[Congressional Record Volume 155, Number 6 (Monday, January 12, 2009)]
[Senate]
[Pages S309-S311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself and Mr. Kyl):
  S. 203. A bill to amend the Immigration and Nationality Act to modify 
the requirements for participation in the visa waiver program and for 
other purposes; to the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce a bill on 
behalf of myself and Senator Kyl to mitigate the immigration and 
security risks associated with the Visa Waiver Program and its 
expansion.
  The Visa Waiver Program leaves open both a major gap in our domestic 
security and a way to exploit our immigration laws. The Strengthening 
the Visa Waiver Program to Secure America Act would give the Department 
of Homeland Security, DHS, new tools to secure the Visa Waiver Program, 
consistent with the recommendations made by the 9/11 Commission.
  The bill would set a maximum low visa overstay rate for all visa 
waiver program countries; require a reevaluation of visa waiver program 
countries within 1 year; mandate that the administration will lose its 
authority to continue to expand the program if it does not track 97 
percent of those exiting and departing at our airports--based on 
arrival data, not just departure data; require an audit of the 
electronic travel authorization system, ESTA; and require current visa 
waiver countries to report on lost or stolen visas in order to remain 
in the visa waiver program.
  Senator Kyl and I have held multiple hearings over the years and time 
and time again we have expressed concern and requested improvements, 
but no changes have been forthcoming in how the Department of Homeland 
Security intends to implement this program.
  The hearings and the recent Government Accountability Office report 
found that the administration is not doing what it should to secure the 
program. Instead, the Visa Waiver Program has continued to expand 
without meeting the security needs of our country.
  In fact, just today the administration has announced that it has met 
the deadline for the electronic travel authorization system, ESTA, to 
be fully operational. However, the GAO report found that ESTA--the one 
security check for visa waiver travelers prior to arrival at our 
Nation's airports--has not been implemented effectively by the 
administration to make it a workable system for the airlines and 
embassies.
  The GAO report also found that the administration is still unable to 
track who comes in and out of this country. This is especially 
significant given that the program was recently expanded to countries 
with high visa overstay rates, bringing the number of participating 
countries to 35.
  This means that for the citizens of 35 countries--including 
Australia, Singapore, Slovenia, and the United Kingdom--entering the 
United States is as simple as purchasing an airline ticket and arriving 
at the airport with a valid passport in hand.
  The result is that these travelers not only bypass the interview and 
individualized security screening process, but they are also lost once 
they arrive in the U.S. because DHS is only checking when individuals 
depart at our airports, not if they overstay their visit.
  It is estimated that 40 percent of the current undocumented 
population are people who have overstayed their visas. That means that 
if there are 12 million

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undocumented people now in the U.S., 4.8 million people overstayed 
their visa. The Visa Waiver Program is the achilles heel of our 
immigration system.
  The security risks associated with the Visa Waiver Program are even 
greater--Our Nation's security experts have stated repeatedly that the 
program provides an attractive option to terrorists looking to do 
Americans harm.
  At a Senate Judiciary Committee hearing on September 27, 2007, DNI 
Director Mike McConnell testified that Al Qaeda is purposefully 
recruiting Europeans because they do not require a visa to come into 
this country.
  As Director McConnell said, this tactic gives Al Qaeda ``an extra 
edge in getting an operative or two or three into the country with the 
ability to carry out an attack that might be reminiscent of 9-11.''
  Secretary Chertoff reiterated these concerns when he stated that 
``terrorists are increasingly looking to Europe as both a target and a 
platform for terrorist attacks'' against the United States.
  In an interview with BBC's ``World News America,'' Secretary Chertoff 
acknowledged, ``the first time we encounter [visa waiver travelers] is 
when they arrive in the United States and that creates a very small 
window of opportunity to check them out.''
  These security risks are particularly apparent when we look at the 
statistics on the number of fraudulent and stolen passports and other 
international documents.
  Between January 2002 and June 2004, 28 foreign governments, including 
visa waiver countries, reported 56,943 stolen blank foreign passports 
to the State Department. And just this summer, a security van in London 
was hijacked, resulting in the loss of 3,000 blank British passports 
and visas that were destined for overseas embassies.
  DHS's own Inspector General, Clark Ervin has testified that: ``The 
lost and stolen passport problem is the greatest security problem 
associated with the Visa Waiver Program. Our country is vulnerable 
because gaps in our treatment of lost and stolen passports remain.''
  The Strengthening the Visa Waiver Program to Secure America Act would 
put necessary security checks firmly in place and provide greater 
program oversight.
  We must act now to secure the Visa Waiver Program. I urge my 
colleagues to support this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 203

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Strengthening the Visa 
     Waiver Program to Secure America Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Program country.--The term ``program country'' means a 
     country designated as a program country under section 
     217(c)(1) of the Immigration and Nationality Act (8 U.S.C. 
     1187(c)(1)).
       (2) Secretary.--Except as otherwise provided, the term 
     ``Secretary'' means the Secretary of Homeland Security.
       (3) Visa waiver program.--The term ``visa waiver program'' 
     means the visa waiver program carried out under section 217 
     of the Immigration and Nationality Act (8 U.S.C. 1187).

     SEC. 3. ENFORCEMENT OF REQUIREMENT TO REPORT LOST OR STOLEN 
                   PASSPORTS.

       (a) Enforcement of Existing Requirement.--Not later than 
     180 days after the date of the enactment of this Act, each 
     program country shall have in effect an agreement with the 
     United States as required by section 217(c)(2)(D) of the 
     Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(D)).
       (b) Failure To Agree To Report.--
       (1) Suspension from the program.--If a program country does 
     not meet the requirements of subsection (a), the Secretary, 
     in consultation with the Secretary of State, shall 
     immediately suspend the program country's participation in 
     the visa waiver program.
       (2) Restoration to the program.--With respect to a country 
     that is suspended from participation in the visa waiver 
     program under paragraph (1), the Secretary shall restore the 
     country's participation on the date that the Secretary 
     determines that the country meets the requirements of 
     paragraph (1).
       (c) Limitation on New Program Countries.--Notwithstanding 
     any other provision of law, the Secretary may not designate a 
     country as a program country until after the date that the 
     Secretary certifies to Congress that the requirements of 
     subsection (a) have been met.

     SEC. 4. ENFORCEMENT OF REQUIREMENT FOR PERIODIC EVALUATIONS 
                   OF PROGRAM COUNTRIES.

       (a) Enforcement of Existing Requirement.--Not later than 1 
     year after the date of the enactment of this Act, the 
     Secretary, in consultation with the Secretary of State, shall 
     evaluate under section 217(c)(5)(A) of the Immigration and 
     Nationality Act (8 U.S.C. 1187(c)(5)(A)) each program country 
     that was designated as a program country prior to January 1, 
     2009. Such evaluation shall include the visa overstay rate 
     for each program country for the 1-year period ending on the 
     date of the enactment of this Act.
       (b) Visa Overstay Rate Defined.--In this section, the term 
     ``visa overstay rate'' has the meaning given that term in 
     section 217(c)(8)(C) of the Immigration and Nationality Act 
     (8 U.S.C. 1187(c)(8)(C)), as amended by section 6.
       (c) Failure To Comply With Program Requirements.--
       (1) Suspension from the program.--If the periodic 
     evaluation prepared under subsection (a) shows that a program 
     country has a visa overstay rate that exceeds 2 percent, the 
     Secretary, in consultation with the Secretary of State, shall 
     immediately suspend the program country's participation in 
     the visa waiver program.
       (2) Restoration to the program.--With respect to a country 
     that is suspended from participation in the visa waiver 
     program under paragraph (1), the Secretary shall restore the 
     country's participation on the date that the Secretary 
     determines that the country's visa overstay rate does not 
     exceed 2 percent.
       (d) Limitation on New Program Countries.--Notwithstanding 
     any other provision of law, the Secretary may not designate a 
     country as a program country until after the date that the 
     Secretary certifies to Congress that the requirements of 
     subsection (a) have been met.

     SEC. 5. ARRIVAL AND DEPARTURE VERIFICATION.

       (a) Requirement for Verification.--
       (1) In general.--Subparagraph (A) of section 217(c)(8) of 
     the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)) is 
     amended--
       (A) in clause (i)--
       (i) by striking ``can verify'' and inserting ``verifies'';
       (ii) by inserting ``arrival and'' before ``departure''; and
       (iii) by inserting ``entry and'' before ``exit''; and
       (B) in clause (ii) by inserting ``entry and'' before 
     ``exit''.
       (2) Conforming amendment.--Subparagraph (C) of such section 
     217(c)(8) is amended by inserting ``entry and'' before 
     ``exit''.
       (b) Limitation on New Program Countries.--Notwithstanding 
     any other provision of law, the Secretary may not designate a 
     country as a program country until after the date that the 
     Secretary certifies to Congress that the requirements of 
     clause (i) of subsection (c)(8)(A) of section 217 of the 
     Immigration and Nationality Act, as amended by subsection 
     (a)(1), are met.
       (c) Audit.--
       (1) Requirement to conduct.--Not later than 180 days after 
     the date that the certification described in clause (i) of 
     subsection (c)(8)(A) of section 217 the Immigration and 
     Nationality Act (8 U.S.C. 1187), as amended by subsection 
     (a)(1), is submitted to Congress, the Comptroller of the 
     United States shall conduct an audit of the travel 
     authorization system described in subsection (h)(3) of that 
     section and submit a report on such audit to Congress.
       (2) Elements.--The report by paragraph (1) shall include--
       (A) a description of the data collected by such system;
       (B) the number of individuals who were identified by such 
     system as being in violation of the immigration laws, 
     disaggregated by country; and
       (C) an explanation of any problems in implementing such 
     system encountered during the early stages of implementation 
     to better identify high-risk travelers and countries of 
     origin of such travelers.

     SEC. 6. VISA OVERSTAY RATES.

       Subparagraph (C) of section 217(c)(8) of the Immigration 
     and Nationality Act (8 U.S.C. 1187(c)(8)), as amended by 
     section 5(a)(2), is further amended--
       (1) in clause (i), by striking the period at the end of the 
     first sentence and inserting ``, except that in no case may a 
     maximum visa overstay rate exceed 2 percent.'';
       (2) by redesignating clause (iii) as clause (iv);
       (3) by inserting after clause (ii) the following:
       ``(iii) Data compilation.--The Secretary of Homeland 
     Security shall compile data from all appropriate databases to 
     determine the visa overstay rate for each country. Such 
     databases shall include--

       ``(I) the Advanced Passenger Information System (APIS);
       ``(II) the Automated Fingerprint Identification System 
     (IDENT);
       ``(III) the Central Index System (CIS);
       ``(IV) the Computer Linked Application Information 
     Management Systems (CLAIMS);
       ``(V) the Deportable Alien Control System (DACS);

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       ``(VI) the Integrated Automated Fingerprint Identification 
     System (IAFIS);
       ``(VII) the Nonimmigrant Information System (NIIS);
       ``(VIII) the Reengineered Naturalization Applications 
     Casework Systems (RNACS); and
       ``(IX) the Refugees, Asylum, and Parole System (RAPS).''; 
     and

       (4) by adding at the end the following:
       ``(v) Annual report.--Not less frequently than once each 
     fiscal year, the Secretary of Homeland Security shall submit 
     to the Committee on Foreign Relations and the Committee on 
     the Judiciary of the Senate and the Committee on Foreign 
     Affairs and the Committee on the Judiciary of the House of 
     Representatives a report describing the visa overstay rate 
     for the previous fiscal year of each country designated as a 
     program country under paragraph (1).''.
                                 ______