[Congressional Record Volume 146, Number 118 (Thursday, September 28, 2000)]
[Senate]
[Pages S9451-S9453]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   VISA WAIVER PERMANENT PROGRAM ACT

  Mr. DOMENICI. I ask unanimous consent the Senate proceed to H.R. 
3767, the visa waiver bill, and that the substitute amendment, on 
behalf of Senators Abraham and Kennedy, which is at the desk, be agreed 
to, no further amendments or motions be in order, the bill be advanced 
to third reading, and passage occur immediately following the passage 
vote on S. 2045.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senate proceeded to consider the bill.
  Mr. ABRAHAM. Mr. President, I rise to support the passage of H.R. 
3767, the Visa Waiver Permanent Program Act. This legislation, as 
amended, is important not only because it facilitates travel and 
tourism in the United States, thereby creating many American jobs, but 
also because it benefits American tourists who wish to travel abroad, 
since visa requirements are generally waived on a reciprocal basis.
  The Visa Waiver Pilot Program authorizes the Attorney General to 
waive visa requirements for foreign nationals traveling from certain 
designated countries as temporary visitors for business or pleasure. 
Aliens from the participating countries complete an admission form 
prior to arrival and are admitted to stay for up to 90 days.
  The criteria for being designated as a Visa Waiver country are as 
follows: First, the country must extend reciprocal visa-free travel for 
U.S. citizens. Second, they must have a nonimmigrant refusal rate for 
B-1/B-2 visitor visas at U.S. consulates that is low, averaging less 
than 2 percent the previous two full fiscal years, with the refusal 
rate less than 2.5 percent in either year, or less than 3 percent the 
previous full fiscal year. Third, the countries must have or be in the 
process of developing a machine-readable passport program. Finally, the 
Attorney General must conclude that entry into the Visa Waiver Pilot 
Program will not compromise U.S. law enforcement interests.
  Countries are designated by the Attorney General in consultation with 
the Secretary of State. Nations currently designated as Visa Waiver 
participants are Andorra, Argentina, Australia, Austria, Belgium, 
Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, 
Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, 
Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, 
Switzerland, United Kingdom, and Uruguay. Greece has been proposed for 
participation in the program.
  The Visa Waiver Pilot Program was established by law in 1986 and 
became effective in 1988, with 8 countries participating for a period 
of three years. The program has been considered successful and as such 
has been expanded to include 29 participating countries. Since 1986, 
Visa Waiver has been reauthorized on 6 different occasions for periods 
of one, two, or three years at a time.

[[Page S9452]]

  The time has come to make the Visa Waiver Pilot Program permanent 
and, in the process, to strengthen further current requirements. That 
is the purpose of this bill, which has been amended and worked out 
jointly with our House counterparts, in particular House Immigration 
Subcommittee Chair Lamar Smith, who I thank for his work on this bill. 
This legislation is very close to S. 2376, the Travel, Tourism, and 
Jobs Preservation Act, which I introduced earlier this year with 
Senators Kennedy, Leahy, DeWine, Jeffords, Akaka, Graham, Grams, 
Murkowski, and Inouye, all of whom I thank for their support.
  The legislation we are about to pass would accomplish a number of 
things.
  First, it would make the Visa Waiver Pilot Program permanent. This is 
important since no serious disagreement exists that the program should 
continue in place for the foreseeable future, and no significant 
problems have been raised with the fundamentals of how it has been 
operating for the past 14 years. To the contrary, failure to continue 
the program would cause enormous staffing problems at U.S. consulates, 
which would have to be suddenly increased substantially to resume 
issuance of visitor visas. It would also be extremely detrimental to 
American travelers, who would most certainly find that, given 
reciprocity, they now would be compelled to obtain visas to travel to 
Europe and elsewhere. Finally, there are costs to continuing to 
reauthorize the program on a short-term rather than a permanent basis, 
as it periodically creates considerable uncertainty in the United 
States and around the world about what documents travelers planning 
their foreign travel have to obtain.
  Second, the current requirement that countries be in the process of 
developing a program for issuing machine-readable passports will be 
replaced with a stricter requirement that all countries in the program 
as of My 1, 2000 certify by October 1, 2001 that they will have an 
operational machine-readable passport program by 2003 and that new 
countries have a machine-readable passport program in place before 
becoming eligible for designation as a Visa Waiver country. The bill 
also establishes a deadline of October 1, 2007 by which time all 
travelers must have machine-readable passports to come to the United 
States under Visa Waiver. The judgment of everyone involved in these 
issues is that the technology is now sufficient that it is time for 
everyone to move from the concept and planning stages to the prompt 
implementation of these requirements.
  Finally, the legislation, altered from the House-passed version, 
would allow for an ``emergency termination'' by the Attorney General, 
in consultation with the Secretary of State, of a country's Visa Waiver 
designation in an extreme and unusual circumstances. These 
circumstances are a ``war (including undeclared war, civil war, or 
other military activity on the territory of the program country; a 
severe breakdown in law and order affecting a significant portion of 
the program country's territory; a severe economic collapse in the 
program country; or any other extraordinary even in the program country 
that threatens the law enforcement or security interests of the United 
States (including the interest in enforcement of the immigration laws 
of the United States.)'' Considering the impact of such a termination 
on U.S. foreign policy interests and the conduct of the State 
Department itself, it is my belief that the Secretary of State would 
exert considerable authority in determining whether such an ``emergency 
termination'' was warranted.
  Mr. President, I urge passage of this legislation.
  Mr. KENNEDY. Mr. President, I am proud to join Senator Abraham, 
Senator Leahy, and others in cosponsoring the Travel, Tourism and Jobs 
Presentation Act. This measure will reauthorize the Visa Waiver Program 
and make it permanent.
  This visa waiver program allows individuals from designated low risk, 
high volume countries to enter the United States as temporary visitors 
for business or pleasure without first obtaining a visa. Individuals 
visiting the United States under the visa waiver program must complete 
an admission form prior to arrival. Their visit may last only ninety 
days, with thirty days extensions allowed only in the case of 
emergency. Countries participating in the visa waiver program must meet 
certain requirements, such as possessing a low non-immigrant refusal 
rate for B-1/B-2 visas and utilizing, or currently developing, a 
machine readable passport program. Finally, the Attorney General must 
determine that each country's participation in the program will not 
compromise United States law.
  By eliminating the visa requirement, the visa waiver program 
facilities international travel and increases the number of visitors 
for business and tourism. These effects generate economic growth and 
stimulate international trade and commerce. According to the INS, over 
17 million visitors to the United States arrived under the visa waiver 
program in FY 1998. The program is strongly supported by the State 
Department because it reduces consular workloads, allowing the officers 
to shift staff and scarce resources to other pressing matters, as well 
as reducing costs.
  Despite operating efficiently and providing enormous benefit to the 
United States economy and the State Department for the past eleven 
years, the visa waiver program remains a pilot program. This bill 
reauthorizes this important program and makes it permanent.
  This legislation also strengthens security precautions under this 
program by requiring participating countries to incorporate machine 
readable passport programs by October 2003 and nationals from these 
countries to possess readable passports by 2008. In addition, the 
Attorney General, in consultation with the Secretary of State, must 
continue to evaluate the effect of a new country's inclusion in the 
visa waiver program on law enforcement and national security. 
Continuing countries in the program are evaluated every five years.
  I am especially pleased that Portugal was recently added to the visa 
waiver program. Travel between our two countries is significantly 
easier because cumbersome paperwork and delays have been eliminated--
obstacles that needlessly prevented Portugese families from visiting 
their loved ones here in the United States. Portugal's inclusion in the 
Program will benefit thousands of Portugese families in Massachusetts 
and around the nation.
  Although I strongly support this important bill, I have very serious 
concern about the amendment that Senator Helms has offered amending the 
Conyers provision of the visa waiver bill. Representative Conyer's 
provision simply states that visas that are wrongfully denied based on 
race, sex, disability or other unlawful grounds cannot be included in 
computations determining a country's admission into the visa waiver 
program. The amendment Senator Helms offers pertaining only to the 
Conyers provision. It seeks to preclude judicial review of any visa 
denying visas, denial of admission to the United States, the 
computation of visa refusal rates, or the designation or non-
designation of any country.
  I have reluctantly agreed to it because it is surely symbolic and 
will have no practical legal effect. Under current law, consular visa 
determinations, the denial of admission under the visa waiver program, 
or determinations regarding designation of a country into the visa 
waiver program are not subject to court review.
  Nonetheless, court stripping provisions, whether symbolic or not, are 
anathema to our judicial system. I thought that Republicans had learned 
the importance of judicial review in the Elian Gonzalez case. Such 
provisions allow life-shattering determinations to be made at the 
unreviewable discretion of an administrative functionary. The most 
fundamental decisions are being made on the basis of a cursory review 
of a few pages in a file, or a perfunctory interview, without the 
possibility of any appeal or judicial review. This is a recipe for 
disastrous mistakes and abuse.
  This excellent program has been a pilot program for too long. Its 
enormous benefits to the United States economy and the efficiency it 
creates for the federal government are obvious. It is time we make this 
light of this fact and make this important program permanent. I urge 
all of my colleague to support this important bill.
  Mr. LEAHY. Mr. President, this bill addresses a critically important 
issue: the preservation of our visa waiver program. I am a cosponsor of 
the Senate

[[Page S9453]]

version of this bill, and I strongly recommend the passage of H.R. 
3767.
  This legislation will achieve the important goal of making our visa 
waiver program permanent. We have had a visa waiver pilot project for 
more than a decade, and it has been a tremendous success in allowing 
residents of some of our most important allies to travel to the United 
States for up to 90 days without obtaining a visa, and in allowing 
American citizens to travel to those countries without visas. Countries 
must meet a number of requirements to participate in the program, 
including having extraordinarily low rates of visa refusals. Of course, 
the visa waiver does not affect the need for international travelers to 
carry valid passports.
  The pilot project expired on April 30, and I had sought passage of S. 
2367, which is incorporated into the bill we consider today, before 
that expiration date. Indeed, I encouraged the discharge of this bill 
from the Judiciary Committee in April so that the Senate could act upon 
this highly time-sensitive matter. Unfortunately, this bill was instead 
held hostage to other issues. Fortunately, the Administration extended 
the program administratively until the end of May, but despite my best 
efforts we failed to meet that deadline as well. As a result, the 
program was extended until the end of June, but once again the Senate 
did not meet the deadline. The Administration then extended the program 
through July, sparing thousands of American tourists and international 
business travelers tremendous inconvenience and cost during the busy 
summer traveling season. Before the August recess, we once again failed 
to act on this legislation, forcing the Administration to extend it 
again. It is now well past time to end this charade, pass this bill, 
and send it back to the House for its final approval.
  Rather than simply pass another extension of the pilot program, it is 
time to make this program permanent--it has stood the test of time for 
well over a decade. In order to address any security concerns about 
making the program permanent, the requirements placed upon 
participating countries have been tightened. Indeed, countries wishing 
to participate in the visa waiver program must meet each of the 
following four criteria: the participating country must allow U.S. 
citizens to travel without a visa; the country must have a nonimmigrant 
refusal rate for B-1/B-2 visitor visas at U.S. consulates that is low, 
averaging less than 2 percent the previous two full fiscal years, with 
the refusal rate less than 2.5 percent in either year, or less than 3 
percent the previous full fiscal year; the country must already possess 
or be in the process of developing a machine-readable passport program; 
and, the Attorney General must conclude that entry into the Visa Waiver 
Pilot Program will not compromise U.S. law enforcement interests.
  The visa waiver program provides substantial benefits to both the 
American tourism industry and to Americans traveling abroad. I urge the 
Senate to make it permanent.
  Although I am a strong supporter of the bill, I must speak out 
against the amendment that has been inserted into the bill by Senator 
Helms. This amendment states that under a certain paragraph of this 
bill, no court will have jurisdiction to review any visa refusal based 
on race, sex, or disability. It is my understanding that this provision 
has no practical effect, since affected foreign nationals would not be 
able to bring such a claim in an American court in the first place. 
Because it is effectively a dead letter, and because of the importance 
of the visa waiver program and other amendments to this bill, I have 
chosen not to assert rights and deny unanimous consent. But this 
provision is offensive to our legal traditions. I have consistently 
opposed attempts to strip courts of authority to resolve immigration 
matters, and I am particularly opposed to such attempts where the 
stripping is directed specifically toward claims asserting 
discrimination. Judicial review is a critical part of American law, and 
we should not be impinging upon it--symbolically or otherwise.
  Finally, passage of this bill should not be misinterpreted as a 
signal that this Congress has dealt fairly or adequately with 
immigration issues. There is still so much to do in the little time we 
have left, from passing the Latino and Immigrant Fairness Act--to 
dealing with the aftereffects of the immigration legislation this 
Congress passed in 1996. In particular, I would call again for hearings 
on S. 1940, the Refugee Protection Act. This is a bill I introduced 
with Senator Brownback and a number of other Senators that would undo 
the damage that has been done to our asylum process by the 
implementation of expedited removal. I believe it, like so many 
immigration issues that have been ignored for the last 21 months, 
deserves the attention of this Congress.
  The amendment (No. 4276) was agreed to.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  The bill (H.R. 3767) was ordered to a third reading and was read the 
third time.

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