    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

       THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM

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

                                 JOINT HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON NATIONAL SECURITY

                                    AND THE

                     SUBCOMMITTEE ON GOVERNMENT OPERATIONS

                                     OF THE

                             COMMITTEE ON OVERSIGHT
                             AND GOVERNMENT REFORM
                            HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                               FEBRUARY 10, 2016

                                   __________

                               Serial No. 114-104

                                   __________

    Printed for the use of the Committee on Oversight and Government Reform

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             Available via the World Wide Web: http://www.fdsys.gov
                          http://www.house.gov/reform
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                  COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                         JASON CHAFFETZ, Utah, Chairman
    JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland,
    MICHAEL R. TURNER, Ohio                  Ranking Minority Member
    JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
    JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of
    TIM WALBERG, Michigan                    Columbia
    JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
    PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
    SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
    TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
    BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
    CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
    THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
    MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
    RON DeSANTIS, Florida                TED LIEU, California
    MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
    KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
    MARK WALKER, North Carolina          MARK DeSAULNIER, California
    ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
    JODY B. HICE, Georgia                PETER WELCH, Vermont
    STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
    EARL L. ``BUDDY'' CARTER, Georgia
    GLENN GROTHMAN, Wisconsin
    WILL HURD, Texas
    GARY J. PALMER, Alabama

                       Jennifer Hemingway, Staff Director
                     David Rapallo, Minority Staff Director
          Art Arthur, Subcommittee on National Security Staff Director
                               Willie Marx, Clerk
                       Subcommittee on National Security

                        RON DESANTIS, Florida, Chairman
    JOHN L. MICA, Florida                STEPHEN F. LYNCH, Massachusetts,
    JOHN J. DUNCAN, JR., Tennessee           Ranking Member
    JODY B. HICE, Georgia                ROBIN KELLY, Illinois
    STEVE RUSSELL, Oklahoma, Vice Chair  BRENDA L. LAWRENCE, Michigan
    WILL HURD, Texas                     TED LIEU, California

                                     ------

                     Subcommittee on Government Operations

                     MARK MEADOWS, North Carolina, Chairman
    JIM JORDAN, Ohio                     GERALD E. CONNOLLY, Virginia,
    TIM WALBERG, Michigan, Vice Chair        Ranking Minority Member
    TREY GOWDY, South Carolina           CAROLYN B. MALONEY, New York
    THOMAS MASSIE, Kentucky              ELEANOR HOLMES NORTON, District of
    MICK MULVANEY, South Carolina            Columbia
    KEN BUCK, Colorado                   WM. LACY CLAY, Missouri
    EARL L. ``BUDDY'' CARTER, Georgia    STACEY E. PLASKETT, Virgin Islands
    GLENN GROTHMAN, Wisconsin            STEPHEN F. LYNCH, Massachusetts

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on February 10, 2016................................     1

                                   WITNESSES

    Mr. Gil Kerlikowske, Commissioner, Customs and Border Protection,
      U.S. Department of Homeland Security
        Oral Statement...............................................     9
        Written Statement............................................    11
    Ms. Hillary Batjer Johnson, Deputy Coordinator for Homeland
      Security, Screening, and Designations, Bureau of
      Counterterrorism, U.S. Department of State
        Oral Statement...............................................    18
        Written Statement............................................    21
    Ms. Jessica Vaughan, Director of Policy Studies, Center for
      Immigration Studies
        Oral Statement...............................................    34
        Written Statement............................................    36
    Mr. Emanuele Ottolenghi, Senior Fellow, Foundation for Defense of
      Democracies
        Oral Statement...............................................    46
        Written Statement............................................    48
    Mr. Stephen Heifetz, Partner, Steptoe and Johnson, LLP
        Oral Statement...............................................    69
        Written Statement............................................    71

                                    APPENDIX

    A letter from Karin Johnson, Director, Washington Legislative
      Office and Joanne Lin, Legislative Counsel at the American
      Civil Liberties Union to Rep. Mark Meadows, Rep. Ron DeSantis,
      Rep. Gerald Connolly, and Rep. Stephen Lynch--in support of Hr
      4380-the Equal Protection and Travel Act of 2016, submitted by
      Rep. Thomas Massie.............................................   102
    A letter from 65 Separate Organizations in Support of HR 4380-The
      Equal Protection and Travel Act of 2016, Submitted by Rep.
      Thomas Massie..................................................   107
    Responses to questions for the record by the U.S. Department of
      Homeland Security, submitted by Chairman DeSantis..............   110
    Responses to questions from the U.S. Department of State,
      submitted by Chairman DeSantis.................................   119
    A letter from Secretary of State John Kerry to Foreign Minister
      Javad Zarif, submitted by Rep. Jody Hice. The text of the
      letter can be found online here: https://www.niacouncil.org/
      text-sec-kerry-letter-to-zarif-regarding-visa-waiver-reform/

       THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM

                                  ----------

                          Wednesday, February 10, 2016

                      House of Representatives,
     Subcommittee on National Security, joint with the
                 Subcommittee on Government Operations,
                  Committee on Oversight and Government Reform,
                                                       Washington, D.C.
        The subcommittees met, pursuant to call, at 3:00 p.m., in
    Room 2154, Rayburn House Office Building, Hon. Ron DeSantis
    [chairman of the Subcommittee on National Security] presiding.
        Present from Subcommittee on National Security:
    Representatives DeSantis, Mica, Duncan, Hice, Russell, Hurd,
    and Lynch.
        Present from Subcommittee on Government Operations:
    Representatives Meadows, Jordan, Walberg, Massie, Mulvaney,
    Buck, Carter, Grothman, Connolly, Maloney, Norton, Plaskett,
    and Lynch.
        Mr. DeSantis. The Subcommittee on National Security and the
    Subcommittee on Government Operations will come to order.
    Without objection, the chair is authorized to declare a recess
    at any time.
        The United States faces clear and present dangers from
    Islamic jihadists both at home and abroad. From the attacks in
    Paris to the massacre in San Bernardino, it is clear that
    militant Islamists are on the march. Identifying terrorists and
    stopping them before they can strike must be a priority for the
    United States and its allies. Certainly, the Federal Government
    has a duty to prevent terrorists and those sympathetic to their
    aims from entering the United States, a duty that it is not
    currently satisfying.
        Almost 12 years ago, the bipartisan 9/11 Commission
    provided a roadmap for the government to follow in fulfilling
    these crucial responsibilities. It stated, ``Targeting travel
    is at least as powerful a weapon against terrorists as
    targeting their money. The United States should combine
    terrorist travel intelligence operations and law enforcement
    and a strategy to intercept terrorists, find terrorist travel
    facilitators, and constrain terrorist mobility.''
        Our consular officers abroad and the inspectors at our
    ports of entry are on the first line of defense in this
    strategy. Most foreign nationals who seek to enter the United
    States must apply to the State Department and meet with one of
    those consular officers to obtain a visa. Those officers are
    trained to separate bona fide travelers from those with
    malevolent intentions. Yet, as we have seen with the visa
    issued to San Bernardino terrorist Tashfeen Malik, these
    officers have not always been successful at weeding out
    militant Islamists.
        An exception to the rule that an individual who seeks entry
    to the United States must apply for and receive a visa before
    entering this country is the Visa Waiver Program. The Visa
    Waiver Program allows foreign nationals of 38 countries, mostly
    in Europe, to enter the United States as nonimmigrant visas for
    up to 90 days without having to obtain a visa or undergo an in-
    person interview at a U.S. consulate. Approximately 20 million
    foreign nationals enter each year under the program,
    constituting 37 percent of all visitors from overseas. And as
    this committee has shown in testimony, many have overstayed
    that 90 days without consequence.
        The November 13, 2015, terrorist attacks in Paris made
    clear that there were vulnerabilities in the Visa Waiver
    Program. The terrorists in that massacre killed 130 people and
    caused over 350 injuries, and at least five of the attackers
    were French nationals, two of whom are living in Belgium, and
    one was a Belgian national. And nationals of both France and
    Belgium are able to enter the United States under the Visa
    Waiver Program. Accordingly, at least six of the Paris
    attackers could have attempted to enter this country under the
    Visa Waiver Program. All they would have needed was a plane
    ticket.
        Those attacks highlight the fact that even within the
    borders of our closest international partners, there are
    insular communities sheltering militant Islamists bent on
    destroying our way of life. Many Islamic jihadists in places
    such as Syria are Western passport holders or dual nationals
    who could take advantage of the Visa Waiver Program. This
    exposes the American people to the possibility that these
    militants, after being trained and further radicalized in Syria
    and Iraq, could exploit the Visa Waiver Program to enter this
    country.
        These concerns and others were understood by this committee
    in two hearings that we held in early December. In the first,
    we identified flaws in the Visa Waiver Program that could be
    exploited by terrorists and criminals. In the second hearing,
    which followed from the findings of the first, the full
    committee looked at potential defects in our nation's terrorist
    screening scheme as a whole.
        In response to these concerns and others, Congress crafted
    a bipartisan measure that included several changes to the Visa
    Waiver Program intended to prevent terrorists from exploiting
    the program and to address other national security concerns,
    and those changes took effect or signed into law in December.
        The bill responded to concerns that were raised about the
    risks related to visa-free travel by foreign nationals who
    carry both passports, a visa waiver of countries, and of other
    countries that are not friendly to the United States, as well
    as individuals who have traveled to countries of concern and
    state sponsors of terrorism, including Syria, Iraq, Iran, and
    Sudan. It did not prevent those individuals from entering our
    country, but it did require them to obtain a visa before coming
    to the United States. It gave the Secretary of State the
    authority to designate additional countries of concern. And
    finally, the bill gave the Secretary of Homeland Security very
    limited authority to waive these provisions for specific and
    targeted national security or law enforcement purposes.
        As it has done in the past, however, this administration
    refused to abide by the limits placed on it by Congress. After
    these changes were signed into law, the Iranian Government
    objected that the restrictions would violate the nuclear
    agreement, the so-called Joint Comprehensive Plan of Action,
    which was adopted in October of 2015. The Iranians claimed that
    the JCPOA obliges the United States not to take any actions
    that will ``adversely affect the normalization of trade and
    economic relations with Iran.''
        In response, the administration moved to placate Iran. In a
    letter to the Iranian Foreign Minister dated one day after the
    President signed the visa waiver bill into law, the Secretary
    of State made clear that the administration would find ways to
    ensure that changes to Visa Waiver Program would not interfere
    with Iran's ``legitimate business interests.''
        Subsequently, on January 21, 2016, the administration
    announced that it would use what was intended to be a limited
    law enforcement exception to allow foreign nationals who have
    traveled to Iran, Iraq, Sudan, and Syria as journalists, aid
    workers, military or government workers, or for unspecified
    legitimate business-related purposes to be issued waivers to
    the restrictions contained in the bill.
        Travel for purported legitimate business-related purpose
    was exactly the type of travel that Congress sought to
    restrict. In the real world, espionage is as likely to involve
    transfer of restricted goods and technology by intermediaries
    who are putatively citizens of friendlier neutral nations as it
    is to be carried out in secret by foreign intelligence
    officers.
        I am concerned about these actions both as chairman of the
    National Security Subcommittee and as a member of the House
    Judiciary Committee. The Judiciary Committee chairman Bob
    Goodlatte told the House Judiciary Committee that the
    administration's decision to abuse their limited waiver
    authority and allow scores of people who have traveled to or
    are dual nationals of countries like Iraq and Syria flies in
    the face of the reason and congressional intent. The Obama
    administration, he says, ``is essentially rewriting the law by
    blowing wide open a small window of discretion that Congress
    gave it for law enforcement and national security reasons. In
    fact, the categories of people that the Obama administration is
    exempting from the law were expressly rejected by Congress.''
        This administration takes these actions in clear violation
    of the law and does so to favor a known state sponsor of
    terrorism. And I would add, businesses in Iran, many of them
    are controlled by the Revolutionary Guard Corps, which is a
    designated terrorist organization.
        So I thank our witnesses for their testimony today, and I
    look forward to examining issues related to the impact of this
    executive action on the Visa Waiver Program.
        Mr. DeSantis. I now recognize the ranking member of the
    Subcommittee on National Security, Mr. Lynch, for his opening
    statement.
        Mr. Lynch. Thank you very much, Mr. Chairman. I want to
    thank you and also Chairman Meadows for their good work and
    Ranking Member Connolly for holding this hearing to examine the
    implementation of the Visa Waiver Program. And I would also
    like to thank in advance our witnesses today for your
    willingness to help the committee with this work.
        In December of 2015, Congress enacted and President Obama
    signed the Visa Waiver Program Improvement and Terrorist Travel
    Prevention Act as part of the recent omnibus appropriations
    bill. This bipartisan legislation to strengthen the Visa Waiver
    Program became law in the wake of the devastating terrorist
    attacks in Paris, France, in November of 2015, perpetrated by
    several attackers who were citizens of so-called Visa Waiver
    Program countries, including France and Belgium, and also
    followed the tragic mass shooting in San Bernardino,
    California, in December of 2015. That also evidenced the real
    and continued threat of a terrorist attack committed on U.S.
    soil.
        The new act, which I voted for, generally provides that
    even if you are a citizen of one of the 38 allied nations that
    participated in the Visa Waiver Program, you are no longer
    eligible for temporary visa-free entry to the United States if
    you travel to Syria, Iraq, Sudan, or Iran since March 1, 2011.
    Similarly, dual nationals of any of these four countries are
    prohibited from Visa Waiver Program eligibility.
        The act also recognizes that, in select cases, the
    application of these new program restrictions could
    intentionally run contrary to national security interests by,
    for example, excluding U.N. personnel, inspectors with the
    IAEA, or humanitarian relief workers who have visited one of
    these countries of concern from the Visa Waiver Program.
        In order to better ensure that such individuals are able to
    do their jobs, the act provides that the Secretary of Homeland
    Security may in some instances grant a waiver to a foreign
    national ``if the Secretary determines that such a waiver is
    consistent with the law enforcement or national security
    interests of the United States.'' It also requires the
    Secretary to submit to Congress an annual report on each
    instance in which the Secretary exercises that waiver
    authority.
        Last month, the Department of Homeland Security explained
    the limited circumstances under which the Secretary may
    consider granting a national security waiver. In particular,
    the agency underscored that such waivers ``will be granted only
    on a case-by-case basis.'' The Department also noted that
    waiver eligibility travelers may include representatives of
    international and humanitarian organizations, as well as
    journalists who travel to Iran, Iraq, Sudan, or Syria in
    performance of their job duties. They may also include
    individuals who travel to Iraq and Iran for legitimate
    business-related purposes.
        I strongly agree that we must conduct meaningful oversight
    of the implementation of this national security waiver
    authority. However, in analyzing the effectiveness of this
    provision, we must be mindful that our shared interest in
    national security does not exclude the goals of promoting
    humanitarian assistance, accountability, and economic stability
    in the four countries of concern. Quite the contrary, they can
    go hand-in-hand.
        Last month, Chairman Chaffetz authorized Representative
    Steve Russell and myself to lead an oversight delegation to the
    Zaatari refugee camp on the Jordanian/Syrian border and the
    Oncunipar refugee camp in Kilis Province on the Turkish/Syrian
    border. We met with representatives from several international
    and humanitarian organizations, including the Office of the
    United Nations High Commissioner on Refugees, the World Food
    Program, and Save the Children, and local humanitarian and
    relief health care groups. These officials repeatedly noted
    that humanitarian aid does not only provide dignified living
    for people in need it but also makes us all safer by de-
    incentivizing desperate populations from making desperate
    choices. This humanitarian aid keeps refugees near their home
    country, albeit on the other side of the border.
        Similarly, conflict reporting by journalists in places like
    Aleppo, Syria, has proven critical to informing U.S. officials
    and the American public about the security and humanitarian
    facts on the ground. As noted by Professor Ellen Shearer, Co-
    Director of the National Security Journalism Initiative at
    Northwestern University, ``The cost of getting the truth could
    be high, but the cost in not getting the full story is very
    real, too.''
        In Iraq, U.S.-led efforts to combat the Islamic State will
    only be complicated if the country cannot conduct legitimate
    business and dive deeper into the economic crisis and the
    social unrest caused by falling oil prices.
        And in Iran, international efforts to ensure compliance
    with the robust nuclear inspection regime set forth in the Iran
    nuclear agreement would be undermined if an Iranian economy
    that is unable to refurbish a deteriorating domestic plane
    fleet used by IAEA inspectors, the International Atomic Energy
    Agency inspectors, to travel between inspection sites. And a
    number of those inspectors have indicated that that is probably
    the most dangerous thing they do in Iran is fly from city to
    city on the Iran Air because of the terrible condition of their
    air fleet. So we are going to have to consider that.
        Again, now, I voted for tighter restrictions in the Visa
    Waiver Program, given the evidence that the Islamic State has
    adopted a tactic of feeding militant extremists into the stream
    of legitimate refugees and the wider diaspora created by the
    wars in Iraq and Syria. I do believe, though, that in affording
    the Secretary of Department of Homeland Security flexibility
    that he has been granted by statute, it should be prudently and
    rarely exercised.
        Mr. Chairman, I look forward to further discussing these
    and other issues relating to the Visa Waiver Program with
    today's witnesses, and I yield back the balance of my time. And
    thank you for your indulgence.
        Mr. DeSantis. I thank the gentleman.
        The chair now recognizes the chairman of the Subcommittee
    on Government Operations, Mr. Meadows, for his opening
    statement.
        Mr. Meadows. Thank you, Mr. Chairman, and thank you, Mr.
    Lynch, for your accurate remarks. I certainly look forward to
    working with both of you on this particular issue.
        It seems that every time we turn around, on the televisions
    we see unspeakable atrocities that are being committed by ISIS.
    You know, it has come now into the bedrooms and homes of many
    of us where we have to deal with this reality. The increased
    presence of ISIS in countries like Iraq and Syria highlight the
    concerns over the reports of thousands of citizens in Western
    countries traveling to places like Iraq and Syria and then
    training with these terrorist groups and then returning home.
        Even late last year, obviously, the people of Paris saw
    this practice manifest in a just horrific tragedy. Individuals
    with dual citizenship traveled to Syria and trained with these
    so-called fighters that fight against innocent civilians going
    about their everyday life, but it is really not a fight. This
    was an attack, an attack against fathers and mothers, daughters
    and sons. And these monsters who carried out this attack took
    advantage of rights granted to them as nationals of France and
    nationals of Belgium.
        In an effort to help prevent individuals from similarly
    exploiting the advantages afforded to them by having a
    citizenship of those countries covered by the Visa Waiver
    Program, Congress, as Mr. Lynch put forth, passed a piece of
    legislation late last year that would require those individuals
    who travel to certain countries of concern, or who hold dual
    citizenship with those countries, to go through a more rigorous
    review before being admitted into the United States, a
    commonsense approach.
        But since the President has signed that bill into law, it
    seems like the administration is starting to backpedal on some
    of those changes to expand that narrow exception for national
    security afforded to them by Congress. The administration's
    disregard for the congressional intent is intolerable,
    especially when we look at the action being done to appease a
    country like Iran. It is troubling.
        I understand that there are many people affected by
    Congress's changes to the Visa Waiver Program that mean no harm
    to the United States. It is very obvious. What is important to
    understand is that being excluded from the Visa Waiver Program
    does not keep these people from coming to the United States. It
    just means that they have to apply for a visa like all other
    people around the world that are not included in that program.
    Somehow, we think that it is keeping them from coming to the
    United States.
        That being said, we need to make sure that our visa
    screening process is effective, and I have been pressuring DHS
    for months, including in a hearing in December, to report to
    Congress on the number of individuals who have overstayed their
    visas.
        While DHS finally released a report about 3 weeks ago, the
    report left much to be desired. For instance, the figure
    included only a couple of subsections of admissions, leaving
    incomplete the picture of visa overstays. DHS reports that only
    1 percent of admissions overstayed their permissible period.
    However, when you start to look at this, the administration
    only counted the travelers each time they entered the country
    as a unique admission. Now, what I am saying there is, thereby,
    it lowers the overall numbers to suggest that we are doing a
    better job than we really are.
        That figure that was reported by DHS suggested that there
    was some 500,000 foreign travelers who had overstayed their
    visas and remained in the United States illegally. As of
    January 4, that number had been brought down to 416,000 of
    these who had not left the country. As I said, this number does
    not give the full picture either. It does not include those who
    enter by land or those who have entered for other reasons other
    than business or pleasure such as students, guest workers,
    exchange visitors. In fact, of the over 70 specific types of
    nonimmigrant visas, DHS's report only covers 2, 2 out of 70.
    This report is supposed to inform Congress. Not only is it
    missing critical information, the DHS will not even provide
    Congress with the background memos used to compile the report.
        We have a DHS official here today, so I hope that hopefully
    you can answer some of these questions for us and start to
    illuminate both members of the majority and the minority. I
    also hope that you can help us understand the significance of a
    biometric exit system and actually putting that in so that we
    can start to track this system and have proper reporting for
    visa overstays because it is a critical function for our
    national security.
        And I can tell you that I imagine everyone in this room
    agrees with this. I don't want to have an incident that happens
    here that could have been prevented by implementing the proper
    procedures to look at this. Far too often we look backwards. We
    say only if this had happened or only if that had happened,
    maybe this disaster could have been prevented. I know one thing
    for sure. We must get it right. We must get it right right
    away.
        And I thank the chairman for his patience and his direction
    and his leadership on this, and I yield back.
        Mr. DeSantis. The gentleman yields back.
        The chair now recognizes Mr. Connolly, the ranking member
    of the Subcommittee on Government Operations, for his opening
    statement.
        Mr. Connelly. I thank the chair, and welcome to our
    panelists.
        Last December, in light of the tragedies of San Bernardino
    and Paris, Congress came together and passed the Visa Waiver
    Program Improvement and Terrorist Travel Prevention Act of
    2015, passed as part of the omnibus spending bill. It will
    enhance VWP's information-sharing requirements to better assess
    travel's risk.
        It also requires covered travelers to use an e-passport
    containing technology that stores travel information, a digital
    photograph, biographical information, and biometric
    identifiers. Such passports also included security layers that
    make it more difficult to alter or duplicate them compared to
    other forms of travel identification.
        The bill also tightens eligibility restrictions for VWP
    participation but does not block international travel using the
    normal visa process. It would prohibit participation in that
    process, the VWP process, by anyone who has traveled to Syria,
    Iraq, Iran, Sudan, and other designated areas of concern within
    the past 5 years, and dual nationals of those countries.
        It also empowers the Department of Homeland Security with
    the authority to waive these restrictions to support ``the law
    enforcement and national security interests of the United
    States.'' The Department of Homeland Security recently
    announced that it would implement those waivers on a limited
    case-by-case basis, certain categories of individuals,
    including those who have traveled to Iran or Iraq for
    legitimate business, professional, and humanitarian purposes.
        Of course, individuals who may fall into one of those
    accepted categories are not automatically allowed to enter via
    the program. They must undergo the same rigorous screening
    process as any other traveler prior to receiving approval to
    travel under that program.
        Some of my colleagues, critics of the administration, claim
    that the Department's implementation is contrary to
    congressional intent and represents an overreach of executive
    authority as the legislative language did not expressly provide
    exceptions.
        However, I believe the Department is taking a commonsense
    approach to implementing the waiver authority we granted them,
    and that it is not inconsistent with the requirements of the
    law. In fact, some argue that permitting individuals from
    waiver countries to travel to Iran or Iraq for legitimate
    business, professional, and humanitarian purposes serves to
    promote rather than undermine the law enforcement and national
    security interests of our country.
        There is concern that this waiver was provided in the
    interest of reserving the JCPOA in a manner inconsistent with
    the commitments the U.S. made in the deal. That is the nuclear
    deal with the Iran. For one, the waiver specifies travel after
    the date the agreement was signed. Additionally, the only
    reason Iran is subjected to these reforms is its designation as
    a state sponsor of terror. We were assured that Iran's support
    for terrorism was firewalled--if one can make a verb out of
    that--from the JCPOA negotiations, and for good reason, as we
    do not want to re-litigate the nuclear issue every time we take
    up one of the myriad challenges Iran poses to regional and U.S.
    security.
        In providing this waiver, the administration must answer
    these challenges and make crystal clear to Congress that it was
    not provided in the interest of addressing perceptions in
    Tehran. The grounds for this waiver must rest solely on a
    sincere interest to preserve the integrity of the Visa Waiver
    Program and its ability to serve as an incentive for
    implementing border security and surveillance best practices.
        I certainly look forward, Mr. Chairman, to hearing from our
    witnesses as to whether they believe that allowing, in limited
    circumstances, Europeans who have traveled to Iran for
    legitimate business to participate in the Visa Waiver Program
    and whether that creates a security risk or actually enhances
    national security.
        I look forward to hearing from our witnesses, Mr. Chairman,
    and I thank you for holding this hearing.
        Mr. DeSantis. Thank you. I will hold the record open for 5
    legislative days for any members who would like to submit a
    written statement.
        I will now recognize our panel of witnesses. I am pleased
    to welcome the Honorable Gil Kerlikowske, Commissioner of
    Customs and Border Protection at the U.S. Department of
    Homeland Security; Ms. Hillary Batjer Johnson, Deputy
    Coordinator for Homeland Security, Screening, and Designations
    at the Bureau of Counterterrorism at the Department of State.
    Ms. Johnson is accompanied by Mr. Edward Ramotowski, Deputy
    Assistant Secretary for Consular Affairs at the U.S. Department
    of State, whose expertise may be needed during the questioning.
        Ms. Jessica Vaughan, Director of Policy Studies at the
    Center for Immigration Studies; Mr. Emanuele Ottolenghi, Senior
    Fellow at the Foundation for Defense of Democracies; and Mr.
    Stephen Heifetz, partner at Steptoe and Johnson, LLP. Welcome
    all.
        Pursuant to committee rules, all witnesses will be sworn in
    before they testified. We will also swear in Mr. Ramotowski. So
    if you can please rise and raise your right hand.
        [Witnesses sworn.]
        Mr. DeSantis. Thank you. Please be seated.
        All witnesses answered in the affirmative.
        In order to allow time for discussion, please limit your
    oral testimony to 5 minutes. Your entire written statement will
    be made part of the record.
        Now, my pleasure, Mr. Kerlikowske, you are up.

                           WITNESS STATEMENTS

                      STATEMENT OF GIL KERLIKOWSKE

        Mr. Kerlikowske. Chairman DeSantis, Chairman Meadows,
    Ranking Member Lynch and Ranking Member Connolly, and
    distinguished members of the subcommittees, I returned on
    Sunday morning from California where CBP had an integral role
    in safeguarding the Super Bowl. I witnessed the aspects of
    CBP's very broad and complex mission all in one place,
    providing security, surveillance on the ground, surveillance
    from the air, screening cargo and deliveries for weapons and
    dangerous items.
        Well, Customs and Border Protection has a critical role in
    securing international travel against the threat of the
    terrorists and their supporters, while facilitating lawful
    travel and tourism. Every day, we process 1 million travelers.
    And as you know, when boarding a U.S.-bound flight, most
    foreign nationals must obtain a nonimmigrant visa issued by a
    United States Embassy or consulate, or the traveler must apply
    for a travel authorization through CBP's Electronic System for
    Travel Authorization, or ESTA.
        Through ESTA, CBP conducts enhanced vetting of these
    applicants in order to assess whether they are eligible to
    travel and whether they pose a potential risk to the United
    States. And over the past 15 months, CBP has worked with DHS to
    strengthen the security of the program through enhancements to
    ESTA in order to identify those who may pose a threat to the
    United States.
        And we have introduced additional ESTA data fields that
    have increased the ability of CBP and the National
    Counterterrorism Center to identify applicants with potential
    connections to terrorism.
        In addition to these enhancements, this past August,
    Secretary Johnson announced further security measures for the
    Visa Waiver Program countries, including increased traveler
    data collection, analysis, and reporting, and require the use
    of INTERPOL's Stolen and Lost Travel Document database and the
    required use of electronic passports, which contain additional
    security features.
        And on December 18, the President signed into law the
    Consolidated Appropriations Act of 2016, which includes the
    Visa Waiver Program Improvement and Terrorist Travel Prevention
    Act of 2015. And with some exceptions for official military and
    government travel, the law prohibits VWP travel for individuals
    who have been present at any time on or after March 1, 2011, in
    Iraq, Syria, or countries designated as state sponsors of
    terrorism, which includes Iran and Sudan. It also prohibits VWP
    travel for individuals who are dual nationals of one of these
    countries and a VWP country.
        CBP quickly began implementing some of the changes required
    by the new law. For example, we revoked 17,000 ESTA travel
    authorizations. We established, in conjunction with our
    interagency partners, a terrorist travel prevention cell in our
    National Targeting Center, and the cell will enhance the
    Department's efforts to identify and prevent foreign
    terrorists' fighter travel, and a subset of the cell's mission
    will be to scrutinize individual waiver requests permitted by
    the new law.
        Additionally, CBP will add new fields to the ESTA
    application by the end of this month that will ask additional
    questions to further improve our ability to vet individual
    travelers and make decisions about their eligibility in
    accordance with the recent changes.
        Well, as terrorists change their methods and tactics, DHS
    will continue to work our Federal and international partners to
    counter foreign fighter threats to the homeland. We'll continue
    to strengthen our travel security programs and systems and
    enhance our capabilities to secure international air travel
    against terrorists and others who threaten the safety of the
    traveling public and the security of our nation.
        Chairman DeSantis, Chairman Meadows, Ranking Member Lynch,
    Ranking Member Connolly, and members of the subcommittees,
    thank you for the opportunity to testify. Let me clarify that I
    came back before the Super Bowl. I did not stay for the Super
    Bowl.
        [Prepared statement of Mr. Kerlikowske follows:]
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        Mr. DeSantis. Thank you. Ms. Johnson, you are up for 5
    minutes.

                  STATEMENT OF HILLARY BATJER JOHNSON

        Ms. Johnson. Thank you. Good afternoon, Chairman Meadows,
    Chairman DeSantis, Ranking Member Connolly and Ranking Member
    Lynch, and distinguished members of the committee. I did not go
    to the Super Bowl either.
        Thank you for this opportunity to testify today on
    implementation of the Visa Waiver Program Improvement and
    Terrorist Travel Prevention Act of 2015. It's a pleasure to be
    here today with Commissioner Kerlikowske.
        My written statement describes how the Department of State
    has worked closely with the Department of Homeland Security to
    implement this new law, while ensuring our top priority remains
    the protection of the U.S. homeland. As a deputy coordinator
    for Homeland Security in State's Counterterrorism Bureau, the
    security of the homeland and the safety of our citizens is my
    constant focus.
        I welcome this legislation to strengthen the Visa Waiver
    Program. The VWP is a key counterterrorism tool that helps
    protect our homeland every single day. Our VWP partners must
    uphold strict security standards such as sharing information on
    known and suspected terrorists and criminals, and reporting
    lost and stolen passports to INTERPOL. We use VWP benefits to
    encourage greater information-sharing and more systemic
    screening by our allies. VWP requirements give our partners the
    impetus to tighten securities in ways that can be politically
    challenging for them.
        The U.S. Government assesses each VWP country's compliance
    at least once every 2 years, inspecting airports, seaports,
    land borders, and passport production and issuance facilities.
    No other program enables the U.S. Government to conduct such
    broad and consequential assessments of foreign partners'
    security operations.
        I'd also like to underscore that the VWP is not a free pass
    to travel to the United States. All travelers coming to the
    United States undergo checks for ties to terrorism and are
    subject to multiple layers of security, regardless of whether
    they have a visa or they enter under the VWP.
        As the Commissioner has noted, citizens of VWP countries
    apply to the United States via the ESTA, and CBP checks ESTA
    forms against U.S. terrorist and criminal databases before
    travelers are allowed to travel under the VWP. And that
    information our partners provide us as part of the VWP is a
    vital component of our terrorist and criminal databases.
        The layered security continues beyond this step. All
    travelers are screened by CBP's National Targeting Center
    before they board an airplane and after they're admitted into
    the U.S. And ESTAs are continuously reviewed and revoked
    immediately if new intelligence comes to light.
        Watch listing and screening and intelligence gathering are
    some of our best tools for countering terrorist travel. These
    tools are most effective when we're working in collaboration
    with our VWP partners, and that's an important counterterrorism
    partnership, the VWP.
        The 38 countries that are part of the VWP include many of
    our closest allies, and they're proud of their status. VWP
    membership is so prized that many countries not in the VWP
    complete program requirements in the hope of joining the
    program.
        I'd like to speak to the national security waivers
    authorized under the law. Under the new law, the Secretary of
    Homeland Security has the authority to waive restrictions if he
    determines that such a waiver is in the law enforcement or
    national security interests of the United States. We understand
    that Congress did not want to create blanket exemptions to the
    law, and that is why these waivers will be implemented on a
    case-by-case basis.
        After consulting with the Secretary of State, the Secretary
    of Homeland Security has determined that, as a general matter,
    it is in the national security interests of the United States
    to administer waivers on a case-by-case basis for certain types
    of ESTA applicants. I want to stress again that these are not
    blanket waivers. Again, the waivers would be administered on a
    case-by-case basis and are narrowly tailored to specific
    national security interests.
        We publicly outline these categories in which a waiver
    might apply to provide guidance to citizens of VWP countries.
    There's a lot of confusion about this law among some of our
    closest allies and trading partners. We need to let them know
    which of their citizens might receive a waiver and how that
    process would work. We noted in our guidance that each ESTA
    applicants would be considered on a case-by-case basis. In no
    instance is travel guaranteed under the VWP if a person falls
    into one of these identified categories.
        I'd like to share quickly some examples of why we think
    these narrowly tailored waivers are in our national security
    interests. For instance, we rely on employees at the
    International Atomic Energy Agency for the technical expertise
    to fight the spread of nuclear weapons around the world. Yet
    without a waiver, IAEA employees who went to Iran to pursue our
    national security objective of preventing Iran from obtaining a
    nuclear weapon will be considered security risks.
        Without waivers, UNHCR and World Food Program staff who do
    critical work helping refugees in Iraq or feeding starving
    children in Darfur, Sudan, would be unable to travel to the
    United States under the VWP.
        The European Union is an essential partner to us around the
    world, but without a waiver, representatives from the E.U.,
    including E.U. parliamentarians, would be ineligible to travel
    to the U.S. under the VWP.
        Additionally, we work closely with officials of the E.U.
    Counterterrorism Coordinator's Office, who travel frequently to
    Iraq. Without waivers, they would be denied ESTAs. And these
    waivers would allow us to maintain and build our relationships
    and cooperations with these institutions to work shared
    counterterrorism goals.
        Business representatives or NGO employees who have traveled
    to Iraq to help with schools, roads, and hospitals would be
    denied travel under VWP even though they're only doing work we
    have encouraged to help stabilize and rebuild that country's
    economy.
        In Syria, the world relies on journalists facing great
    danger to report human rights violations, allegations of
    chemical weapon use, and brutality of that ongoing conflict
    that we might otherwise not know about. Yet without waivers,
    they, too, would be denied travel under the VWP.
        I recognize that participating in the VWP is a privilege
    and not a right, but denying VWP participation to citizens of
    member countries who are doing work we promote and support is
    counter to our national security interests.
        I want to stress again that every VWP traveler considered
    for a waiver will be closely examined to see if they meet the
    stringent requirements to travel under the VWP. A case-by-case
    application of waivers in these narrow instances allows us to
    advance our national security interests and direct our
    resources to higher-risk threats.
        As I've discussed, we believe there are significant
    national security interests for the United States to utilize
    its waiver authority, and we can do so without compromising the
    safety of our fellow citizens at home and overseas and the
    security of the traveling public.
        Mr. Chairman, Ranking Member DeSantis, Ranking Member
    Connelly, and Ranking Member Lynch and distinguished members of
    the committee, thank you for your time. I look forward to your
    questions.
        [Prepared statement of Ms. Johnson follows:]
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        Mr. DeSantis. Thank you.
        The chair now recognizes Ms. Vaughan for 5 minutes.

                    STATEMENT OF JESSICA M. VAUGHAN

        Ms. Vaughan. Thank you for the opportunity to testify
    today.
        Last year, Congress passed the first meaningful
    improvements to the Visa Waiver Program in some time, an
    acknowledgment of the elevated threat we face now from
    terrorism, espionage, and the inappropriate transfer of
    technology. These sensible and modest changes will allow for
    more scrutiny of certain travelers coming from Visa Waiver
    Program countries based on their dual nationality or their
    travel history by requiring them to get a visa.
        This is important because the visa application process is
    not overly burdensome, but it does offer the opportunity for
    much more review than is possible under the Visa Waiver Program
    for several reasons because the visa process gives the
    government the time and the opportunity to ask questions and to
    ascertain more about the applicant's credibility and purpose
    for travel. The ESTA on the other hand is filled out online and
    people can submit it just hours before departure. The
    opportunity is for other agencies to help review these
    applications if needed, whether it's through the security
    advisory opinion process or other consultation with experts at
    post in which DHS, FBI, intelligence agencies, Treasury
    officials, Department of Commerce, and others can review the
    applications if the consular department feels it needs that
    additional consultation.
        The ink from the President's signature on the law was
    barely dry when the Obama administration significantly
    undermined these reforms by unilaterally offering waivers that
    were not explicitly authorized in the law. This is a problem
    not only because it is a flagrant abuse of executive authority
    and a breach of the agreement with Congress, but because the
    administration's plan will expose our nation to real threats.
        One of the categories of travelers the administration has
    carved out for waivers, dual nationals traveling to Iran and
    Iraq for business purposes, is precisely the category of
    travelers that needs to be scrutinized more closely because of
    past cases of espionage and illegal technology transfer.
        The risks inherent in the Visa Waiver Program are
    compounded by the President's tendency to allow the admission
    of increasing number of foreign visitors, to gloss over the
    threats, to oversell his agency's ability to screen out risks,
    and to suppress the enforcement of immigration laws in the
    Interior.
        I believe there were sound reasons to impose these
    restrictions. The immigration systems of Europe and the United
    States have already been exploited by terrorists with European
    citizenship and other dual nationalities linked to terrorism
    and other illicit activity that threatens national security.
        Congressional leaders are rightfully angry about this move.
    The law provided the executive branch with the authority to
    issue waivers only for those dual nationals who were serving in
    military or civilian government jobs, not for journalists, aid
    workers, or business travelers necessarily.
        One of my main concerns is that the Visa Waiver Program is
    already a major national security vulnerability that needs to
    be addressed. There are thousands of individuals who were
    involved with or sympathetic to terror groups and countries
    that sponsor terror who also hold passports of countries that
    participate in the Visa Waiver Program who can travel to the
    U.S. without undergoing the scrutiny of a visa interview.
        Since 2014, there have been more than 100 foreign-born
    individuals who've been arrested for involvement in a terror
    operation after being admitted to the U.S. And DHS has yet to
    disclose the manner of entry for most of them, but we do know
    that terrorists have used the VWP to enter in the past.
        My organization has identified more than 50 naturalized
    U.S. citizens who have been charged with serious national
    security-related offenses such as terrorism, spying, and theft
    of sensitive information and technology. Many were already
    associated with terror groups or foreign intelligence when they
    naturalized. Eight were born in Iran, and their crimes included
    exporting sensitive equipment, military equipment, satellite
    technology, and so on. So, clearly, dual nationality is a vital
    and frequently used tool for terror and espionage operations.
        The number of Visa Waiver Program entries has been rising
    significantly. In 2014, more than 20 million visitors were
    admitted under that program, which is a 24 percent increase
    since 2008, and that means many more people who need to be
    vetted by our screening systems and by CBP inspectors.
        We know that the Visa Waiver Program is frequently abused.
    In fact, visa waiver overstays make up 29 percent of the total
    number of overstays by visitors who were admitted under the
    short-term B-1/B-2 category in 2015. The total number of Visa
    Waiver Program overstays just in 2015 was more than 150,000,
    and these overstayers, we also know, are not a high priority
    for ICE. Only about 1 percent are ever investigated, and few
    are deported.
        The other main concern I have is that one of the categories
    of travelers carved out for waivers is dual nationals traveling
    to Iran and Iraq for business purposes, and that's a category
    of travelers that present a significant national security risk
    because Iran has a comprehensive, effective, and aggressive
    intelligence program that expends substantial time and
    resources targeting U.S. military equipment, plans, and
    programs, as well as dual-use technology.
        It's not just reasonable but urgent that our government
    take the steps to address this vulnerability, and Congress has
    come up with a tool that, if anything, should be expanded, not
    scaled back.
        Thank you.
        [Prepared statement of Ms. Vaughan follows:]
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        Mr. DeSantis. Thank you.
        The chair now recognizes Mr. Ottolenghi for 5 minutes.

                    STATEMENT OF EMANUELE OTTOLENGHI

        Mr. Ottolenghi. Chairmen DeSantis and Meadows, Ranking
    Members Lynch and Connolly, members of the committee, on behalf
    of the Foundation for Defense of Democracies, thank you for the
    opportunity to testify.
        Entry into the United States under the Visa Waiver Program
    is a privilege, not a right, bestowed on a select group of
    countries. Today, we discuss whether it is reasonable to
    require greater due diligence for a select group of visitors
    from visa waiver countries on the basis that they are dual
    nationals of Iran or a handful of other countries.
        Greater due diligence is, in my view, a sound and not
    unduly burdensome measure. Dual nationals can continue to
    travel to the United States provided they first apply in person
    and receive a visa. Many of us in this room have had to apply
    for visas to travel to other countries. While an annoyance, it
    is not an overly onerous exercise.
        In the case of Iranian dual nationals, this added layer of
    due diligence is critical to the national security of the
    United States. Tehran has long relied on dual nationals to
    pursue illegal activities. Clearly, not every dual national is
    a government agent, but virtually all agents of the Iranian
    regime who are involved in conspiracies to commit acts of
    terrorism or nuclear and ballistic procurement were dual
    passport holders.
        With effective enforcement, the visa waiver exception will
    make it more difficult for them to engage in criminal
    activities on American soil. Tehran relies on dual nationals
    because a non-Iranian passport generally draws less scrutiny at
    border crossings. It also makes it easier to open foreign bank
    accounts and corporate companies and conduct financial
    operations overseas.
        My written testimony provides five recent examples of dual
    nationals' critical role in Iran's terror plots. Here are
    examples of cases in which Tehran relied on dual nationals for
    other illicit activities and to obscure the Iranian ownership
    of companies.
        Slide 2, please.
        [Slide.]
        Mr. Ottolenghi. MCS Systems was a German gas-cylinder
    factory owned by EIKO, the supreme leader's holding company,
    which the U.S. Treasury sanctioned in 2013. EIKO obfuscated its
    ownership by transferring it to two Iranian-Canadian dual
    nationals who then reported directly to EIKO, the goal, to
    attempt and evade sanctions.
        In 2010, Treasury sanctioned IFIC Holding, the German-based
    subsidiary of Iran's Foreign Investment Company. Commercial
    extracts for SWIFIC Holding, its Swiss branch, show its owners
    were Canadian and a German dual national. The goal again, avoid
    sanctions.
        Iran's airline Mahan Air provides more evidence of the role
    of dual nationals. Treasury designated Mahan Air in 2011 ``for
    providing financial material and technological support to the
    Quds Force, including transporting personnel and weapons to
    Syria's regime. Mahan relies on dual nationals to run its front
    companies in Europe while continuing to facilitate ethnic
    cleansing and other crimes against humanity in Syria.
        In most waiver countries, obtaining citizenship is a
    lengthy process with stringent requirements. Some countries,
    however, are making their citizenship readily available through
    investment. Iranian nationals, among others, are exploiting
    this. In 2014, the U.S. Treasury issued an advisory that
    certain individuals were abusing the Citizenship-by-Investment
    program of St. Kitts and Nevis to obtain passports for the
    purpose of engaging in illicit financial activity. The advisory
    made particular reference to Iranian nationals.
        Three Iranian businessmen with quickly obtained St. Kitts
    citizenship built a complex financial sanctions evasion network
    spanning the globe, including the United States. Despite
    Treasury sanctions, they moved across borders easily and
    reconstituted sanctioned companies under new names thanks to
    their St. Kitts passport, and for one of them, a Canadian
    permanent residency.
        This is not an isolated case. New programs from visa waiver
    countries are now available to wealthy investors, including
    Iranians in search for a second passport. Such programs may
    become a gateway to a visa-free entry into the United States
    for Iranian procurement agents. The lifting of sanctions
    against Iran may actually increase the number of regime agents
    trying to enter the U.S.
        The steps Congress now takes must ensure that actors
    involved in facilitating proliferation and other illicit
    activities abroad do not benefit from free access to the United
    States. The United States should explain to all visa waiver
    countries offering or considering citizenship and permanent
    residency by investment that the due diligence and stringency
    of the requirements of their programs may affect their status.
    Their programs should not become a shortcut to entering the
    United States.
        The suspension of the Visa Waiver Program for dual
    nationals of Iran is the direct result of the regime's close
    association with terrorism and other illicit activities. The
    dangerous exploitation of foreign passports for illicit
    purposes justifies the inconvenience posed to the relatively
    few who will now have to obtain a visa in person. The singling
    out of Iranian dual nationals is thus not only appropriate but
    should be a vital component of homeland security policy.
        My written testimony provides additional recommendations.
    Thank you for the opportunity to testify, and I look forward to
    your questions.
        [Prepared statement of Mr. Ottolenghi follows:]
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        Mr. DeSantis. Thank you.
        The chair now recognizes Mr. Heifetz for 5 minutes.

                      STATEMENT OF STEPHEN HEIFETZ

        Mr. Heifetz. Thank you, Chairman DeSantis, Ranking Member
    Lynch, Chairman Meadows, and Ranking Member Connolly. Thank you
    to all of the distinguished members of the Subcommittees on
    National Security and on Government Operations. I appreciate
    the opportunity to participate in this hearing about the Visa
    Waiver Program.
        My name is Stephen Heifetz. I'm a partner at Steptoe and
    Johnson, an international law firm. And prior to joining
    Steptoe, I served from 2006 to 2010 in several positions at the
    Department of Homeland Security, including as deputy assistant
    secretary for policy development, where I had oversight
    responsibility for the VWP.
        Under the VWP, DHS waives the B non-immigrant visa
    requirement for aliens traveling from 38 approved countries,
    all U.S. allies, to permit stays of up to 90 days for business
    or tourism. The effect of the waiver is that the standard visa
    interview by a U.S. consular officer, which generally requires
    the traveler to go to a consular office in person, is not
    required. This does not mean, however, that DHS waives security
    requirements for these travelers. In fact, under the VWP, DHS
    mandates additional more stringent security requirements for
    both the individual traveler and his or her home country.
        The 38 U.S. allies that are VWP members must meet high
    security standards to enter and maintain membership in the VWP,
    and substantial checks are conducted on every traveler. The
    result is a system that provides as much security against
    terrorist or criminal travelers as the visa system.
        Nevertheless, many in the media and elsewhere have labored
    under the misapprehension that security standards have been
    looser for VWP travelers than for those traveling with a visa
    and that this poses a threat to U.S. national security. At
    least since reforms implemented about a decade ago, that
    perception has been inaccurate. Security experts in both the
    Bush and Obama administrations have lauded the VWP as a good
    security program. But, like any successful security program,
    the VWP has continued to be closely reviewed over the years,
    undergoing further reform as new threats are perceived.
        The most recent VWP statutory reforms were enacted as part
    of the 2016 Consolidated Appropriations Act in December 2015.
    Among other things, the new law generally precludes travel
    under the VWP for dual nationals of Iran, Iraq, Syria, and
    Sudan, and further, the new law generally precludes travel
    under the VWP for those who have traveled to these countries.
        There are, however, exceptions for those who travel to
    perform military service or other official duties of a VWP
    member country. In addition, the new law provides that the DHS
    Secretary may, with respect to any particular traveler, waive
    the prohibitions with regard to Iran, Iraq, Syria, and Sudan if
    doing so is in the national security interests of the United
    States.
        Such a waiver would allow VWP travel to the U.S. by a
    citizen of a VWP member country notwithstanding dual
    nationality or travel involving the four countries of concern.
    For example, a Japanese businessperson who travels to Iraq for
    business or an Australian doctor who provides humanitarian aid
    in Syria generally would be ineligible for VWP travel under the
    new law, but that ineligibility can be waived by the DHS
    Secretary.
        This national security waiver authority is important.
    Here's one illustration why. The United States and other world
    powers recently signed a momentous deal with Iran that
    addresses Iran's nuclear weapons program. Under this deal, the
    Joint Comprehensive Plan of Action, JCPOA, European companies
    now will have regular business dealings with Iran. It's common
    and will become ever more common for a European businessperson
    to travel to Iran to conduct legitimate business. But if that
    European businessperson's travel will preclude further travel
    to the U.S. under the Visa Waiver Program, that might deter
    European business dealings with Iran. If you're a Londoner or
    Parisian sitting in London or Paris and considering traveling
    to Iran to scout a business deal, you might reconsider because
    of the potential loss of VWP privileges.
        As part of the JCPOA, though, the U.S. committed to refrain
    from creating new types of sanctions on Iran. More
    specifically, the U.S. agreed to refrain from, quoting from the
    JCPOA text, ``imposing exceptional or discriminatory regulatory
    and procedural requirements in lieu of the sanctions and
    restrictive measures covered by the JCPOA.''
        Some have argued that this commitment necessitates U.S.
    waivers to allow legitimate business travel to Iran without the
    loss of VWP privileges. Even if one thinks the JCPOA was a bad
    deal, the administration fairly can claim that it is in the
    national security interest of the United States to ensure JCPOA
    compliance by Iran. And ensuring compliance is made much more
    difficult if Iran can allege that the U.S. has breached its
    obligations by creating obstacles to Iranian travel. That is
    one reason the administration should be granted deference in
    determining how to utilize the waiver authority under the new
    VWP law.
        And there are other reasons. There is a great need for
    humanitarian intervention in some of the poor countries of
    concern, Syria and Iraq in particular. Without the exercise of
    waivers, the loss of VWP privileges may deter needed
    humanitarian travel to these countries. The Australian doctor
    who wants to offer medical services in Syria may reconsider if
    doing so will cause a loss of VWP privileges. Such thinking
    could, ironically, have adverse effects on U.S. security.
        More fundamentally, waivers that allow travel under the VWP
    should not cause undue concerns because the VWP fundamentally
    is a strong security program. I've alluded to that previously
    and discussed it in more detail in my formal written testimony.
        You have other witnesses today that can speak to the
    operational security of the VWP so I'll close my verbal
    testimony and would be happy to address questions.
        [Prepared statement of Mr. Heifetz follows:]
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        Mr. DeSantis. Thank you. The chair now recognizes himself
    for 5 minutes.
        Ms. Johnson, as a general matter, requiring a foreign
    national traveling to the United States to obtain a visa, how
    does that damage national security?
        Ms. Johnson. Thank you, sir. As I mentioned in my remarks,
    the VWP is a very important and significant counterterrorism
    tool. The security requirements under the VWP ----
        Mr. DeSantis. That is not my question. You are saying some
    people may be ineligible for the VWP, so my question is, okay,
    that means they would have to get a visa. So the requirement to
    get a visa, how does that damage national security?
        Ms. Johnson. So citizens of those VWP countries are very
    are suddenly treated as a heightened security risk. So what
    we've heard from our European colleagues in particular just
    even yesterday ----
        Mr. DeSantis. Well, wait--okay, yes, but why--I mean, you
    have some of these people in like Brussels and some of these
    jihadist-infested areas. I mean, why would we not want to treat
    them as a heightened security?
        Ms. Johnson. Well, again, I mean ----
        Mr. DeSantis. They are a heightened security risk, aren't
    they?
        Ms. Johnson. Well, these waivers are again very limited and
    very narrowly focused and would be done on a case-by-case
    basis. And again, of those categories of travelers we were
    looking at, it's not somebody who would just go to Syria to go
    visit perhaps and go attend a terrorist training camp. We're
    looking at, again, very limited and very focused waiver
    categories that's permissible under the law.
        Mr. DeSantis. Well, I think that the testimony alluded to--
    so under the administration's action with respect to the visa
    waiver changes that were enacted by Congress, they would allow
    somebody who is a national of, say, Iran and a European country
    who qualified under Visa Waiver Program. If that Iranian
    national is traveling back to Iran to do business, even though
    the businesses may have connections with the Revolutionary
    Guard Corps, they would quality under the business exemption,
    correct?
        Ms. Johnson. No, that's not correct, sir.
        Mr. DeSantis. Why not?
        Ms. Johnson. So, again, these are limited case by case.
    They would be focused on being reviewed. And again, these
    individuals are going to be screened against all of our
    databases, again, with information provided by the VWP
    countries.
        Mr. DeSantis. Well, but I think that is the issue is that
    the reason why you want someone to obtain a visa, I mean, if we
    are confident that everyone is a threat is in the database,
    then you are right, there are certain things that could catch
    him at an airport. But the whole idea is, you know, you have
    someone like Tashfeen Malik. You know, she didn't pop on those
    databases. We were hoping that that visa process that she went
    through would have ferreted her out and would not have allowed
    her entry into the United States.
        And so let me just return just as a general--because I
    don't think I got a clear answer. You know, Israel, non-visa
    waiver country, Azerbaijan, Shiite Muslim ally of ours. Iran,
    they don't like that Shiite Muslim government. You know, they
    are not on the Visa Waiver Program. So how does it damage
    national security to require these travelers from those areas
    to get a visa?
        Ms. Johnson. I'm not sure I understand the linkage with
    Israel and Azerbaijan.
        Mr. DeSantis. Just there are different countries that we
    are allies with where their citizens have to get a visa in
    order to come here that are not under the Visa Waiver ----
        Ms. Johnson. I understand.
        Mr. DeSantis.--Program. So my question is is why not err on
    the side of caution? And if you require someone to get a visa,
    how does that fact damage our national security?
        Ms. Johnson. So again, these visa waiver partner countries,
    their citizens are being treated as a heightened security
    concern and we're looking at not damage--we're leveraging the
    program to get additional information-sharing requirements. We
    go and interview their--we, you know, examine their seaports,
    their land borders, their airports. We're getting more out of
    the Visa Waiver Program as a counterterrorism tool than perhaps
    what we would be doing with a non-VWP partner.
        So again, I think that we're looking at the fact that we're
    treating these individuals as heightened security risks and
    we're utilizing this waiver ----
        Mr. DeSantis. Okay. So ----
        Ms. Johnson.--to look at a narrow group ----
        Mr. DeSantis. But I ----
        Ms. Johnson. And those countries may not cooperate with us
    as a counterterrorism matter if there's ----
        Mr. DeSantis. Which countries ----
        Ms. Johnson.--a consideration ----
        Mr. DeSantis.--have indicated that?
        Ms. Johnson. Well, we've had a number who have been very
    concerned. Again, yesterday ----
        Mr. DeSantis. Which ones?
        Ms. Johnson. We've met--I've met with the Swiss, I've met
    with the French, I've met with the E.U., I've met with Japan.
    They've all expressed concerns. And as Mr. Steifletz--or
    Heifetz has mentioned that they may actually choose not to come
    to the United States because they're concerned--or not got to
    Iran or they might not go to Iraq, participate in a
    humanitarian mission because they're concerned about this, that
    they're being treated--their citizens are being treated as a
    heightened security risk.
        Our VWP program is going under--every traveler under the
    VWP program is going under heightened security screening just
    like they will with visas. So I take issue that the fact that
    they don't get an SAO review, they do. They don't get an
    automatic ESTA just because they've applied and answered
    questions. Every one of those individuals are completely
    scrubbed against our screening databases before being issued an
    ESTA, and then those ESTAs are reviewed continually.
        Mr. DeSantis. So, yes, they are traveling to Iran, some of
    them are doing business with Iran. Iran is the number one state
    sponsor of terrorism in the world. The State Department
    considers the government of Iran to be a state sponsor of
    terrorism. The Revolutionary Guard Corps is a designated
    terrorist group.
        So yes, they would be treated differently, but aren't there
    legitimate reasons why they should be treated differently given
    the circumstances? I mean, if a Japanese citizen is going to
    Taiwan to do business, you know, the idea that that was going
    to affect the visa waiver status, I mean, I get that, but you
    are traveling to Iran, given the circumstances, how is it
    unreasonable to think that that would be something that we
    would be concerned about?
        Ms. Johnson. Again, individuals from the VWP countries
    going and conducting legitimate business in Iran that's
    permissible under the JCPOA shouldn't be penalized or shouldn't
    be considered a heightened risk. Of course, again, we would do
    all of the routine screening on each individual ----
        Mr. DeSantis. So ----
        Ms. Johnson.--to ensure that they are not a threat to the
    United States.
        Mr. DeSantis. So you are worried about penalizing someone
    going to Iran to do business even though that could potentially
    expose the American people to more danger? And I get like the
    visa waiver--you know, the sharing of intelligence. I think
    that is good. But the bottom line is it is easier to come here
    if you qualify for a visa waiver. And if you are not in the
    database, you know, I don't think that you are going to be able
    to be found out.
        My time is up. I am going to recognize Mr. Lynch for 5
    minutes.
        Mr. Lynch. Thank you, Mr. Chairman.
        Let's stay on that, Ms. Johnson. So a number of my
    colleagues have expressed concern that waivers could be granted
    to individuals for reasons that might run contrary to our
    national security interests as required under the law. What is
    the countermeasure against that within the system? How do we
    make sure--and, look, I am sort of the devil's advocate here. I
    spent a lot of--a lot of members on this committee spent a lot
    of time in the Middle East so we--but just came back again from
    visiting all these refugee camps, been to Sudan so I know--and
    that is on the list here, too, certainly understand all the--
    the huge number of NGOs that we have working on these countries
    on behalf of the American people, which the goal is to keep the
    refugees from flooding into Europe and elsewhere, this huge
    diaspora that has been created because of the war in Iraq and
    Syria. They are trying to keep them stable and in safe
    conditions on the border.
        So as a result, we have got a lot of people--USCIS does
    great work on our behalf. We have got a bunch of different--the
    World Food Program did great work. But we do have a lot of
    people that end up especially in Iraq. We have got tons of
    contractors that are going in and out of Iraq on a regular
    basis. How do we create a countermeasure within--and, Mr.
    Heifetz, you might want to join in on this because your
    testimony speaks to this issue as well. How do we rest assured
    that someone is not breaching the Visa Waiver Program with
    nefarious intent, that someone gets a waiver from the Secretary
    of DHS and, you know, does what, you know, these folks in Paris
    did or San Bernardino did?
        Ms. Johnson. Yes, so again, the Visa Waiver Program
    requires much more strict security standards, so all of the
    countries have to meet those strict security standards.
    Countries that don't issue--don't have to have to have their
    citizens come get visas do not necessarily have those--I mean,
    they certainly don't have those standards that they're required
    to meet. So that's on the front end. And then we're inspecting
    those on a regular basis.
        It's important to stress that the information-sharing that
    we get from them, the known and suspected terrorist information
    we receive from those VWP countries again enhances our
    screening databases. So we're getting more information through
    the VWP partnership than we would any other country
    relationship that we have outside the VWP.
        Then we have the additional layered security, so an
    individual who might be a humanitarian worker applying for an
    ESTA because they want to utilize this waiver, it should be
    important to note that they're not applying for the waiver.
    They're applying for the ESTA. So the ESTA then has more
    stringent questions. I would be frank in, you know, that we
    have only a couple minutes in a visa window. You're asking a
    number of questions through the ESTA process, which we then
    look--work really hard to verify. We also screen against all of
    our databases, both terrorism and criminal. And then for all
    travelers, whether they're visa or--traveling under the visa or
    the VWP, we have layered security portions again to ensure
    we're not entering--having people enter the United States that
    should do us harm.
        Mr. Lynch. Okay. So in the past--and I want to ask you
    about the lists--we had a situation where there were some
    workers, I believe about 72 workers that went through DHS
    screening and were able to obtain security badges to work in
    secure areas of our airports, yet they were on the TIDE list.
    They were on one of our terrorist lists. Has that been
    straightened out? Because earlier on, DHS and people weren't
    sharing lists, and that was the root cause of that problem.
        Now, I have been reassured in other forums that that
    problem has been addressed and the lists are being shared so
    that is not going to happen anymore. Is that your
    understanding, Mr. Kerlikowske?
        Mr. Kerlikowske. So TSA runs that part of the program and
    Admiral Neffenger. And I know that they have just gone back
    under his direction and completely rescreened all of those
    individuals against all of these different databases. They've
    rescreened all of these individuals as a result of that.
    There's another group, of course, that works on the ports and
    the cargo crane and operators of other equipment. That is run
    through the United States Coast Guard, and as I understand it,
    they are also in that process.
        But within DHS and our partner government agencies under
    the--especially under the National Targeting Center, I would
    tell you that there is no database that cannot be shared and is
    not run against others.
        Mr. Lynch. Okay. I see my time is expired. I will yield
    back. Thank you.
        Mr. DeSantis. The gentleman yields back.
        The chair now recognizes the gentleman from North Carolina,
    Mr. Meadows, for 5 minutes.
        Mr. Meadows. Ms. Johnson, you say you are going to do these
    waivers on a case-by-case basis, so I guess you have got a
    criteria set for how they get a waiver or not?
        Ms. Johnson. I think that would be more of a question for
    DHS in the process of how those waivers are administered.
        Mr. Meadows. So is there a criteria?
        Mr. Kerlikowske. There's a system that--by February 23 that
    will have all of these additional questions. For instance, if
    you were doing legitimate business in Iran, you would have to,
    of course, had an Iranian business passport with those numbers.
    So ----
        Mr. Meadows. What part of the law, I guess ----
        Mr. Kerlikowske.--there'd be a whole ----
        Mr. Meadows.--talked about business purposes having a
    waiver?
        Mr. Kerlikowske. So the protocol would be that if you were
    claiming that you wished under--and, by the way, no waiver has
    been granted and no waiver ----
        Mr. Meadows. Right, but it is a national security or law
    enforcement waiver. It was fairly clear, wasn't it, national
    security or law enforcement waiver, isn't that right, Ms.
    Johnson?
        Mr. Kerlikowske. It is correct.
        Mr. Meadows. Okay. So how can you quantify that a business
    purpose is a national security purpose?
        Mr. Kerlikowske. So I think there are ----
        Mr. Meadows. I am a business guy, so that means I am a
    national security risk.
        Mr. Kerlikowske. Or a national security benefit.
        Mr. Meadows. Because what I am hearing--and let me tell you
    what troubles me. It sounds like we have created a jobs program
    for Iran that we are concerned about their business activity at
    the expense of the national security of all freedom-loving
    Americans. Have we done that? Because that is what Mr. Heifetz
    indicated. It is important for their economy. So is that what
    we have done, Ms. Johnson? We have created a jobs program?
        Ms. Johnson. No, sir. This ----
        Mr. Meadows. Then why do we give an exception according to
    DHS--I guess the exception is for legitimate business purposes?
    And it is not just in Iran. It is in Iraq, and they are not
    part of the agreement in terms of the JCPOA. So why would we
    include Iraq and Syria and Sudan if it is not trying to help
    them get investors from Europe?
        Mr. Kerlikowske. Well, under the business it is only Iraq
    and Iran, and we certainly want to see Iraq's economy do ----
        Mr. Meadows. So it is a jobs program?
        Mr. Kerlikowske. Well, we certainly want to see Iraq's
    economy do better so that they can support their own defense --
    --
        Mr. Meadows. But I can tell you that was nowhere in the
    deliberations between the minority or the majority when we were
    talking about this. It had nothing to do with business
    purposes. So how does the administration start to interpret
    this law as somehow being a jobs program? Ms. Johnson?
        Ms. Johnson. Again, it's not a jobs program. It's not
    about--it's not about Iran. It's about our national security.
    And I work in the Counterterrorism Bureau at the State
    Department, and so I'm very focused on the fact that the
    protection of the homeland--which the entire State Department
    is focused on--is one of our major priorities.
        Mr. Meadows. So wouldn't allowing more business travelers
    who travel from Belgium or France going to Iran potentially
    create a greater national security threat than if they never
    traveled there at all?
        Ms. Johnson. I don't think ----
        Mr. Meadows. I'm not talking about the Visa Waiver Program
    because I know you have been defaulting that. Could it not
    potentially create a greater national security threat?
        Ms. Johnson. I don't see the connection in the sense that
    these are--under the JCPOA, these countries can ----
        Mr. Meadows. No. One of them is. Not all those countries
    are under that. Am I confused? Or are they all under that? I
    thought only a few of those were, like one.
        Ms. Johnson. The program--the VWP partnership, again, for
    us with our partners under the VWP program ----
        Mr. Meadows. That is different ----
        Ms. Johnson.--they can go ----
        Mr. Meadows. That is different than what you just said,
    though. I understand. So if the VWP program is all great, why
    don't we expand it to all the countries if it actually
    increases our national security? Why don't we increase it to
    Israel?
        Ms. Johnson. I would think that, you know, they're--again
    ----
        Mr. Meadows. Aren't they an ally?
        Ms. Johnson.--for those countries that want to be part ----
        Mr. Meadows. They are a closer ally than Iran, aren't they?
        Ms. Johnson. Well, there's requirements to get into the
    program, a number of factors ----
        Mr. Meadows. But Iran hasn't met those requirements, have
    they?
        Ms. Johnson. Well, it's--visas ----
        Mr. Meadows. But they are ----
        Ms. Johnson.--it's not about Iran.
        Mr. Meadows. But they are enjoying the benefit. Let me go
    on. I got a few minutes left.
        For DHS, the report that you sent only had 2 of 70 types of
    visas. Is there any reason why we excluded the other 68 types
    on that report?
        Mr. Kerlikowske. So we were given this mission by--the
    entry-exit mission by Congress in 2013.
        Mr. Meadows. Oh, no, no, no, no, no, no. There is a GAO
    report. You were given the mission back in the 1990s.
        Mr. Kerlikowske. I'm sorry. I'm speaking as the
    commissioner of Customs and Border Protection.
        Mr. Meadows. Okay. Your agency?
        Mr. Kerlikowske. Right. We were given that mission in 2013.
    And as you know, there had not been a visa waiver overstay
    report for many, many, many years.
        Mr. Meadows. Nineteen ninety-four.
        Mr. Kerlikowske. Right, until last year. It was very clear
    that there was a lot of ----
        Mr. Meadows. But there hasn't still been one. Let's be
    clear about that. We have had a partial report.
        Mr. Kerlikowske. I'll agree that the--certainly a partial
    report. It is certainly a step ahead and a step better than
    what had ever been issued before under many administrations.
        Mr. Meadows. Well, that is true because it hadn't been
    issued in 20 years, so I mean something is always better than
    nothing. I guess my--when are we going to get the full report?
        Mr. Kerlikowske. So the full report and the number of
    things--and we'd be happy to spend some time with you or your
    staff briefing you about all the things that DHS and Customs
    and Border Protection is doing to try to increase the quality
    of the data. You know that an overstay--if you leave the
    country one day after your visa expired, you're considered an
    overstay even though you have left the country and ----
        Mr. Meadows. Yes, but that is not the numbers we are
    talking about.
        Mr. Kerlikowske. Okay.
        Mr. Meadows. Let's don't give a false premise here ----
        Mr. Kerlikowske. Okay.
        Mr. Meadows.--and if the chair will indulge this last
    clarifying question. We have reason to believe that the number
    of overstays, if you include all the categories, is closer to
    3/4 of a million versus the 500,000 that has been indicated.
    Would you agree with that ----
        Mr. Kerlikowske. I ----
        Mr. Meadows.--estimate? Have you seen any estimate?
        Mr. Kerlikowske. I don't--no, I have not.
        Mr. Meadows. All right. I yield back.
        Mr. DeSantis. The gentleman yields back.
        The chair now recognizes the gentleman from Virginia, Mr.
    Connolly, for 5 minutes.
        Mr. Connolly. Thank you so much.
        Just for the record, Mr. Kerlikowske, Ms. Johnson, you
    aren't in some secret conspiracy to allow terrorists to come
    into the United States, are you?
        Mr. Kerlikowske. No, sir.
        Ms. Johnson. No, sir.
        Mr. Connolly. And you are both under oath.
        Mr. Kerlikowske. Correct.
        Ms. Johnson. Yes.
        Mr. Connolly. Oh, good. Thank God. Okay. I just want to
    make sure because sometime in listening to some of the
    criticism, one would draw perhaps a strange conclusion.
        Mr. Heifetz, were you advocating for a jobs program through
    the use of this program in Iran?
        Mr. Heifetz. No, I was not.
        Mr. Connolly. What were you advocating or digressing about?
        Mr. Heifetz. Ensuring--that was suggesting that the
    administration needs deference in the exercise of the national
    security exemption, among other things, to ensure that all
    sides to the JCPOA are compliant.
        Mr. Connolly. Might there be unintended consequences with
    the law we passed in December? Could there be, you know, people
    caught up in it that we didn't intend to--or presumably didn't
    intend to be caught up in it?
        Mr. Heifetz. Yes.
        Mr. Connolly. Could an IAEA inspector, for example,
    critical to validating compliance with the JCPOA--that is to
    say the nuclear agreement with Iran--could they be caught up in
    the net unwittingly?
        Mr. Heifetz. Yes.
        Mr. Connolly. So we might want to make an exception there?
        Mr. Heifetz. For sure.
        Mr. Connolly. Mr. Lynch talked about going to refugee
    camps. So, for example, Medecins Sans Frontieres or Doctors
    Without Borders or U.N. officials who are doing humanitarian
    work, certainly something we would laud, we might want to give
    due deference to the administration in making sure they are not
    unwittingly caught up in this law and prevented from coming
    into the United States through the waiver program? Would that
    be a fair statement?
        Mr. Heifetz. That seems sensible.
        Mr. Connolly. Ms. Johnson, is that of concern to the State
    Department? Are there some unintended consequences from a law
    we passed that you are trying to address through
    implementation, as well as Mr. Kerlikowske at DHS?
        Ms. Johnson. Yes. Again, with our foreign partners who feel
    that those individuals are being considered a heightened
    security risk, yes.
        Mr. Connolly. Our foreign partners? That is to say they are
    concerned about this?
        Ms. Johnson. Yes. And we're ----
        Mr. Connolly. So there are foreign policy relations that
    could also be at risk because we have maybe passed a law with
    good intent and out of deep concern to protect the country, but
    there may be some unforeseen aspects of that law, consequence
    of that law that could affect our partners, our allies, and we
    need to address that. Otherwise, we are needlessly alienating
    friends and partners we need in other endeavors. Would that be
    a fair statement?
        Ms. Johnson. Yes, and for the national security of the
    United States. We rely on those partners to help protect the
    U.S. homeland.
        Mr. Connolly. Right. Are there any such partners who have
    publicly called for us to make adjustments because of those
    concerns?
        Ms. Johnson. I would have to get back to you, but I know
    the E.U. has themselves, I believe, sent a letter to the
    Speaker of the House.
        Mr. Connolly. Okay. So it is not an idle speculation. We
    actually have a record of concern by Europe, not a trivial
    partner or ally. Okay.
        The issue of dual nationals--and I know it has been
    addressed--but is there another side, either Mr. Kerlikowske or
    Ms. Johnson, to the debate on dual nationality? Because I can
    tell you my district, there are certain ethnic groups who are
    apoplectic about the application of this law because they feel
    they are unwitting victims and they are not terrorists, though
    they may be of a certain national background that would fall
    under the penumbra of this law.
        Is there some rationale--and I invite you, too, Mr.
    Heifetz. Is there some rationale for why we might want to make
    exception or dual nationals?
        Ms. Johnson. So we're reviewing that internally right now
    in consultation working closely with the Department of Homeland
    Security. I do know the Europeans have also expressively very
    concerned about that, feeling that the law was discriminatory.
    And I think--and CBP can--the commission can confirm. I think
    some of the biggest dual national populations come out of
    Britain, Australia, some of our key allies.
        Mr. Kerlikowske. We implemented the--that particular facet
    of the law almost immediately by canceling 17,000 dual
    nationals that we had information on, and we've also--any
    application that has come in since that also shows dual
    nationality has been denied. And of course our default position
    on all of this, whether it's with a potential waiver
    application or not, is that if there is any derogatory
    information, any concern or any--or anything that would violate
    the law that Congress passed and the President signed, the
    default position would be to ----
        Mr. Connolly. Deny?
        Mr. Kerlikowske.--deny them and send them ----
        Mr. Connolly. I think that is really important. My time is
    up and I thank the chair, but the default--when in doubt, we
    don't do it. We don't put the United States at risk. Okay.
    Thank you very much. Thank you, Mr. Chairman.
        Mr. DeSantis. The chair now recognizes the gentleman from
    Oklahoma, Mr. Russell, for 5 minutes.
        Mr. Russell. Thank you, Mr. Chairman. And thank you, all of
    you, for being here today.
        The difficulty that obviously a lot of us face on all sides
    of the immigration issue is not conflating refugee resettlement
    with visa waiver, with border security, with the larger
    immigration issue. I think many times we tend to get all of
    that confused.
        However, here, we are talking about specifically a
    vulnerability second only to the open border that we have and
    ways that people could infiltrate. The Visa Waiver Program
    constitutes probably the greatest threat for infiltration if
    you were trying to enter the United States to do nefarious
    activities. And a simple yes or no, would you disagree with
    that statement, Mr. Kerlikowske?
        Mr. Kerlikowske. I would not agree with it, no.
        Mr. Russell. Ms. Johnson?
        Ms. Johnson. I would not agree as well.
        Mr. Russell. Ms. Vaughan?
        Ms. Vaughan. Yes, I would agree with that.
        Mr. Russell. Mr. Ottolenghi?
        Mr. Ottolenghi. So would I.
        Mr. Russell. Mr. Heifetz?
        Mr. Heifetz. I disagree.
        Mr. Russell. Okay. And see, therein lies the problem
    because even in the refugee camps that we visited, even as we
    have traveled into some very dangerous places to look at a lot
    of different things, even they will build up their border so
    that we have a controlled entry. Now, visa waivers, we have
    control, and I hear cited here today that it is the ESTA that
    is far more stringent and is far more thorough, and therefore,
    we should have some reassurance.
        Ms. Johnson, how long is the ESTA legitimate for?
        Ms. Johnson. I believe it's 2 years. It's good for 3 and it
    can go down to 1.
        Mr. Russell. So 2 to 3 years. So do you think that maybe
    someone could be in a different viewpoint in terms of nefarious
    activity over a 2-year period?
        Ms. Johnson. Well, just like our visas, the ESTAs are
    recurrently vetted so they're--it's not a static moment in
    time. So just because you're issued an ESTA does not mean we
    don't continually look at you as ----
        Mr. Russell. Well, I understand that, but unless the
    information is volunteered such as the change of address or
    some other nature, the ESTA is good for 2 years. And, you know,
    whether or not I am coming here to visit Disneyland or coming
    here to commit an act of terror, we don't know. And see, here
    is part of the problem now. I am not conflating the refugee
    resettlement and some of those--look, we need to be a nation
    that welcomes immigrants. I just want to be on the record for
    that.
        However, what we are talking about here is a vulnerability
    to infiltration. And as someone who defended my country in
    uniform for more than two decades of my life, living among many
    of the places that we are talking about, by the way, which have
    very good people, we are vulnerable.
        And, Mr. Heifetz, let me see if I am correct here. You say,
    as part of the JCPOA, though, the United States committed to
    refrain from creating new types of sanctions on Iran. More
    specifically, the U.S. agreed to refrain from ``imposing
    exceptional or discriminatory regulatory and procedural
    requirements in lieu of the sanctions and restrictive measures
    cover by the JCPOA.''
        So am I hearing you correctly that modifications to the
    visa waiver should be avoided because it might curtail Iranian
    business? Yes or no?
        Mr. Heifetz. No, that's not what I was saying.
        Mr. Russell. But that's in multiple statements to include
    your recorded testimony. You do state that we should avoid that
    because it might be discriminatory or exceptional. Do you
    believe that it's discriminatory or exceptional to have an
    additional scrutiny on Iranian people conducting Iranian
    business?
        Mr. Heifetz. I believe that we have to be very careful
    about the exercise of VWP privileges and the withdrawal of
    those VWP privileges and that we need--that it is in the United
    States' national security interests to ensure compliance with
    the JCPOA.
        Mr. Russell. Well, okay, but that is a whole separate issue
    with the joint agreement.
        Mr. Heifetz. Well, it's ----
        Mr. Russell. In fact, let's talk about trading allies. Our
    top 20 allies, GDP, okay, China, Brazil, India, Saudi Arabia,
    Hong Kong, Malaysia, these are in the top 20 trading partners.
    We are talking a lot of money, hundreds of billions of dollars
    in trade to the United States. They are not on the Visa Waiver
    Program. Are you suggesting, sir, that Iran should be treated
    more favorably or those that do business with Iran, that, say,
    if I were a Londoner and I visited Malaysia ----
        Mr. Heifetz. No.
        Mr. Russell.--are you suggesting that I ought to get
    favorable attention because I am going to Iran as opposed to
    our allies that we trade hundreds of billions of dollars with?
        Mr. Heifetz. The U.S. security depends in large part on
    cooperation from, among others, European allies. And when we--
    if we threaten withdrawal of VWP privileges from citizens of
    those countries, that's something that has to be factored into
    the calculation.
        Mr. Russell. Well, I agree, and I understand a little bit
    about security and providing security to the United States
    having nearly lost my life in defense of the country. How would
    requiring additional screening on a visa application for those
    conducting business in Iran be any different than, say,
    exceptions to conduct business with Saudi Arabia? Do you favor
    Iran over Saudi Arabia?
        Mr. Heifetz. I'm not taken any position on that ----
        Mr. Russell. Well, I think you are, sir. I think you are
    taking a position here ----
        Mr. Heifetz. No.
        Mr. Russell.--with your testimony. And this is the point
    that I am making--and thank you, Mr. Chairman, for your
    indulgence--but we have to be very careful here. We have
    vulnerabilities. We want to be a nation that is welcoming. We
    have vulnerabilities. But as Mr. Ottolenghi correctly stated,
    this is not an additional burden. It is not so bad that we
    can't do it. And I think we need to be very careful before we
    open ourselves up to real danger and real vulnerability.
        And with that, Mr. Chairman, I yield back.
        Mr. DeSantis. The gentleman yields back.
        The chair now recognizes the gentleman from Ohio, Mr.
    Jordan, for 5 minutes.
        Mr. Jordan. I thank the chairman, and thank you, you and
    Mr. Meadows, for putting this hearing together.
        Mr. Kerlikowske, a couple months ago we had an individual
    from DHS here, and we asked her a number of questions, and she
    wasn't able to give us any answers. Some of them didn't deal
    directly--I am going to ask you some of the same questions.
    They didn't deal directly with the Visa Waiver Program, but
    information I think the American public is interested in
    knowing. So I am going to ask you some of the same ones and see
    if you have the answers.
        Do you know how many Americans have traveled to Syria in
    the past 2 years?
        Mr. Kerlikowske. I do not.
        Mr. Jordan. And who would have that information?
        Mr. Kerlikowske. Within DHS headquarters, there is a visa
    waiver office, and they're also--they would work with the
    Department of State on that information. We have a fairly
    narrow mission ----
        Mr. Jordan. I am talking about just Americans ----
        Mr. Kerlikowske.--customs and border protection ----
        Mr. Jordan.--who have traveled to Syria, people who have
    left our country and travel to--do we know that number?
        Mr. Kerlikowske. Well, if you're also ----
        Mr. Jordan. Not necessarily Visa Waiver Program folks, but
    just anyone.
        Ms. Johnson. I think you can get the numbers from the FBI
    and the National Counterterrorism Center. I know last year. So
    it was over 100. I don't know what the numbers are today.
        Mr. Jordan. Okay. So over 100. And of those who--do we know
    how many of those 100 who have traveled there who have then
    come back?
        Mr. Kerlikowske. If you are talking about those that may do
    harm and we are concerned about it may come back, I think
    whether it is the DNI or others, I think we would be much more
    comfortable in a closed setting giving you that information.
    But ----
        Mr. Jordan. I am not asking whether they are going to do
    harm or not. I am just asking do we know Americans who have
    traveled to Syria, Iraq and then have come back? Do we know
    that number?
        Mr. Kerlikowske. We do know that number.
        Mr. Jordan. Okay. But you don't think we should give that
    in a ----
        Mr. Kerlikowske. I would not because ----
        Mr. Jordan.--non-classified ----
        Mr. Kerlikowske.--I would tell you that I think that there
    is a significant heightened risk ----
        Mr. Jordan. Okay.
        Mr. Kerlikowske.--unless there is particular information
    that they went over as a medical worker, et cetera.
        Mr. Jordan. I understand.
        Mr. Kerlikowske. So we'd be more comfortable telling you
    that ----
        Mr. Jordan. Okay.
        Mr. Kerlikowske.--in a closed setting.
        Mr. Jordan. So let's go to--do we know how many Syrian
    refugees are in the country today? Again, not the Visa Waiver
    Program, I am talking about Syrian refugees. And Ms. Johnson or
    whoever can--either one.
        Mr. Kerlikowske. And I think that USCIS, the director Leon
    Rodriguez, that is something that would be within his
    portfolio, not Customs and Border Protection.
        Mr. Jordan. Okay. All right. Well, let's go to Visa Waiver
    Program. How many Visa Waiver Program overstays are there
    currently in the United States?
        Mr. Kerlikowske. The number of overseas was estimated in
    the last reports, and as Chairman Meadows mentioned ----
        Mr. Jordan. This is the most recent report that you guys --
    --
        Mr. Kerlikowske. Right. Exactly.
        Mr. Jordan.--just put together? Okay.
        Mr. Kerlikowske. Over ----
        Mr. Jordan. What was that number again?
        Mr. Kerlikowske. Over 500,000 overstays.
        Mr. Jordan. Over 500,000? And what is the average length of
    time they have overstayed?
        Mr. Kerlikowske. I don't have that.
        Mr. Jordan. Is it in the report?
        Mr. Kerlikowske. I believe it is.
        Mr. Jordan. Okay. And of those half-a-million overstays, do
    we know how many of those may have been to Syria or Iraq in the
    past couple years? I mean, do you know their travel history? So
    they are coming from largely, I mean, most likely a European
    country who are part of the Visa Waiver Program. Do we know, of
    those half-a-million who are here who have overstayed the time
    they were supposed to be here, do we know how many of those may
    have traveled to Syria or Iraq?
        Mr. Kerlikowske. If we have the information from an air
    manifest or a sea manifest as to whether or not they had
    traveled to another country, we would have that information,
    and I'd be happy to try and provide more detail. I wouldn't
    have that right in front of me.
        Mr. Jordan. But you do think you could get me that
    information?
        Mr. Kerlikowske. I could get you much more specifics to
    what you're asking than what I can tell you right now.
        Mr. Jordan. Well, I think that is an important question --
    --
        Mr. Kerlikowske. Right.
        Mr. Jordan.--I mean, because if you have got half-a-million
    people who are overstaying the time that they are supposed to
    be here, we want to know where they came from. We want to know
    where they have traveled. I mean, the whole idea is that this
    Visa Waiver Program could be exploited by terrorists. It would
    be interesting to know if some of the people who are currently
    here who have overstayed have already violated what the
    agreement is, what the law is if they had been to places in the
    Middle East prior to coming to the United States.
        Mr. Kerlikowske. And we also know that in order for a
    country to remain in the Visa Waiver Program, there has to be a
    percentage, an overstay percentage I believe--is it below 3
    percent?
        Ms. Johnson. The visa, yes.
        Mr. Jordan. Wait. Say that again.
        Mr. Kerlikowske. So all these countries that are in the
    Visa Waiver Program do a whole host of things that they share
    information ----
        Mr. Jordan. Right.
        Mr. Kerlikowske.--whether it's lost or stolen passports --
    --
        Mr. Jordan. I understand.
        Mr. Kerlikowske.--on and on. They also have to abide by a
    reduced amount of people that would be in an overstay capacity.
    That would be one of the criteria.
        Mr. Jordan. Okay. Well, that sort of raises the question,
    then, of these half-a-million people who are here who aren't
    supposed to be here, what kind of ramifications or consequences
    do the countries that they came from--what kind of consequences
    have happened?
        Mr. Kerlikowske. Well, I would tell you that ----
        Mr. Jordan. It is one thing to say there are going to be
    consequences. We want to know, for the half-a-million who are
    here who aren't supposed to be here, have there been any
    consequences?
        Mr. Kerlikowske. Well, I would tell you that the half-a-
    million people includes the people that got on the plane and
    left the day after their overstay. And I think as Chairman
    Meadows mentioned that there's a lot of gaps in the data. I
    mean, that's why I think it took so many years for people to
    try and gather and put it together. That's why I was very
    pleased that Secretary Johnson, working with us and other parts
    of the DHS headquarters, were able to put together a report.
    And as I think all of us have clearly mentioned, there are gaps
    in the report. The data-gathering needs to be better, and the
    information needs to be supplied not just to the Members of
    Congress but also to the American public. None of us disagree
    with that.
        Mr. Jordan. Okay. I am over time. Thank you, Mr. Chairman.
        Mr. DeSantis. The chair now recognizes Mr. Hice for 5
    minutes.
        Mr. Connolly. Mr. Chairman?
        Mr. DeSantis. Yes?
        Mr. Connolly. Would you allow just a quick clarification?
        Mr. DeSantis. Sure.
        Mr. Connolly. I thank the chair.
        It would be helpful, Mr. Kerlikowske, if we had some
    specified data on overstays. So your point is some people are
    classified overstays technically because a few hours lapsed
    between the expiration of the visa and their getting on an
    airplane and leaving. I think it would be helpful to the
    committee if we actually had a breakdown of that data. So
    otherwise we are dealing with the raw data of a half-a-million,
    which is not accurate. But what is accurate? And I think that
    is where Mr. Jordan was going.
        Mr. Jordan. If I could, Mr. Chairman?
        Mr. DeSantis. Yes.
        Mr. Jordan. Yes, great point. We would like to break down
    that, but I think it is also important for the committee to
    understand--my understanding is that half-a-million is only the
    tourists and business, right? There are all kinds of other
    people here on visas who overstay. They may not be in the Visa
    Waiver Program, but there are all kinds of others. So that
    number is just with those two programs, and we can't even get
    the exact information where they have traveled before, what may
    have transpired there.
        Mr. Kerlikowske. You're absolutely correct, Congressman,
    for instance, student visas, but student visas aren't for 90
    days. Student visas are for the completion of the educational
    requirement. As we know, any of us who have sent our kids to
    college know they don't graduate in 4 years. So we have--so
    there are significant--you know, there's significant greater
    difficulties. All of us at DHS and certainly ----
        Mr. Jordan. That is a good point. They may not graduate in
    4 years, but our kids aren't breaking the law if they would
    stay longer than 4 years. That is the point, right?
        Mr. Kerlikowske. Well, actually ----
        Mr. Jordan. They are breaking our wallet but not breaking
    the law.
        Mr. Kerlikowske. They're not breaking the law because--
    they're not breaking the law if they stay 4-1/2 years to get
    that college education because the--it's--at the end of the
    term, at the end of the--that you can see the difficulty of
    trying to track somebody for 4-1/2 years. So that's why the B-
    1/B-2 visa I think was easier ----
        Mr. Jordan. I am not saying it is not difficult. All I am
    saying is we want the numbers, and frankly, that is your job to
    know what is going on and know those who are overstaying their
    time.
        Mr. DeSantis. And, though, I think of the 500,000
    identified, I think you have the vast majority, like 416,000,
    are still in the country overstaying. And there is only a very
    small fraction that were investigated by ICE for overstaying.
    So I think that there is--I mean, we need the data, I agree,
    but there are a lot more questions that haven't been answered.
        So, Mr. Hice, you are recognized for 5 minutes.
        Mr. Hice. Thank you, Mr. Chairman.
        Okay. We have, by Congress, given some restrictions to the
    Visa Waiver Program. Ms. Johnson, let me ask you this. Did the
    administration discuss the exceptions to these restrictions
    with the government of Iran before announcing those exceptions
    to Congress and the American people?
        Ms. Johnson. Are you referring to a conversation between--
    or a letter between Secretary Kerry and Foreign Minister Zarif?
        Mr. Hice. I am referring to any communication with the
    Iranian Government about the exceptions.
        Ms. Johnson. So I know that Secretary Kerry did send a
    letter to Foreign Minister Zarif after the Iranians publicly
    claimed that this law violated the JCPOA commitments. In that
    letter, Secretary Kerry defended the law, telling him that it
    was not a violation of the JCPOA commitments. He also outlined
    the fact--what the law was, again, defending the law but also
    outlined why it was not in violation of those commitments
    because it is possible for Europeans to travel to Iran and
    conduct legitimate business.
        Mr. Hice. So there was communication. Can we have a copy of
    that letter if we don't already have it, Mr. Chairman, that it
    be entered in the record?
        Ms. Johnson. And these are letters--I mean, we've gotten
    similar letters from our VWP--or similar inquiries. Again, I've
    met with ----
        Mr. Hice. Okay. It is concerning to me that Congress passes
    restrictions and then the administration has conversations with
    the Iranian Government and makes exceptions to the restrictions
    that were imposed by law, by Congress. I would like to have a
    copy of that.
        You mentioned also a little while ago the legitimate
    business-related purposes. I have absolutely no idea what that
    means. What is the definition? How is that defined?
        Ms. Johnson. Well, obviously, legitimate business, we are
    working through how we would process it in the context of the
    waivers, but obviously, in the case of Iran, it would not be
    sanctionable--things that are sanctionable under both U.S. law
    and regulations, U.N. Security Council resolutions, things of
    those natures. That would be our basis for starting out ----
        Mr. Hice. So you are saying you don't have a real firm
    definition either?
        Ms. Johnson. We definitely--from the sanctionable side
    obviously, and then what would be looking at how we could also
    narrowed down review of those individual case-by-case waivers
    to determine legitimate business.
        Mr. Hice. I just don't understand how someone with a so-
    called legitimate business-related purpose, how that business,
    someone traveling to Iran or Iraq or wherever it may be,
    somehow falls under a national security exemption. And can you
    explain that?
        Ms. Johnson. For both Iraq and Iran or ----
        Mr. Hice. Sure.
        Ms. Johnson. Yes. So obviously, in the case of Iraq we have
    been encouraging governments from VWP countries but more
    broadly, more globally, to engage in business with Iraq to help
    stabilize their economy. That's in our national security
    interests. For Iran, the same thing. We are looking at these
    foreign partners and particularly the VWP countries to engage
    in--they've got legitimate business interests and permissible
    under the JCPOA. Again, that's why we have a deadline of July
    14 when it was concluded, not before. And those are
    international security interests, so those partners to be able
    to participate in that activity.
        These are partners, again, who are contributing to our
    national security. By participating in the VWP program, they're
    providing us with additional information on known and suspected
    terrorists. We also have information on how they do border
    controls both at their sea and land and airports. And again, we
    are constantly monitoring our partnerships with those countries
    to make sure that it's a securing the homeland and it's not --
    --
        Mr. Hice. Okay. Let me go to----
        Ms. Johnson.--undermining our security.
        Mr. Hice. Thank you. Let me go to Mr. Kerlikowske. The
    Department of Homeland Security, are they currently monitoring
    individuals who have traveled to countries like Syria, Iraq,
    some of these other countries, where there is known
    radicalization and training efforts that are ongoing in those
    countries? Are those individuals being monitored?
        Mr. Kerlikowske. We would not do that. The Department of
    Justice and the Federal Bureau of Investigation would be in a
    much better position to answer that. We do share ----
        Mr. Hice. Is there anyone on the panel that can answer
    that?
        So we have experts here and we don't know whether these
    people traveling these countries where there is radicalization
    taking place, we don't know if they are being monitored?
        Mr. Kerlikowske. Well, actually, the Department of Justice
    could answer it in a closed session with probably far more
    specificity ----
        Mr. Hice. But none of you can answer it, so that is not
    public knowledge. We don't know. Is that ----
        Mr. Kerlikowske. We would not want to release information
    or talk about the number of people or who is being monitored
    who may pose a threat to people of this country in a ----
        Mr. Hice. All right. My time is almost gone.
        Mr. Kerlikowske.--in an open setting.
        Mr. Hice. Since you can't answer that, let me ask it this
    way. Is there any way for the U.S. Government to prevent
    individuals from visa waiver countries where there is
    radicalization and training, terroristic training taking place,
    is there any way to ensure that these individuals cannot enter
    the United States under the Visa Waiver Program?
        Mr. Kerlikowske. You know, as a police chief of two of the
    largest cities in the country, I was never held accountable for
    having Seattle not having any crime. We did the very best we
    could. I would tell you that it might be very much similar to
    what we do now. Every day, Customs and Border Protection
    personnel deny admissibility in this country to 241 people that
    are either stopped at preclearance, they're stopped at a port
    of entry, or their arrested or apprehended. It happens every
    single day.
        Mr. Hice. But we are giving exceptions to a Visa Waiver
    Program that, as you just have mentioned, as you just declared,
    has no real security. We don't know if we are preventing people
    from radicalized countries from coming into the United States
    under the Visa Waiver Program.
        Mr. Kerlikowske. And I didn't say that. It--I wouldn't say
    that it has no--I'd say it has greater security than many of
    the systems in place.
        Mr. Hice. My time is up, Mr. Chairman. Thank you.
        Mr. DeSantis. The gentleman's time is expired. The chair
    now recognizes the gentleman from Kentucky, Mr. Massie, for 5
    minutes.
        Mr. Massie. Thank you, Mr. Chairman.
        I would like to take my time to discuss what I hope is an
    unintended consequence of some hasty changes to this
    legislation before it passed. As a result of this legislation,
    citizens of Visa Waiver Program countries can no longer travel
    to the United States visa-free if they are dual nationals of
    Iran, Iraq, Sudan, or Syria solely due to their ancestry.
        And let that sink in. I mean, this feels like
    discrimination to me because if the citizens of those countries
    we are excluding, if those countries in the Visa Waiver Program
    decide to reciprocate, there is a category of millions of
    Americans, freedom-loving Americans that could be exposed to
    discrimination as a result merely of who their parents were.
        And by this I mean you could be swept into this program of
    discrimination even if you have never been to one of these four
    countries if you are solely the progeny of somebody from one of
    these countries because three of the countries consider you to
    be a citizen of that country even if you weren't born there so
    long as your father was a citizen of that country. This is a
    great concern to me.
        There is a piece of legislation that I have introduced. The
    primary sponsor is Justin Amash. It is H.R. 4380. It is called
    the Equal Protection and Travel Act of 2016 that would remedy
    this problem.
        And, Mr. Chairman, I ask unanimous consent to enter into
    the record two letters in support of H.R. 4380, the Equal
    Protection and Travel Act of 2016. The first letter is from the
    American Civil Liberties Union and the second letter is signed
    by 65 separate groups representing a wide range of viewpoints
    and membership.
        Mr. DeSantis. Without objection.
        Mr. Massie. So while we have got the witnesses here who are
    obviously experts on the Visa Waiver Program, I want to ask,
    for instance, Mr. Heifetz--and anybody is welcome to answer
    this--of what national security advantage would there be to
    excluding people from this program merely because their parents
    were citizens of one of these countries, Mr. Heifetz?
        Mr. Heifetz. None that are apparent.
        Mr. Massie. Please elaborate.
        Mr. Heifetz. Well, I think a couple things are worth
    noting. First, the most significant expansion of the Visa
    Waiver Program occurred in the Bush administration. This was a
    security program, properly viewed as one. Secretary Chertoff
    has spoken on numerous occasions about Visa Waiver Program
    enhancing U.S. security. And the reason for that is the
    tradeoff is one between a short--what is typically a short
    interview by a consular officer. In exchange, rather than
    having that, we get heightened security standards by our Visa
    Waiver Program partners, particularly including lots of data to
    some of the questions that have come up--lots of data about who
    it is who intends to travel here, data that we wouldn't
    otherwise have access to.
        So I think part of the points--part of what--the point that
    has been made several times is that when we begin--if we chip
    away at the advantages to the member states--to the VWP member
    states, we risk the security that comes with the additional
    information about who those people are and the heightened
    security standards that our VWP members provide.
        Mr. Massie. Well, let me elaborate about this category of
    individuals that is going to be discriminated against and then
    ask another question. So this category includes people who may
    have fled here from those countries, for instance, in the '70s
    from Iran, who were seeking relief from that regime and have
    never gone back, never returned to that country.
        Do we have any evidence--is there a single example of
    somebody who came to this country and is a dual citizen of one
    of these countries that presented a terrorist threat, you know,
    with credible evidence? And I am talking about people who were
    either born in the United States and became, by virtue of their
    parentage, a citizen of one of these countries, or fled here
    and never went back. Is there a single example?
        Mr. Ottolenghi. Yes, sir. Manssor Arbabsiar, involved in a
    plot to try and murder the Saudi Ambassador to the United
    States in October 2011, Iranian American national living in
    Texas instructed and abetted by the cousin from Iran involved
    in the--Iran's Revolutionary Guard Corps forces.
        Mr. Massie. And ----
        Mr. Ottolenghi. So that's one example.
        Mr. Massie. And ----
        Mr. Ottolenghi. The second example, sir, is the seven
    recent pardons by the President ----
        Mr. Massie. Let me ask you about that example.
        Mr. Ottolenghi.--of Iranian Americans ----
        Mr. Massie. That individual had never traveled to Iran.
        Mr. Ottolenghi. Sir, you are raising the point about dual
    nationals who are citizens ----
        Mr. Massie. Right. And ----
        Mr. Ottolenghi.--of the United States and citizens of Iran.
    The point being made ----
        Mr. Massie. My point, the question was for people who have
    not returned to the country or people that were born here.
        Mr. Ottolenghi. I am not familiar with the travel patterns
    of Mr. Arbabsiar ----
        Mr. Massie. Okay. Well, my ----
        Mr. Ottolenghi.--but certainly he was ----
        Mr. Massie.--time is expired.
        Mr. Ottolenghi.--a dual national.
        Mr. Massie. My time is expired. So here is the point I am
    making. I think it is fair to discriminate against someone
    based on their activity, their actions, or their travel
    patterns but not on their parentage. And I think the
    legislation runs the risk of disenfranchising millions of
    freedom-loving Americans. And I hope people will consider H.R.
    4380 to remedy this.
        And I yield back my time.
        Mr. DeSantis. The gentleman's time is expired.
        The chair now recognizes the gentleman from South Carolina
    for 5 minutes.
        Mr. Mulvaney. Thank you, Mr. Chairman. I thank the panel. I
    have just got a couple of clean-up questions for a couple
    different folks as we come to the end of this first round.
        Mr. Heifetz, we will start with you. You have been asked a
    couple times by a couple different people how is it--and in
    fact several folks have been asked how could it be possible
    that somebody going someplace on business could be a national
    security interest or national security threat? But I don't
    think that is your point.
        Let me see if I am correctly articulating your point, and I
    think Ms. Johnson may have made a similar point, which is that
    if we interfere with the free travel of, say, a European
    businessman or woman who has gone to Iran, then gone back, and
    then comes into this country, we deny that person the Visa
    Waiver Program, then that may discourage trade or travel to and
    from Iran, which would be a violation of the agreement we just
    signed with Iran a couple weeks ago. Is that your argument,
    sir?
        Mr. Heifetz. That is an argument as to why discretion with
    respect to the waiver is important.
        Mr. Mulvaney. I will take that as a yes, as lawyers tend to
    do, but I will take that as a yes unless you are telling me it
    is no, that what you are saying is that because that
    interpretation of the statute would potentially or likely
    violate the agreement with Iran, that it is in the national
    security interest of the United States to do something else,
    because breaching the agreement with Iran is against the
    national security interest of the United States?
        Mr. Heifetz. That's--yes.
        Mr. Mulvaney. Okay. Let me ask you this. What if the bill--
    what if the law, by the way, signed by the--I mean passed by
    the House and the Senate and signed by the President required
    the President to do something in violation of the JCPOA? Would
    it still qualify as a national security waiver under this law?
    Could the President break the law in order to not break the
    JCPOA?
        Mr. Heifetz. I have a hard time envisioning the scenario
    that perhaps you're envisioning. The ----
        Mr. Mulvaney. We passed a bill today that says that it is
    illegal for anybody who has traveled to Iran to come into the
    United States for a year. We pass that law today ----
        Mr. Heifetz. And ----
        Mr. Mulvaney.--and the President waived that law under
    subsection C in the name of the national security interest of
    the United States.
        Mr. Heifetz. If there's a--an--if there's a waiver
    authority for national security and the administration
    determines that it's in the national security interest to waive
    it, then it's not a violation of the law.
        Mr. Mulvaney. No, but it is a violation of the separate law
    that we may have passed. Again, take by example we passed a
    bill today, we go in the House, Senate, President signs it and
    says if you go to Iran, you can't come here for a year, could
    the President waive that law under subsection C in your mind?
        Mr. Heifetz. If the administration determines that it's in
    the national security interest of the United States, then yes.
        Mr. Mulvaney. And I think that is right. I think that is
    consistent with your position. But my point is I start to get--
    the hair on the back of my neck stands up when we say it is
    okay for the President to break the law in order to accomplish
    something. But anyway, again, I think we are just clarifying a
    couple questions that were asked before.
        A question about process, if I am that Iranian businessman
    and I go to Iran and I come back--excuse me, I am a British
    business person, I go to Iran and I come back and then I want
    to come to the United States. How do we know that I have been
    to Iran?
        Mr. Heifetz. This is probably a better question for ----
        Mr. Mulvaney. Okay. Anybody ----
        Mr. Heifetz.--some of the others, but I--my understanding
    is that they're--that the fields are expanding--the ESTA fields
    are expanding to ask that ----
        Mr. Mulvaney. Okay.
        Mr. Heifetz.--to get at that issue.
        Mr. Mulvaney. That is one possible answer. It is not the
    best answer. The best answer would be that the computer systems
    would know that we are sharing information with the British,
    because if I lie on the ESTA or however you pronounce it, then
    am I going to get caught? Do we share information with the
    British on that?
        Mr. Kerlikowske. We do and ----
        Mr. Mulvaney. Okay.
        Mr. Kerlikowske.--it's in the travel records and it's in
    the either the name information or the advanced data. But then,
    of course, there's another way, and that is if you then enter
    the United States or you happen to be trying to enter the
    United States through Dublin or Abu Dhabi, you would show to a
    United States Customs and Border Protection officer a passport,
    who would go through the pages of that passport and see the
    stamp or see the information that you had been to one of those
    four countries. And that's what we did during the Ebola issue
    of those impacted countries.
        Mr. Mulvaney. Okay. And then I am stopped at the border if
    that is the case?
        Mr. Kerlikowske. You're denied entry because you have
    traveled within--after 2011.
        Mr. Mulvaney. Thank you. Now, to another point--and I am
    going to ask Ms. Vaughan a question and then I promise, Mr.
    Chairman, I will wrap up--because we talked about this
    hypothetical businessperson, we have talked to--I think Mr.
    Heifetz in his testimony mentions a couple different folks.
        Mr. Heifetz, I will read from yours. It says, ``It is
    common and will become ever more common for a European
    businessperson to travel to Iran to conduct legitimate
    business''--I think we all agree with that--``but if that
    European businessperson's travel will preclude further travel
    to the United States, under the VWP, that might deter European
    business dealings with Iran.'' You then go on to talk about the
    Australian doctor who might also be deterred from going to the
    Middle East in order to provide services.
        Ms. Vaughan--and someone told me before you used to work in
    the Foreign Service.
        Ms. Vaughan. That's right.
        Mr. Mulvaney. Okay. I will ask you first and then I will
    ask anybody. Does anybody really believe that the possibility
    of getting kicked out of the Visa Waiver Program is going to
    deter a doctor from going to work in the Middle East?
        Ms. Vaughan. I do not think so. And certainly not with
    respect to business ----
        Mr. Mulvaney. If I have a doctor ask that--if I go to this
    country, can I still get in ----
        Ms. Vaughan. Right, like, oh, I can't ----
        Mr. Mulvaney. Yes.
        Ms. Vaughan. Yes, I can't go to Disneyland or something.
        Mr. Mulvaney. Right.
        Ms. Vaughan. I don't think that would deter them. I don't
    think it would deter a businessperson. If they're pursuing a
    lucrative business opportunity in Iran or Iraq, $160 and the
    time of a visa interview is not going to be too much of a cost
    of business to go take care of that. I think it's a mistake to
    think of these people as victims.
        Mr. Mulvaney. Well, I am not going to get into
    victimization, but I tend to agree it doesn't discourage them.
    If anybody else disagrees--I'm going to let Mr. Heifetz
    disagree with that because it was his testimony. Does anybody
    else disagree? Does anybody really think that is a deterrent to
    travel?
        Okay. Let the record reflect nobody said no.
        Mr. Heifetz, it is your testimony. Why do you think it is a
    deterrent to travel?
        Mr. Heifetz. We ----
        Mr. Mulvaney. Do you have personal experience with that?
        Mr. Heifetz. Yes, we have clients who--it is--to address
    another point that arose, I think it is common knowledge that
    travel history--an individual traveler's travel history is a
    factor that's taken into account as to whether to grant an ESTA
    and whether to grant entry to the United States, and properly
    so.
        We have been asked with some frequency whether travel to a
    particular location will cause difficulties entering the United
    States, and the answer to that is it might. And there have been
    instances in which people have foregone travel because of that
    concern. So I would expect that there would be instances in
    which people decline the type of travel that we've been
    discussing if VWP privileges were at risk.
        Mr. Mulvaney. Thank you, Mr. Heifetz. Thank you to the
    whole panel ----
        Mr. DeSantis. The gentleman's time is expired.
        Mr. Mulvaney.--and thank you, Mr. Chairman.
        Mr. DeSantis. We are going to wrap up. We have votes. So I
    am just going to recognize the chairman of the Government
    Operations Subcommittee, Mr. Meadows, for a minute.
        Mr. Meadows. Thank you, Mr. Chairman.
        Mr. Kerlikowske, on the report that has been done for the
    visa overstays--and we are not talking about visa waiver; we
    are talking about all visa overstays--are we expecting another
    report? Because, as you and I agree, that is not complete. So
    we are expecting a final report from DHS?
        Mr. Kerlikowske. We are expecting a subsequent report in
    which we would have greater detail and more information.
    Whether or not that is for this coming year, I--because the
    visa waiver ----
        Mr. Meadows. Because we have had other testimony that would
    suggest that we would get that within 6 months. I guess what I
    am saying is, is the report we got is not viewed by DHS as
    agreeing to the sworn testimony we have already had before this
    committee, is that correct?
        Mr. Kerlikowske. You know, I don't know, but I'd be happy
    to ----
        Mr. Meadows. Okay.
        Mr. Kerlikowske.--get back to you with an answer.
        Mr. Meadows. In the 13 seconds ----
        Mr. Kerlikowske. Yes.
        Mr. Meadows.--I have remaining, let me tell you my concern.
    We continue to get stonewalled with regards to the visa
    overstayed numbers. I know that there was a report done in 2013
    that has failed to be released. It is time. It is time you get
    it back to this committee, and we are going to continue to
    bring you back until we get a report, okay?
        Mr. Kerlikowske. Okay.
        Mr. Meadows. I will yield back.
        Mr. Connolly. Mr. Chairman?
        Mr. DeSantis. The gentleman yields back.
        I want to thank the ----
        Mr. Connolly. Mr. Chairman?
        Mr. DeSantis.--witness--yes?
        Mr. Connolly. Would you just yield me the same amount of
    time?
        Mr. DeSantis. One minute.
        Mr. Connolly. Thank you very much.
        Just a statement for the record, it seemed to be suggested
    in Mr. Mulvaney's questioning that the President of the United
    States had violated the law. There is no evidence of the
    President of the United States violating the law. That is a
    very grave charge. It is one any one of us at this dais would
    take exception to if somebody threw that at us. And it is no
    less significant when you do it with the President of the
    United States.
        He is taking advantage of a provision provided in the law.
    If we don't like it, we can change the law. And it is no
    different than a waiver authority that has been provided in 1
    million pieces of legislation to myriad Presidents of the
    United States. I am old enough to remember Ronald Reagan using
    waiver authorities with impunity, and he wasn't violating the
    law even though I didn't always like it.
        Thank you.
        Mr. DeSantis. Well, I think Mulvaney was talking about a
    hypothetical case, but I think we do on this side of the
    aisle--at least I do--you know, consider the national security
    waiver to be narrow, and in this instance, when you are
    expanding it to Iranian business travel, I think a lot of us
    think that that is not consistent with Congress's intent.
        But I would like to thank our witnesses for taking the time
    to appear before us today.
        If there is no further business, without objection, the
    subcommittee will stand adjourned.
        [Whereupon, at 4:53 p.m., the subcommittees were
    adjourned.]

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