Process for Admitting Additional Countries into the Visa Waiver  
Program (28-JUL-06, GAO-06-835R).				 
                                                                 
The Visa Waiver Program enables citizens of 27 participating	 
countries to travel to the United States for tourism or business 
for 90 days or less without first obtaining a visa. The program  
was created to promote the effective use of government resources 
and to facilitate international travel without jeopardizing U.S. 
national security. Indeed, in fiscal year 2004, more than 15	 
million travelers entered the United States under this program.  
The United States last expanded the Visa Waiver Program's	 
membership in 1999 with the addition of Portugal, Singapore, and 
Uruguay; in recent years, other countries have expressed a desire
to become members. In addition, Members of Congress have recently
introduced bills calling for the expansion of the program. In	 
February 2005, President Bush announced that the Departments of  
Homeland Security (DHS) and State (State) would develop a	 
strategy, or "Road Map Initiative," to clarify to prospective	 
candidates the statutory requirements for designation as a	 
participating country--and work with countries to help them	 
comply with these requirements. In response to a Congressional	 
request, this report describes (1) the process for gaining	 
admission into the Visa Waiver Program and (2) the U.S. 	 
government's plans for admitting additional countries into the	 
program. To examine the criteria for expanding the Visa Waiver	 
Program, we reviewed laws establishing the program, agency	 
protocols governing the program, and DHS's Office of Inspector	 
General reports. In addition, we reviewed relevant documentation 
and interviewed DHS and Consular Affairs Bureau officials in	 
Washington, D.C., to determine the status of the President's	 
initiative.							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-06-835R					        
    ACCNO:   A57879						        
  TITLE:     Process for Admitting Additional Countries into the Visa 
Waiver Program							 
     DATE:   07/28/2006 
  SUBJECT:   Border security					 
	     Eligibility determinations 			 
	     Homeland security					 
	     Immigration					 
	     International relations				 
	     Policy evaluation					 
	     Program evaluation 				 
	     Visas						 
	     Waivers						 
	     Strategic planning 				 
	     INS Visa Waiver Pilot Program			 

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GAO-06-835R

     

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July 28, 2006

The Honorable Jim Sensenbrenner, Jr.

Chairman

Committee on the Judiciary

House of Representatives

Subject: Process for Admitting Additional Countries into the Visa Waiver
Program

Dear Mr. Chairman:

The Visa Waiver Program enables citizens of 27 participating countries to
travel to the United States for tourism or business for 90 days or less
without first obtaining a visa.1 The program was created to promote the
effective use of government resources and to facilitate international
travel without jeopardizing U.S. national security. Indeed, in fiscal year
2004, more than 15 million travelers entered the United States under this
program. The United States last expanded the Visa Waiver Program's
membership in 1999 with the addition of Portugal, Singapore, and Uruguay;2
in recent years, other countries have expressed a desire to become
members. In addition, Members of Congress have recently introduced bills
calling for the expansion of the program. In February 2005, President Bush
announced that the Departments of Homeland Security (DHS) and State
(State) would develop a strategy, or "Road Map Initiative," to clarify to
prospective candidates the statutory requirements for designation as a
participating country-and work with countries to help them comply with
these requirements.

In response to your request, this report describes (1) the process for
gaining admission into the Visa Waiver Program and (2) the U.S.
government's plans for admitting additional countries into the program.3
To examine the criteria for expanding the Visa Waiver Program, we reviewed
laws establishing the program, agency protocols governing the program, and
DHS's Office of Inspector General reports. In addition, we reviewed
relevant documentation and interviewed DHS and Consular Affairs Bureau
officials in Washington, D.C., to determine the status of the President's
initiative. To describe U.S. plans for expanding the program, we visited
the U.S. embassies in the Republic of Korea and Poland-countries that are
actively seeking to become program members-and spoke with ambassadors, as
well as political, law enforcement, consular, and public diplomacy
officers about their role in this process. We also reviewed public
statements about the program made by the President and U.S. ambassadors to
aspiring countries. We conducted our work from September 2005 through June
2006 in accordance with generally accepted government auditing standards.

1The United States also issues visas to those who intend to immigrate to
the United States. In this report, we use the term "visa" to refer to
nonimmigrant visas only. According to the Department of State, the Visa
Waiver Program is a substitute entry mechanism for nonimmigrant, short
term, business, and tourism visas only; it does not apply to students,
temporary workers, and others who require visas to enter the United
States.

2In 2003, the Attorney General removed Uruguay from the Visa Waiver
Program, stating that Uruguay's participation in the program was
inconsistent with U.S. interests. According to a 2002 Federal Register
notice on the subject, Uruguayan nationals were, on average, two to three
times more likely than all nonimmigrants to have been denied admission at
the border. Uruguayan air arrivals had an apparent overstay rate more than
twice that of the average apparent overstay rate for all nonimmigrant air
arrivals. In addition, Argentina was removed from the program in 2002,
following an economic crisis in that country and an increase in the number
of Argentinean nationals attempting to use the Visa Waiver Program to live
and work illegally in the United States.

3See also GAO, Border Security: Stronger Actions Needed to Assess and
Mitigate Risks of the Visa Waiver Program, GAO-06-854 (Washington, D.C.:
July 28, 2006).

Results in Brief

DHS is drafting procedures to help guide the process by which additional
countries are admitted into the Visa Waiver Program. Until these
procedures are finalized, DHS and State have an interim process.4
Specifically, under this interim process, the Secretary of Homeland
Security, in consultation with the Secretary of State, may designate any
country as being a member of the Visa Wavier Program if that country
qualifies under the program's statutory requirements. First, State advises
DHS of its intent to nominate a country for inclusion in the program only
after State has determined that the country meets key criteria for visa
waiver designation. Then, according to DHS, the departments may agree to
engage in a pre-nomination consultation process to ensure that all parties
are in agreement before State submits its formal nomination. After
receiving State's formal nomination, DHS, through an interagency working
group, evaluates the effect that the country's designation would have on
the law enforcement, security, and immigration interests of the United
States. On the basis of the review, the interagency working group submits
a recommendation to the Secretary of Homeland Security, who, in
consultation with the Secretary of State, decides whether to admit the
country into the program. Separately, on May 1 of each year, State must
report, to Congress, those countries that are under consideration for
inclusion in the Visa Waiver Program.

The U.S. government has taken steps to assist countries seeking membership
in the Visa Waiver Program. In February 2005, President Bush announced
that the United States would develop bilateral strategies with 13 "Road
Map" countries that are seeking admission into the Visa Waiver Program. In
particular, DHS and State are working with these countries to make sure
they understand the program's statutory requirements, and to agree on
steps to help these countries meet the criteria. In 2005, State tasked
U.S. embassies in aspiring countries to form working groups with the host
governments to discuss the Road Map process. According to DHS, these
groups met to develop plans that specify the actions that each country may
need to take to be considered for program membership. For example, several
countries agreed to launch public affairs campaigns to inform their
citizens about the program's requirements. The plans also include actions
that the embassies have agreed to take, such as providing technical
assistance on statutory requirements. To further clarify the initiative's
objectives, in May 2006, DHS and State jointly issued a series of cables
to posts in Road Map countries with guidance on the types of issues that
should be discussed in the bilateral working groups. As of June 2006, DHS
and State have approved frameworks, (or road maps) for seven countries:
Poland, Czech Republic, Hungary, Estonia, Latvia, Lithuania, and South
Korea. However, according to DHS and State's Consular Affairs Bureau, it
is unlikely that many of the new countries will meet the statutory
requirements for designation to the program in the near future. State did
not submit a report to Congress on May 1, 2006, indicating that it was
considering new members, and Consular Affairs Bureau officials stated that
they are not actively considering expanding program membership or
nominating specific countries for possible visa waiver designation.

4Prior to 2002, Justice and State, through an interagency working group,
had established a draft protocol based on the statutory criteria that
detailed the procedures that the agencies must follow in nominating a
country for membership in the program. According to DHS and State, the
draft protocol was not finalized. However, Justice has used it to assess
some countries' eligibility.

We received written comments from State and DHS, which we have reprinted
in enclosures I and II, respectively. State agreed with our conclusions,
stating that the report is a balanced description of the process for
admitting additional countries into the Visa Waiver Program, as well as
the U.S. government's Road Map initiatives. DHS stated that the report's
clear description of the Visa Waiver Program's statutory requirements and
the designation process will assist the department's efforts to
communicate these matters to the public and to countries seeking to
participate in the program. In addition, State and DHS provided details
about the interim procedures in place for admitting additional countries
into the program.

Background

The Immigration Reform and Control Act of 19865 created the Visa Waiver
Program as a pilot program. In October 2000, it became a permanent program
under the Visa Waiver Permanent Program Act.6 According to State's
Consular Affairs Bureau, the program was enacted to facilitate the
legitimate travel of visitors for business or tourism from countries whose
citizens had demonstrated compliance with U.S. immigration laws. In recent
years, Members of Congress have introduced legislation calling for the
expansion of the program, for policy reasons, to U.S. allies such as
Poland and South Korea. However, Congress did not pass any of these bills
into law. More recently, in May 2006, the U.S. Senate passed an
immigration reform bill that contained a provision that, among other
things, allows for the expansion of the program to countries that
contribute substantially to the wars in Afghanistan and Iraq.7

Visa-free travel to the United States boosts international business and
tourism, as well as airline revenues, and creates substantial economic
benefits to the United States. Moreover, the program allows State to
allocate resources to visa-issuing posts in countries with higher-risk
applicant pools. According to the Immigration Reform and Control Act, a
country's participation in the program should not have an adverse effect
on U.S. law enforcement and security interests. The program applies only
to temporary visitors from participating countries traveling to the United
States for business or tourism for 90 days or less, while persons
traveling to the United States for other purposes-for example, to study or
to work-are required to have a visa.

5P.L. 99-603.

6P.L. 106-396.

7As of June 16, 2006, the Comprehensive Immigration Reform Act of 2006, S.
2611, 109th Cong. Sec 413 (2006), will next be sent to a joint conference
committee of both House and Senate conferees.

In 2002, we reported on the legislative requirements to which countries
must adhere before they may be considered for inclusion in the Visa Waiver
Program.8 In general, they include the following:

           o  A low nonimmigrant visa refusal rate. To qualify for visa
           waiver status, a country must maintain a refusal rate of less than
           3 percent for its citizens who apply for temporary business and
           tourism visas.9

           o  A machine-readable passport program. The country must certify
           that it issues machine-readable passports to its citizens. As of
           June 26, 2005, all travelers are required to have a
           machine-readable passport to enter the United States under the
           program.

           o  Reciprocity. The country must offer visa-free travel for U.S.
           citizens.

Persons seeking to travel to the United States under the Visa Waiver
Program must

           o  have a valid passport issued by the participating country and
           be a national of that country;

           o  be seeking entry for 90 days or less for business or tourism;

           o  have their identity checked at the U.S. port of entry against
           an automated electronic database containing information about the
           inadmissibility of aliens;

           o  have been determined by DHS border inspectors at the U.S. port
           of entry to represent no threat to the welfare, health, safety, or
           security of the United States;

           o  have complied with conditions of any previous admission under
           the program (for example, stayed in the United States for 90 days
           or less);

           o  if entering by air or sea, possess a round-trip transportation
           ticket issued by a carrier that has signed an agreement with the
           U.S. government to participate in the program and must have
           arrived in the United States aboard such a carrier; and

           o  if entering by land, have proof of financial solvency and a
           domicile abroad to which he or she intends to return.

8GAO, Border Security: Implications of Eliminating the Visa Waiver
Program, GAO-03-38 (Washington, D.C.: Nov. 22, 2002).

9The refusal rate refers only to the temporary business and tourism visa
applications that are denied as a percentage of the total temporary
business and tourism visa applications for nationals of that country.

Following the attacks of September 11, 2001, Congress passed additional
laws to strengthen border security policies and procedures, and DHS, in
consultation with State, instituted additional policy measures, some of
which affect a country's participation in the Visa Waiver Program. For
example, all passports issued after October 26, 2005, must contain a
digital photograph in the document for travel to the United States under
the program. Further, passports issued after October 26, 2006, must be
electronic (e-passports).10 Travelers with passports that do not meet
these requirements are required to obtain a visa from a U.S. embassy or
consulate overseas before entering the United States. In addition, the May
2002 Enhanced Border Security and Visa Entry Reform Act11 established that
participation in the Visa Waiver Program was conditional on a country's
timely reporting of the theft of its stolen blank passports to the United
States.

On November 25, 2002, Congress passed the Homeland Security Act of 2002,
which established DHS and gave it responsibility for visa policy,
including the Visa Waiver Program.12 Prior to this date, the Department of
Justice (Justice) had overall responsibility for managing the program. In
July 2004, DHS created the Visa Waiver Program Oversight Unit within the
Office of International Enforcement and directed that unit to manage the
oversight of participating Visa Waiver Program countries, as well as the
process for assessing the law enforcement and security implications of
expanding the program's membership. To help fulfill its responsibilities,
DHS established an interagency working group comprised of representatives
from State, Justice, and several DHS component agencies and offices,
including Customs and Border Protection and Immigration and Customs
Enforcement.

Process for Admitting Additional Countries into the Visa Waiver Program

DHS is drafting procedures to help guide the process by which additional
countries are admitted into the Visa Waiver Program. Until these
procedures are finalized, DHS and State have an interim process. Under
this process, the Secretary of Homeland Security, in consultation with the
Secretary of State, can expand the membership of the Visa Waiver Program,
assuming that a country meets certain requirements. First, State advises
DHS of its intent to nominate a country for inclusion in the program.
According to State, it may nominate a country only after it has determined
that the country meets key criteria for visa waiver designation, including
a low nonimmigrant refusal rate and reciprocal visa-free travel for U.S.
citizens. Subsequently, State may also provide DHS with information on the
nominated country, including

           o  patterns of passport fraud, visa fraud, and visa abuse over the
           past 5 years;

           o  assessments of terrorism, by the country's nationals, within or
           outside the country; and

           o  evaluations of the impact of the country's participation on
           U.S. national security and law enforcement.

10In general, e-passports will contain a chip, which will be embedded in
the passport. The chip will store the same information that is printed in
the data page of the passport: the name, date of birth, gender, place of
birth, dates of passport issuance and expiration, place of issuance,
passport number, and photo image of the bearer. In addition, it will hold
the unique chip identification number and a digital signature to protect
the stored data from alteration.

11The Enhanced Border Security and Visa Entry Reform Act of 2002, P.L
107-173.

12P.L. 107-296.

After State notifies DHS of its intent to nominate a country for inclusion
in the program, the departments, according to DHS, may then agree to
engage in a pre-nomination consultation process to ensure that all parties
agree that there is a likelihood that U.S. law enforcement and security
interests would not be compromised by the designation of that country, and
that the country otherwise meets the program's statutory requirements. If
no clearly disqualifying objections are raised during this review, the
Secretary of State submits a formal written nomination to the Secretary of
Homeland Security. After a country's formal nomination, DHS leads an
interagency team to visit the nominated country. The team reviews the
country's

           o  political, social, and economic conditions;

           o  security over its passport and national identity documents;

           o  border controls; and

           o  immigration and nationality laws, law enforcement policies and
           practices, and other matters relevant to law enforcement,
           immigration, and national security.

On the basis of the review and site visit, the interagency working group
submits a recommendation to the Secretary of Homeland Security, who, in
consultation with the Secretary of State, decides whether to admit the
country to the program.

Separate from this review process, on May 1 of each year,13 for each
country under consideration for inclusion in the Visa Waiver Program, the
Secretary of State must report to appropriate congressional committees on

           o  the total number of nationals of that country who applied for
           U.S. visas in that country during the previous calendar year;

           o  the total number of such nationals who received U.S. visas
           during the previous calendar year;

           o  the total number of such nationals who were refused U.S. visas
           during the previous calendar year, and, specifically, under which
           provision of the Immigration and Nationality Act they were
           refused; and

           o  the number of such nationals that were refused visas under
           section 214(b)14 of the Immigration and Nationality Act as a
           percentage of the visas that were issued to such nationals.

13In addition, not later than May 1 of each year, the U.S. chief of
mission (acting or permanent) to each country under consideration for
inclusion in the Visa Waiver Program, must certify to the appropriate
congressional committees that the information described in the report is
accurate, and provide a copy of the certification to the congressional
committees.

U.S. Plans for Expanding Membership in the Visa Waiver Program

In February 2005, President Bush announced that the United States would
work with governments in countries that are seeking admission into the
Visa Waiver Program-an effort called the "Road Map Initiative"-to help
them become program members (see fig. 1 for a map of the Road Map
countries). DHS and State officials, as well as the President and other
senior U.S. officials, have stated that this initiative aims to clarify
the program's statutory requirements to prospective candidates. Moreover,
these officials have stated that the United States will work with the Road
Map countries to help develop strategies to meet these requirements. In
particular, in May 2006, the Assistant Secretary of State for East Asian
and Pacific Affairs stated that the admission of South Korea into the
program is one of his goals. According to DHS, some of the countries
seeking admission to the program are U.S. partners in the war in Iraq and
have high expectations that they will join the program due to their close
economic, political, and military ties to the United States. Nevertheless,
all aspiring countries must first meet the program's statutory criteria
for membership.

14Section 214(b) of the 1952 Immigration and Nationality Act, as amended
(P.L. 82-414, 8 U.S.C. S: 1101 et seq.), generally presumes that aliens
are immigrants until they establish to the satisfaction of the consular
officer at the time of application for a visa, and the border inspector at
the time of application for admission, that they are entitled to
nonimmigrant status. Pursuant to section 291, the burden of proof is on
the applicant. If an alien cannot establish that he or she is entitled to
nonimmigrant status, then the alien is considered to be an applicant for
immigrant status and is not eligible to receive a nonimmigrant visa.

Figure 1: Road Map Countries

In April 2005, State, in coordination with DHS, tasked the U.S. embassies
in each of the 13 aspiring Road Map countries to form bilateral consular
working groups to help these countries understand and develop strategies
to meet the program's statutory criteria. Consular officials told us that
law enforcement and security officials participate in some of these
meetings, depending on the agenda and their availability. DHS
representatives based in-country, or with regional responsibility for a
country, were asked to participate in the consular working group meetings.
For example, with funding from State, an Immigration and Customs
Enforcement official in Vienna, Austria, participated in the Hungarian
working group. Throughout 2005, the working groups discussed the actions
that the individual countries would take, with U.S. assistance, to meet
the Visa Waiver Program requirements. For example, the plans cover issues
related to meeting biometric and other technical and security criteria;
reporting lost and stolen passport information; and public affairs
campaigns regarding the implications of violating the terms of visas.
According to DHS, some working groups have developed a formal document
that outlines future plans, while others have preferred a less formal
approach that does not include development of a formal document. As of
June 2006, DHS and State had approved the plans for seven countries:
Poland, Czech Republic, Hungary, Estonia, Latvia, Lithuania, and South
Korea.

To further clarify the initiative's objectives, in May 2006, DHS and State
jointly issued a series of cables to posts in Road Map countries
containing guidance on the types of issues that should be discussed in the
bilateral working groups, and issues that should be reported back to DHS
and State headquarters. Each cable focused on a particular area for
discussion, including individual countries'

           o  passport and identification documents;
           o  criteria for citizenship; and
           o  reporting of lost and stolen passport data.

According to State and DHS, discussion on these subjects will be a
valuable tool for identifying and acting on areas of possible concern.
Moreover, DHS stated that the working groups will be critical in
developing serious and meaningful activities for each country, which are
based on the statutory requirements that must be met.

Despite the President's and other officials' stated desire to help Road
Map countries gain program membership, and despite ongoing efforts to
provide such assistance, according to State and DHS, it is unlikely that
many of the new countries will meet the statutory requirements for
designation to the Visa Waiver Program in the near future. For example,
the visa refusal rates in many of the Road Map countries are more than 20
percent, according to consular officials. In addition, State and DHS have
cited law enforcement and security concerns regarding some of these
countries, including immigration and border control issues, alien
smuggling, and a high degree of passport fraud. Consular officials stated
that they are working actively with the governments in the Road Map
countries to clarify the program's statutory requirements. However, State
did not submit a report to Congress on May 1, 2006, indicating that it was
considering new members, and Consular Affairs Bureau officials stated that
they are not actively considering expanding program membership before next
year's May 1, 2007, report deadline.

Conclusions

Many countries are actively seeking admission into the Visa Waiver
Program, and the President has announced his support for the program's
expansion. Moreover, the President and other senior U.S. officials have
stated publicly their goal to add countries to the program. However,
legislation requires that aspiring countries meet certain criteria before
the Secretaries of State and Homeland Security may consider them for
membership. Several countries have already committed to improving in areas
that are vital to attaining this status, and which would also benefit all
countries worldwide, such as border security and passport issuance
processes, and DHS and State are assisting these countries in meeting
these requirements through the consular working groups. However, it does
not appear there will be any expansion of the Visa Waiver Program in the
short term, because despite ongoing progress, these countries will still
fall short of the program's statutory requirements.

Agency Comments and Our Evaluation

State and DHS provided written comments on a draft of this report (see
enclosures I and II).

State agreed with our conclusions, stating that the report is a balanced
description of the process for admitting additional countries into the
Visa Waiver Program, as well as the U.S. government's Road Map
initiatives. In addition, State provided further detail about the
department's role in the nomination process for countries seeking
admission into the program. In particular, State noted that it notifies
DHS of its intent to nominate a country only after consideration of key
criteria-visa refusal rate, status of biometric passport implementation,
lost and stolen passport reporting, and reciprocal visa-free travel for
U.S. citizens-while DHS is responsible for evaluating the impact a
country's participation would have on U.S. law enforcement and security
interests. We have reflected this point in the report. State also said
that the department has not ruled out the possibility of nominating new
countries into the Visa Waiver Program in a May 1, 2007 report to
Congress. Lastly, State noted that the consular working groups'
discussions with Road Map countries provide a useful basis for continuing
to encourage countries to pursue immigration, law enforcement, and
security policies, which, apart from the Visa Waiver Program, are in their
own and U.S. interests. State also provided technical comments, which we
incorporated into the report, as appropriate.

DHS stated that the report's clear description of the Visa Waiver
Program's statutory requirements and the designation process will assist
the department's efforts to communicate these matters to the public and to
countries seeking to participate in the program. DHS also provided details
about the interim procedures in place for admitting additional countries
into the program, which we have reflected in the report. In addition, DHS
noted that while an interagency working group was convened in the past to
evaluate the effect that a country's designation would have on the law
enforcement, security, and immigration interests of the United States,
such a group may or may not be utilized in future evaluations of
prospective countries. DHS also provided technical comments on a draft of
this report, which we have incorporated, as appropriate.

As agreed with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from
the report date. At that time, we will provide copies of this report to
the Secretaries of Homeland Security and State, and will make copies
available to others upon request. In addition, this report will be
available at no charge on the GAO Web site at http://www.gao.gov .

If you or your staff have any questions about this report, please contact
me at (202) 512-4128 or [email protected]. The key contributors to this report
were John Brummet, Assistant Director; Kathryn Bernet, Joseph Brown,
Joseph Carney, Jane Kim, and Mary Moutsos.

Jess T. Ford

Director, International Affairs and Trade

Enclosures - 2

Enclosure I: Comments from the Department of State

Enclosure II: Comments from the Department of Homeland Security

(320435)

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