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Visa Waiver Program

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Publication Date: January 2009

Publisher(s): Library of Congress. Congressional Research Service

Topic: Government (Internal security)


Since the events of September 11, 2001, concerns have been raised about the ability of terrorists to enter the United States under the visa waiver program. The visa waiver program (VWP) allows nationals from certain countries to enter the United States as temporary visitors (nonimmigrants) for business or pleasure without first obtaining a visa from a U.S. consulate abroad. Temporary visitors for business or pleasure from non-VWP countries must obtain a visa from Department of State (DOS) officers at a consular post abroad before coming to the United States. The VWP constitutes one of a few exceptions under the Immigration and Nationality Act (INA) in which foreign nationals are admitted into the United States without a valid visa. Under Department of Homeland Security (DHS) regulations, travelers who seek to enter the United States through the VWP are subject to the biometric requirements of the US-VISIT program.

By eliminating the visa requirement, this program facilitates international travel and commerce and eases consular office workloads abroad, but it also bypasses the first step by which foreign visitors are screened for admissibility to enter the United States. In FY2004, 15.9 million visitors entered the United States under this program, constituting 58% of all overseas visitors. To qualify for the VWP, the INA specifies that a country must: offer reciprocal privileges to United States citizens; have had a nonimmigrant refusal rate of less than 3% for the previous year or an average of no more than 2% over the past two fiscal years with neither year going above 2.5%; certify that the country issues, or will issue, machine-readable passports; and not compromise the law enforcement or security interests of the United States by its inclusion in the program. Countries can be terminated from the VWP if an emergency occurs that threatens the United States' security interests.

The USA PATRIOT Act enacted a requirement that by October 1, 2003, all aliens applying for admission under the VWP must have machine-readable passports. The act allowed the Secretary of State to waive the requirement until September 30, 2007, and the requirement was waived until September 30, 2004, for 22 of the 27 VWP countries. At this time, aliens entering under the VWP must present machinereadable passports. In addition, the Enhanced Border Security and Visa Reform Act of 2002 required that by October 26, 2004, all countries participating in the VWP must issue their nationals machine-readable passports that incorporate biometric identifiers; however, the deadline was extended until October 26, 2005. Only two VWP countries, Italy and France, were unable to meet the biometric deadline. For entry under the VWP, passports issued after October 26, 2005, must have digitized photo on the data page. P.L. 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004, requires that by October 26, 2006, each VWP country, as a condition of being in the VWP, certify that it is developing a program to issue tamper-resident, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country's port of entry. In the 109th Congress, H.R. 1320 would require those entering under the VWP to undergo an electronic verification of admissibility before embarkation. In addition, H.R. 688 would suspend the VWP, while other bills (H.R. 634 and H.R. 635/S. 348) would add Poland to the VWP. This report will be updated if legislative action occurs.