[House Report 105-387]
[From the U.S. Government Publishing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-387
_______________________________________________________________________


 
TO AMEND THE IMMIGRATION AND NATIONALITY ACT TO EXTEND THE VISA WAIVER 
 PILOT PROGRAM, AND TO PROVIDE FOR THE COLLECTION OF DATA WITH RESPECT 
 TO THE NUMBER OF NONIMMIGRANTS WHO REMAIN IN THE UNITED STATES AFTER 
THE EXPIRATION OF THE PERIOD OF STAY AUTHORIZED BY THE ATTORNEY GENERAL

_______________________________________________________________________


November 7, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2578]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2578) to amend the Immigration and Nationality Act 
to extend the visa waiver pilot program, and to provide for the 
collection of data with respect to the number of nonimmigrants 
who remain in the United States after the expiration of the 
period of stay authorized by the Attorney General, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.


                           TABLE OF CONTENTS
                                                                   Page
Purpose and Summary........................................           2
Background and Need for Legislation........................           2
Committee Consideration....................................           5
Vote of the Committee......................................           5
Committee Oversight Findings...............................           5
Committee on Government Reform and Oversight Findings......           6
New Budget Authority and Tax Expenditures..................           6
Congressional Budget Office Estimate.......................           6
Constitutional Authority Statement.........................           7
Section-by-Section Analysis and Discussion.................           7
Changes in Existing Law Made by the Bill, as Reported......           7
Dissenting Views...........................................           8


                          Purpose and Summary

    This legislation will extend through September 30, 1999, 
the Visa Waiver Pilot Program, under which certain foreign 
tourist and business visitors are permitted to enter the United 
States without a visa.

                Background and Need for the Legislation

    H.R. 2578 extends the Visa Waiver Pilot Program under 
section 217 of the Immigration and Nationality Act (``INA'') 
through September 30, 1999, and requires the Attorney General 
to collect data and report to Congress on the number of aliens 
who overstay their authorized period of admission to the United 
States.

                     The Visa Waiver Pilot Program

Background
    Section 313 of the Immigration Reform and Control Act of 
1986 (IRCA) established the Visa Waiver Pilot Program (VWPP) to 
permit tourists and business visitors from certain countries to 
enter the United States for up to 90 days without first 
obtaining a visa.
    The VWPP was first implemented for a 3-year period starting 
in FY 1988 and has since been extended by Congress. Section 635 
of the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996 (P.L. 104-208, Div. C) (``IIRIRA'') extended the 
program for 1 year, through September 30, 1997. Without a 
further extension, therefore, the program would expire on 
September 30, 1997.\1\
---------------------------------------------------------------------------
    \1\ The expiration deadline was extended through November 7, 1997, 
pursuant to a Continuing Resolution.
---------------------------------------------------------------------------
    In 1995, there were 22 million nonimmigrant admissions to 
the United States, over 20 million of which were visitors for 
business or pleasure (traveling on ``B'' visas or under the 
visa waiver privilege). The 25 visa waiver counties accounted 
for 13.3 million nonimmigrant admissions, 10.1 million of which 
were under the VWPP. The balance included 2.5 million travelers 
who obtained B visas (most likely because their intended period 
of stay in the U.S. exceeded 90 days) and 661,000 who were 
issued other types of nonimmigrant visas (students, temporary 
workers, etc.)
Criteria for Participation
    Under section 217 of the INA, an alien is eligible for the 
visa waiver privilege if the following conditions are met:
          The alien must be seeking entry as a nonimmigrant 
        visitor for business or pleasure for a period of 90 
        days or less.
          The alien must be a national of an eligible country 
        designated by the Attorney General.
          The alien must complete designated forms.
          The alien must be traveling on a carrier which has 
        entered into an agreement with the Attorney General 
        regarding transport of aliens, must not be a safety 
        threat, must not have any previous violation after 
        being admitted under the VWPP, and must have a return 
        trip ticket.
          The alien must waive all rights to review or appeal 
        of an immigration officer's determination regarding the 
        alien's admissibility to the U.S., and also must waive 
        all rights to contest deportation, except on the 
        grounds of seeking asylum.
    Section 217 requires that a nation must meet the following 
conditions to be designated as a VWPP participant:
          For the preceding 2-year period, the average refusal 
        rate for its nationals seeking temporary visitor visas 
        to enter the U.S. must be less than 2 percent, and the 
        visa refusal rate for both years of the period must be 
        less than 2.5 percent. These requirements ensure that 
        the visa waiver privilege is extended only to those 
        countries in which there is a low incidence of visa 
        application fraud and whose nationals have a low rate 
        of immigration violations once admitted to the United 
        States.
          The country must have or be in the process of 
        establishing a machine readable passport program. This 
        requirement helps to ensure that VWPP countries are 
        using advanced technology and fraud-prevention measures 
        in creation of their own passports and visas.
          The country must offer reciprocal privileges to U.S. 
        nationals.
          The Attorney General must determine that U.S. law 
        enforcement interests would not be compromised by the 
        designation of the country.
    In order to remain a VWPP participant, a country must 
maintain a ``visa overstay rate'' of less than 2 percent.\2\ 
Section 635 of the IIRIRA made several significant changes to 
INA section 217, repealing provisions allowing for probationary 
status under the VWPP for countries not previously in the 
program whose visa refusal rate was more than 2 percent but 
less than 3.5 percent and giving the Attorney General primary 
authority to make determinations of eligibility under the 
program.
---------------------------------------------------------------------------
    \2\ The visa overstay rate is computed by dividing the total number 
of the country's nationals who during the previous fiscal year either 
(a) were excluded from admission as nonimmigrant visitors, (b) withdrew 
their applications for admission as nonimmigrant visitors, or (c) 
violated the terms of their admission as a nonimmigrant visitor into 
the total number of the country's nationals who applied for admission 
as nonimmigrant visitors during that year.
---------------------------------------------------------------------------
The VWPP and Illegal Immigration
    Neither the State Department nor the Immigration and 
Naturalization Service (INS) report a significant level of 
violations on the part of aliens entering the United States 
under the visa waiver privilege. Each year, several thousand 
aliens who apply for admission under the privilege are refused 
by INS inspectors, either because they do not meet the 
nationality criteria (for example, holders of certain types of 
United Kingdom passports are not eligible) or because there is 
evidence that they do not intend to depart the United States 
within the allotted 90 days and/or plan to work while they are 
in the United States. A small number of aliens admitted under 
the program are apprehended in the interior of the United 
States.
    A potentially more serious problem arises from the very 
fact that aliens admitted under this program are required only 
to have a passport. The incidence and sophistication of 
passport, visa, and other types of document fraud is on the 
rise. An alien may present a passport from a visa waiver 
country that is valid in appearance but actually may be 
counterfeit or procured by fraud. Ironically, the primary line 
of defense against passport fraud is the greater security and 
sophistication of the visas issued by U.S. consulates--the very 
document that VWPP participants are not required to have. The 
relationship between passport fraud and potential breaches of 
security in the VWPP is one aspect of an ongoing inter-agency 
review of the program being directed by the Attorney General.
Rationale for 2-Year Extension of VWPP With No Change in Eligibility 
        Criteria
    The Subcommittee on Immigration and Claims held a hearing 
on June 17, 1997, regarding extension of the VWPP. At that 
hearing, the Administration requested a multi-year extension 
but opposed any amendment to change the criteria for admission 
to or participation in the VWPP. The hearing focused in large 
part upon the inability of the INS since FY 1992 to provide an 
accurate estimate of the visa overstay rates for individual 
countries, which, under section 217 of the INA, is critical to 
determining whether countries are allowed to remain in the 
program.
    The Administration and witnesses from the travel and 
tourism industries testified that failure to extend the VWPP 
would cause disruption in State Department operations and 
hamper business travel and tourism to the United States. In the 
absence of the VWPP, the State Department would need to 
substantially augment its visa processing capacities for two 
dozen nations. These include Germany, Japan, and the United 
Kingdom, whose nationals account for approximately 6.5 million 
annual admissions under the VWPP. Requiring all such entrants 
to obtain visas prior to their departure for the U.S. would 
constitute an administrative burden to the State Department and 
could result in delayed or deferred travel.
     These factors provide a strong argument for temporary 
extension of the VWPP. However, there are equally strong 
arguments for limiting the extension to a short period, such as 
2 years. Chief among these is that the INS currently is unable 
to provide any country-by-country estimate of visa overstay 
rates, and in fact has no such statistics more recent than FY 
1992. Accordingly, there is no basis on which to measure 
whether participating countries remain in compliance with 
statutory conditions of eligibility. In addition, INS efforts 
to improve this measurement during the past year have failed.
    The 1996 Immigration Act required the INS to develop a 
system of departure controls designed to provide a more 
accurate measure of visa overstay rates. H.R. 2578 reinforces 
this requirement by mandating an annual report to Congress on 
country-by-country visa overstay rates. It would be wise to 
postpone longer extensions of the VWPP until the INS meets or 
makes substantial progress in meeting the requirements imposed 
by the 1996 Act.
Administration Position
    The Attorney General and the Assistant Secretary of State 
for Consular Affairs have recently endorsed a straight 2-year 
extension of the VWPP with no change in the eligibility 
criteria. The Attorney General cited in particular the ongoing 
inter-agency review of the VWPP. Issues in this review include 
what criteria are necessary to facilitate travel while ensuring 
the integrity of the nonimmigrant admissions system. At the 
conclusion of this review, the Administration is expected to 
propose legislative changes regarding further extension of the 
program and criteria for admission to (and removal from) the 
program. Accordingly, this legislation does not authorize any 
change in the criteria for admission to or continued 
participation in the program.

                        Committee Consideration

    On October 7, 1997, the Committee met in open session and 
ordered reported favorably the bill H.R. 2578 by voice vote, a 
quorum being present.

                         Vote of the Committee

    Mr. Frank offered an amendment to change the criteria for 
qualification for designation as a participant country in the 
Visa Waiver Pilot Program which was defeated by a vote of 10 
ayes to 16 nays.

        Ayes--10                      Nays-16
Mr. Conyers                         Mr. Sensenbrenner
Mr. Frank                           Mr. McCollum
Mr. Berman                          Mr. Gekas
Mr. Nadler                          Mr. Coble
Mr. Scott                           Mr. Smith (TX)
Mr. Watt                            Mr. Gallegly
Ms. Lofgren                         Mr. Goodlatte
Ms. Jackson-Lee                     Mr. Buyer
Mr. Delahunt                        Mr. Bono
Mr. Rothman                         Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Jenkins
                                    Mr. Hutchinson
                                    Mr. Pease
                                    Mr. Cannon
                                    Mr. Hyde

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 2578, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, November 6, 1997.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2578, a bill to 
amend the Immigration and Nationality Act to extend the visa 
waiver pilot program, and to provide for the collection of data 
with respect to the number of nonimmigrants who remain in the 
United States after the expiration of the period of stay 
authorized by the Attorney General.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Sunita 
D'Monte, who can be reached at 226-2840.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

    cc: Hon. John Conyers, Jr.,
         Ranking Minority Member

H.R. 2578--A bill to amend the Immigration and Nationality Act 
        to extend the visa waiver pilot program, and to provide 
        for the collection of data with respect to the number 
        of nonimmigrants who remain in the United States after 
        the expiration of the period of stay authorized by the 
        Attorney General

    H.R. 2578 would extend the visa waiver pilot program 
through 1999 and require the Attorney General to collect data 
and report on nonimmigrant aliens who remain in the United 
States after their authorized period of stay. The program 
permits certain nonimmigrants to enter the United States for a 
90-day period without obtaining a visa. It applies to roughly 
10 million nonimmigrants who come from about 25 countries and 
generally do not stay in the United States longer than the law 
allows.
    CBO estimates that H.R. 2578 would have no significant 
budgetary impact. Under current law, the visa fees affected by 
this bill are recorded as offsetting collections and are 
available to the Department of State for spending on consular 
affairs. This bill would result in forgone collections, but 
spending on consular affairs would be correspondingly lower. 
Because H.R. 2578 would affect direct spending, pay-as-you-go 
procedures would apply. H.R. 2578 contains no intergovernmental 
mandates, as defined in the Unfunded Mandates Reform Act of 
1995 and would not affect the budgets of state, local, or 
tribal governments.
    The estimate was prepared by Sunita D'Monte, who can be 
reached at 226-2840. This estimate was approved by Paul N. Van 
de Water, Assistant Director for budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article I, section 8, clause 4 of the 
Constitution.

                      Section-by-Section Analysis

    Section 1 of this legislation amends section 217(f) of the 
Immigration and Nationality Act to set an expiration date for 
the Visa Waiver Pilot Program of September 30, 1999.
    Section 2 requires that not later than 180 days after 
enactment, the Attorney General shall implement a program to 
collect data on aliens who overstay their authorized period of 
admission into the United States. Section 2 also requires the 
Attorney General to report to Congress on June 30, 1999, and 
not later than June 30 of each year thereafter, with numerical 
estimates for each country of the number of aliens who have 
overstayed their authorized period of stay.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3 of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

           SECTION 217 OF THE IMMIGRATION AND NATIONALITY ACT

             visa waiver pilot program for certain visitors

    Sec. 217. (a) * * *
          * * * * * * *
    (f) Definition of Pilot Program Period.--For purposes of 
this section, the term ``pilot program period'' means the 
period beginning on October 1, 1988, and ending on September 
30, [1997] 1999.
          * * * * * * *
DISSENTING VIEWS, H.R. 2578
    We write in dissent to H.R. 2578, a measure to extend the 
visa waiver program, not in opposition to the concept, but 
principally to reiterate our objection to the existing program 
s misplaced rigid reliance on the refusal rate, the 
arbitrariness of which is well established. We very much 
appreciate the acknowledgment of this fact which Section 2 of 
H.R. 2578 represents, that overstay rates are a far more 
relevant criteria for determining eligibility for participation 
in the visa waiver program, and intend to work with supporters 
of visa waiver to promote as a policy goal the replacement of 
refusal rates with overstay rates, or some combination thereof.
    But the program continues to demand a very low refusal rate 
as the determinant of eligibility, and this is unfair. 
Therefore, we supported an amendment offered by Mr. Frank of 
Massachusetts to temporarily and limitedly expand the 
eligibility criteria. That amendment, rejected 16-10, would 
have added a new category of eligibility, any country with a 
refusal rate below 4%, that had reduced in a previous fiscal 
year its refusal rate by 50% of the 1994 rate. While this new 
category is not country specific, it would have based on 
current figures included at least Portugal and South Korean, 
two ally nations that are ineligible under the rigid, and 
arbitrary, current criteria.
    Again, the current program relies on statistics which are 
not relevant to the ultimate issue, which is whether or not 
past practice of citizens of that nation indicate an 
unsupportable tendency to remain in this country beyond the 
term of their visas. The refusal rate is simply not 
sufficiently probative of that fact. Given the current 
misreliance on that fact, we support a temporary change which 
would have permitted at least two strong ally nations which 
both have relatively low refusal rates, and low overstay rates, 
to participate, until the program can be changed to rely more 
on overstay rates. Unfortunately, that amendment was defeated.
    We will continue to work with supporters of (and objectors 
to) visa waiver toward a program which has as its criteria for 
eligibility a fact which is more probative of whether or not 
individuals will in fact violate the terms of a visa. We 
believe that evidence is the overstay rate, and we are pleased 
that H.R. 2578 includes acknowledgment of that fact.
                                   Barney Frank.
                                   Melvin L. Watt.
                                   Steven R. Rothman.
                                   Martin T. Meehan.

                               
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