go in and 
take a look at it. I do not know, Mr. Ford, whether you did 
take a look at this, but that is the law. If 2 percent of a 
country's nationals either violate the visa or overstay the 
visa, the country is removed from the program. Did you happen 
to look at that?
    Mr. Ford. No, but we can look at it in the context of our 
current job. As far as I know, DHS does collect some 
information related to overstays, but based on what we have 
seen, there are so many holes in the data that it is not very 
reliable, cannot be relied on. But I do not know whether they 
are making any effort, you know, to enforce this provision of 
the law. That I do not know.
    Mr. Rosenzweig. Actually, if I may followup, one of the 
things that we think is of great value in the Visa Waiver 
Program legislation is that Congress has, A, provided us with a 
definition of overstays now, so there is now a statutory 
definition; and, B, provided us with the incentive, the 97-
percent requirement to enhance the data quality collections 
from the airlines that will enable us to actually set a maximum 
visa overstay rate and allow us to also have the data to 
actually be able to enforce this portion of the law.
    Chairman Feinstein. So I take it that no country has ever 
been disqualified from the program that is in the program on 
the basis that their nationals did not comply?
    Mr. Rosenzweig. That is not correct, ma'am. There have been 
two countries that were removed from the program in the early 
1990's, and it was because--and at least in part we had 
sufficient evidence that was not statistical evidence, but 
sufficient anecdotal evidence to view a heightened increase in 
the overstay rate from those two countries.
    Chairman Feinstein. What were the two countries?
    Mr. Rosenzweig. Argentina and Uruguay, and that was as part 
of the financial crisis down in the Southern Cone back in the 
early 1990's.
    Chairman Feinstein. My time is just about up, and I want 
the Ranking Member to have some time.
    Senator Kyl. I would like to change gears here and ask 
somebody else a question.
    Mr. Ford, in the conclusion in your report--and I thank you 
for that report, by the way--you say, ``An air exit system that 
facilitates the development of overstay rate data is important 
to managing potential risk in expanding the Visa Waiver 
Program. DHS' planned methodology for meeting the 97-percent 
provision so it can move forward with the program expansion 
will not demonstrate improvements in the air exit system or 
help the Department identify overstays or develop overstay 
rates.''
    Could you explain exactly what you mean by that and what 
the implications of that conclusion are?
    Mr. Ford. Yes. Again, the reason we said that was because 
in our discussions with DHS, they have not indicated that they 
were going to use arrivals as a baseline for establishing 
overstay rates. They are just going to measure departures. So 
if 100 people come into the country, they are not going to be 
able to tell you whether 97 of those people overstayed or left 
appropriately because they are not starting from arrivals. They 
are measuring from departure. They are going to look at 
departure manifests from the airlines.
    Our point is that that methodology does not allow you to 
determine an effective overstay rate, which means you cannot 
have an effective exit system, and that is the point of our 
testimony.
    Chairman Feinstein. If you would permit me, if I understand 
what you are saying, the 97 percent is not 97 percent of those 
who come into the country.
    Mr. Ford. That is correct.
    Chairman Feinstein. It is 97 percent of those who leave.
    Mr. Ford. That is correct.
    Chairman Feinstein. So it could be 50 percent. That is 
amazing.
    Senator Kyl. I am not sure why examining those who leave 
you cannot 100 percent of departure. If you are looking at a 
departure list, you ought to be 100 percent right. Are we 
missing something on this, Mr. Rosenzweig?
    Mr. Rosenzweig. I do not think you are missing something. I 
guess my point would be that you said departures in the 
statute.
    Senator Kyl. OK. All right. Let me ask you this question 
very specifically?
    Mr. Rosenzweig. I am sorry.
    Senator Kyl. Do you believe that the Secretary of Homeland 
Security believes that he can comply with the statute without 
looking at any data to derive a percent of people who came here 
but, rather, that it is only required that we meet 97 percent 
of the departures, as Mr. Ford just identified?
    Mr. Rosenzweig. The Secretary of Homeland Security has not 
chosen a methodology--
    Senator Kyl. I understand that. My question was: Are you 
telling us that it is your understanding that the Secretary of 
Homeland Security believes that it is a compliance with the 
statute to simply measure 97 percent of departures rather than 
deriving 97 percent of people who came here departing?
    Mr. Rosenzweig. I am sorry if this will disappoint you, but 
the Secretary has not formed a view on that inasmuch as he is 
continuing to examine all of the methodologies that might be 
used to meet the statutory requirements. Some of those would be 
consistent with what I take to be your interest. Some of those 
would be more consistent with--
    Senator Kyl. And when is that methodology going to be 
decided upon?
    Mr. Rosenzweig. No doubt before he certifies the--
    Senator Kyl. Give me a rough timeframe here.
    Mr. Rosenzweig. Well, we are hoping to be able to achieve a 
97-percent air exit departure prior to the fall when we hope to 
be in a position to admit aspirant countries. That would be our 
target, but by all means, if we do not achieve that, we will 
not do it.
    Chairman Feinstein. But they are only going to submit to 
the Secretary 97 percent of departures, not measuring people--
    Senator Kyl. I guess that is the question. Is it your 
belief that that is what will be done here? Or can you tell us 
that you think actually it will be a different methodology?
    Mr. Rosenzweig. Having participated in the internal 
discussions, I can assure you that no methodology has been 
chosen as yet and that--
    Senator Kyl. Would you assure us of this--and I will back 
it up.
    Mr. Rosenzweig. OK.
    Senator Kyl. That the Secretary will be informed as soon as 
you are able to inform him after leaving here that at least--
and I think I can speak for Senator Sessions as well--the three 
of us agree with the GAO report that it would not be an 
appropriate way to achieve the compliance with the statute to 
simply derive the 97 percent based upon departures? Would you 
convey that to the Secretary?
    Mr. Rosenzweig. I will absolutely convey that to him, sir.
    Senator Kyl. We would appreciate that.
    Mr. Rosenzweig. I suspect he knew it already.
    Chairman Feinstein. And I think we should convey it in 
writing as well. We will.
    Senator Kyl. By the way, thank you all, and I am sorry we 
did not give each of you an opportunity to get on the hot seat 
like we did Mr. Rosenzweig. But we appreciate--
    Chairman Feinstein. They might enjoy missing it.
    [Laughter.]
    Senator Kyl. Yes, right.
    Mr. Rosenzweig. Oh, this is fun.
    Senator Kyl. If it were not for the honor of it. Well, this 
is serious business.
    Mr. Rosenzweig. It is, sir.
    Senator Kyl. And I hope you appreciate the seriousness with 
which we have approached this. And I do not like to be critical 
of my administration, but it is hard not to be when we get the 
kind of testimony that we did today.
    Mr. Rosenzweig. May I respond to that just for a minute? 
Because I do not want to leave the impression that we are being 
at all cavalier. But I have to say that there are weaknesses as 
much in the methodology that Mr. Ford suggests of starting with 
arrivals, some of which I alluded to earlier, as well as the 
methodology over here, which I would say is actually false or 
incorrectly titled as planning to use departure data as a 
starting point. What we are actually planning to use is 
starting with arrivals, but in the absence of actual matches to 
all arrivals, include as well changes of status, which are 
perfectly permissible ways of not departing, and prior 
departures that might account for somebody having left, 
entered, and re-left again just by land.
    Senator Kyl. I appreciate it. Just--
    Mr. Rosenzweig. It is not irrational.
    Senator Kyl. We are not looking for perfection here. We are 
looking for the best we can. We understand the land-based 
system is not workable right now, but let's don't let 
perfection be the enemy of the good here. That is what we are 
saying.
    Chairman Feinstein. But just for one moment, to interpret a 
statute that in measuring the percent you only take the people 
that actually want to leave and you do not consider that the 
people that have come in so that you have a valid percent to me 
is manipulation any way you put it, because it is a percent of 
the whole, and the whole are the people that have come in under 
the Visa Waiver Program. It is not the people that depart. It 
is a phony statistic if it is just the people that depart.
    Mr. Rosenzweig. If I may, and with respect, since the 
statute told us to set a maximum overstay rate in one portion 
of the law, there is at least some inconsistency between 
telling us to set an overstay rate in the future and telling us 
that in another portion of the law you have said verify 
departure but you meant overstay rate. You lose different--I 
mean, I am not the lawyer, I am not the OGC lawyer who will 
interpret this statute and recommend it to the Secretary. But 
we must at least agree it is ambiguous.
    Chairman Feinstein. Well, we will talk with the Homeland 
Security Committee, and if there is a problem with the statute, 
we will submit an amendment and try to quickly remedy it. But I 
cannot believe that anybody in the Congress wants a false 
measurement. They want a measurement of a population that is 
using the Visa Waiver Program. That is the point of it.
    Senator Sessions, would you--
    Senator Sessions. Yes. Well, I think there is a classical 
rule of statutory construction that you do not give a statute a 
construction that would create a ridiculous result. I mean, it 
is not conceivable that the Congress could have thought of 
this, I do not think. The words clearly are read one way; then 
they have to be read that way. But it certainly was not 
Congress's intent. We were acting on behalf of the people of 
the United States of America, and the people of the United 
States of America supported and elected Congressmen and 
Presidents who promised to follow the law. And the law and the 
statute that goes back to the one I read you, which is Title 8, 
Section 1365, USCA, requires the exit system to be complete at 
the land borders by 2005.
    And so if someone would like to do a research project on 
why people think this country is on the wrong track and why 
there is an erosion of confidence in politicians, I think they 
are underestimating the American people's concern about the 
question of immigration, because we have had leader after 
leader after leader promise and pass statutes and say they are 
going to do wonderful things, including saying we are going to 
build a fence at the border, and only a few miles of it has 
been built. We say we are going to do things, and we have no 
intention of following up with them.
    I just have to tell you it is a very, very troubling thing 
to me, and it is not silly. It is very important. And I hope 
that the next President of the United States will be asked 
specifically where they stand on it and are they committed. Are 
they committed to undermining what Congress does? Or are they 
committed to seeing that it is enforced?
    Senator Feinstein, your explanation of this 97-percent rule 
was worse than I imagined when I came here. But let me ask you, 
Ms. Vaughan, you are a critic of the system. What about the 
situation--how could you ever certify that people have left if 
they could all leave by land exits and never be recorded? 
Doesn't that in itself invalidate the integrity of any numbers 
we would get?
    Ms. Vaughan. That is definitely one of the weaknesses in 
relying simply on air exits. The goal, as I understand it, is 
to ultimately have an exit system in place at the land borders 
as well to kind of close the circle.
    Chairman Feinstein. That is correct. Take the first thing 
first.
    Senator Sessions. Back in--I am not sure when this was 
passed. I think it was in the 1990s. We said by 2005. It was a 
10-year warning or opportunity for Congress to get there--for 
the administrations to get there, and I do not think any 
administration has been serious.
    Ms. Vaughan. No, and I think it is important to add that 
there is some matching and analysis of the data that we do 
have. We all know it is not perfect, but we could learn 
something from the exits that we are already collecting through 
the biographic manifests. And what I find a little bit 
confusing is that DHS seems ready to certify that it is 
counting an adequate number of departures, and yet is not 
willing to tell us anything about the people who stayed. There 
is no attempt to analyze any information about the overstayer, 
so it is just kind of like, OK, you know, we are certifying, 
but we still do not have an overstay rate.
    So, I mean, we have to--that is the point.
    Senator Sessions. Well, I think that is a good point. Mr. 
Rosenzweig, what about that? Is the only interest the 
administration has in the millions that are overstaying 
illegally, is the only interest they have in that what is 
mandated by Congress? Or does this administration understand 
that it has a responsibility to ensure the safety of America 
and the integrity of this system? And isn't the way it is 
created today guaranteed not to be effective? The fundamental 
system, people come here by permission, who commit to leave at 
a certain date, and we have no way to ascertain whether or not 
they have left.
    Mr. Rosenzweig. The law that you passed will move us in 
that direction. It requires the setting of an overstay rate 
based upon the biographic air exit information. It requires us 
to get to a 97-percent air exit verification. We will take that 
data--
    Senator Sessions. Air exit. But you have explained to us 
why that is not an accurate number.
    Mr. Rosenzweig. Well--
    Senator Sessions. Couldn't we just say if you come by air 
you have to exit by air, or if you do not exit by air, you have 
to file a certain document with a biometric fingerprint as part 
of that so we can verify? If you wanted to have this system 
work, couldn't that be a way to do it? And have you ever asked 
Congress to give you the money and the resources to do it?
    Mr. Rosenzweig. Actually, Senator, during the conversations 
about this very provision, we did suggest the possibility of 
requiring those who enter by air to leave by air as a matter of 
law. That was not part of the final legislation, and I do not 
know why because I was not privy to your internal negotiations. 
That would be one possible solution. I can imagine a number of 
arguments against it including our desire to allow people to 
come into New York and then travel to Toronto, or vice versa.
    Senator Sessions. You know, sometimes I would like to see 
some leadership out of the administration. I would like to have 
them who are--you who are running these programs tell us what 
you need to make it lawful. Don't you understand that is what 
we want? Isn't that--how much more basic can it be? The 
American people and this Congress desire a lawful system of 
immigration. There are some who do not. And so I guess the 
question is, it is pretty clear which side you are on. You have 
not come forward to ask us for the things necessary to close 
these loops--some of them are not difficult to close--and 
create a lawful system. It is just very discouraging to me.
    Thank you, Madam Chairman.
    Chairman Feinstein. Thank you very much.
    Unless somebody has something they want to say, I think we 
have heard enough to know that the program really is still in 
shambles, regretfully, and I do not think that any one of us 
can say that the Visa Waiver Program provides any sense of 
stability in controlling illegal immigration.
    We have agreed to--we will send Mr. Ford a letter, GAO, and 
ask you to look into that overstay rate situation, and we will 
prepare a letter for the Ranking Member, for Senator Sessions, 
and myself to clarify what the intent was behind the 97 
percent. And I think in writing we will prepare a number of 
other questions so that we have the Department on record.
    I really think this is a very serious thing, and I 
understand the pressures that the economics bring on the 
Department, and that is, a constant pushing by countries to get 
into the program because their people believe it means ease 
with which they can come to the United States; and, second, 
constant pressures from the travel industry. But I think we 
have to protect this country, and if this, in fact, is correct 
that this program is the soft underbelly and offers an 
opportunity for people who would do us grievous injury to come 
to this country, it really is not worth speeding it--which you 
call ``flexibility,'' which I call ``speed''--into a position 
without the adequate security portions of it. And I have 
concluded, after holding several of these hearings for a long, 
long time, that there are no adequate security provisions 
within this program.
    So I thank you very much for your attendance and for your 
testimony and, I think, the good graces with which you have 
taken it. So thank you very much, and the hearing is adjourned.
    [Whereupon, at 4:04 p.m., the Subcommittee was adjourned.]
    Questions and answers and submissions for the record 
follow.]
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