[House Report 106-564]
[From the U.S. Government Publishing Office]





106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-564

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



 
                   VISA WAIVER PERMANENT PROGRAM ACT

                                _______
                                

 April 6, 2000.--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

                            ADDITIONAL VIEWS

                        [To accompany H.R. 3767]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 3767) to amend the Immigration and Nationality Act 
to make improvements to, and permanently authorize, the visa 
waiver pilot program under section 217 of such Act, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           7
Background and Need for the Legislation....................           7
Hearings...................................................           9
Committee Consideration....................................           9
Vote of the Committee......................................          10
Committee Oversight Findings...............................          11
Committee on Government Reform Findings....................          11
New Budget Authority and Tax Expenditures..................          11
Committee Cost Estimate....................................          11
Constitutional Authority Statement.........................          11
Section-by-Section Analysis and Discussion.................          11
Agency Views...............................................          16
Changes in Existing Law Made by the Bill, as Reported......          20
Additional Views...........................................          31

    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Visa Waiver Permanent Program Act''.

                TITLE I--PERMANENT PROGRAM AUTHORIZATION

SEC. 101. ELIMINATION OF PILOT PROGRAM STATUS.

    (a) In General.--Section 217 of the Immigration and Nationality Act 
(8 U.S.C. 1187) is amended--
            (1) in the section heading, by striking ``pilot'';
            (2) in subsection (a)--
                    (A) in the subsection heading, by striking 
                ``Pilot'';
                    (B) in the matter preceding paragraph (1), by 
                striking ``pilot'' both places it appears;
                    (C) in paragraph (1), by striking ``pilot program 
                period (as defined in subsection (e))'' and inserting 
                ``program''; and
                    (D) in paragraph (2), in the paragraph heading, by 
                striking ``pilot'';
            (3) in subsection (b), in the matter preceding paragraph 
        (1), by striking ``pilot'';
            (4) in subsection (c)--
                    (A) in the subsection heading, by striking 
                ``Pilot'';
                    (B) in paragraph (1), by striking ``pilot'';
                    (C) in paragraph (2)--
                            (i) by striking ``subsection (g)'' and 
                        inserting ``subsection (f)''; and
                            (ii) by striking ``pilot''; and
                    (D) in paragraph (3)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``(within the pilot program 
                        period)'';
                            (ii) in subparagraph (A), in the matter 
                        preceding clause (i), by striking ``pilot'' 
                        both places it appears; and
                            (iii) in subparagraph (B), by striking 
                        ``pilot'';
            (5) in subsection (e)(1)--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``pilot''; and
                    (B) in subparagraph (B), by striking ``pilot'';
            (6) by striking subsection (f) and redesignating subsection 
        (g) as subsection (f); and
            (7) in subsection (f) (as so redesignated)--
                    (A) in paragraph (1)(A) by striking ``pilot'';
                    (B) in paragraph (1)(C), by striking ``pilot'';
                    (C) in paragraph (2)(A), by striking ``pilot'' both 
                places it appears;
                    (D) in paragraph (3), by striking ``pilot''; and
                    (E) in paragraph (4)(A), by striking ``pilot''.
    (b) Conforming Amendments.--
            (1) Documentation requirements.--Clause (iv) of section 
        212(a)(7)(B) of the Immigration and Nationality Act (8 U.S.C. 
        1182(a)(7)(B)(iv)) is amended--
                    (A) in the clause heading, by striking ``pilot''; 
                and
                    (B) by striking ``pilot''.
            (2) Table of contents.--The table of contents for the 
        Immigration and Nationality Act is amended, in the item 
        relating to section 217, by striking ``pilot''.

                     TITLE II--PROGRAM IMPROVEMENTS

SEC. 201. EXTENSION OF RECIPROCAL PRIVILEGES.

    Section 217(a)(2)(A) of the Immigration and Nationality Act (8 
U.S.C. 1187(a)(2)(A)) is amended by inserting ``, either on its own or 
in conjunction with one or more other countries that are described in 
subparagraph (B) and that have established with it a common area for 
immigration admissions,'' after ``to extend)''.

SEC. 202. MACHINE READABLE PASSPORT PROGRAM.

    (a) Requirement on Alien.--Section 217(a) of the Immigration and 
Nationality Act (8 U.S.C. 1187(a)) is amended--
            (1) by redesignating paragraphs (3) through (7) as 
        paragraphs (4) through (8), respectively; and
            (2) by inserting after paragraph (2) the following:
            ``(3) Machine readable passport.--On and after October 1, 
        2006, the alien at the time of application for admission is in 
        possession of a valid unexpired machine-readable passport that 
        satisfies the internationally accepted standard for machine 
        readability.''.
    (b) Requirement on Country.--Section 217(c)(2)(B) of the 
Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(B)) is amended to 
read as follows:
                    ``(B) Machine readable passport program.--
                            ``(i) In general.--Subject to clause (ii), 
                        the government of the country certifies that it 
                        issues to its citizens machine-readable 
                        passports that satisfy the internationally 
                        accepted standard for machine readability.
                            ``(ii) Deadline for compliance for certain 
                        countries.--In the case of a country designated 
                        as a program country under this subsection 
                        prior to May 1, 2000, as a condition on the 
                        continuation of that designation, the country--
                                    ``(I) shall certify, not later than 
                                October 1, 2000, that it has a program 
                                to issue machine-readable passports to 
                                its citizens not later than October 1, 
                                2003; and
                                    ``(II) shall satisfy the 
                                requirement of clause (i) not later 
                                than October 1, 2003.''.

SEC. 203. DENIAL OF PROGRAM WAIVER BASED ON GROUND OF INADMISSIBILITY.

    (a) In General.--Section 217(a) of the Immigration and Nationality 
Act (8 U.S.C. 1187(a)), as amended by section 202, is further amended 
by adding at the end the following:
            ``(9) Automated system check.--The identity of the alien 
        has been checked using an automated electronic database 
        containing information about the inadmissibility of aliens to 
        uncover any grounds on which the alien may be inadmissible to 
        the United States, and no such ground has been found.''.
    (b) Visa Application Sole Method To Dispute Denials of Waiver Based 
on Ground of Inadmissibility.--Section 217 of the Immigration and 
Nationality Act (8 U.S.C. 1187), as amended by section 101(a)(6) of 
this Act, is further amended by adding at the end the following:
    ``(g) Visa Application Sole Method of Disputing Ground of 
Inadmissibility Found in Automated System.--In the case of an alien 
denial a waiver under the program by reason of a ground of 
inadmissibility uncovered through a written or verbal statement by the 
alien or a use of an automated electronic database required under 
subsection (a)(9), the alien may apply for a visa at an appropriate 
consular office outside the United States. There shall be no other 
means of administrative or judicial review of such a denial, and no 
court or person otherwise shall have jurisdiction to consider any claim 
attacking the validity of such a denial.''.
    (c) Parole Authority.--Section 212(d)(5) of the Immigration and 
Nationality Act (8 U.S.C. 1182(d)(5)) is amended--
            (1) in subparagraph (A), by striking ``subparagraph (B)'' 
        and inserting ``subparagraph (B) or (C)''; and
            (2) by adding at the end the following:
      ``(C) The Attorney General may not parole into the United States 
an alien who has applied under section 217 for a waiver of the visa 
requirement, and has been denied such waiver by reason of a ground of 
inadmissibility uncovered through a written or verbal statement by the 
alien or a use of an automated electronic database required under 
section 217(a)(9), unless the Attorney General determines that 
compelling reasons in the public interest, or compelling health 
considerations, with respect to that particular alien require that the 
alien be paroled into the United States.''.

SEC. 204. EVALUATION OF EFFECT OF COUNTRY'S PARTICIPATION ON LAW 
                    ENFORCEMENT AND SECURITY.

    (a) Initial Designation.--Section 217(c)(2)(C) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)(2)(C)) is amended to read as 
follows:
                    ``(C) Law enforcement and security interests.--The 
                Attorney General, in consultation with the Secretary of 
                State--
                            ``(i) evaluates the effect that the 
                        country's designation would have on the law 
                        enforcement and security interests of the 
                        United States (including the interest in 
                        enforcement of the immigration laws of the 
                        United States);
                            ``(ii) determines that such interests would 
                        not be compromised by the designation of the 
                        country; and
                            ``(iii) submits a written report to the 
                        Committee on the Judiciary of the United States 
                        House of Representatives and of the Senate 
                        regarding the country's qualification for 
                        designation that includes an explanation of 
                        such determination.''.
    (b) Continuation of Designation.--Section 217(c) of the Immigration 
and Nationality Act (8 U.S.C. 1187(c)) is amended by adding at the end 
the following:
            ``(5) Written reports on continuing qualification; 
        designation terminations.--
                    ``(A) Periodic evaluations.--
                            ``(i) In general.--The Attorney General, in 
                        consultation with the Secretary of State, 
                        periodically (but not less than once every 5 
                        years)--
                                    ``(I) shall evaluate the effect of 
                                each program country's continued 
                                designation on the law enforcement and 
                                security interests of the United States 
                                (including the interest in enforcement 
                                of the immigration laws of the United 
                                States);
                                    ``(II) shall determine whether any 
                                such designation ought to be continued 
                                or terminated under subsection (d); and
                                    ``(III) shall submit a written 
                                report to the Committee on the 
                                Judiciary of the United States House of 
                                Representatives and of the Senate 
                                regarding the continuation or 
                                termination of the country's 
                                designation that includes an 
                                explanation of such determination and 
                                the effects described in subclause (I).
                            ``(ii) Effective date.--A termination of 
                        the designation of a country under this 
                        subparagraph shall take effect on the date 
                        determined by the Attorney General, but may not 
                        take effect before the end of the 30-day period 
                        beginning on the date on which notice of the 
                        termination is published in the Federal 
                        Register.
                            ``(iii) Redesignation.--In the case of a 
                        termination under this subparagraph, the 
                        Attorney General shall redesignate the country 
                        as a program country, without regard to 
                        subsection (f) or paragraph (2) or (3), when 
                        the Attorney General, in consultation with the 
                        Secretary of State, determines that all causes 
                        of the termination have been eliminated.
                    ``(B) Automatic termination.--
                            ``(i) Requirement.--On and after October 1, 
                        2005, the designation of any program country 
                        with respect to a report described in 
                        subparagraph (A)(i)(III) has not been submitted 
                        in accordance with such subparagraph during the 
                        preceding 5 years shall be considered 
                        terminated.
                            ``(ii) Effective date.--A termination of 
                        the designation of a country under this 
                        subparagraph shall take effect on the last day 
                        of the 5-year period described in clause (i).
                            ``(iii) Redesignation.--In the case of a 
                        termination under this subparagraph, the 
                        Attorney General shall redesignate the country 
                        as a program country, without regard to 
                        subsection (f) or paragraph (2) or (3), when 
                        the required report is submitted, if the report 
                        includes a determination by the Attorney 
                        General that the country should continue as a 
                        program country.
                    ``(C) Emergency termination.--
                            ``(i) In general.--In the case of a program 
                        country in which an emergency occurs that the 
                        Attorney General, in consultation with the 
                        Secretary of State, determines threatens the 
                        law enforcement or security interests of the 
                        United States (including the interest in 
                        enforcement of the immigration laws of the 
                        United States), the Attorney General shall 
                        immediately terminate the designation of the 
                        country as a program country.
                            ``(ii) Definition.--For purposes of clause 
                        (i), the term `emergency' means--
                                    ``(I) the overthrow of a 
                                democratically elected government;
                                    ``(II) war (including undeclared 
                                war, civil war, or other military 
                                activity);
                                    ``(III) disruptive social unrest;
                                    ``(IV) a severe economic or 
                                financial crisis; or
                                    ``(V) any other extraordinary event 
                                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).
                            ``(iii) Redesignation.--The Attorney 
                        General may redesignate the country as a 
                        program country, without regard to subsection 
                        (f) or paragraph (2) or (3), when the Attorney 
                        General determines that--
                                    ``(I) at least 6 months have 
                                elapsed since the effective date of the 
                                termination;
                                    ``(II) the emergency that caused 
                                the termination has ended; and
                                    ``(III) the average number of 
                                refusals of nonimmigrant visitor visas 
                                for nationals of that country during 
                                the period of termination under this 
                                subparagraph was less than 3.0 percent 
                                of the total number of nonimmigrant 
                                visitor visas for nationals of that 
                                country which were granted or refused 
                                during such period.
                    ``(D) Treatment of nationals after termination.--
                For purposes of this paragraph--
                            ``(i) nationals of a country whose 
                        designation is terminated under subparagraph 
                        (A), (B), or (C) shall remain eligible for a 
                        waiver under subsection (a) until the effective 
                        date of such termination; and
                            ``(ii) a waiver under this section that is 
                        provided to such a national for a period 
                        described in subsection (a)(1) shall not, by 
                        such a designation termination, be deemed to 
                        have been rescinded or otherwise rendered 
                        invalid, if the waiver is granted prior to such 
                        termination.''.

SEC. 205. USE OF INFORMATION TECHNOLOGY SYSTEMS.

    (a) In General.--Section 217 of the Immigration and Nationality Act 
(8 U.S.C. 1187), as amended by section 203(b), is further amended by 
adding at the end the following:
    ``(h) Use of Information Technology Systems.--
            ``(1) Automated entry-exit control system.--
                    ``(A) System.--Not later than October 1, 2001, the 
                Attorney General shall develop and implement a fully 
                automated entry and exit control system that will 
                collect a record of arrival and departure for every 
                alien who arrives by sea or air at a port of entry into 
                the United States and is provided a waiver under the 
                program.
                    ``(B) Requirements.--The system under subparagraph 
                (A) shall satisfy the following requirements:
                            ``(i) Data collection by carriers.--Not 
                        later than October 1, 2001, the records of 
                        arrival and departure described in subparagraph 
                        (A) shall be based, to the maximum extent 
                        practicable, on passenger data collected and 
                        electronically transmitted to the automated 
                        entry and exit control system by each carrier 
                        that has an agreement under subsection (a)(4).
                            ``(ii) Data provision by carriers.--Not 
                        later than October 1, 2002, no waiver may be 
                        provided under this section to an alien 
                        arriving by sea or air at a port of entry into 
                        the United States on a carrier unless the 
                        carrier is electronically transmitting to the 
                        automated entry and exit control system 
                        passenger data determined by the Attorney 
                        General to be sufficient to permit the Attorney 
                        General to carry out this paragraph.
                            ``(iii) Calculation.--The system shall 
                        contain sufficient data to permit the Attorney 
                        General to calculate, for each program country 
                        and each fiscal year, the portion of nationals 
                        of that country who are described in 
                        subparagraph (A) and for whom no record of 
                        departure exists, expressed as a percentage of 
                        the total number of such nationals who are so 
                        described.
                    ``(C) Reporting.--
                            ``(i) Percentage of nationals lacking 
                        departure record.--Not later than January 30 of 
                        each year (beginning with the year 2003), the 
                        Attorney General shall submit a written report 
                        to the Committee on the Judiciary of the United 
                        States House of Representatives and of the 
                        Senate containing the calculation described in 
                        subparagraph (B)(iii) for each program country 
                        for the previous fiscal year.
                            ``(ii) System effectiveness.--Not later 
                        than October 1, 2004, the Attorney General 
                        shall submit a written report to the Committee 
                        on the Judiciary of the United States House of 
                        Representatives and of the Senate containing 
                        the following:
                                    ``(I) The conclusions of the 
                                Attorney General regarding the 
                                effectiveness of the automated entry 
                                and exit control system to be developed 
                                and implemented under this paragraph.
                                    ``(II) The recommendations of the 
                                Attorney General regarding the use of 
                                the calculation described in 
                                subparagraph (B)(iii) as a basis for 
                                evaluating whether to terminate or 
                                continue the designation of a country 
                                as a program country.
            ``(2) Automated data sharing system.--
                    ``(A) System.--The Attorney General and the 
                Secretary of State shall develop and implement an 
                automated data sharing system that will permit them to 
                share data in electronic form from their respective 
                records systems regarding the admissibility of aliens 
                who are nationals of a program country.
                    ``(B) Requirements.--The system under subparagraph 
                (A) shall satisfy the following requirements:
                            ``(i) Supplying information to immigration 
                        officers conducting inspections at ports of 
                        entry.--Not later than October 1, 2002, the 
                        system shall enable immigration officers 
                        conducting inspections at ports of entry under 
                        section 235 to obtain from the system, with 
                        respect to aliens seeking a waiver under the 
                        program--
                                    ``(I) any photograph of the alien 
                                that may be contained in the records of 
                                the Department of State or the Service; 
                                and
                                    ``(II) information on whether the 
                                alien has ever been determined to be 
                                ineligible to receive a visa or 
                                ineligible to be admitted to the United 
                                States.
                            ``(ii) Supplying photographs of 
                        inadmissible aliens.--The system shall permit 
                        the Attorney General electronically to obtain 
                        any photograph contained in the records of the 
                        Secretary of State pertaining to an alien who 
                        is a national of a program country and has been 
                        determined to be ineligible to receive a visa.
                            ``(iii) Maintaining records on applications 
                        for admission.--The system shall maintain, for 
                        a minimum of 10 years, information about each 
                        application for admission made by an alien 
                        seeking a waiver under the program, including 
                        the following:
                                    ``(I) The name of each immigration 
                                officer conducting the inspection of 
                                the alien at the port of entry.
                                    ``(II) Any information described in 
                                clause (i) that is obtained from the 
                                system by any such officer.
                                    ``(III) The results of the 
                                application.''.
    (b) Conforming Amendment.--Section 217(e)(1) of the Immigration and 
Nationality Act (8 U.S.C. 1187(e)(1)) is amended--
            (1) in subparagraph (B), by striking ``and'' at the end;
            (2) in subparagraph (C), by striking the period at the end 
        and inserting ``, and''; and
            (3) by adding at the end the following:
                    ``(D) to collect, provide, and share passenger data 
                as required under subsection (h)(1)(B).''.

SEC. 206. CONDITIONS FOR VISA REFUSAL ELIGIBILITY.

    Section 217(c) of the Immigration and Nationality Act (8 U.S.C. 
1187(c)), as amended by section 204(b) of this Act, is further amended 
by adding at the end the following:
            ``(6) Computation of visa refusal rates.--For purposes of 
        determining the eligibility of a country to be designated as a 
        program country, the calculation of visa refusal rates shall 
        not include any visa refusals which incorporate any procedures 
        based on, or are otherwise based on, race, sex, sexual 
        orientation, or disability, unless otherwise specifically 
        authorized by law or regulation.''.

                          Purpose and Summary

    H.R 3767 would amend section 217 of the Immigration and 
Nationality Act to permanently authorize the Visa Waiver Pilot 
Program and make changes in the program to strengthen the law 
enforcement and security interests of the United States and 
reduce the vulnerability of the United States to entry by 
unqualified aliens under the program.

                Background and Need for the Legislation

                             I. Background

    The Visa Waiver Pilot Program (VWPP) allows aliens 
traveling from certain designated countries to come to the 
United States as temporary visitors for business or pleasure 
without having to obtain the nonimmigrant visa normally 
required to enter the United States. The program authorizes the 
Attorney General to waive the ``B'' visa requirement for aliens 
traveling from countries that have qualified on the basis of 
requirements set forth in section 217 of the Immigration and 
Nationality Act. There are currently 29 countries participating 
in the program.
    While the visa waiver program eliminates the visa 
requirement for aliens who would otherwise have to present a 
``B'' visa, the program has important restrictions. Aliens 
entering with a ``B'' visa may apply to extend the length of 
their stay in the U.S. and may petition to change to another 
nonimmigrant or immigrant visa status. Aliens entering under 
the VWPP may not extend their stay and cannot change their 
status. An alien who violates the terms of admission (by 
staying beyond 90 days or by accepting unauthorized employment) 
is deportable without any judicial recourse or review, except 
when claiming asylum.
    The Attorney General, in consultation with the Secretary of 
State, has the authority to designate countries to the VWPP 
program. To qualify for admission to the program, a country 
must extend reciprocal visa-free entry privileges to U.S. 
citizens, have a low (less than 3 percent) nonimmigrant visa 
refusal rate and have or be developing a machine readable 
passport. Finally, the admission of the country to the program 
must not compromise U.S. law enforcement interests.
    To be admitted to the U.S. under the program, travelers 
must be a national of, and present a passport issued by, a 
designated country, plan to visit the U.S. for business or 
pleasure for 90 days or less, enter the U.S. via a 
participating carrier (most airlines and passenger lines, 
including cruise lines, are participating carriers) or via a 
land border, have an onward or return ticket if traveling via 
air or sea and be otherwise eligible for admission (in other 
words, not be ineligible for admission because of a prior visa 
refusal, criminal record, previous deportation, etc.).
    Since its initial enactment as part of the Immigration 
Reform and Control Act of 1986, the VWPP has been a temporary 
program. However, Congress has periodically reauthorized the 
program, recognizing its importance to the U.S. travel and 
tourism industry and the benefit it provides to American 
citizens (through reciprocity) who travel abroad. Failure to 
reauthorize the program would result in considerable disruption 
of the travel industry. Additionally, U.S. taxpayers would have 
to bear the burden of restaffing Department of State consular 
offices to issue visas to the millions of visitors who 
currently enter under the waiver program. Some of the countries 
now in the program would impose a reciprocal visa requirement 
on American visitors, resulting in inconvenience to U.S. 
citizens traveling abroad.

                      II. Problems/Vulnerabilities

Mechanism for Monitoring Overstays
    The principal mechanism in the statute for monitoring the 
continuing qualification of countries in the program has never 
worked. The statute provides that countries may be redesignated 
in the VWPP on a year by year basis unless the sum of the 
number of nationals of the country who were denied admission to 
the country and number of nationals who violated the terms of 
their admission as nonimmigrant visitors (includes travelers 
admitted with ``B'' visas and under the VWPP) was 2 percent or 
more of the number of nationals of that country admitted as 
nonimmigrant visitors during the preceding fiscal year. Relying 
on a measure of the nationals of VWPP countries who violate the 
terms of their admission has not worked because the INS has 
been unable to either develop a mechanism for tracking the 
departure of temporary visitors from VWPP countries (or any 
other country) or to develop reliable estimates of overstays 
based on secondary sources.
    Even if the there were a reliable system to calculate or 
estimate overstays by aliens from VWPP countries, such a 
mechanism would not be sufficient in emergency situations. 
Overstay rates are a lagging indicator based on fiscal year 
data, which often are not compiled until months, or years, 
after the close of the fiscal year. With 29 countries now in 
the program, more effective mechanisms are needed for 
monitoring countries in the program and for evaluating the 
impact of the program on the law enforcement (including 
immigration law) and security interests of the United States.
Machine Readable Passport
    Another problem with the VWPP has been the failure by 
several designated countries to deploy a machine readable 
passport. When a machine readable passport is presented by a 
traveler at a port of entry, the data on the passport can be 
read electronically; when a traveler presents a passport that 
is not machine readable, the passport data must be entered 
manually by the INS official who inspects the traveler. The 
presentation of a non-machine readable passport is harmful to 
the security interests of the United States because it forces 
the official to concentrate on data entry rather than 
evaluating the alien. Since 1990, the statute has required the 
Government of a country nominated for participation in the VWPP 
to certify that it has or ``is in the process of developing'' a 
machine readable passport. Unfortunately, some countries that 
were admitted to the program as long ago as 1991 still have not 
developed a machine readable passport. Other counties that have 
developed a machine readable passport continue to issue some 
non-machine readable passports.
Reliability of Lookout Data
    The absence of an overseas consular review of a visa 
application for VWPP travelers makes it crucially important 
that all potentially useful data be available to INS inspectors 
at ports of entry and that aliens ineligible for admission not 
be admitted. Currently, Department of State data on ineligible 
aliens is routinely transferred to the INS. However, the 
transferred data contains text-only biographic information. 
Although Department of State files usually contain a photograph 
of the ineligible alien, the agencies do not have a system for 
transmitting photographs as part of an electronic lookout file. 
Without access to photographs, INS inspectors frequently face 
difficult decisions when inspecting travelers whose data is 
close to but not an exact match with the information in the 
lookout file.

                             III. H.R. 3767

    H.R. 3767, the Visa Waiver Permanent Program Act, 
permanently authorizes the visa waiver program, thus ending the 
program's ``pilot'' status. The bill also strengthens the 
program by establishing a mechanism for periodic evaluation of 
the impact of each country's participation in the program on 
the law enforcement and security interests of the United 
States. It also provides a mechanism for suspending a country's 
participation in the program when emergency situations arise. 
Other provisions in the bill establish a deadline for 
implementation of a machine readable passport by program 
countries, strengthen admission requirements for visa waiver 
travelers to prevent ineligible aliens from using the program 
to circumvent immigration laws, establish a fully automated 
entry/departure system for tracking overstays by visa waiver 
travelers and require increased sharing of information on 
ineligible aliens between the Department of State and the 
Department of Justice.

                                Hearings

    The committee's Subcommittee on Immigration and Claims held 
a hearing on the Visa Waiver Pilot Program on February 10, 
2000. Testimony was received from Robert Ashbaugh, Acting 
Inspector General, U.S. Department of Justice; Ambassador Mary 
A. Ryan, Assistant Secretary of State for Consular Affairs, 
U.S. Department of State; Michael Cronin, Acting Associate 
Commissioner for Programs, U.S. Immigration and Naturalization 
Service, Elisa Liang, Associate Deputy Attorney General, U.S. 
Department of Justice; William S. Norman, President and Chief 
Executive Officer, Travel Industry Association; E. Wayne Merry, 
Director, Program on European Societies in Transition, The 
Atlantic Council of the United States; and John Ratigan, 
Immigration Consultant, Paul Weiss, Rifkind, Wharton & 
Garrison.

                        Committee Consideration

    On March 1, 2000, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported a 
committee print by a voice vote, a quorum being present. On 
March 30 and April 4, 2000, the committee met in open session 
and ordered favorably reported the bill H.R. 3767 with 
amendment by voice vote, a quorum being present.

                         Vote of the Committee

    The committee adopted H.R. 3767 by voice vote. Four 
amendments also were adopted by voice vote. These were: (1) an 
amendment by Mr. Smith of Texas changing the deadlines 
requiring countries in the program to have a machine readable 
passport from October 1, 2001, to October 1, 2003, and 
requiring aliens applying for admission under the program to 
present a machine readable passport from October 1, 2002, to 
October 1, 2006; (2) an amendment by Ms. Jackson Lee modifying 
the provisions providing for the reinstatement of countries 
that have been terminated from the program; (3) an amendment by 
Mr. Conyers prohibiting the inclusion of refusals based on 
race, sex, sexual orientation or disability in the calculation 
of visa refusal rates used for determining the eligibility of a 
country to be designated as a program country; and (4) an 
amendment by Mr. Frank including compelling health 
considerations as a standard for authorizing parole of aliens 
who apply for admission under the program.
    There was one recorded vote during the committee's 
consideration of H.R. 3767, as follows:
    Amendment offered Mr. Conyers to require the Attorney 
General to conduct a study on the criteria used for selection 
of program countries. Defeated 9-13.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............  ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............  ..............  ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............  ..............  ..............
Mr. Vitter......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................              X   ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................  ..............  ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              9              13   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII 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 Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

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

                        Committee Cost Estimate

    In compliance with clause 3(d)(2) of rule XIII of the Rules 
of the House of Representatives, the committee believes that 
the bill will have no cost for the current fiscal year and for 
the next five fiscal years.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII 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 and Discussion

Sec. 101. Elimination of Pilot Program Status
    Section 101 eliminates the visa waiver program's pilot 
status and permanently authorizes the program.
Section 201. Extension of Reciprocal Privileges
    Countries designated to the visa waiver program must extend 
reciprocal privileges (visa free admissions for 90 days) to 
citizens and nationals of the United States. The countries of 
the European Community (EC) are in the process of establishing 
a common area for immigrant admissions with uniform standards 
for entry and duration of stay. Eventually, foreign visitors 
who enter the EC will be inspected only once (by the 
immigration authorities of the country of entry) and be 
authorized to stay 90 days irrespective of where they travel 
within the EC. Currently, the United States has separate 
bilateral reciprocity agreements with all EC countries that 
participate in the Visa Waiver Program. When the EC implements 
its uniform standards for duration of stay, the individual 
bilateral agreements will become unworkable.
    Section 201 amends the reciprocity requirement to allow a 
program country to extend reciprocal treatment to U.S. citizens 
and nationals either on its own or in conjunction with one or 
more other countries that have established a common area for 
immigrant admissions. This change affects only the reciprocity 
requirement for countries that have already been designated as 
Visa Waiver Program countries. The individual countries that 
make up a common area for immigrant admissions must still 
qualify for designation to the program and meet all 
requirements for continuing qualification. This change will not 
in any way impinge on the authority of the Attorney General to 
rescind the designation of any program country.
Section 202. Machine Readable Passport Program
    Section 202 deals with the failure of some Visa Waiver 
Program countries to take timely action on the requirement to 
issue a machine readable passport. It also introduces a more 
precise description of a machine readable passport, requiring 
that program countries issue a machine readable passport that 
satisfies ``the internationally accepted standard for machine 
readability.'' The technical specifications for machine 
readable passports are set by the International Civil Aviation 
Organization (ICAO), a United Nations organization. The ICAO 
specifications are endorsed by the International Organization 
for Standardization. The machine readable passports of the 
United States and most other countries issuing machine readable 
passports meet the ICAO standard.
    Subsection (a) requires that, as of October 1, 2006, all 
aliens traveling on the Visa Waiver Program must present a 
machine readable passport to be admissible under the program. 
This requirement will address the situation in which a country 
designated to the program has introduced a machine readable 
passport, but still issues some non-machine readable passports.
    Subsection (b) requires that new countries designated to 
the program issue a machine readable passport and imposes a 
deadline for compliance by countries currently in the program. 
Program countries that do not currently have a machine readable 
passport must certify by October 1, 2000, that they have a 
program to issue machine readable passports and must begin 
issuing machine readable passports by October 1, 2003.
Section 203. Denial of Program Waiver Based on Ground of Ineligibility
    Section 203 makes it more difficult for aliens who are 
ineligible for admission to the United States to gain admission 
under the VWPP. It ensures that the program continues to 
benefit eligible aliens (the vast majority of those who utilize 
the program) while not allowing it to become a means for aliens 
who are ineligible for admission to the United States to 
circumvent the visa application process.
    Subsection (a) requires that all aliens admitted under the 
Visa Waiver Program be checked against an automated electronic 
lookout system to determine whether there are any grounds of 
ineligibility under which the alien may be inadmissible. While 
alien travelers under the program are already subjected to 
automated name checks in most instances, section 203(a) makes 
such name checks a statutory requirement for aliens applying 
under the Visa Waiver Program and prohibits the Immigration and 
Naturalization Service from admitting to the United States 
inadmissible aliens who apply under the program.
    Subsection (b) affirms that a visa application is the sole 
method for an alien to dispute a finding of inadmissibility 
under the program.
    Subsection (c) contains conforming amendments that limit 
the circumstances under which an alien who is ineligible for 
admission under the Visa Waiver Program can be paroled into the 
United States. Parole may not be authorized unless the Attorney 
General determines there are compelling reasons in the public 
interest or compelling health concerns that require a 
particular alien be paroled into the United States.
Section 204. Evaluation of Effect of Country's Participation in Program 
        on Law Enforcement
    Section 204 provides mechanisms for evaluating the impact 
on U.S. law enforcement (including the enforcement of 
immigration law) and security interests of the designation of a 
country to participate in the visa waiver program. These 
changes, in effect, provide statutory sanction to the approach 
taken by the Attorney General to nominations of the four 
countries (Greece, Portugal, Singapore and Uruguay) most 
recently considered for designation to the program. To consider 
the impact on U.S. law enforcement of the admission of each of 
the four countries, the Attorney General established an 
Interagency Working Group (IWG) comprised of representatives of 
the Department of Justice (Criminal Division), Department of 
State, INS, FBI, and chaired by the Department Justice's 
Executive Office of National Security. The IWG developed a 
comprehensive protocol for evaluating candidate counties and 
used the protocol to evaluate the four nominated countries.
    Subsection (a) deals with the initial designation of a new 
country to the program. It requires the Attorney General, in 
consultation with the Secretary of State, to evaluate the 
effect on the law enforcement and security interests of the 
United States of the country's designation in the program and 
to provide a report to the Judiciary Committees of the House 
and Senate regarding the outcome of such evaluation.
    Subsection (b) deals with the continuing designation of 
countries in the program. It requires the Attorney General, in 
consultation with the Secretary of State, to periodically (but 
not less than once every 5 years) evaluate the effect on the 
law enforcement and security interests of the United States of 
the country's continued designation in the program and to 
provide a report to the Judiciary Committees of the House and 
Senate regarding the outcome of such evaluation. To ensure that 
the reports are submitted in a timely manner, there is a 
provision, effective October 1, 2005, for the automatic 
termination of the designation of a country for which a report 
has not been submitted during the preceding 5 years.
    Subsection (b) also provides for the emergency termination 
of a Visa Waiver Program country's designation in the event the 
country is affected by an emergency situation. Emergency is 
defined as the overthrow of a democratically elected 
Government, war, disruptive social unrest, severe economic or 
financial crisis or any other extraordinary event that 
threatens the law enforcement (including immigration law) or 
security interests of the United States.
    The expansion of the Visa Waiver Program in recent years to 
countries that have had only limited experience with democratic 
institutions or have economies that are vulnerable to severe 
fluctuations and/or are located in less stable areas of the 
world has increased the potential for a serious emergency 
occurring in a program country that could threaten the law 
enforcement or security interests of the United States. The 
emergency termination provision would be used in rare instances 
where, because of emergent circumstances in a program country, 
there would be an immediate threat to U.S. law enforcement or 
security interests if the country were to continue 
participating in the program.
    A war emergency would only apply to situations in which 
hostile military activity occurs on the territory of a program 
country. It would not apply in situations where a program 
country participates in an allied military action outside of 
its territory (such as the Persian Gulf War or recent military 
actions in Kosovo).
    An emergency involving ``disruptive social unrest'' would 
apply to a situation in which there was a severe breakdown in 
law and order affecting a significant portion of a program 
country's territory. It would not apply in situations involving 
isolated events lasting for a relatively brief time, although 
the implications of such isolated, temporary events could be 
considered during the periodic (five year) review of the 
country's continued designation to the program.
    A ``severe economic or financial crisis'' would apply to a 
situation in which a program country experiences a severe 
economic collapse or a financial meltdown similar to what 
occurred in Indonesia and several other countries in1998. It 
would not apply in a situation where a country experiences a 
cyclical economic recession such as was experienced by Japan 
and several European countries during the 1990's.
Section 205. Use of Information Technology Systems
    This section mandates the establishment of a fully 
automated system for tracking the entries and departures of 
aliens who are nationals of a program country and an automated 
system to share data regarding the inadmissability of aliens 
who are nationals of a program country.
    Subsection (a)(1) mandates the establishment of a fully 
automated system for tracking the entries and departures of 
aliens who arrive by sea or air. This system will provide the 
first functioning mechanism for monitoring compliance with the 
visa waiver program since it was authorized in 1986. The basic 
technology for such a system is already in place. Many inbound 
flights already transmit passenger data to the INS 
electronically via the Advanced Passenger Information System 
(APIS). Section (a)(1) requires the INS to make similar use of 
outbound passenger data, thereby eliminating the current 
reliance on the collection of a paper form from outbound 
passengers.
    The resulting data on entries and departures by visa waiver 
travelers will be matched. Since more than 98 percent of visa 
waiver program aliens enter and depart via a participating 
carrier, a calculation of the number of aliens for each program 
country for whom there is no record of a departure, should 
provide a statistically sound basis for determining overstay 
rates for program countries. The Attorney General is required 
to make specific recommendations as to how this calculation 
will be used by October 1, 2004.
    Subsection (a)(2) requires the Attorney General and 
Secretary of State to develop and implement an automated data 
system that will permit the sharing of information regarding 
the inadmissability of aliens who are nationals of program 
countries. It requires that a photograph of the alien, when 
available, be included in the data transmitted on an ineligible 
alien. Including a photograph of the alien whenever available 
will reduce the risk of inadmissible aliens gaining entry to 
the United States under the visa waiver program. It also will 
facilitate the entry of legitimate travelers whose biographic 
data happens to be similar to that of an alien in the INS 
lookout files.
Section 206. Conditions For Visa Refusal Eligibility
    Section 206 prohibits the use of visa refusals which 
incorporate any procedures or are otherwise based on race, sex, 
sexual orientation or disability when calculating the visa 
refusal rate for determining the eligibility of a country for 
the program.
    It would be a violation deep-seated American principles of 
equality of treatment and fair play to make determinations 
regarding visa eligibility based on discriminatory criteria. 
However, this provision does not prohibit a consular officer, 
when adjudicating a nonimmigrant visa application, from 
examining the applicant's economic situation, income level, 
family situation, general life circumstances or other factors 
affecting the applicant's entitlement to nonimmigrant status 
under Section 101(a)(15) (B) of the Immigration and Nationality 
Act.
    The political, economic and social situation in the country 
or region of the applicant's residence also are appropriate 
factors for a consular officer to consider since they could 
affect the applicant's entitlement to nonimmigrant status. When 
considering this provision, the committee specifically excluded 
refusals based on nationality, place of birth, and place of 
residence from the list of prohibited refusal criteria because 
it determined that these are factors that could have a bearing 
on a visa applicant's entitlement to nonimmigrant status.

                              Agency Views

                          U.S. Department of State,
                                    Washington, DC, March 30, 2000.
Hon. Lamar Smith, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: We are pleased to take this opportunity 
to provide the views of the Department of State on H.R. 3767, 
the ``Visa Waiver Permanent Program Act.'' The Department 
supports key concepts of the bill, such as a permanent visa 
waiver program (VWP), enhanced border security and datasharing, 
and use of machine-readable passports (MRPs). Our concerns lie 
with those provisions that could work against the more positive 
aspects of VWP: promotion of US trade and tourism, enhanced 
foreign relations with participating countries, and more 
effective use of State Department resources. Striking the 
proper balance between competing U.S. interests is an important 
goal for us in thinking about a permanent visa waiver program.
    We agree that a permanent visa waiver regime requires 
certain safeguards to ensure that a country's continued 
participation in the program in no way threatens U.S. 
interests. H.R. 3767 proposes several measures to tighten up 
the existing program, including requiring VWP visitors to enter 
the U.S. with a machine-readable passport. The Department 
agrees with the need for stricter enforcement of MRP 
requirements, but finds the compliance dates in the bill far 
too restrictive. While there is no question that some VWPP 
countries did not make MRP issuance a high enough priority, we 
expect all VWP countries to be issuing MRPs by 2003. Even 
countries with longstanding programs, however, will need more 
than two years to issue MRPs to all their citizens who wish to 
travel to the U.S. under the visa waiver program.
    The U.S. itself does not issue MRPs to all its citizens 
because of the high cost of installing the required machinery 
at all consular posts abroad. (Currently 1.5 percent of 
passports issued to U.S. citizens are not machine-readable.) 
Similarly, many VWP countries do not issue MRPs at all their 
overseas posts.
    Another consideration is that passports are generally valid 
for ten years, which means there will be a mix of passport 
types in circulation until all non-machine readable passports 
have expired and been replaced with machine-readable versions. 
One and a half percent of the 50 million U.S. passports 
currently in circulation are not machine-readable--some 750,000 
documents. These passports were issued before MRPs were 
available and have not yet expired. All VWPP countries face a 
similar situation. We need to provide passport agencies in VWP 
countries sufficient lead time to plan for and respond to the 
increase in demand for MRPs that would occur under H.R. 3767. 
Ideally, we would grant countries ten years to issue MRPs to 
all their citizens. If this is not possible, we strongly urge 
that the compliance dates in the bill, October 1, 2001, for 
issuance of MRPs, and October 1, 2002, for all VWP travelers to 
enter on a MRP, be changed to October 1, 2003, and October 1, 
2008, respectively.
    From a resource perspective, we are concerned about 
provisions for precipitous removal of a country from the 
program. We realize that border security concerns are behind 
these proposed measures, but want to be clear about the severe 
resource implications for the Department if a country suddenly 
loses its visa waiver status. Our immediate capacity to issue 
large numbers of visas in the affected country would be 
overwhelmed. The Department would require at least three years 
to reallocate permanent resources to a country that was 
suddenly removed from the program. We would have to rely on 
temporary duty (TDY) assistance and other types of more 
expensive staffing solutions in the interim.
    The Department agrees that major destabilizing events 
inside a VWP country should have a bearing on that country's 
continued designation. We believe that this type of situation 
can be addressed through the general authority given the 
Attorney General under current law or as proposed under section 
204(C)(i) of H.R. 3767.
    Periodic reviews of a VWP country's performance are an 
important part of a permanent program. The VWP interagency 
group agrees on the need to monitor a country's performance and 
is looking at ways to incorporate this type of review into its 
protocol. The Department finds the automatic rescission clause 
of the reporting requirement unnecessary and unduly harsh on 
the affected VWP country.
    Thank you for your consideration of these matters. A 
permanent visa waiver program that promotes the full range of 
US interests--border security, enhanced foreign relations with 
friends and allies, increased trade and tourism, and more 
efficient government--is a high priority for the Department. We 
would be pleased to continue working with the Congress on 
provisions of concern in H.R. 3767.
            Sincerely,
                       Barbara Larkin, Assistant Secretary,
                                       Legislative Affairs.
                              ----------                              

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                    Washington, DC, March 30, 2000.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This letter presents the views of the 
Department of Justice on H.R. 3767, the ``Visa Waiver Permanent 
Program Act.'' We are pleased that H.R. 3767 permanently 
authorizes the Visa Waiver Pilot Program (``VWPP''). We have 
concerns, however, about several provisions contained in this 
bill and cannot fully endorse it as written. Generally, the 
time frames for provisions concerning automated databases 
appear to be overly ambitious. In addition, we believe this 
bill can be strengthened by the inclusion of certain provisions 
that are designed to ensure the future program meets the law 
enforcement and national security interests of the United 
States. The first section below contains comments that address 
our specific concerns with H.R. 3767. Following those comments, 
we offer additional measures that we believe would safeguard 
the integrity of the future visa waiver program.

                         Specific Bill Comments

    Section 1 of the bill would make the Visa Waiver Pilot 
Program a permanent program. We support a permanent visa waiver 
program. However, we believe that a permanent authorization for 
the program should have provisions to strengthen its integrity. 
First, we believe Congress should provide added safeguards to 
protect the law enforcement and national security interests of 
the United States. Below, we offer several proposals intended 
to enhance the Government's law enforcement and national 
security interests with respect to visa waiver travel to the 
United States. In addition, we believe that the bill should 
include a provision permitting the Attorney General to 
temporarily suspend country participation in the waiver 
program.
    In section 101(a)(2)(C), the word ``period'' should be 
inserted in the quotation after ``program'' and just before the 
parenthetical.
    Section 201 of the bill would expand the definition of 
reciprocal privileges. The INS defers to the Department of 
State on this issue.
    As amended, section 202(b) would require each participant 
country to issue a machine-readable passport no later than 
October 1, 2003. We support a date certain for the issuance of 
machine-readable passports. However, we believe that the 
Attorney General, in consultation with the Secretary of State, 
should determine the date upon which a participant country 
should meet this condition. The reference to ``[s]ection 
217(c)'' should be corrected to reference section 217(c)(2)(B).
    Section 203(b) of the bill specifies that a visa 
application is the sole method to dispute denial of a waiver 
based on a ground of inadmissibility. Although we support 
requiring that an alien refused admission under the program 
apply for a visa in order to enter the United States, we are 
concerned about the clause that requires that the ground of 
inadmissibility be uncovered ``through a written or verbal 
statement by the alien or a use of an automated electronic 
database required under subsection (a)(9).'' This provision, as 
written, will unduly hamper immigration officers because facts 
evidencing an alien's inadmissibility are often uncovered 
through sources other than the alien's statements or an 
automated database check. For example, an alien's 
inadmissibility may be uncovered during a luggage search where 
documents secreted in a suitcase reveal that the alien has an 
overseas criminal conviction or that he is entering the United 
States to live and work permanently. In addition, reliable 
information from the alien's friend or family member may 
clearly evidence that the alien is traveling to the United 
States to reside permanently. With respect to the 
nonreviewability clause in contained in section 203(b) 
(prohibiting review of any denial of admission), the current 
VWPP is designed to achieve the goal of nonreviewability except 
in asylum cases. The limited nonreviewability provision in this 
bill could be read to suggest that there is a right to 
administrative or judicial review in other non-asylum VWPP 
denials. Current provisions in section 217 of the INA 
adequately address this issue.
    Section 203(c) of the bill divests the Attorney General of 
authority to parole an alien for urgent humanitarian purposes. 
We strongly oppose this provision. Currently, the Attorney 
General may, on a case-by-case basis, parole an alien for 
urgent humanitarian reasons or for significant public benefit. 
Parole requests under the Visa Waiver Permanent Program likely 
will arise where parole is necessary for compassionate family 
or medical situations. Such emergencies fail to meet the public 
interest standard; rather, these circumstances meet the urgent 
humanitarian interest standard.
    Section 204(b) also requires immediate rescission of 
country participation in the visa waiver program when 
emergencies occur. We propose amending the emergency rescission 
language (indicated in italics) to read, ``In the case of a 
program country in which an emergency occurs that the Attorney 
General, in consultation with the Secretary of State, 
determines would compromise the law enforcement or security 
interests of the United States (including the interest in 
enforcement of the immigration laws of the United States) if 
designation of that country were not immediately rescinded, the 
Attorney General shall immediately rescind the designation of 
the country as a program country.''
    Section 205(a) refers to an amendment made earlier in the 
bill by section 203(b)(2), but there is no 203(b)(2) in the 
bill. Perhaps, the drafters meant to refer to section 203(b).
    Section 205(a) of the bill would require the development 
and implementation of an automated entry-exit control system at 
airports and seaports. We support this provision for airports 
but oppose it for seaports. The time frame, however, for 
developing such an airport system is unworkable, and no 
resources are authorized to implement this provision. Although 
we support an October 2004 deadline for developing this system, 
funding must be appropriated because such a system depends upon 
further database enhancements and the automated I-94 system.
    Section 205(a) also would require air and sea carrier data 
collection. The data requirements under this provision should 
be compatible with our automated I-94 system to ensure that 
arrival records can be matched with departure records.
    Section 205(a) of the bill would require an automated data 
sharing system. We support the provisions concerning data 
sharing with the Department of State. Appropriate funding to 
support this provision will have to be provided to both 
agencies.

         ADDITIONAL PROPOSALS FOR A FUTURE VISA WAIVER PROGRAM

Initial Qualifications for the Permanent Program
    All citizens of visa waiver countries benefit from being in 
the visa waiver program, regardless of where those citizens 
reside. Therefore, it is essential that worldwide nonimmigrant 
visitor visa refusal rates be used to determine which countries 
might initially qualify for the program. It is common practice 
for individuals who obtain fraudulent passports to apply for 
nonimmigrant visas outside the country identified by the 
passport.
    As a distinct qualification criterion entry into the 
permanent program, we propose a United States border 
interception rate of less than .20 percent (2 out of every 
1000), which would apply to applicants for admission who were 
not admitted at the initial port-of-entry. This criterion 
should include a method to account for the risk posed by third 
country nationals fraudulently using a participant country's 
passport at the time of application for admission at a United 
States port-of-entry. It should reflect that some nations have 
a low volume of admissions to the United States and that 
therefore the overall number of incidents of fraud perpetrated 
by third-country nationals may be misleading because of the 
small number of travelers.
Continuing Qualification
    We favor a separate provision that automatically would 
trigger review of a country whose passport is abused by third 
country nationals. This would enable the United States to 
review visa waiver privileges from any country unable to 
implement adequate controls over its passports and their 
issuance.
    Finally, we urge removal of the probationary status 
provisions from the current statute. The current probationary 
provision simply provides sanction for a high-risk country to 
continue to participate in the program. Instead, we advocate 
provisions that would allow the Attorney General, with 
notification to the Secretary of State, to revoke or suspend a 
country's privilege under the VWPP to quickly address law 
enforcement or national security concerns. In today's world, we 
must be able to adjust to rapidly changing circumstances as 
quickly as possible. We also support a suspension provision in 
addition to the rescission provisions.
    Thank you for the opportunity to express the Department's 
views. Please do not hesitate to call upon my office if we may 
be of additional assistance. The Office of Management and 
Budget has advised us that from the perspective of the 
Administration's program, there is no objection to submission 
of this letter.
            Sincerely,
                  Robert Raben, Assistant Attorney General.

Identical letter sent to the Honorable John Conyers, Jr., 
Ranking Minority Member

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) 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):

IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *


                            TABLE OF CONTENTS

     * * * * * * *

                          Title II--Immigration

     * * * * * * *

   chapter 2--qualifications for admission of aliens; travel control of 
                           citizens and aliens

Sec. 211.  Documentary requirements.
     * * * * * * *
Sec. 217.  Visa waiver [pilot] program for certain visitors.
     * * * * * * *

TITLE II--IMMIGRATION

           *       *       *       *       *       *       *


 Chapter 2--Qualifications for Admission of Aliens; Travel Control of 
Citizens and Aliens

           *       *       *       *       *       *       *


 general classes of aliens ineligible to receive visas and ineligible 
               for admission; waivers of inadmissibility

      Sec. 212. (a) Classes of Aliens Ineligible for Visas or 
Admission.--Except as otherwise provided in this Act, aliens 
who are inadmissible under the following paragraphs are 
ineligible to receive visas and ineligible to be admitted to 
the United States:
            (1)  * * *

           *       *       *       *       *       *       *

            (7) Documentation requirements.--
                    (A)  * * *

           *       *       *       *       *       *       *

                    (B) Nonimmigrants.--
                            (i)  * * *

           *       *       *       *       *       *       *

                            (iv) Visa waiver [pilot] program.--
                        For authority to waive the requirement 
                        of clause (i) under a [pilot] program, 
                        see section 217.

           *       *       *       *       *       *       *

      (d)(1)  * * *

           *       *       *       *       *       *       *

      (5)(A) The Attorney General may, except as provided in 
[subparagraph (B)] subparagraph (B) or (C) or in section 
214(f), in his discretion parole into the United States 
temporarily under such conditions as he may prescribe only on a 
case-by-case basis for urgent humanitarian reasons or 
significant public benefit any alien applying for admission to 
the United States, but such parole of such alien shall not be 
regarded as an admission of the alien and when the purposes of 
such parole shall, in the opinion of the Attorney General, have 
been served the alien shall forthwith return or be returned to 
the custody from which he was paroled and thereafter his case 
shall continue to be dealt with in the same manner as that of 
any other applicant for admission to the United States.

           *       *       *       *       *       *       *

      (C) The Attorney General may not parole into the United 
States an alien who has applied under section 217 for a waiver 
of the visa requirement, and has been denied such waiver by 
reason of a ground of inadmissibility uncovered through a 
written or verbal statement by the alien or a use of an 
automated electronic database required under section 217(a)(9), 
unless the Attorney General determines that compelling reasons 
in the public interest, or compelling health considerations, 
with respect to that particular alien require that the alien be 
paroled into the United States.

           *       *       *       *       *       *       *


            visa waiver [pilot] program for certain visitors

    Sec. 217. (a) Establishment of [Pilot] Program.--The 
Attorney General and the Secretary of State are authorized to 
establish a [pilot] program (hereinafter in this section 
referred to as the ``[pilot] program'') under which the 
requirement of paragraph (7)(B)(i)(II) of section 212(a) may be 
waived by the Attorney General, in consultation with the 
Secretary of State, and in accordance with this section, in the 
case of an alien who meets the following requirements:
            (1) Seeking entry as tourist for 90 days or less.--
        The alien is applying for admission during the [pilot 
        program period (as defined in subsection (e))] program 
        as a nonimmigrant visitor (described in section 
        101(a)(15)(B)) for a period not exceeding 90 days.
            (2) National of [pilot] program country.--The alien 
        is a national of, and presents a passport issued by, a 
        country which--
                    (A) extends (or agrees to extend), either 
                on its own or in conjunction with one or more 
                other countries that are described in 
                subparagraph (B) and that have established with 
                it a common area for immigration admissions, 
                reciprocal privileges to citizens and nationals 
                of the United States, and
                    (B) is designated as a pilot program 
                country under subsection (c).
            (3) Machine readable passport.--On and after 
        October 1, 2006, the alien at the time of application 
        for admission is in possession of a valid unexpired 
        machine-readable passport that satisfies the 
        internationally accepted standard for machine 
        readability.
            [(3)] (4) Executes immigration forms.--The alien 
        before the time of such admission completes such 
        immigration form as the Attorney General shall 
        establish.
            [(4)] (5) Entry into the united states.--If 
        arriving by sea or air, the alien arrives at the port 
        of entry into the United States on a carrier which has 
        entered into an agreement with the Service to guarantee 
        transport of the alien out of the United States if the 
        alien is found inadmissible or deportable by an 
        immigration officer.
            [(5)] (6) Not a safety threat.--The alien has been 
        determined not to represent a threat to the welfare, 
        health, safety, or security of the United States.
            [(6)] (7) No previous violation.--If the alien 
        previously was admitted without a visa under this 
        section, the alien must not have failed to comply with 
        the conditions of any previous admission as such a 
        nonimmigrant.
            [(7)] (8) Round-trip ticket.--The alien is in 
        possession of a round-trip transportation ticket 
        (unless this requirement is waived by the Attorney 
        General under regulations).
            (9) Automated system check.--The identity of the 
        alien has been checked using an automated electronic 
        database containing information about the 
        inadmissibility of aliens to uncover any grounds on 
        which the alien may be inadmissible to the United 
        States, and no such ground has been found.
    (b) Waiver of Rights.--An alien may not be provided a 
waiver under the [pilot] program unless the alien has waived 
any right--
            (1) * * *

           *       *       *       *       *       *       *

    (c) Designation of [Pilot] Program Countries.--
            (1) In general.--The Attorney General, in 
        consultation with the Secretary of State, may designate 
        any country as a [pilot] program country if it meets 
        the requirements of paragraph (2).
            (2) Qualifications.--Except as provided in 
        subsection [(g)] (f), a country may not be designated 
        as a [pilot] program country unless the following 
        requirements are met:
                    (A)  * * *

           *       *       *       *       *       *       *

                    [(B) Machine readable passport program.--
                The government of the country certifies that it 
                has or is in the process of developing a 
                program to issue machine-readable passports to 
                its citizens.
                    [(C) Law enforcement interests.--The 
                Attorney General determines that the United 
                States law enforcement interests would not be 
                compromised by the designation of the country.]
                    (B) Machine readable passport program.--
                            (i) In general.--Subject to clause 
                        (ii), the government of the country 
                        certifies that it issues to its 
                        citizens machine-readable passports 
                        that satisfy the internationally 
                        accepted standard for machine 
                        readability.
                            (ii) Deadline for compliance for 
                        certain countries.--In the case of a 
                        country designated as a program country 
                        under this subsection prior to May 1, 
                        2000, as a condition on the 
                        continuation of that designation, the 
                        country--
                                    (I) shall certify, not 
                                later than October 1, 2000, 
                                that it has a program to issue 
                                machine-readable passports to 
                                its citizens not later than 
                                October 1, 2003; and
                                    (II) shall satisfy the 
                                requirement of clause (i) not 
                                later than October 1, 2003.
                    (C) Law enforcement and security 
                interests.--The Attorney General, in 
                consultation with the Secretary of State--
                            (i) evaluates the effect that the 
                        country's designation would have on the 
                        law enforcement and security interests 
                        of the United States (including the 
                        interest in enforcement of the 
                        immigration laws of the United States);
                            (ii) determines that such interests 
                        would not be compromised by the 
                        designation of the country; and
                            (iii) submits a written report to 
                        the Committee on the Judiciary of the 
                        United States House of Representatives 
                        and of the Senate regarding the 
                        country's qualification for designation 
                        that includes an explanation of such 
                        determination.
            (3) Continuing and subsequent qualifications.--For 
        each fiscal year [(within the pilot program period)] 
        after the initial period--
                    (A) Continuing qualification.--In the case 
                of a country which was a [pilot] program 
                country in the previous fiscal year, a country 
                may not be designated as a [pilot] program 
                country unless the sum of--
                            (i)  * * *

           *       *       *       *       *       *       *

                    (B) New countries.--In the case of another 
                country, the country may not be designated as a 
                [pilot] program country unless the following 
                requirements are met:

           *       *       *       *       *       *       *

            (5) Written reports on continuing qualification; 
        designation terminations.--
                    (A) Periodic evaluations.--
                            (i) In general.--The Attorney 
                        General, in consultation with the 
                        Secretary of State, periodically (but 
                        not less than once every 5 years)--
                                    (I) shall evaluate the 
                                effect of each program 
                                country's continued designation 
                                on the law enforcement and 
                                security interests of the 
                                United States (including the 
                                interest in enforcement of the 
                                immigration laws of the United 
                                States);
                                    (II) shall determine 
                                whether any such designation 
                                ought to be continued or 
                                terminated under subsection 
                                (d); and
                                    (III) shall submit a 
                                written report to the Committee 
                                on the Judiciary of the United 
                                States House of Representatives 
                                and of the Senate regarding the 
                                continuation or termination of 
                                the country's designation that 
                                includes an explanation of such 
                                determination and the effects 
                                described in subclause (I).
                            (ii) Effective date.--A termination 
                        of the designation of a country under 
                        this subparagraph shall take effect on 
                        the date determined by the Attorney 
                        General, but may not take effect before 
                        the end of the 30-day period beginning 
                        on the date on which notice of the 
                        termination is published in the Federal 
                        Register.
                            (iii) Redesignation.--In the case 
                        of a termination under this 
                        subparagraph, the Attorney General 
                        shall redesignate the country as a 
                        program country, without regard to 
                        subsection (f) or paragraph (2) or (3), 
                        when the Attorney General, in 
                        consultation with the Secretary of 
                        State, determines that all causes of 
                        the termination have been eliminated.
                    (B) Automatic termination.--
                            (i) Requirement.--On and after 
                        October 1, 2005, the designation of any 
                        program country with respect to a 
                        report described in subparagraph 
                        (A)(i)(III) has not been submitted in 
                        accordance with such subparagraph 
                        during the preceding 5 years shall be 
                        considered terminated.
                            (ii) Effective date.--A termination 
                        of the designation of a country under 
                        this subparagraph shall take effect on 
                        the last day of the 5-year period 
                        described in clause (i).
                            (iii) Redesignation.--In the case 
                        of a termination under this 
                        subparagraph, the Attorney General 
                        shall redesignate the country as a 
                        program country, without regard to 
                        subsection (f) or paragraph (2) or (3), 
                        when the required report is submitted, 
                        if the report includes a determination 
                        by the Attorney General that the 
                        country should continue as a program 
                        country.
                    (C) Emergency termination.--
                            (i) In general.--In the case of a 
                        program country in which an emergency 
                        occurs that the Attorney General, in 
                        consultation with the Secretary of 
                        State, determines threatens the law 
                        enforcement or security interests of 
                        the United States (including the 
                        interest in enforcement of the 
                        immigration laws of the United States), 
                        the Attorney General shall immediately 
                        terminate the designation of the 
                        country as a program country.
                            (ii) Definition.--For purposes of 
                        clause (i), the term ``emergency'' 
                        means--
                                    (I) the overthrow of a 
                                democratically elected 
                                government;
                                    (II) war (including 
                                undeclared war, civil war, or 
                                other military activity);
                                    (III) disruptive social 
                                unrest;
                                    (IV) a severe economic or 
                                financial crisis; or
                                    (V) any other extraordinary 
                                event 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).
                            (iii) Redesignation.--The Attorney 
                        General may redesignate the country as 
                        a program country, without regard to 
                        subsection (f) or paragraph (2) or (3), 
                        when the Attorney General determines 
                        that--
                                    (I) at least 6 months have 
                                elapsed since the effective 
                                date of the termination;
                                    (II) the emergency that 
                                caused the termination has 
                                ended; and
                                    (III) the average number of 
                                refusals of nonimmigrant 
                                visitor visas for nationals of 
                                that country during the period 
                                of termination under this 
                                subparagraph was less than 3.0 
                                percent of the total number of 
                                nonimmigrant visitor visas for 
                                nationals of that country which 
                                were granted or refused during 
                                such period.
                    (D) Treatment of nationals after 
                termination.--For purposes of this paragraph--
                            (i) nationals of a country whose 
                        designation is terminated under 
                        subparagraph (A), (B), or (C) shall 
                        remain eligible for a waiver under 
                        subsection (a) until the effective date 
                        of such termination; and
                            (ii) a waiver under this section 
                        that is provided to such a national for 
                        a period described in subsection (a)(1) 
                        shall not, by such a designation 
                        termination, be deemed to have been 
                        rescinded or otherwise rendered 
                        invalid, if the waiver is granted prior 
                        to such termination.
            (6) Computation of visa refusal rates.--For 
        purposes of determining the eligibility of a country to 
        be designated as a program country, the calculation of 
        visa refusal rates shall not include any visa refusals 
        which incorporate any procedures based on, or are 
        otherwise based on, race, sex, sexual orientation, or 
        disability, unless otherwise specifically authorized by 
        law or regulation.

           *       *       *       *       *       *       *

    (e) Carrier Agreements.--
            (1) In general.--The agreement referred to in 
        subsection (a)(4) is an agreement between a carrier and 
        the Attorney General under which the carrier agrees, in 
        consideration of the waiver of the visa requirement 
        with respect to a nonimmigrant visitor under the 
        [pilot] program--
                    (A)  * * *
                    (B) to submit daily to immigration officers 
                any immigration forms received with respect to 
                nonimmigrant visitors provided a waiver under 
                the [pilot] program, [and]
                    (C) to be subject to the imposition of 
                fines resulting from the transporting into the 
                United States of a national of a designated 
                country without a passport pursuant to 
                regulations promulgated by the Attorney 
                General[.], and
                    (D) to collect, provide, and share 
                passenger data as required under subsection 
                (h)(1)(B).

           *       *       *       *       *       *       *

    [(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 April 30, 
2000.]
    [(g)] (f) Duration and Termination of Designation.--
            (1) In general.--
                    (A) Determination and notification of 
                disqualification rate.--Upon determination by 
                the Attorney General that a [pilot] program 
                country's disqualification rate is 2 percent or 
                more, the Attorney General shall notify the 
                Secretary of State.

           *       *       *       *       *       *       *

                    (C) Termination of designation.--Subject to 
                paragraph (3), if the program country's 
                disqualification rate is 3.5 percent or more, 
                the Attorney General shall terminate the 
                country's designation as a [pilot] program 
                country effective at the beginning of the 
                second fiscal year following the fiscal year in 
                which the determination under subparagraph (A) 
                is made.
            (2) Termination of probationary status.--
                    (A) In general.--If the Attorney General 
                determines at the end of the probationary 
                period described in paragraph (1)(B) that the 
                program country placed in probationary status 
                under such paragraph has failed to develop a 
                machine-readable passport program as required 
                by section (c)(2)(C), or has a disqualification 
                rate of 2 percent or more, the Attorney General 
                shall terminate the designation of the country 
                as a [pilot] program country. If the Attorney 
                General determines that the program country has 
                developed a machine-readable passport program 
                and has a disqualification rate of less than 2 
                percent, the Attorney General shall redesignate 
                the country as a [pilot] program country.

           *       *       *       *       *       *       *

            (3) Nonapplicability of certain provisions.--
        Paragraph (1)(C) shall not apply unless the total 
        number of nationals of a [pilot] program country 
        described in paragraph (4)(A) exceeds 100.
            (4) Definition.--For purposes of this subsection, 
        the term ``disqualification rate'' means the percentage 
        which--
                    (A) the total number of nationals of the 
                [pilot] program country who were--

           *       *       *       *       *       *       *

    (g) Visa Application Sole Method of Disputing Ground of 
Inadmissibility Found in Automated System.--In the case of an 
alien denial a waiver under the program by reason of a ground 
of inadmissibility uncovered through a written or verbal 
statement by the alien or a use of an automated electronic 
database required under subsection (a)(9), the alien may apply 
for a visa at an appropriate consular office outside the United 
States. There shall be no other means of administrative or 
judicial review of such a denial, and no court or person 
otherwise shall have jurisdiction to consider any claim 
attacking the validity of such a denial.
    (h) Use of Information Technology Systems.--
            (1) Automated entry-exit control system.--
                    (A) System.--Not later than October 1, 
                2001, the Attorney General shall develop and 
                implement a fully automated entry and exit 
                control system that will collect a record of 
                arrival and departure for every alien who 
                arrives by sea or air at a port of entry into 
                the United States and is provided a waiver 
                under the program.
                    (B) Requirements.--The system under 
                subparagraph (A) shall satisfy the following 
                requirements:
                            (i) Data collection by carriers.--
                        Not later than October 1, 2001, the 
                        records of arrival and departure 
                        described in subparagraph (A) shall be 
                        based, to the maximum extent 
                        practicable, on passenger data 
                        collected and electronically 
                        transmitted to the automated entry and 
                        exit control system by each carrier 
                        that has an agreement under subsection 
                        (a)(4).
                            (ii) Data provision by carriers.--
                        Not later than October 1, 2002, no 
                        waiver may be provided under this 
                        section to an alien arriving by sea or 
                        air at a port of entry into the United 
                        States on a carrier unless the carrier 
                        is electronically transmitting to the 
                        automated entry and exit control system 
                        passenger data determined by the 
                        Attorney General to be sufficient to 
                        permit the Attorney General to carry 
                        out this paragraph.
                            (iii) Calculation.--The system 
                        shall contain sufficient data to permit 
                        the Attorney General to calculate, for 
                        each program country and each fiscal 
                        year, the portion of nationals of that 
                        country who are described in 
                        subparagraph (A) and for whom no record 
                        of departure exists, expressed as a 
                        percentage of the total number of such 
                        nationals who are so described.
                    (C) Reporting.--
                            (i) Percentage of nationals lacking 
                        departure record.--Not later than 
                        January 30 of each year (beginning with 
                        the year 2003), the Attorney General 
                        shall submit a written report to the 
                        Committee on the Judiciary of the 
                        United States House of Representatives 
                        and of the Senate containing the 
                        calculation described in subparagraph 
                        (B)(iii) for each program country for 
                        the previous fiscal year.
                            (ii) System effectiveness.--Not 
                        later than October 1, 2004, the 
                        Attorney General shall submit a written 
                        report to the Committee on the 
                        Judiciary of the United States House of 
                        Representatives and of the Senate 
                        containing the following:
                                    (I) The conclusions of the 
                                Attorney General regarding the 
                                effectiveness of the automated 
                                entry and exit control system 
                                to be developed and implemented 
                                under this paragraph.
                                    (II) The recommendations of 
                                the Attorney General regarding 
                                the use of the calculation 
                                described in subparagraph 
                                (B)(iii) as a basis for 
                                evaluating whether to terminate 
                                or continue the designation of 
                                a country as a program country.
            (2) Automated data sharing system.--
                    (A) System.--The Attorney General and the 
                Secretary of State shall develop and implement 
                an automated data sharing system that will 
                permit them to share data in electronic form 
                from their respective records systems regarding 
                the admissibility of aliens who are nationals 
                of a program country.
                    (B) Requirements.--The system under 
                subparagraph (A) shall satisfy the following 
                requirements:
                            (i) Supplying information to 
                        immigration officers conducting 
                        inspections at ports of entry.--Not 
                        later than October 1, 2002, the system 
                        shall enable immigration officers 
                        conducting inspections at ports of 
                        entry under section 235 to obtain from 
                        the system, with respect to aliens 
                        seeking a waiver under the program--
                                    (I) any photograph of the 
                                alien that may be contained in 
                                the records of the Department 
                                of State or the Service; and
                                    (II) information on whether 
                                the alien has ever been 
                                determined to be ineligible to 
                                receive a visa or ineligible to 
                                be admitted to the United 
                                States.
                            (ii) Supplying photographs of 
                        inadmissible aliens.--The system shall 
                        permit the Attorney General 
                        electronically to obtain any photograph 
                        contained in the records of the 
                        Secretary of State pertaining to an 
                        alien who is a national of a program 
                        country and has been determined to be 
                        ineligible to receive a visa.
                            (iii) Maintaining records on 
                        applications for admission.--The system 
                        shall maintain, for a minimum of 10 
                        years, information about each 
                        application for admission made by an 
                        alien seeking a waiver under the 
                        program, including the following:
                                    (I) The name of each 
                                immigration officer conducting 
                                the inspection of the alien at 
                                the port of entry.
                                    (II) Any information 
                                described in clause (i) that is 
                                obtained from the system by any 
                                such officer.
                                    (III) The results of the 
                                application.

           *       *       *       *       *       *       *

                            Additional Views

    We take this opportunity to express our additional views on 
the committee's consideration of amendments offered to prohibit 
the use of discriminatory profiling in the adjudication of visa 
applications and to study the problem of using visa refusal 
rates as a criterion to determine eligibility for the Visa 
Waiver Program.
    In particular, we are deeply troubled by demonstrable 
evidence of discriminatory and unlawful profiling in the 
adjudication of visa applications. U.S. District Court Judge 
Stanley Sporkin determined in the case of Olsen v. Albright \1\ 
that the U.S. Consulate General in Sao Paulo, Brazil based its 
nonimmigrant visa determinations in large part on the 
applicants' race, ethnicity or national origin. Judge Sporkin 
correctly concluded: ``The principle that government must not 
discriminate against particular individuals because of the 
color of their skin or the place of their birth means that the 
use of generalizations based on these factors is unfair and 
unjustified.'' In addition, we are concerned that the use of 
visa refusal rates as a criterion to determine eligibility for 
the Visa Waiver Program has a discriminatory impact on African 
and Caribbean nations.
---------------------------------------------------------------------------
    \1\ 990 F. Supp. 31 (D.C.D.C. Dec. 1997)
---------------------------------------------------------------------------
    In an effort to respond to these concerns, two amendments 
were offered to H.R. 3767:
Conditions for Visa Refusal Eligibility
    The unlawful practices found at the U.S. Consulate General 
in Sao Paulo call into question the use of visa refusal rates 
as a criterion in the Visa Waiver Program. Judge Sporkin 
identified numerous instances of unlawful profiling in 
adjudicating visas in the Olsen decision. For example, Korean 
and Chinese nationals were rarely to be issued visas unless 
they were older and had previously received a visa. According 
to the Consular Section Head, ``Filipinos and Nigerians have 
high fraud rates, and their applications should be viewed with 
extreme suspicion, while British and Japanese citizens rarely 
overstay, and generally require less scrutiny.'' Further, 
identifying cities ``known for fraud'' (most with predominantly 
black populations), the Consulate's manual stated that ``anyone 
born in these locations is suspect unless older, well-traveled, 
etc.''
    We are greatly concerned that certain countries have not 
been able to qualify under the Visa Waiver Program because 
visas are wrongly refused based on generalizations stemming 
from a person's race, sex, national origin or other 
discriminatory factors.\2\ Therefore, Rep. Conyers offered an 
amendment to ensure that Consulates and Embassies abroad 
adjudicate nonimmigrant visas based on the merits of the 
applications, and not on the basis of ``race, sex, sexual 
orientation, disability, nationality, place of birth or place 
of residence, unless otherwise specifically authorized by law 
or regulation.'' The purpose of the offered amendment is to 
ensure that Embassies and Consulates do not engage in the types 
of practices described by Judge Sporkin in Olsen.
---------------------------------------------------------------------------
    \2\ Under the Visa Waiver Program, the selection of countries to 
participate in the program includes the consideration of a country's 
refusal rate, which is the rate at which applications for nonimmigrant 
visas are denied. The standard for eligibility is a refusal rate that 
is lower than 3% for the two-year period preceding the application.
---------------------------------------------------------------------------
    The committee agreed to a revised amendment to prohibit the 
adjudication of visas on the basis of race, sex, sexual 
orientation, or disability, unless otherwise specified by law 
or regulation. We are supportive of the committee's agreement 
to this amendment because it codifies into law what already 
should be the practice of the State Department.
    However, it should be, and in our view is clear, that the 
decision to remove ``nationality, place of birth, or place of 
residence'' does not give consular officers discretion to 
discriminate on these bases. The Olsen decision confirms that 
the use of generalizations based on nationality, place of birth 
or place of residence is unfair, unjustified and contrary to 
law.
    This amendment makes it clear to the U.S. Consulates and 
Embassies abroad that it is a violation of U.S. law for visa 
refusals to occur based on generalizations that by their very 
nature are not applicable to the individual application. The 
amendment is intended to ensure that Embassies and Consulates 
adjudicate visas based on the merits of the applications, and 
not on the basis of irrelevant and harmful discriminatory 
stereotypes.
Report on Impact of Use of Visa Refusal Rates on Selection of Countries
    Under the Visa Waiver Program, the selection of countries 
to participate in the program includes the consideration of a 
country's refusal rate. This amendment offered by Reps. Conyers 
and Jackson Lee would have required the Attorney General to 
study whether the use of visa refusal rates in determining the 
eligibility of countries in the Visa Waiver Program has a 
discriminatory impact as well as whether there is a connection 
between visa rejection rates and the overstay rates.
    The visa refusal rate is not a relevant statistic in 
determining eligibility for the Visa Waiver Program. The 
pertinent question should be whether the past practices of the 
country's citizens indicate a tendency to remain in the United 
States beyond the terms of their visas. The refusal rate is 
simply not sufficiently probative of that fact. The overstay 
rates for a country would be a far more relevant consideration 
for determining eligibility to participate in the Visa Waiver 
Program. Not a single African or Caribbean country currently is 
eligible for the Visa Waiver Program and we continue to believe 
that a study is urgently needed to determine why this situation 
exists. We regret that the Majority chose to reject this common 
sense amendment.
                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.

                                

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