Visa Waiver Program: Actions Are Needed to Improve Management of
the Expansion Process, and to Assess and Mitigate Program Risks
(15-SEP-08, GAO-08-967).
The Visa Waiver Program, which enables citizens of participating
countries to travel to the United States without first obtaining
a visa, has many benefits, but it also has risks. In 2006, GAO
found that the Department of Homeland Security (DHS) needed to
improve efforts to assess and mitigate these risks. In August
2007, Congress passed the 9/11 Act, which provides DHS with the
authority to consider expanding the program to countries whose
short-term business and tourism visa refusal rates were between 3
and 10 percent in the prior fiscal year. Countries must also meet
certain conditions, and DHS must complete actions to enhance the
program's security. GAO has examined DHS's process for expanding
the Visa Waiver Program and evaluated the extent to which DHS is
assessing and mitigating program risks. GAO reviewed relevant
laws and procedures and interviewed agency officials in
Washington, D.C., and in U.S. embassies in eight aspiring and
three Visa Waiver Program countries.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-08-967
ACCNO: A84177
TITLE: Visa Waiver Program: Actions Are Needed to Improve
Management of the Expansion Process, and to Assess and Mitigate
Program Risks
DATE: 09/15/2008
SUBJECT: Airlines
Data collection
Data storage
Foreign governments
Homeland security
Illegal aliens
Immigration
International cooperation
International travel
Passports
Program evaluation
Reporting requirements
Requirements definition
Risk assessment
Risk factors
Risk management
Standards evaluation
Travel
Visas
Waivers
Program goals or objectives
Program implementation
Visa Waiver Program
******************************************************************
** This file contains an ASCII representation of the text of a **
** GAO Product. **
** **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced. Tables are included, but **
** may not resemble those in the printed version. **
** **
** Please see the PDF (Portable Document Format) file, when **
** available, for a complete electronic file of the printed **
** document's contents. **
** **
******************************************************************
GAO-08-967
* [1]Results in Brief
* [2]Background
* [3]Executive Branch Is Moving Quickly to Expand the Visa Waiver
* [4]DHS Has Not Followed a Transparent Process for Visa Waiver P
* [5]DHS Has Achieved Some Results in Visa Waiver Program Expansi
* [6]DHS Has Not Fully Developed Tools Aimed at Assessing and Mit
* [7]DHS Has Not yet Implemented Key Security Provisions of 9/11
* [8]Plan to Verify the Air Departure of Foreign Nationals
Will N
* [9]DHS's Planned Implementation of ESTA by January 2009 Will
Fa
* [10]Implementation of Biometric Air Exit System before July
2009
* [11]DHS Does Not Fully Consider Overstay Rates to Assess the Ill
* [12]DHS Has Implemented Many of GAO's Prior Recommendations Aime
* [13]Conclusions
* [14]Recommendations for Executive Action
* [15]Agency Comments and Our Evaluation
* [16]GAO Comments
* [17]GAO Contact
* [18]Staff Acknowledgments
* [19]GAO's Mission
* [20]Obtaining Copies of GAO Reports and Testimony
* [21]Order by Mail or Phone
* [22]To Report Fraud, Waste, and Abuse in Federal Programs
* [23]Congressional Relations
* [24]Public Affairs
Report to Congressional Requesters
United States Government Accountability Office
GAO
September 2008
VISA WAIVER PROGRAM
Actions Are Needed to Improve Management of the Expansion Process, and to
Assess and Mitigate Program Risks
Visa Waiver Program Visa Waiver Program Visa Waiver Program iver Program
Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver
Program Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa
Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver Program
Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver
Program Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa
Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver Program
Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver
Program Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa
Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver Program
Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver
Program Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa
Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver Program
Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa Waiver
Program Visa Waiver Program Visa Waiver Program Visa Waiver Program Visa
Waiver Program
GAO-08-967
Contents
Letter 1
Results in Brief 3
Background 6
Executive Branch Is Moving Quickly to Expand the Visa Waiver Program
without a Transparent Process 9
DHS Has Not Fully Developed Tools Aimed at Assessing and Mitigating Risks
in the Visa Waiver Program 15
Conclusions 29
Recommendations for Executive Action 30
Agency Comments and Our Evaluation 30
Appendix I Objectives, Scope, and Methodology 32
Appendix II Worldwide Refusal Rates for Short-term Business and Tourism
Visas, Fiscal Year 2007 34
Appendix III Key Legislative Requirements for Inclusion in the Visa Waiver
Program 40
Appendix IV Comments from the Department of Homeland Security 42
Appendix V Comments from the Department of Justice 51
Appendix VI GAO Contact and Staff Acknowledgments 53
Tables
Table 1: Status of Prior GAO Recommendations 28
Table 2: Worldwide Refusal Rates for Short-term Business and Tourism
Visas, Fiscal Year 2007 34
Figures
Figure 1: Comparison of DHS's Process to Expand the Visa Waiver Program
against the Standard Operating Procedures for Expansion 10
Figure 2: Short-term Business and Tourism Visa Refusal Rates, by Country,
Fiscal Year 2007 13
Figure 3: DHS's Current Plan to Meet Air Exit System Provision Omits Those
Who Remain in the United States 17
Figure 4: DHS's Anticipated ESTA Implementation Timeline 21
Abbreviations
CBP Customs and Border Protection
DHS Department of Homeland Security
ESTA Electronic System for Travel Authorization
ICE Immigration and Customs Enforcement
Interpol International Criminal Police Organization
MOU memorandum of understanding
US-VISIT U.S. Visitor and Immigrant Status and Indicator Technology
This is a work of the U.S. government and is not subject to copyright
protection in the United States. The published product may be reproduced
and distributed in its entirety without further permission from GAO.
However, because this work may contain copyrighted images or other
material, permission from the copyright holder may be necessary if you
wish to reproduce this material separately.
United States Government Accountability Office
Washington, DC 20548
September 15, 2008 September 15, 2008
The Honorable Joseph I. Lieberman Chairman The Honorable Susan M. Collins
Ranking Member Committee on Homeland Security and Governmental Affairs
United States Senate The Honorable Joseph I. Lieberman Chairman The
Honorable Susan M. Collins Ranking Member Committee on Homeland Security
and Governmental Affairs United States Senate
The Honorable Dianne Feinstein Chairman The Honorable Jon Kyl Ranking
Member Subcommittee on Terrorism, Technology, and Homeland Security
Committee on the Judiciary United States Senate The Honorable Dianne
Feinstein Chairman The Honorable Jon Kyl Ranking Member Subcommittee on
Terrorism, Technology, and Homeland Security Committee on the Judiciary
United States Senate
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 from a U.S. embassy or consulate.^1 The
program has many benefits, including facilitating travel for millions of
foreign nationals seeking to visit the United States each year. However,
as we have reported,^2 the program also poses inherent security, law
enforcement, and illegal immigration risks to the United States. In
particular, Visa Waiver Program travelers are not subject to the same
degree of screening as those with visas because they are not interviewed
by a Department of State (State) consular officer before arriving at a
U.S. port of entry. During the visa issuance process, State consular
officers can determine if an individual has a criminal record or has prior
immigration violations. On the basis of their assessments, consular
officers decide 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 from a U.S.
embassy or consulate.^1 The program has many benefits, including
facilitating travel for millions of foreign nationals seeking to visit the
United States each year. However, as we have reported,^2 the program also
poses inherent security, law enforcement, and illegal immigration risks to
the United States. In particular, Visa Waiver Program travelers are not
subject to the same degree of screening as those with visas because they
are not interviewed by a Department of State (State) consular officer
before arriving at a U.S. port of entry. During the visa issuance process,
State consular officers can determine if an individual has a criminal
record or has prior immigration violations. On the basis of their
assessments, consular officers decide whether to approve or deny a visa
and, in doing so, help protect against individuals who pose a risk to the
United States. Without the added safeguard of the visa issuance process,
the Visa Waiver Program could be exploited to gain illegal entry into the
United States. Indeed, in September 2007, the Director of National
Intelligence testified that al Qaeda is recruiting Europeans because most
of them do not require a visa to enter the United States. Effective
oversight of the Visa Waiver Program is essential to finding the right
balance between facilitating legitimate travel and screening for potential
terrorists, criminals, and others who may pose law enforcement and illegal
immigration concerns.
^1The participating countries are Andorra, Australia, Austria, Belgium,
Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan,
Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and
the United Kingdom.
^2GAO, Border Security: Stronger Actions Needed to Assess and Mitigate
Risks of the Visa Waiver Program, [25]GAO-06-854 (Washington, D.C.: July
28, 2006).
The executive branch aims to expand the Visa Waiver Program to countries
in Central and Eastern Europe, and South Korea. According to the
Department of Homeland Security (DHS), some of these countries 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. The executive branch has supported more flexible
criteria for admission to the program. In August 2007, Congress passed
legislation that allows DHS to consider admitting countries that otherwise
meet the program's requirements but that have business and tourism visas
refusal rates^3 between 3 percent and 10 percent, if the countries meet
certain conditions, such as cooperating with the United States on
counterterrorism initiatives.^4 Previously, only countries with refusal
rates below 3 percent in the prior fiscal year qualified to be considered
for admission. Before DHS can exercise this new authority, the
legislation--referred to as the "9/11 Act"--requires that the department
complete certain actions aimed at enhancing the security of the Visa
Waiver Program.
At your request, this report (1) examines the process DHS is following to
admit countries into the Visa Waiver Program and (2) evaluates actions
taken to assess and mitigate potential risks in the program.
Throughout the course of our work, we reviewed laws governing the Visa
Waiver Program and its expansion, and relevant regulations and agency
operating procedures, as well as our prior reports and testimonies. We met
with several DHS component agencies and offices, including Customs and
Border Protection (CBP); Immigration and Customs Enforcement (ICE); the
U.S. Visitor and Immigrant Status and Indicator Technology (US-VISIT); and
the Visa Waiver Program Office,^5 which is responsible for oversight of
Visa Waiver Program requirements. In addition, we interviewed officials
from State's Consular Affairs, Europe and Eurasia, and East Asia and
Pacific Bureaus, and met with International Criminal Police Organization
(Interpol) officials in Lyon, France, as well as officials from the
Department of Justice's (Justice) Interpol-U.S. National Central Bureau.^6
We also spoke with officials at U.S. embassies in three current and eight
aspiring Visa Waiver Program countries. Appendix I contains a more
detailed discussion of our objectives, scope, and methodology. We
conducted this performance audit from September 2007 to September 2008, in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives.
^3The 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.
^4See Implementing Recommendations of the 9/11 Commission Act of 2007,
Pub. L. No. 110-53.
Results in Brief
The executive branch is moving aggressively to expand the Visa Waiver
Program by the end of 2008, but, in doing so, DHS has not followed a
transparent process. The department did not follow its own November 2007
standard operating procedures, which set forth the key milestones that DHS
and aspiring countries must meet before additional countries are admitted
into the program. As a result, State, Justice, and U.S. embassy officials
stated that DHS created confusion among its interagency partners and
aspiring Visa Waiver Program countries. Indeed, absent clear direction
from DHS, U.S. embassy officials in several aspiring countries told us
that it had been difficult to explain the expansion process to their
foreign counterparts and manage their expectations about when those
countries might be admitted into the Visa Waiver Program. Furthermore,
State officials said that it was difficult to explain to countries with
fiscal year 2007 refusal rates below 10 percent that have signaled
interest in joining the program (such as Croatia, Israel, and Taiwan) why
DHS is not negotiating with them. DHS, however, is negotiating with
several countries that had fiscal year 2007 visa refusal rates above the
10 percent ceiling (Hungary, Latvia, Lithuania, and Slovakia), with the
expectation that fiscal year 2008 rates will be below this ceiling.
Nevertheless, DHS achieved some security enhancements to the Visa Waiver
Program during expansion negotiations, including new agreements with
several aspiring countries on lost and stolen passport reporting. DHS,
State, and Justice agreed, however, that a more transparent process is
needed to guide any future consideration of program expansion. In
acknowledging weaknesses in the expansion process, DHS's Assistant
Secretary for Policy Development said that DHS did not have a clear
process at the outset of negotiations in late 2007, in part because the
department lacked prior experience in expanding the Visa Waiver Program
and because the program's legislative requirements had changed in August
of that year.
^5DHS's Visa Waiver Program Office, known prior to September 2007 as the
Visa Waiver Oversight Unit within the Office of International Enforcement,
is led by a director, who reports to the DHS Assistant Secretary for
Policy Development.
^6The U.S. National Central Bureau in Washington, D.C., facilitates
international law enforcement cooperation among the United States and
Interpol and its other member countries.
DHS has not fully developed tools to assess and mitigate risks in the Visa
Waiver Program. Specifically, DHS has not yet met two key certification
requirements in the 9/11 Act that would allow DHS to consider admitting
additional countries to the program with refusal rates between 3 percent
and 10 percent. First, DHS must certify that it can verify the departure
of not less than 97 percent of foreign nationals who exit from U.S.
airports. In February 2008, we testified that DHS's plan to meet this
provision will not demonstrate improvements in the air exit system and
will not help the department mitigate risks of the Visa Waiver Program,
because the plan does not account for data on those who remain in the
country beyond their authorized period of stay (referred to as
"overstays"). Second, DHS must certify that the Electronic System for
Travel Authorization (ESTA) for screening visa waiver travelers in advance
of their travel is "fully operational." DHS has not yet announced when it
plans to make this certification; however, ESTA became available on a
voluntary basis on August 1, 2008, and DHS anticipates that ESTA
authorizations will be required for all visa waiver travelers after
January 12, 2009.^7 DHS determined that the law permits it to expand the
program to countries with refusal rates between 3 percent and 10 percent
after it makes the two 9/11 Act certifications, and after the countries
have met certain conditions, but before ESTA is mandatory for all Visa
Waiver Program travelers. DHS may face challenges in implementing ESTA,
such as adequately informing the public and travel industry about the
system. In addition, for DHS to maintain its authority to admit certain
countries into the program, the 9/11 Act requires that the air exit system
also incorporate biometric indicators (such as fingerprints) by July 1,
2009. However, DHS is unlikely to meet this timeline due to several
unresolved issues. In addition, DHS does not fully consider countries'
overstay rates when assessing illegal immigration risks in the Visa Waiver
Program because the department's overstay data have weaknesses, according
to the Visa Waiver Program Office. Finally, DHS has fully implemented many
recommendations from our 2006 report aimed at improving DHS's ability to
assess and mitigate program risks, including screening U.S.-bound
travelers against Interpol's database of lost and stolen passports.
However, DHS has not yet fully implemented others, such as requiring that
all Visa Waiver Program countries report the theft or loss of blank and
issued passports to the United States and Interpol. Fully implementing the
remaining recommendations is important as DHS moves to expand both the
Visa Waiver Program and the department's oversight responsibilities.
^7According to DHS, ESTA will be implemented as a mandatory program for
all visa waiver travelers 60 days after publication of a notice in the
Federal Register. DHS anticipates issuing that notice in November 2008,
for implementation of the mandatory ESTA requirements on January 12, 2009.
To improve management of the Visa Waiver Program and better assess and
mitigate risks associated with the program, we recommend that DHS
establish a clear process, in coordination with State and Justice, for
program expansion that would include the criteria used to determine which
countries will be considered for expansion and timelines for nominating
countries, security assessments of aspiring countries, and negotiation of
any bilateral agreements to implement the program's legislative
requirements. In addition, we recommend that DHS designate an office with
responsibility for developing overstay rate information for the Visa
Waiver Program, explore cost-effective actions to further improve these
data's reliability, and use these validated data to help evaluate whether
current or aspiring Visa Waiver Program countries pose a potential illegal
immigration risk to the United States.
We received written comments on a draft of our report from DHS and
Justice, which we have reprinted in appendices IV and V, respectively.
State did not provide comments on the draft. DHS either agreed with, or
stated that it was taking steps to implement, all of our recommendations.
Justice did not comment on our recommendations, but provided additional
information about the importance of monitoring countries' reporting of
lost and stolen passports to Interpol, and its efforts, in collaboration
with DHS, to include screening against Interpol's lost and stolen passport
database in ESTA.
Background
In 2007, almost 13 million citizens^8 from 27 countries entered the United
States under the Visa Waiver Program.^9 The program was created to promote
the effective use of government resources and facilitate international
travel without jeopardizing U.S. national security. The United States last
expanded the Visa Waiver Program's membership in 1999; since then, other
countries have expressed a desire to become members. In February 2005,
President Bush announced that DHS and State would develop a strategy, or
"Road Map Initiative," to clarify the statutory requirements for
designation as a participating country. 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.
As we reported in July 2006, DHS and State are consulting with 13 "Road
Map" countries seeking admission into the Visa Waiver Program--Bulgaria,
Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania,
Malta, Poland, Romania, Slovakia, and South Korea.
Following the terrorist attacks of September 11, 2001, Congress passed
additional laws to strengthen border security policies and procedures, and
DHS and State instituted other policy changes that have affected a
country's qualifications for participating in the Visa Waiver Program. In
August 2007, Congress enacted the 9/11 Act, which provides DHS with the
authority to consider admitting into the Visa Waiver Program countries
that otherwise meet the program requirements, but have refusal rates
between 3 percent and 10 percent, provided the countries meet certain
conditions (see app. II for worldwide refusal rates for fiscal year 2007).
Before being admitted to the program, for example, the countries must
demonstrate a sustained reduction in refusal rates, and must be
cooperating with the United States on counterterrorism initiatives,
information sharing, and the prevention of terrorist travel, among other
things. In addition, DHS must complete two actions aimed at enhancing the
security of the program (see app. III for the key legislative requirements
for inclusion in the Visa Waiver Program).^10 In particular, to consider
admitting countries into the Visa Waiver Program with refusal rates
between 3 percent and 10 percent, DHS must certify the following to
Congress:
^8This figure does not account for multiple admissions into the United
States under the Visa Waiver Program by the same individual.
^9The Immigration Reform and Control Act of 1986, Pub. L. No. 99-603,
created the Visa Waiver Program as a pilot program. In 2000, the program
became permanent under the Visa Waiver Permanent Program Act, Pub. L. No.
106-396.
o A system is in place that can verify the departure of not less
than 97 percent of foreign nationals who depart through U.S.
airports. Initially, this system will be biographic only. Congress
required the eventual implementation of a biometric exit system at
U.S. airports. If the biometric air exit system is not in place by
July 1, 2009, the flexibility that DHS may obtain to consider
admitting countries with refusal rates between 3 percent and 10
percent will be suspended until the system is in place.
o An electronic travel authorization system is "fully
operational." This system will require nationals from Visa Waiver
Program countries to provide the United States with biographical
information before boarding a U.S.-bound flight to determine the
eligibility of, and whether there exists a law enforcement or
security risk in permitting, the foreign national to travel to the
United States under the program. DHS recommends that applicants
obtain ESTA authorizations at the time of reservation or ticket
purchase, or at least 72 hours before their planned date of
departure for the United States. The ESTA application will
electronically collect information similar to the information
collected in paper form by CBP.^11 To the extent possible,
according to DHS, applicants will find out almost immediately
whether their travel has been authorized, in which case they are
free to travel to the United States, or if their application has
been rejected, in which case they are ineligible to travel to the
United States under the Visa Waiver Program.^12 Those found
ineligible to travel under the Visa Waiver Program must apply for
a visa at a U.S. embassy to travel to the United States.^13
In addition, the 9/11 Act requires that visa waiver countries
o enter into an agreement with the United States to report, or
make available through Interpol or other means as designated by
the Secretary of Homeland Security, to the U.S. government
information about the theft or loss of passports within a strict
time frame;
o enter into an agreement with the United States to share
information regarding whether citizens and nationals of that
country traveling to the United States represent a threat to U.S.
security; and
o accept for repatriation any citizen, former citizen, or national
of the country against whom the United States has issued a final
order of removal.
When DHS exercises its authority to waive the 3 percent refusal
rate requirement, it shall, in consultation with State, take into
account other discretionary factors, pursuant to the 9/11 Act,
including a country's airport security standards; whether the
country assists in the operation of an effective air marshal
program; the standards of passports and travel documents issued by
the country; and other security-related factors, including the
country's cooperation with (1) the United States' initiatives
toward combating terrorism and (2) the U.S. intelligence community
in sharing information regarding terrorist threats. DHS works in
consultation with State and Justice, as well as the intelligence
community, as part of DHS's assessment of countries seeking to
join the Visa Waiver Program.
The executive branch is moving aggressively to expand the Visa
Waiver Program by the end of 2008, but, in doing so, DHS has not
followed a transparent process for admitting new countries to the
program--an approach that has created confusion among other U.S.
agencies in Washington, D.C.; U.S. embassy officials overseas; and
those countries that are seeking to join the Visa Waiver Program.
During the expansion negotiations, DHS has achieved some security
enhancements, such as new agreements that, among other things,
require the reporting of lost and stolen blank and issued
passports.
We found that the Visa Waiver Program Office has not followed its
own standard operating procedures, completed in November 2007,
which set forth the key milestones that DHS and aspiring countries
must meet before additional countries are admitted into the
program.^14 According to the standard procedures, State should
submit to DHS a formal, written nomination for a particular
country, after which DHS is to lead an interagency team to conduct
an in-country, comprehensive review of the impact of the country's
admission into the Visa Waiver Program on U.S. security, law
enforcement, and immigration interests. Figure 1 depicts the
standard procedures that the program office established to guide
expansion of the Visa Waiver Program compared with DHS's actions
since August 2007. Although State has only nominated one
country--Greece--DHS has nonetheless conducted security reviews
for countries that State has not yet nominated--Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea.
According to State officials, until DHS has implemented the
required provisions of the 9/11 Act, and aspiring countries have
met all of the Visa Waiver Program's statutory requirements, State
does not plan to nominate any other countries. DHS's Assistant
Secretary for Policy Development told us that the department had
determined that it would not follow the standard operating
procedures during these expansion negotiations and, thus, had to
"make up the process as it went along," in part because DHS had
never expanded the program before and because Congress
significantly changed the program's legislative requirements in
August 2007.
^10Section 711 of the 9/11 Act specifically grants DHS the authority to
waive the 3 percent refusal rate requirement for countries--currently up
to a maximum of 10 percent--provided those countries meet other security
requirements.
^11This form is CBP's I-94W Nonimmigrant Visa Waiver Arrival/Departure
Form. According to DHS, the department is coordinating with commercial
aircraft and vessel carriers on the development and implementation of
messaging capabilities that will enable CBP to provide the carriers with
messages pertaining to a passenger's boarding status. Once ESTA is
mandatory and all carriers are capable of receiving and validating
messages from CBP pertaining to the traveler's ESTA status as part of
their boarding status, DHS plans to eliminate the I-94W requirement.
^12ESTA authorizations will be valid for up to 2 years and will allow the
individual to travel to the United States repeatedly within that period.
In some circumstances, such as when a passport has expired or a traveler
has changed his or her name, the traveler must apply for a new ESTA
authorization.
^13In addition to receiving an authorization or rejection notice upon
submitting an ESTA application, the applicant may also receive a response
noting that the application is pending.
Executive Branch Is Moving Quickly to Expand the Visa Waiver Program without a
Transparent Process
DHS Has Not Followed a Transparent Process for Visa Waiver Program Expansion
^14In 2006, we reported on the executive branch's process for admitting
additional countries into the Visa Waiver Program. See GAO, Process for
Admitting Additional Countries into the Visa Waiver Program,
[26]GAO-06-835R (Washington, D.C.: July 26, 2006).
Figure 1: Comparison of DHS's Process to Expand the Visa Waiver Program
against the Standard Operating Procedures for Expansion
State and Justice officials told us that the lack of a transparent
timeline and requirements for Visa Waiver Program expansion has led to
confusion among U.S. agencies in headquarters' offices and at U.S.
embassies overseas, as well as foreign governments seeking to join the
program. For example, DHS's standard procedures were not updated to
account for the department's plans to sign with each of the aspiring Visa
Waiver Program countries separate memorandums of understanding (MOU) that
lay out the new legislative requirements from the 9/11 Act. According to
DHS, while not required by the act, the U.S. government is seeking to
negotiate MOUs with current and aspiring Visa Waiver Program countries to
help put the legislative provisions in place. Although DHS has not yet
signed MOUs with any current program countries, the department intends to
complete negotiations with existing program countries by October 2009. As
indicated in figure 1, DHS signed MOUs with aspiring countries before
conducting in-country security reviews. The MOUs are to be accompanied by
more specific "implementing arrangements" for sharing biographic,
biometric, and other data, as required by the 9/11 Act, within general
parameters of what the United States is willing and able to
reciprocate--this includes sharing information on known or suspected
terrorists. According to DHS, the type and scope of these arrangements
will vary by country and will take into account existing bilateral
information-sharing arrangements. As of June 2008, DHS had signed MOUs
with eight Road Map countries and had begun negotiations on the
implementing arrangements. However, State and Justice officials told us
that DHS had not been clear in communicating these steps to aspiring and
current program countries. DHS officials acknowledged that the department
was still exploring how to best complete the implementing arrangements.
U.S. embassy officials in several Road Map countries told us that it had
been difficult to explain the expansion process to their foreign
counterparts and manage their expectations about when those countries
might be admitted into the Visa Waiver Program. Justice officials and U.S.
officials in several embassies told us that the implementing arrangements
may be more difficult to negotiate than the nonbinding MOUs because some
countries have expressed concerns about sharing private information on
their citizens due to strict national privacy laws--concerns that the
United States also has about its citizens' information. In response to our
request, in late April 2008, DHS provided us with an outline of the
department's completed and remaining actions for expanding the Visa Waiver
Program by the end of this year. DHS officials stated that this outline
could be a first step in providing guidance for all stakeholders, should
the program be expanded again in the future. However, the outline does not
include criteria for selecting countries under consideration for admission
into the program, other than the 13 Road Map countries.
The U.S. government is only considering the Road Map countries for
potential admission into the program in 2008 because the United States
began formal discussions with these 13 countries several years ago, not
due to the application of clearly defined requirements. DHS is negotiating
with 4 Road Map countries with fiscal year 2007 refusal rates over 10
percent (Hungary, Latvia, Lithuania, and Slovakia), with the expectation
that fiscal year 2008 refusal rates for these countries will fall below 10
percent. State officials told us that they lacked a clear rationale to
explain to other aspiring, non-Road Map countries with refusal rates under
10 percent (Croatia, Israel, and Taiwan) that they will not be considered
in 2008 due to the executive branch's plans to expand the program first to
South Korea and countries in Central and Eastern Europe. In addition, 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
department has never submitted this report because, according to consular
officials, no country has been under consideration for admission into the
program since the reporting requirement was established in 2000.^15 As of
late June 2008, State had not yet submitted its report for 2008. A State
official told us that, despite the actions that DHS, State, and other U.S.
agencies have taken to expand the Visa Waiver Program to as many as 9
countries in 2008, State was initially unclear about which countries it
should include in this report. While only Greece has been nominated, DHS
has made clear its goal to admit many of the Road Map countries in 2008.
(Fig. 2 shows the fiscal year 2007 refusal rates for the 13 Road Map
countries.)
^15State must report to the appropriate congressional committees on the
total number of nationals of that country who applied for U.S. visas in
that country during the previous calendar year; the total number of such
nationals who received U.S. visas during the previous calendar year; 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 the number of such
nationals who were refused visas under section 214(b)of the Immigration
and Nationality Act as a percentage of the visas that were issued to such
nationals. In 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 must provide a copy of the certification to the
congressional committees.
Figure 2: Short-term Business and Tourism Visa Refusal Rates, by Country,
Fiscal Year 2007
Note: DHS may consider adding to the Visa Waiver Program aspiring
countries with refusal rates below 3 percent in the prior fiscal year,
without meeting the two certification requirements in the 9/11 Act.
According to DHS, it could not wait until all statutory requirements were
officially met before beginning bilateral negotiations with Road Map
countries, because doing so would not allow sufficient time to add the
countries by the end of 2008. DHS plans to complete the security reviews
and sign MOUs and implementing arrangements with Road Map countries by the
fall of 2008. If these and all other statutory provisions are
completed--including countries' achievement of refusal rates below 10
percent--State indicated that it will then formally nominate the
countries. However, DHS has acknowledged that if it and the aspiring
countries cannot meet all of the program's statutory requirements, the
United States will not admit additional countries into the program. In
such an event, the U.S. government could face political and diplomatic
repercussions, given the expectations raised that many of the Road Map
countries will be admitted in 2008. DHS, State, and Justice officials
acknowledged that following a more transparent process would be useful in
the future as additional countries seek to join the program.
DHS Has Achieved Some Results in Visa Waiver Program Expansion Negotiations
DHS's expansion negotiations with current and aspiring Visa Waiver Program
countries have led to commitments from countries to improve information
sharing processes with the United States. For example, by signing MOUs,
eight aspiring countries have signaled their intent to comply with the
program's statutory provision to report to the United States or Interpol
in a timely manner the loss or theft of passports--a key vulnerability in
the Visa Waiver Program, as we have previously reported.^16 In addition,
as a result of ongoing visa waiver negotiations with the South Korean
government, in January 2008, DHS initiated the Immigration Advisory
Program at Incheon International Airport in South Korea to help prevent
terrorists and other high-risk travelers from boarding commercial aircraft
bound for the United States.^17 Furthermore, a senior consular official
testified that the executive branch's dialogue on Visa Waiver Program
expansion is helping to stimulate U.S. negotiations on other terrorist
watch-list- sharing arrangements with Road Map countries.^18
16 [27]GAO-06-854 .
^17According to CBP, the Immigration Advisory Program aims to enhance the
safety of air travel by, among other things, reducing the number of
improperly documented passengers traveling from or through a country to
the United States. As of August 2008, the program operates in airports in
Amsterdam, the Netherlands; Frankfurt, Germany; London, England (Heathrow
Airport and Gatwick Airport); Manchester, England; Madrid, Spain; Seoul,
South Korea; Tokyo, Japan; and Warsaw, Poland.
DHS Has Not Fully Developed Tools Aimed at Assessing and Mitigating Risks in the
Visa Waiver Program
As of early September 2008, DHS had not yet met two key certification
requirements in the 9/11 Act that are necessary to allow the department to
consider expanding the Visa Waiver Program to countries with refusal rates
between 3 percent and 10 percent. In addition, the Visa Waiver Program
Office does not fully consider data on overstay rates for current and
aspiring Visa Waiver Program countries, even though doing so is integral
to meeting a statutory requirement for continued eligibility in the Visa
Waiver Program. Finally, in reviewing recommendations from our 2006 report
aimed at improving efforts to assess and mitigate program risks, we found
that DHS has implemented many of our prior recommendations, but some are
only partially implemented.
DHS Has Not yet Implemented Key Security Provisions of 9/11 Act That Are
Necessary to Admit Certain Countries into the Visa Waiver Program
On February 28, 2008, we testified that DHS's plan for certifying that it
can verify the departure of 97 percent of foreign nationals from U.S.
airports will not help the department mitigate risks of the Visa Waiver
Program.^19 Furthermore, DHS will face a number of challenges in
implementing ESTA by January 2009. Finally, it is unlikely that DHS will
implement a biometric air exit system before July 2009, due to opposition
from the airline industry.
Plan to Verify the Air Departure of Foreign Nationals Will Not Help DHS
Mitigate Program Risks
As we have previously mentioned, the 9/11 Act requires that DHS certify
that a system is in place that can verify the departure of not less than
97 percent of foreign nationals who depart through U.S. airports. In
December 2007, DHS reported to us that it will match records, reported by
airlines,^20 of visitors departing the country to the department's
existing records of any prior arrivals, immigration status changes,^21 or
prior departures from the United States. At the time of our February 2008
testimony, DHS had confirmed that it planned to employ a methodology that
begins with departure records. During the hearing, we also testified that
this methodology will not demonstrate improvements in the air exit system
and will not help the department mitigate risks of the Visa Waiver
Program. We identified a number of weaknesses with this approach, as
follows:
^18Homeland Security Presidential Directive-6 required the Secretary of
State to develop a proposal for the President's approval for enhancing
cooperation with certain foreign governments--beginning with those
countries for which the United States has waived visa requirements--to
establish appropriate access to the participating governments' terrorism
screening information. State determined that the most effective way to
obtain this information was to seek bilateral agreements to share
information on a reciprocal basis. In May 2008, the Deputy Assistant
Secretary of State for Visa Services testified that State anticipates
completing these agreements with all of the Road Map countries by the end
of September 2008. See, The White House, Homeland Security Presidential
Directive/HSPD-6, Subject: Integration and Use of Screening Information
(Washington, D.C.: Sept. 16, 2003).
^19GAO, Visa Waiver Program: Limitations with Department of Homeland
Security's Plan to Verify Departure of Foreign Nationals, [28]GAO-08-458T
(Washington, D.C.: Feb. 28, 2008).
o First, DHS's methodology will not inform overall or
country-specific overstay rates, which are key factors in
determining illegal immigration risks in the Visa Waiver Program.
In particular, DHS's methodology does not begin with arrival
records to determine if those foreign nationals departed or
remained in the United States beyond their authorized periods of
admission--useful data for oversight of the Visa Waiver Program
and its expansion. As we previously testified, an alternate
approach would be to track air arrivals from a given point in time
and determine whether those foreign nationals have potentially
overstayed.^22 Figure 3 compares DHS's plan to match visitor
records using departure data as a starting point with a
methodology that would use arrival data as a starting point.
Figure 3: DHS's Current Plan to Meet Air Exit System Provision
Omits Those Who Remain in the United States
o Second, for purposes of this provision and Visa Waiver Program
expansion, we do not see the value in verifying that a foreign
national leaving the United States had also departed at a prior
point in time^23--in other words, matching a new departure record
back to a previous departure record from the country.^24 DHS's
Assistant Secretary for Policy Development told us in January 2008
that the department chose to include previous departures and
changes of immigration status records because this method allowed
the department to achieve a match rate of 97 percent or greater.
o Third, DHS's methodology does not address the accuracy of
airlines' transmissions of departure records, and DHS acknowledges
that there are weaknesses in the departure data. Foreign nationals
who enter the United States by air are inspected by DHS
officers--a process that provides information that can be used to
verify arrival manifest data--and, since 2004, DHS has implemented
the US-VISIT program to collect biometric information on foreign
nationals arriving in the United States.^25 However, the
department has not completed the exit portion of this tracking
system; thus, there is no corresponding check on the accuracy and
completeness of the departure manifest information supplied by the
airlines.^26 According to DHS, it works with air carriers to try
to improve both the timeliness and comprehensiveness of manifest
records, and fines carriers that provide incomplete or inaccurate
information. If DHS could evaluate these data, and validate the
extent to which they are accurate and complete, the department
would be able to identify problems and work with the airlines to
further improve the data.
An air exit system that facilitates the development of overstay
rate data is important to managing potential risks in expanding
the Visa Waiver Program. We found that DHS's planned methodology
for meeting the "97 percent provision" so it can move forward with
program expansion will not demonstrate improvements in the air
exit system or help the department identify overstays or develop
overstay rates. As of early September 2008, DHS had not yet
certified this provision, nor had it finalized a methodology to
meet the provision.
In June 2008, DHS announced in the Federal Register that it
anticipates that all visa waiver travelers will be required to
obtain ESTA authorization for visa waiver travel to the United
States after January 12, 2009. However, we identified four
potential challenges that DHS may face in implementing ESTA,
including a limited time frame to adequately inform U.S. embassies
and the public and the significant impact that ESTA will have on
the airline and travel industry.
We have previously reported that visa waiver travelers pose
inherent security and illegal immigration risks to the United
States, since they (1) are not subject to the same degree of
screening as travelers with visas and (2) are not interviewed by a
consular officer before arriving at a U.S. port of entry.^27 In
the 9/11 Act conference report,^28 Congress agreed on the need for
significant security enhancements to the Visa Waiver Program and
to the implementation of ESTA prior to permitting DHS to admit new
countries into the program with refusal rates between 3 percent
and 10 percent. According to DHS, ESTA will allow DHS to identify
potential ineligible visa waiver travelers before they embark on a
U.S.-bound carrier. DHS also stated that by recommending that
travelers submit ESTA applications 72 hours in advance of their
departure, CBP will have additional time to screen visa waiver
travelers destined for the United States.
DHS must follow several steps in implementing ESTA (see fig. 4).
First, the 9/11 Act requires that DHS must certify both the 97
percent air exit system and ESTA as fully operational before the
department can consider expanding the Visa Waiver Program to
countries with refusal rates between 3 percent and 10 percent. DHS
has not announced when it plans to make this certification. DHS
attorneys told us that the department could admit additional
countries to the program once it provides this certification. In
addition, according to DHS, the act provides that 60 days after
the Secretary of Homeland Security publishes a final notice in the
Federal Register of the ESTA requirement, each alien traveling
under the Visa Waiver Program must use ESTA to electronically
provide DHS with biographic and other such information as DHS
deems necessary to determine, in advance of travel, the
eligibility of, and whether there exists a law enforcement or
security risk in permitting, the alien to travel to the United
States.^29 DHS stated that it expects to issue this final notice
in early November 2008, and, as of January 12, 2009, all visa
waiver travelers would be required to obtain authorization through
ESTA prior to boarding a U.S.-bound flight or cruise vessel. DHS
stated that if, after certifying ESTA as fully operational, it
admits an additional country prior to January 12, 2009, it will
require that visa waiver travelers from that country obtain ESTA
authorizations immediately. For example, if Estonia were admitted
into the Visa Waiver Program on October 10, 2008, citizens of that
country traveling to the United States under the program would be
required to begin using ESTA on that date; however, visa waiver
travelers from existing program countries would not be required to
obtain approval through ESTA until January 12, 2009, more than 3
months later.
^20Air carriers transmit visitor manifest information, which is obtained
directly from government-issued passports, to CBP through the Advanced
Passenger Information System. This system includes arrival and departure
manifest information, such as name, date of birth, travel document issuing
country, gender, U.S. destination address, entry date, and departure date.
As of February 19, 2008, commercial carriers are required to transmit
manifest information to be vetted by DHS prior to departure of the
aircraft.
^21This includes changes and extensions of the visits of lawfully
admitted, nonimmigrant foreign nationals.
^22This could include foreign nationals who departed after their
authorized period of admission expired, as well as those foreign nationals
who may have remained in the country as overstays.
^23According to ICE officials at DHS, this type of information provides a
more complete history of an alien and is useful for law enforcement
purposes, such as criminal prosecution and documenting activities.
^24A DHS official told us that the system functions by matching the
departure record with an alien's "account," which may contain numerous
prior arrivals, departures, and immigration benefit transaction records.
The official also stated that a specific departure record match may not
fall chronologically in the alien's account after an arrival; it may fall,
for example, after a record that an immigrant benefit was granted to
extend the alien's stay for an additional 6 months.
^25DHS's US-VISIT program collects, maintains, and shares data, including
biometric identifiers like digital fingerprints, on selected foreign
nationals entering the United States to verify their identities as they
arrive at U.S. air, sea, and land ports of entry. DHS currently operates
the entry portion of the US-VISIT program at more than 300 U.S. air, sea,
and land ports of entry. When fully implemented, US-VISIT is also intended
to capture the same information from foreign nationals as they depart the
country. The program aims to, among other things, identify foreign
nationals who have overstayed or violated the terms of their visit.
^26DHS has not implemented long-standing GAO recommendations to collect
departure information and make new estimates of overstays by air. See GAO,
Illegal Immigration: INS Overstay Estimation Methods Need Improvement,
[29]GAO/PEMD-95-20 (Washington, D.C.: Sept. 26, 1995); and Illegal Aliens:
Despite Data Limitations, Current Methods Provide Better Population
Estimates, [30]GAO/PEMD-93-25 (Washington, D.C.: Aug. 3, 1993).
DHS's Planned Implementation of ESTA by January 2009 Will Face Challenges
^27 [31]GAO-06-854 .
^28Conference Report on H.R. 1, Implementing Recommendations of the 9/11
Commission Act of 2007 (July 25, 2007).
^29DHS attorneys stated that the department also hopes to certify ESTA as
fully operational in early November. In addition, as we have previously
mentioned, to consider admitting countries into the program with refusal
rates between 3 percent and 10 percent, DHS must also certify that the air
exit system is in place.
Figure 4: DHS's Anticipated ESTA Implementation Timeline
We identified four potential challenges to DHS's planned implementation of
ESTA by January 12, 2009. It is difficult to predict the extent to which
DHS will address these challenges due to the short time frame in which the
department is implementing the system. These challenges include the
following:
o DHS has a limited time frame to adequately inform U.S. embassies
in Visa Waiver Program countries and the public about ESTA. U.S.
embassy officials in current and aspiring Visa Waiver Program
countries told us that the United States will need to ensure that
there is sufficient time to inform travelers, airlines, and the
travel industry of ESTA requirements and implementation timelines.
U.S. commercial and consular officials at a U.S. embassy in a
current Visa Waiver Program country told us that they would
ideally like 1 year's advance notice before ESTA is implemented to
allow sufficient time to inform and train the public and the
travel industry of the new requirement. However, DHS's
announcement in June 2008 accelerated the timeline for ESTA
implementation in current visa waiver countries. During our site
visits in March 2008, U.S. embassy officials in a visa waiver
country told us that they had been informed by DHS officials that
the department did not plan to require ESTA authorization for
travelers from that country until the summer of 2009 or later.
According to a senior U.S. official at one embassy, DHS had
confirmed this plan with host country government officials in
early May 2008. Following the June 2008 announcement, a senior
U.S. embassy official in another country told us that DHS did not
give the embassy adequate advance notice--to prepare translated
materials, brief journalists from the major media, prepare the
embassy Web site, or set up a meeting with travel and tourism
professionals to discuss the implications of ESTA
requirements--before publishing the interim final rule. DHS
officials told us that the department is currently working on an
outreach strategy to ensure that travelers are aware of the ESTA
requirement.
o Impact on air and sea carriers could be significant. DHS
estimates that 8 U.S.-based air carriers and 11 sea carriers, as
well as 35 foreign-based air carriers and 5 sea carriers, will be
affected by ESTA requirements for visa waiver travelers. In
addition, DHS stated that it did not know how many passengers
annually would request that their carrier apply for ESTA
authorization on their behalf to travel under the Visa Waiver
Program or how much it will cost carriers to modify their existing
systems to accommodate such requests. Thus, in the short term, DHS
expects that the carriers could face a notable burden if most of
their non-U.S. passengers request that their carriers submit ESTA
applications. On the basis of DHS's analysis, ESTA could cost the
carriers about $137 million to $1.1 billion over the next 10
years, depending on how the carriers decide to assist the
passengers. DHS has noted that these costs to carriers are not
compulsory because the carriers are not required to apply for an
ESTA authorization on behalf of their visa waiver travelers. DHS
is developing a separate system, independent from ESTA, which will
enable the travel industry to voluntarily submit an ESTA
application on behalf of a potential Visa Waiver Program traveler.
As of early August 2008, DHS had analyzed the role that
transportation carriers could play in applying for and submitting
ESTA applications on behalf of their customers when they arrive at
an air or sea port. However, CBP stated that there had been no
further development on this issue.
o ESTA could increase consular workload. In May 2008, we reported
that State officials and officials at U.S. embassies in current
Visa Waiver Program countries are concerned with how ESTA
implementation will affect consular workload.^30 Consular officers
are concerned that more travelers will apply for visas at consular
posts if their ESTA applications are rejected or because they may
choose to apply for a visa that has a longer validity period (10
years) than an ESTA authorization. We reported that if 1 percent
to 3 percent of current Visa Waiver Program travelers came to U.S.
embassies for visas, it could greatly increase visa demand at some
locations, which could significantly disrupt visa operations and
possibly overwhelm current staffing and facilities.^31 DHS
officials told us that the department is aware of concerns
regarding rejection rates and has been working with State to
create a system that mitigates these concerns.
o Developing a user-friendly ESTA could be difficult. According to
DHS, the ESTA Web site will initially be operational in English;
additional languages will be available by October 15, 2008. Even
when the Web site is operational in additional languages, ESTA
will only allow travelers to fill out the application in English,
as with CBP's paper-based form. In addition, during our site
visits, embassy officials expressed concerns that some Visa Waiver
Program travelers do not have Internet access and, thus, will face
difficulties in submitting their information to ESTA.^32
Implementing a user-friendly ESTA is essential, especially for
those travelers who do not have Internet access or are not
familiar with submitting forms online.
A third provision of the 9/11 Act requires that DHS implement a
biometric air exit system before July 1, 2009, or else the
department's authority to waive the 3 percent refusal rate
requirement--and thereby consider admitting countries with refusal
rates between 3 percent and 10 percent--will be suspended until
this system is in place. In March 2008, DHS testified that
US-VISIT will begin deploying biometric exit procedures in fiscal
year 2009. DHS released a proposed rule for the biometric exit
system in April 2008, and the department plans to issue a final
rule before the end of 2008. According to the proposed rule, air
and sea carriers are to collect, store, and transmit to DHS
travelers' biometrics. During the public comment period on the
proposed rule, airlines, Members of Congress, and other
stakeholders have raised concerns about DHS's proposal, and
resolving these concerns could take considerable time. For
example, the airline industry strongly opposes DHS's plans to
require airline personnel to collect digital fingerprints of
travelers departing the United States because it believes it is a
public sector function. We have issued a series of reports on the
US-VISIT program indicating that there is no clear schedule for
implementation of the exit portion of the system, and that DHS
will encounter difficulties in implementing the system by July
2009.^33 Although DHS program officials stated that DHS is on
track to implement the biometric exit system by July 2009, it is
unlikely that DHS will meet this timeline. We are currently
reviewing DHS's proposed rule and plan to report later this year
on our findings.
Some DHS components have expanded efforts to identify citizens who
enter the United States under the Visa Waiver Program and then
overstay their authorized period of admission. In 2004, US-VISIT
established the Data Integrity Group, which develops data on
potential overstays by comparing foreign nationals' arrival
records with departure records from U.S. airports and sea ports.
US-VISIT provides data on potential overstays to ICE, CBP, and
U.S. Citizenship and Immigration Services, as well as to State's
consular officers to aid in visa adjudication. For example,
US-VISIT sends regular reports to ICE's Compliance Enforcement
Unit on potential overstays, and ICE officials told us they use
these data regularly during investigations. In fiscal year 2007,
ICE's Compliance Enforcement Unit received more than 12,300
overstay leads from the Data Integrity Group.^34 As an example of
one of these leads, on November 27, 2007, ICE agents in Ventura,
California, arrested and processed for removal from the United
States an Irish citizen whose term of admission expired in
September 2006. On the basis of concerns that Visa Waiver Program
travelers could be overstaying, ICE has requested that US-VISIT
place additional emphasis on identifying potential overstays from
program countries. In turn, ICE has received funding to establish
a Visa Waiver Enforcement Program within the Compliance
Enforcement Unit to investigate the additional leads from
US-VISIT. As part of this funding, ICE plans to hire 46 additional
employees to help the unit increase its focus on identifying
individuals who traveled to the United States under the Visa
Waiver Program and potentially overstayed.
However, DHS is not fully monitoring compliance with a legislative
provision that requires a disqualification rate (this calculation
includes overstays) of less than 3.5 percent for a country to
participate in the Visa Waiver Program.^35 Monitoring these data
is a long-standing statutory requirement for the program. We have
testified that the inability of the U.S. government to track the
status of visitors in the country, identify those who overstay
their authorized period of visit, and use these data to compute
overstay rates has been a long-standing weakness in the oversight
of the Visa Waiver Program.^36 DHS's Visa Waiver Program Office
reported that it does not monitor country overstay rates as part
of its mandated, biennial assessment process for current visa
waiver countries because of weaknesses in US-VISIT's data.^37
Since 2004, however, the Data Integrity Group has worked to
improve the accuracy of US-VISIT's overstay data and can undertake
additional analyses to further validate these data. For example,
using available resources, the group conducts analyses, by hand,
of computer-generated overstay records to determine whether
individuals identified as overstays by the computer matches are
indeed overstays. In addition, US-VISIT analysts can search up to
12 additional law enforcement and immigration databases to verify
whether a potential overstay may, in fact, be in the country
illegally. While it receives periodic reporting on potential
overstays from US-VISIT, the Visa Waiver Program Office has not
requested that the Data Integrity Group provide validated overstay
rate estimates from visa waiver or Road Map countries since 2005.
Although DHS has not designated an office with the responsibility
of developing such data for the purposes of the Visa Waiver
Program, US-VISIT officials told us that, with the appropriate
resources, they could provide more reliable overstay data and
estimated rates, by country, to the Visa Waiver Program Office,
with support from other DHS components, such as the Office of
Immigration Statistics. For example, the Visa Waiver Program
Office could request additional analysis for countries where the
preliminary, computer-generated overstay rates raised concerns
about illegal immigration risks in the program. These resulting
estimates would be substantially more accurate than the
computer-generated overstay rates. However, the resulting
estimates would not include data on departures at land ports of
entry. In addition, as we have previously mentioned, airline
departure data have weaknesses.^38 DHS has asserted that overstay
data will continue to improve with the implementation of the
biometric US-VISIT exit program.
In addition to US-VISIT, State's overseas consular sections
develop data on overstay rates that might be useful for assessing
potential illegal immigration risks of the Visa Waiver Program.
Specifically, some consular sections have conducted validation
studies to determine what percentage of visa holders travel to the
United States and potentially overstay. For example, at the U.S.
embassy in Estonia, consular officials conducted a validation
study in the summer of 2006 that concluded that 2.0 percent to 2.7
percent of Estonian visa holders traveling to the United States in
2005 had potentially overstayed.^39 US-VISIT overstay data, after
appropriate analysis and in conjunction with other available data,
such as validation studies, would provide DHS with key information
to help evaluate the illegal immigration risks of maintaining a
country's membership or admitting additional countries into the
Visa Waiver Program.
In July 2006, we reported that the process for assessing and
mitigating risks in the Visa Waiver Program had weaknesses, and
that DHS was not equipped with sufficient resources to effectively
monitor the program's risks.^40 For example, at the time of our
report, DHS had only two full-time staff charged with monitoring
countries' compliance with the program's requirements and working
with countries seeking to join the program. We identified several
problems with the process by which DHS was monitoring countries'
adherence to the program requirements, including a lack of
consultation with key interagency stakeholders. In addition, we
reported that DHS needed to improve its communication with
officials at U.S. embassies so it could communicate directly with
officials best positioned to monitor compliance with the program's
requirements, and report on current events and issues of potential
concern in each of the participating countries. Also, at the time
of our 2006 report, the law required the timely reporting of
passport thefts for continued participation in the Visa Waiver
Program, but DHS had not established or communicated these time
frames and operating procedures to participating countries. In
addition, DHS had not yet issued guidance on what information must
be shared, with whom, and within what time frame.
To address these weaknesses, we recommended that DHS take a number
of actions to better assess and mitigate risks in the Visa Waiver
Program. As we note in table 1, DHS has taken actions to implement
some of our recommendations, but still needs to fully implement
others. In particular, DHS has provided the Visa Waiver Program
Office with additional resources since our 2006 report. As of
April 2008, the office had five additional full-time employees,
and two other staff from the Office of Policy that devote at least
50 percent of their time to Visa Waiver Program tasks. In
addition, staff from several other DHS components assists the
office on a regular basis, as well as during the in-country
security assessments for Road Map and current program countries.
In response to our recommendation to finalize clear, consistent,
and transparent protocols for the biennial country assessment, the
Visa Waiver Program Office drafted standard operating procedures
in November 2007 for conducting reviews of nominated and
participating visa waiver countries. In addition, DHS now provides
relevant stakeholders with copies of the most current mandated,
biennial country assessments; during our visits in early 2008,
U.S. embassy officials confirmed that the assessments are now
accessible. Furthermore, regarding our recommendation to develop
and communicate clear, standard operating procedures for the
reporting of lost and stolen blank and issued passports, DHS
established criteria for the reporting of lost and stolen passport
data--including a definition of "timely reporting" and an
explanation of to whom in the U.S. government countries should
report--as part of the MOUs it is negotiating with participating
and Road Map countries.
^30GAO, Border Security: State Department Should Plan for Potentially
Significant Staffing and Facilities Shortfalls Caused by Changes in the
Visa Waiver Program, [32]GAO-08-623 (Washington, D.C.: May 22, 2008).
Implementation of Biometric Air Exit System before July 2009 Will Be Difficult
^31As of May 2008, DHS had provided State with preliminary data that
suggest how many names might be rejected by ESTA, on the basis of
rejection rates from CBP's Advance Passenger Information System; however,
we found that DHS had not developed any estimates of the number of people
who would choose to proactively apply for visas rather than submit an
application to ESTA. According to consular officials, the percentage of
travelers who choose to obtain a visa could exceed potential ESTA
rejection rates of 1 percent to 3 percent. See [33]GAO-08-623 .
^32According to DHS, ESTA is designed to allow third parties to file
applications on behalf of other persons.
DHS Does Not Fully Consider Overstay Rates to Assess the Illegal Immigration
Risks of the Visa Waiver Program
^33GAO, Homeland Security: Prospects For Biometric US-VISIT Exit
Capability Remain Unclear, [34]GAO-07-1044T (Washington, D.C.: June 28,
2007); Border Security: US-VISIT Program Faces Strategic, Operational, and
Technological Challenges at Land Ports of Entry, [35]GAO-07-248
(Washington, D.C.: Dec. 6, 2006).
^34In June 2003, ICE's Office of Investigations established the Compliance
Enforcement Unit, which focuses on preventing criminals and terrorists
from exploiting the nation's immigration system by developing cases for
investigation on the basis of information provided from other DHS
components, including US-VISIT.
^35The disqualification rate is the total for a given fiscal year of (1)
those nationals of the country who were admitted as nonimmigrants and
violated the terms of their admission--this would include overstays--and
(2) the number of foreign nationals who were denied admission upon arrival
in the United States, compared with the total number of nationals of that
country who applied for admission as nonimmigrant visitors during the same
period. According to the visa waiver statute, the country must be
terminated at the beginning of the 2d fiscal year following the fiscal
year in which the determination of the disqualification rate was made. See
8 U.S.C. S 1187(f).
^36For more than 10 years, we have recommended the collection of departure
information and the development of estimates of overstays by air. See
[36]GAO/PEMD-93-25 and [37]GAO/PEMD-95-20 .
^37According to DHS officials, the mandated country assessments include a
placeholder for data on overstay rates, but these data are not included in
the 2003-2004 or 2005-2006 assessments. The May 2002 Enhanced Border
Security and Visa Entry Reform Act increased the frequency--from once
every 5 years to once every 2 years--of mandated assessments of the effect
of each country's continued participation in the Visa Waiver Program on
U.S. security, law enforcement, and immigration interests. See Pub. L. No.
107-173.
^38Due to limitations in DHS's data, U.S. VISIT officials also noted that
some individuals who appear in DHS's systems as being in-country legally
may actually be overstays, and that country-specific information is not
available for about 2 percent of records.
^39Validation studies are traditionally conducted over the telephone, with
the embassy contacting nationals who traveled to the United States.
According to a State consular official, 200 posts have access to DHS's
Automated Departure Information System database. This database contains
records of foreign nationals' arrival and departure data received from air
and sea carrier manifests. DHS's data will assist embassies in conducting
validation studies and may preclude the need for telephone calls to
foreign nationals, while also improving the accuracy of departure data
assessed for these studies. Access to these records will allow consular
posts to more accurately determine whether a foreign national departed the
United States.
DHS Has Implemented Many of GAO's Prior Recommendations Aimed at Improving
Efforts to Assess and Mitigate Risks in the Visa Waiver Program
^40 [38]GAO-06-854 .
Table 1: Status of Prior GAO Recommendations
Partially
Recommendation Not implemented implemented Implemented
Provide additional resources to X
strengthen the Visa Waiver Program
Office.
Finalize clear, consistent, and X
transparent protocols for the
biennial country assessments and
provide these protocols to
stakeholders at relevant agencies
at headquarters and overseas.
These protocols should provide
timelines for the entire
assessment process, including the
role of a site visit, an
explanation of the clearance
process, and deadlines for
completion.
Create real-time monitoring X
arrangements, including the
identification of visa-waiver
points of contact at U.S.
embassies, for all 27
participating countries; and
establish protocols, in
coordination with the appropriate
headquarters offices, for direct
communication between points of
contact at overseas posts and
DHS's Visa Waiver Program Office.
Require periodic updates from X
points of contact at posts in
countries where there are law
enforcement or security concerns
relevant to the Visa Waiver
Program.
Provide complete copies of the X
most recent country assessments to
relevant stakeholders in
headquarters and overseas posts.
Require that all Visa Waiver X
Program countries provide the
United States and Interpol with
nonbiographical data from lost or
stolen blank and issued passports.
Develop and communicate clear X
standard operating procedures for
the reporting of lost and stolen
blank and issued passports,
including a definition of "timely
reporting" and to whom in the U.S.
government countries should
report.
Develop and implement a plan to X
make Interpol's stolen travel
document database automatically
available during primary
inspection at U.S. ports of entry.
Sources: GAO analysis of DHS data and GAO, Border Security: Stronger
Actions Needed to Assess and Mitigate Risks of the Visa Waiver Program,
[39]GAO-06-854 (Washington, D.C.: July 28, 2006).
Furthermore, DHS, in coordination with the U.S. National Central Bureau,
has initiated a system that allows DHS to screen foreign nationals
arriving at all U.S. international airports against Interpol's database of
lost and stolen travel documents before the foreign nationals arrive in
the country. Results to date indicate that the system identifies two to
three instances of fraudulent passports per month. According to the
National Central Bureau, Interpol's database has intercepted passports
that were not identified by DHS's other screening systems. For example, on
February 18, 2008, the Interpol database identified a Nigerian national
traveling on a counterfeited British passport who attempted to enter the
United States at Newark International Airport. Upon arrival, the
individual was referred to secondary inspection and determined to be
inadmissible to the United States.
While DHS has taken action on many of our recommendations, it has not
fully implemented others. We recommended that DHS require that all Visa
Waiver Program countries provide the United States and Interpol with
nonbiographical data from lost or stolen blank and issued passports.
According to DHS, all current and aspiring visa waiver countries report
lost and stolen passport information to Interpol, and many report such
information to the United States. The 9/11 Act requires agreements between
the United States and Visa Waiver Program countries on the reporting of
lost and stolen passports within strict time limits; however, none of the
current visa waiver countries have yet to formally establish lost and
stolen passport reporting agreements by signing MOUs with DHS. DHS also
still needs to fully implement our recommendations to create real-time
monitoring arrangements, establish protocols for direct communication with
contacts at overseas posts, and require periodic updates from these
contacts. For example, while the Visa Waiver Program Office has recently
begun communicating and disseminating relevant program information
regularly with U.S. embassy points of contact at Visa Waiver Program
posts, officials at some of the posts we visited in early 2008 reported
that they had little contact with the office and were not regularly
informed of security concerns or developments surrounding the program.
Conclusions
The executive branch is moving aggressively to expand the Visa Waiver
Program in 2008 to allies in Central and Eastern Europe and South Korea,
after the countries have met certain requirements and DHS has completed
and certified key security requirements in the 9/11 Act. However, DHS has
not followed a transparent process for expanding the program, thereby
causing confusion among other U.S. agencies and embassies overseas. The
lack of a clear process could bring about political repercussions if
countries are not admitted to the program in 2008, as expected. In
addition, DHS is not fully assessing a critical illegal immigration risk
of the Visa Waiver Program and its expansion since it does not consider
overstay data in its security assessments of current and aspiring
countries. DHS should determine what additional data and refinements of
that data are necessary to ensure that it can assess and mitigate this
potential risk to the United States. Finally, DHS still needs to take
actions to fully implement our prior recommendations in light of plans to
expand the program.
Recommendations for Executive Action
To improve management of the Visa Waiver Program and better assess and
mitigate risks associated with it, we are recommending that the Secretary
of Homeland Security take the following four actions:
o establish a clear process, in coordination with the Departments
of State and Justice, for program expansion that would include the
criteria used to determine which countries will be considered for
expansion and timelines for nominating countries, security
assessments of aspiring countries, and negotiation of any
bilateral agreements to implement the program's legislative
requirements;
o designate an office with responsibility for developing overstay
rate information for the purposes of monitoring countries'
compliance with the statutory requirements of the Visa Waiver
Program;
o direct that established office and other appropriate DHS
components to explore cost-effective actions necessary to further
improve, validate, and test the reliability of overstay data; and
o direct the Visa Waiver Program Office to request an updated,
validated study of estimated overstay rates for current and
aspiring Visa Waiver Program countries, and determine the extent
to which additional research and validation of these data are
required to help evaluate whether particular countries pose a
potential illegal immigration risk to the United States.
We provided a draft of this report to DHS, State, and Justice for
review and comment. DHS provided written comments, which are
reproduced in appendix IV, and technical comments, which we
incorporated into the report, as appropriate. Justice also
provided written comments, which are reprinted in appendix V.
State did not provide comments on the draft report.
DHS either agreed with, or stated that it was taking steps to
implement, all of our recommendations. For example, DHS indicated
that it is working with State to create procedures so that future
Visa Waiver Program candidate countries are selected and
designated in as transparent and uniform a manner as possible. In
addition, DHS noted that it is taking steps to improve the
accuracy and reliability of the department's overstay data. DHS
also provided additional details about its continued outreach
efforts to the department's interagency partners and foreign
counterparts on the expansion process for the Visa Waiver Program.
Justice did not comment on our recommendations, but provided
additional information about the importance of monitoring
countries' reporting of lost and stolen passport data to Interpol.
In addition, Justice discussed its efforts, in collaboration with
DHS, to include screening against Interpol's lost and stolen
passport database as part of ESTA. Justice noted that use of
Interpol's database continues to demonstrate significant results
in preventing the misuse of passports to fraudulently enter the
United States.
We are sending copies of this report to interested congressional
committees, the Secretaries of Homeland Security and State, and
the U.S. Attorney General. Copies of this report will be made
available to others upon request. In addition, this report is
available at no charge on the GAO Web site at http://www.gao.gov.
If you or your staffs have any questions about this report, please
contact Jess T. Ford, Director, International Affairs and Trade,
at (202) 512-4128 or [email protected]. Contact points for our Offices
of Congressional Relations and Public Affairs may be found on the
last page of this report. Key contributors to this report are
listed in appendix VI.
Jess T. Ford Director, International Affairs and Trade
To describe the process that the Department of Homeland Security
(DHS) is following to admit countries into the Visa Waiver
Program, we reviewed laws governing the program and its expansion,
and relevant regulations and agency operating procedures, as well
as our prior reports and testimonies. In particular, we reviewed
DHS's standard operating procedures for oversight and expansion of
the Visa Waiver Program. We spoke with officials from the Visa
Waiver Program Office, which is responsible for oversight of Visa
Waiver Program requirements, as well as representatives from the
Department of State's (State) Consular Affairs, Europe and
Eurasia, and East Asia and Pacific Bureaus. In addition, we
visited U.S. embassies in three current visa waiver
countries--France, Japan, and the United Kingdom--whose nationals
comprise a large percentage annually of visa waiver travelers to
the United States. We also visited U.S. embassies in four
countries--Czech Republic, Estonia, Greece, and South Korea--with
which DHS is negotiating visa waiver status. During these visits,
we interviewed political, economic, consular, commercial, and law
enforcement officials regarding oversight of the Visa Waiver
Program and its expansion. We also conducted telephone interviews
with consular officials in four additional countries--Hungary,
Latvia, Lithuania, and Slovakia--that DHS also aims to admit into
the Visa Waiver Program in 2008. We did not interview officials in
Bulgaria, Poland, or Romania because DHS told us that it does not
anticipate that these countries will be admitted into the program
in 2008. We did not interview officials in Malta because of the
country's relatively small number of annual Visa Waiver Program
travelers to the United States.
To assess actions taken to mitigate potential risks in the Visa
Waiver Program, we focused on DHS's efforts to implement the new
security enhancements required by the 9/11 Act, as well as the
recommendations from our July 2006 report.^1 First, to review the
department's plans for air exit system implementation, we
collected and analyzed documentation and interviewed officials
from DHS's Office of Policy, Customs and Border Protection (CBP),
and the U.S. Visitor and Immigrant Status and Indicator Technology
(US-VISIT) Program Office. We also reviewed prior GAO reports on
immigrant and visitor entry and exit tracking systems.
Second, to analyze plans for the implementation of the Electronic
System for Travel Authorization (ESTA), we collected and analyzed
documentation and interviewed officials from DHS's Offices of
Policy, Screening Coordination, and General Counsel, as well as
CBP officials who are implementing the Web-based program. In
addition, to understand DHS's legal position regarding the
statutory requirements for ESTA implementation, on May 5, 2008, we
requested, in writing, DHS's legal position on certain ESTA
statutory requirements, which the department provided to us on
June 6, 2008.
Third, regarding DHS's efforts to monitor citizens who enter the
United States under the Visa Waiver Program and then overstay
their authorized period of admission (referred to as "overstays"),
we assessed the reliability of the US-VISIT data on potential
overstays, which are based on air and sea carriers' arrival and
departure data. We reviewed documentation and interviewed
cognizant U.S. VISIT officials about how data on potential
overstays are generated and validated. As we have previously
mentioned, we determined that data on potential overstays that are
generated automatically by US-VISIT's systems have major
limitations; however, many of these limitations could be overcome
by a series of manual checks and validations that US-VISIT can
perform, upon request.
Fourth, to determine the status of our prior recommendations to
DHS on oversight of the Visa Waiver Program, we developed a scale
to classify them as (1) implemented, (2) partially implemented, or
(3) not implemented. We collected and analyzed documentation and
interviewed officials from DHS's Visa Waiver Program Office on the
actions that office has taken since July 2006 to respond to our
recommendations. In addition, we met with International Criminal
Police Organization (Interpol) officials in Lyon, France, as well
as officials from the Department of Justice's Interpol-U.S.
National Central Bureau to discuss the status of DHS's access to
Interpol's database of lost and stolen travel documents. We
concluded that a recommendation was (1) "implemented," if the
evidence indicated that DHS had taken a series of actions
addressing the recommendation; (2) "partially implemented," if the
evidence indicated that DHS had taken some action toward
implementation; and (3) "not implemented," if the evidence
indicated that DHS had not taken any action.
We conducted this performance audit from September 2007 to
September 2008 in accordance with generally accepted government
auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based
on our audit objectives. We believe that the evidence obtained
provides a reasonable basis for our findings and conclusions based
on our audit objectives.
The Visa Waiver Program nonimmigrant visa refusal rate is based on
the number of visitor visa applications submitted, worldwide, by
nationals of that country. Visitor visas are issued for short-term
business or pleasure travel to the United States. The adjusted
refusal rate is calculated by first subtracting from the number of
visas that were initially refused (referred to as "refusals"), the
number of visas that were subsequently issued after further
administrative consideration (referred to as "overcomes")--or, in
short, refusals minus overcomes (see table 2). This resulting
number is then divided by the number of visa issuances plus
refusals minus overcomes--that is, refusals minus overcomes
divided by issuances plus refusals minus overcomes. Adjusted visa
refusal rates for nationals of Visa Waiver Program countries
reflect only visa applications submitted at U.S. embassies and
consulates abroad. These rates do not take into account persons
who, under the Visa Waiver Program, travel to the United States
without visas. Visa Waiver Program country refusal rates,
therefore, tend to be higher than they would be if the Visa Waiver
Program travelers were included in the calculation, since such
travelers in all likelihood would have been issued visas had they
applied, according to State. We are presenting these data to show
that the countries under consideration for Visa Waiver Program
admission do not all have refusal rates of less than 10 percent;
we did not assess the reliability of these data.
Table 2: Worldwide Refusal Rates for Short-term Business and
Tourism Visas, Fiscal Year 2007
Source: Department of State.
^aIncludes applications for both B visas and combination
B-1/B-2/Mexican Border Crossing Cards.
The Immigration Reform and Control Act of 1986 created the Visa
Waiver Program as a pilot program.^1 In 2000, the program became
permanent under the Visa Waiver Permanent Program Act.^2 In 2002,
we reported on the legislative requirements to which countries
must adhere before they are eligible for inclusion in the Visa
Waiver Program.^3 In general, the requirements are as follows:
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 business and tourism visas.
If DHS certifies that it has met certain requirements under the
9/11 Act, it will have the authority to waive the 3 percent
refusal rate requirement--currently up to a maximum of 10
percent--provided that the country meets other security
requirements.
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 this
program.
o Reciprocity. The country must offer visa-free travel for U.S.
citizens.
Persons entering 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;^4
o be seeking entry for 90 days or less as a temporary visitor for
business or tourism;
o have been determined by CBP 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 (e.g., individuals must have stayed in the United
States for 90 days or less during prior visa waiver visits);
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 they intend to return.
Following are GAO's comments on the Department of Homeland
Security's letter dated August 27, 2008.
Jess T. Ford, (202) 512-4128, or [email protected]
In addition to the individual named above, John Brummet, Assistant
Director; Teresa Abruzzo; Kathryn Bernet; Joseph Carney; Martin de
Alteriis; Etana Finkler; Eric Larson; and Mary Moutsos made key
contributions to this report.
The Government Accountability Office, the audit, evaluation, and
investigative arm of Congress, exists to support Congress in
meeting its constitutional responsibilities and to help improve
the performance and accountability of the federal government for
the American people. GAO examines the use of public funds;
evaluates federal programs and policies; and provides analyses,
recommendations, and other assistance to help Congress make
informed oversight, policy, and funding decisions. GAO's
commitment to good government is reflected in its core values of
accountability, integrity, and reliability.
The fastest and easiest way to obtain copies of GAO documents at
no cost is through GAO's Web site ( [40]www.gao.gov ). Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of
newly posted products every afternoon, go to [41]www.gao.gov and
select "E-mail Updates."
The first copy of each printed report is free. Additional copies
are $2 each. A check or money order should be made out to the
Superintendent of Documents. GAO also accepts VISA and Mastercard.
Orders for 100 or more copies mailed to a single address are
discounted 25 percent. Orders should be sent to:
U.S. Government Accountability Office 441 G Street NW, Room LM
Washington, DC 20548
To order by Phone: Voice: (202) 512-6000 TDD: (202) 512-2537 Fax:
(202) 512-6061
Contact:
Web site: [42]www.gao.gov/fraudnet/fraudnet.htm E-mail:
[43][email protected] Automated answering system: (800) 424-5454 or
(202) 512-7470
Ralph Dawn, Managing Director, [44][email protected] , (202) 512-4400
U.S. Government Accountability Office, 441 G Street NW, Room 7125
Washington, DC 20548
Chuck Young, Managing Director, [45][email protected] , (202)
512-4800 U.S. Government Accountability Office, 441 G Street NW,
Room 7149 Washington, DC 20548
1. We disagree that the department followed a
transparent process for expansion of the program. As
we state in our report, State and Justice officials
told us that the lack of a transparent timeline and
requirements for Visa Waiver Program expansion has
led to confusion among U.S. agencies in headquarters'
offices and at U.S. embassies overseas, as well as
foreign governments seeking to join the program.
Moreover, absent clear direction from DHS, U.S.
embassy officials in several aspiring countries told
us that it had been difficult to explain the
expansion process to their foreign counterparts and
manage their expectations about when those countries
might be admitted into the Visa Waiver Program.
Therefore, we recommend in this report that DHS
establish a clear process, in coordination with State
and Justice, for program expansion. DHS noted that it
is currently working to create procedures so that
future candidate countries are selected and
designated in as transparent and uniform a manner as
possible and expectations are appropriately managed
during the process.
2. Aside from the 13 Road Map countries identified in
2005, State officials told us that they lacked a
clear rationale to explain to other aspiring,
non-Road Map countries with refusal rates under 10
percent (Croatia, Israel, and Taiwan) that they will
not be considered in 2008 due to the executive
branch's plans to expand the program first to South
Korea and countries in Central and Eastern Europe.
DHS noted that it is currently working to create
procedures so that future candidate countries are
selected and designated in as transparent and uniform
a manner as possible and expectations are
appropriately managed during the process.
3. We have updated the report to indicate that ESTA
began accepting voluntary applications from visa
waiver travelers on August 1, 2008. However, DHS does
not anticipate that ESTA authorizations will be
mandatory for visa waiver travelers until after
January 12, 2009. As we state in our report, and as
DHS noted, the department has not yet certified that
it can verify the departure of not less than 97
percent of foreign nationals exiting U.S. airports,
or that an Electronic System for Travel Authorization
(ESTA) for screening visa waiver travelers in advance
of their travel is "fully operational." Moreover, DHS
has not yet implemented a biometric air exit system
at U.S. airports. Thus, DHS has not yet fully
developed the tools to assess and mitigate risks in
the Visa Waiver Program.
4. In July 2006, we reported that DHS needed to
improve its communication with officials at U.S.
embassies so it could communicate directly with
officials best positioned to monitor compliance with
the program's requirements, and report on current
events and issues of potential concern in each of the
participating countries. Therefore, we recommended
that DHS establish points of contact at U.S.
embassies and develop protocols to ensure that the
Visa Waiver Program Office receives periodic updates
in countries where there are security concerns. As we
note in this report, the Visa Waiver Program Office
has recently begun communicating and disseminating
relevant program information regularly with U.S.
embassy officials at Visa Waiver Program posts.
However, despite our requests during the course of
this review--and again following our receipt of DHS's
formal comments on the draft of this report--the
department has not provided us with sufficient
documentation to demonstrate that it has established
points of contact at U.S. embassies for all 27
participating countries or established protocols for
communications between these contacts and the Visa
Waiver Program Office. Furthermore, the department
has not provided us with documentation to demonstrate
that established points of contact are reporting
periodically to the Visa Waiver Program Office.
Therefore, we cannot conclude that these 2006
recommendations are fully implemented.
5. DHS noted that it has not yet signed memorandums
of understanding (MOU) with any of the 27 current
Visa Waiver Program countries. Because the MOUs will
commit all signatories to report to Interpol or
otherwise make available to the United States
information about lost and stolen blank and issued
passports, this recommendation will remain open until
all MOUs are finalized.
6. To verify the departure of not less than 97
percent of foreign nationals exiting U.S. airports,
DHS reported to us in December 2007 that it will
match records, reported by airlines, of visitors
departing the country with the department's existing
records of any prior arrivals, immigration status
changes, or prior departures from the United States.
In January 2008, the Assistant Secretary for Policy
Development made this statement, which corroborated
data that we received from US-VISIT in late October
2007. At the time of our February 2008 testimony,^1
DHS confirmed to us that it planned to employ a
methodology that begins with departure records;
however, as DHS indicated in its written comments on
a draft of this report, it has still not decided on a
final methodology. DHS has not provided us with
information on any other options that it might be
considering to meet this provision. Furthermore, the
department has not explained how and when it intends
to validate these data.
Agency Comments and Our Evaluation
Appendix I: Objectives, Scope, and Methodology Appendix I: Objectives,
Scope, and Methodology
^1GAO, Border Security: Stronger Actions Needed to Assess and Mitigate
Risks of the Visa Waiver Program, [46]GAO-06-854 (Washington, D.C.: July
28, 2006).
Appendix II: Worldwide Refusal Rates for Short-term Business and Tourism
Visas, Fiscal Year 2007 Appendix II: Worldwide Refusal Rates for
Short-term Business and Tourism Visas, Fiscal Year 2007
Country Adjusted refusal rate
Afghanistan 38%
Albania 50
Algeria 23
Andorra 9
Angola 13
Antigua and Barbuda 15
Argentina 4
Armenia 61
Australia 17
Austria 16
Azerbaijan 15
Bahrain 2
Bangladesh 50
Barbados 6
Belarus 26
Belgium 13
Belize 27
Benin 37
Bhutan 44
Bolivia 29
Bosnia-Herzegovina 19
Botswana 16
Brazil 10
Brunei 2
Bulgaria 14
Burkina Faso 43
Burma 50
Burundi 56
Cambodia 53
Cameroon 43
Canada 37
Cape Verde 40
Central African Republic 29
Chad 29
Chile 7
China - Mainland 21
China - Taiwan 5
Colombia 29
Comoros 25
Congo (Brazzaville) 32
Congo (Kinshasa) 35
Costa Rica 22
Cote D`Ivoire 46
Croatia 5
Cuba 53
Cyprus 2
Czech Republic 7
Denmark 11
Djibouti 22
Dominica 29
Dominican Republic 41
Ecuador 28
Egypt 34
El Salvador 50
Equatorial Guinea 24
Eritrea 49
Estonia 4
Ethiopia 46
Federated States of Micronesia 0
Fiji 33
Finland 16
France 8
Gabon 23
Georgia 55
Germany 10
Ghana 55
Great Britain and Northern Ireland 21
Greece 2
Grenada 27
Guatemala 54
Guinea 58
Guinea - Bissau 55
Guyana 62
Haiti 44
Honduras 38
Hong Kong (BNO HK passport) 2
Hong Kong S. A. R. 3
Hungary 10
Iceland 9
India 22
Indonesia 40
Iran 45
Iraq 45
Ireland 24
Israel 3
Italy 7
Jamaica 38
Japan 12
Jordan 39
Kazakhstan 12
Kenya 34
Kiribati 20
Kuwait 4
Kyrgyzstan 30
Laos 73
Latvia 12
Lebanon 25
Lesotho 40
Liberia 51
Libya 25
Liechtenstein 7
Lithuania 13
Luxembourg 6
Macau S.A.R. 10
Macedonia 36
Madagascar 14
Malawi 37
Malaysia 8
Maldives 22
Mali 56
Malta 3
Mauritania 59
Mauritius 13
Mexicoa 33
Moldova 36
Monaco 38
Mongolia 61
Morocco 24
Mozambique 18
Namibia 5
Nauru 0
Nepal 55
Netherlands 12
New Zealand 8
Nicaragua 46
Niger 53
Nigeria 32
Norway 9
Oman 4
Pakistan 40
Palestinian Authority 56
Panama 26
Papua New Guinea 12
Paraguay 18
Peoples Republic of Korea - North Korea 14
Peru 44
Philippines 32
Poland 25
Portugal 8
Qatar 2
Republic of Palau 0
Republic of the Marshall Islands 3
Romania 38
Russia 12
Rwanda 47
Samoa 29
San Marino 40
Sao Tome and Principe 10
Saudi Arabia 6
Senegal 61
Serbia 64
Serbia and Montenegro 23
Seychelles 19
Sierra Leone 43
Singapore 9
Slovakia 12
Slovenia 7
Solomon Islands 5
Somalia 52
South Africa 6
South Korea 4
Spain 7
Sri Lanka 28
St. Kitts and Nevis 21
St. Lucia 27
St. Vincent and The Grenadines 23
Sudan 34
Suriname 11
Swaziland 19
Sweden 8
Switzerland 7
Syria 36
Tajikistan 30
Tanzania 21
Thailand 17
The Bahamas 5
The Gambia 57
Timor-Leste 0
Togo 48
Tonga 45
Trinidad and Tobago 20
Tunisia 24
Turkey 15
Turkmenistan 49
Tuvalu 12
Uganda 43
Ukraine 38
United Arab Emirates 5
Unknown place of birth or stateless 42
Uruguay 12
Uzbekistan 71
Vanuatu 25
Vatican City 0
Venezuela 19
Vietnam 36
Yemen 64
Zambia 46
Zimbabwe 32
Appendix III: Key Legislative Requirements for Inclusion in the Visa
Waiver Program Appendix III: Key Legislative Requirements for Inclusion in
the Visa Waiver Program
^1Pub. L. No. 99-603.
^2Pub. L. No. 106-396.
^3GAO, Border Security: Implications of Eliminating the Visa Waiver
Program, [47]GAO-03-38 (Washington, D.C.: Nov. 22, 2002).
^4All passports issued to visa waiver travelers after October 26, 2006,
must be electronic. Travelers with passports issued after the deadline
that do not meet these requirements must obtain a visa from a U.S. embassy
or consulate overseas before departing for the United States.
Appendix IV: Comments from the Department of Homeland Security Appendix
IV: Comments from the Department of Homeland Security
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
See comment 1.
See comment 3.
See comment 2.
See comment 6.
See comment 5.
See comment 4.
GAO Comments
^1GAO, Visa Waiver Program: Limitations with Department of Homeland
Security's Plan to Verify Departure of Foreign Nationals, [48]GAO-08-458T
(Washington, D.C.: Feb. 28, 2008).
Appendix V: Comments from the Department of Justice Appendix V: Comments
from the Department of Justice
Appendix VI: A Appendix VI: GAO Contact and Staff Acknowledgments
GAO Contact
Staff Acknowledgments
(320540)
GAO's Mission
Obtaining Copies of GAO Reports and Testimony
Order by Mail or Phone
To Report Fraud, Waste, and Abuse in Federal Programs
Congressional Relations
Public Affairs
To view the full product, including the scope
and methodology, click on [49]GAO-08-967 .
For more information, contact Jess T. Ford at (202) 512-4128 or
[email protected].
Highlights of [50]GAO-08-967 , a report to congressional requesters
September 2008
VISA WAIVER PROGRAM
Actions Are Needed to Improve Management of the Expansion Process, and to
Assess and Mitigate Program Risks
The Visa Waiver Program, which enables citizens of participating countries
to travel to the United States without first obtaining a visa, has many
benefits, but it also has risks. In 2006, GAO found that the Department of
Homeland Security (DHS) needed to improve efforts to assess and mitigate
these risks. In August 2007, Congress passed the 9/11 Act, which provides
DHS with the authority to consider expanding the program to countries
whose short-term business and tourism visa refusal rates were between 3
and 10 percent in the prior fiscal year. Countries must also meet certain
conditions, and DHS must complete actions to enhance the program's
security. GAO has examined DHS's process for expanding the Visa Waiver
Program and evaluated the extent to which DHS is assessing and mitigating
program risks. GAO reviewed relevant laws and procedures and interviewed
agency officials in Washington, D.C., and in U.S. embassies in eight
aspiring and three Visa Waiver Program countries.
[51]What GAO Recommends
GAO recommends that DHS establish a transparent process for Visa Waiver
Program expansion, and improve and monitor overstay rates for current and
aspiring program countries. DHS generally agreed with GAO's
recommendations. The Department of Justice (Justice) noted the importance
of lost and stolen passport reporting, but did not comment on the
recommendations.
The executive branch is moving aggressively to expand the Visa Waiver
Program by the end of 2008, but, in doing so, DHS has not followed a
transparent process. DHS did not follow its own November 2007 standard
operating procedures, which set forth key milestones to be met before
countries are admitted into the program. As a result, Departments of State
(State) and Justice and U.S. embassy officials stated that DHS created
confusion among interagency partners and aspiring program countries. U.S.
embassy officials in several aspiring countries told us it had been
difficult to explain the expansion process to foreign counterparts and
manage their expectations. State officials said it was also difficult to
explain to countries with fiscal year 2007 refusal rates below 10 percent
that have signaled interest in joining the program (Croatia, Israel, and
Taiwan) why DHS is not negotiating with them, given that DHS is
negotiating with several countries that had refusal rates above 10 percent
(Hungary, Latvia, Lithuania, and Slovakia). Despite this confusion, DHS
achieved some security enhancements during the expansion negotiations,
including agreements with several aspiring countries on lost and stolen
passport reporting. DHS, State, and Justice agreed that a more transparent
process is needed to guide future program expansion.
DHS has not fully developed tools to assess and mitigate risks in the Visa
Waiver Program. To designate new program countries with refusal rates
between 3 and 10 percent, DHS must first make two certifications. First,
DHS must certify that it can verify the departure of not less than 97
percent of foreign nationals who exit from U.S. airports. In February
2008, we testified that DHS's plan to meet this provision will not help
mitigate program risks because it does not account for data on those who
remain in the country beyond their authorized period of stay (overstays).
DHS has not yet finalized its methodology for meeting this provision.
Second, DHS must certify that the Electronic System for Travel
Authorization (ESTA) for screening visa waiver travelers in advance of
their travel is "fully operational." While DHS has not announced when it
plans to make this certification, it anticipates ESTA authorizations will
be required for all visa waiver travelers after January 12, 2009. DHS
determined that the law permits it to expand the program to countries with
refusal rates between 3 and 10 percent after it makes these two
certifications, and after the countries have met the required conditions,
but before ESTA is mandatory for all Visa Waiver Program travelers. For
DHS to maintain its authority to admit certain countries into the program,
it must incorporate biometric indicators (such as fingerprints) into the
air exit system by July 1, 2009. However, DHS is unlikely to meet this
timeline due to several unresolved issues.In addition, DHS does not fully
consider countries' overstay rates when assessing illegal immigration
risks in the Visa Waiver Program. Finally, DHS has implemented many
recommendations from GAO's 2006 report, including screening U.S.-bound
travelers against Interpol's lost and stolen passport database, but has
not fully implemented others. Implementing the remaining recommendations
is important as DHS moves to expand both the program and the department's
oversight responsibilities.
References
Visible links
1. file:///opt/home/webmaster/infomgt/d08967.htm#None
2. file:///opt/home/webmaster/infomgt/d08967.htm#None
3. file:///opt/home/webmaster/infomgt/d08967.htm#None
4. file:///opt/home/webmaster/infomgt/d08967.htm#None
5. file:///opt/home/webmaster/infomgt/d08967.htm#None
6. file:///opt/home/webmaster/infomgt/d08967.htm#None
7. file:///opt/home/webmaster/infomgt/d08967.htm#None
8. file:///opt/home/webmaster/infomgt/d08967.htm#None
9. file:///opt/home/webmaster/infomgt/d08967.htm#None
10. file:///opt/home/webmaster/infomgt/d08967.htm#None
11. file:///opt/home/webmaster/infomgt/d08967.htm#None
12. file:///opt/home/webmaster/infomgt/d08967.htm#None
13. file:///opt/home/webmaster/infomgt/d08967.htm#None
14. file:///opt/home/webmaster/infomgt/d08967.htm#None
15. file:///opt/home/webmaster/infomgt/d08967.htm#None
16. file:///opt/home/webmaster/infomgt/d08967.htm#None
17. file:///opt/home/webmaster/infomgt/d08967.htm#None
18. file:///opt/home/webmaster/infomgt/d08967.htm#None
19. file:///opt/home/webmaster/infomgt/d08967.htm#None
20. file:///opt/home/webmaster/infomgt/d08967.htm#None
21. file:///opt/home/webmaster/infomgt/d08967.htm#None
22. file:///opt/home/webmaster/infomgt/d08967.htm#None
23. file:///opt/home/webmaster/infomgt/d08967.htm#None
24. file:///opt/home/webmaster/infomgt/d08967.htm#None
25. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
26. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-835R
27. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
28. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-458T
29. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-95-20
30. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-93-25
31. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
32. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-623
33. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-623
34. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-07-1044T
35. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-07-248
36. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-93-25
37. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-95-20
38. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
39. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
40. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/
41. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/
42. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/fraudnet/fraudnet.htm
43. file:///opt/home/webmaster/infomgt/d08967.htm#mailto:[email protected]
44. file:///opt/home/webmaster/infomgt/d08967.htm#mailto:[email protected]
45. file:///opt/home/webmaster/infomgt/d08967.htm#mailto:[email protected]
46. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-06-854
47. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-03-38
48. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-458T
49. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-967
50. file:///opt/home/webmaster/infomgt/d08967.htm#http://www.gao.gov/cgi-bin/getrpt?GAO-08-967
*** End of document. ***