Follow-up Report on the Visa Waiver Program
Report No. I-2002-002
December 2001
The Visa Waiver Program (VWP) allows citizens from 29 countries to enter the United States without a review of their visa suitability by a U.S. consular officer. Since the tragic events of September 11, 2001, much law enforcement, congressional, and public attention has been given to the effectiveness of our nation's immigration policies in protecting national security. In this regard, questions have been raised about the VWP and whether it poses a significant threat to national security.
The Office of the Inspector General (OIG) issued an inspection report, The Potential for Fraud and INS's Efforts to Reduce the Risks of the Visa Waiver Pilot Program (I-99-10), in March 1999. Our inspection report determined that the then-Visa Waiver Pilot Program (VWPP) facilitated the illegal entry of "terrorists and criminals" into the United States. Immigration and Naturalization Service (INS) inspectors that we interviewed stated that terrorists and criminals believed they would receive less scrutiny during the immigration inspection process if they applied for admission into the United States under the VWPP. The original OIG report made three recommendations to reduce the risks to national security and to enhance immigration law enforcement. This follow-up review evaluates INS's progress in implementing the original OIG report recommendations and the current viability of those recommendations.
The VWP, created by the Immigration Reform and Control Act in 1986, allows nationals from 29 countries to enter the United States as temporary visitors for business or pleasure without first obtaining a visa. 1 2 Foreign nationals from participating countries can stay in the United States for a maximum of 90 days under the VWP. Eliminating the visa requirement facilitates international travel and commerce and eases the visa workloads of U.S. consular offices. However, removing the visa requirement also bypasses the first step by which foreign visitors are screened for admissibility into the United States.
When our 1999 report on the VWPP was published, 26 countries were designated as program participants. 3 Nationals from visa waiver countries are not required to submit written visa applications or undergo any interview or background checks that are normally part of the visa screening process. Instead, visa waiver applicants present their passports and completed I-94Ws (Nonimmigrant Visa Waiver Arrival/Departure Forms) to INS inspectors at U.S. ports of entry (POEs). INS immigration inspectors observe the visa waiver applicants, examine their passports, and conduct checks against computerized databases to determine whether the applicants are eligible to enter. The work of INS immigration inspectors is the principal, and in many cases, the only screening mechanism for preventing illegal visa waiver applicants from entering the United States.
To be eligible for participation in the visa waiver program, countries must comply with criteria established by statute. 4 For example, countries must have a low nonimmigrant refusal rate; have or be in the process of developing a passport that can be scanned by a machine at POEs; and the law enforcement and security interests of the United States must not be compromised by participation of the country in the visa waiver program, as determined by the Attorney General. 5
Foreign nationals seeking entry to the United States under the VWP must comply with certain requirements. For example, admission of a visa waiver national cannot exceed 90 days, and can only be extended in the case of an emergency; visa waiver entrants cannot adjust their immigration status to legal permanent residency; and, visa waiver entrants waive any right to administrative or judicial review or appeal regarding any determination of inadmissibility, and cannot contest any removal action. In addition, visa waiver entrants who overstay their admission by either six months or one year are subject to three and ten-year bars, respectively, to readmission into the United States.
The original OIG report assessed INS's efforts at air POEs to minimize national security threats and decrease the potential for illegal immigration posed by mala fide (bad faith) visa waiver applicants. The report focused on portions of the VWPP for which INS had direct authority, and recognized that issues outside of the INS's control could affect the INS's operation of the program. The report noted the potential for "terrorists" and "criminals" to abuse the VWPP to fraudulently enter the United States, without being intercepted by INS at POEs. The VWPP facilitated illegal entry for terrorists and criminals because it eliminated the need to obtain a U.S. visa; VWPP applicants avoid the pre-screening normally performed by consular officers overseas. 6 We found that INS inspectors were not querying passports into their lookout system and failed to enter information on lost or stolen passports into the lookout system in a timely or accurate manner. In addition, we found that the INS had not designated a single entity for collecting information on stolen passports. Overall, we found that the INS efforts to address the national security risks posed by the VWPP were "insufficient," and were conducted in an "ad hoc" and "sporadic" manner.
Since the original OIG report on the VWPP was issued, the Visa Waiver Permanent Program Act made the pilot program permanent in October 2000. 7 This law included passport provisions for VWP countries, U.S. government evaluations of the effect of VWP countries on U.S. law enforcement and security, and the reporting of VWP immigration statistics to Congress.
According to INS data, the total aliens inspected while seeking to enter the United States via the VWP increased from 17.3 million in fiscal year (FY) 1999, to 18.2 million in FY 2000, before dropping to 17.1 million in FY 2001. 8 In FY 1999, according to INS statistics, 76.7 percent (12.66 million) of nonimmigrants admitted under the visa waiver program were from five countries: Japan, United Kingdom, Germany, France, and Italy. 9 The remaining 24 visa waiver countries accounted for 3.85 million visa waiver entrants.
In February 2000, INS officials provided us with a policy memorandum, dated October 4, 1999, which provided new guidance to INS field personnel pursuant to the three recommendations we made in our original OIG report. 10 Specifically, this memorandum enumerated the requirements that passport numbers of VWPP applicants must be checked during primary inspection at POEs; designated the INS Lookout Unit as the centralized INS unit to systematically collect information on stolen blank VWPP passports; and included clear guidelines for the entry of passport numbers when creating lookout records. According to this memorandum, INS's new policies were to be "effective immediately." A review of the March 2001 INS Inspector's Field Manual showed that the requirements contained in the October 1999 memorandum were incorporated into this manual. 11
After the events of September 11, 2001, immigration programs have received closer scrutiny as potential means for allowing terrorists and criminals to enter the United States. Federal agencies and Congress are evaluating the VWP from national security and law enforcement perspectives. For example, the U.S. Department of State (DOS), along with the INS, is currently reviewing the qualifications of 6 of the 29 VWP countries, to determine whether each country is complying with statutory VWP requirements. 12 The INS Commissioner in recent congressional testimony stated that INS will "reassess" the designation of certain countries in the VWP to ensure that these countries maintain proper passport security policies. 13 The federal anti-terrorism legislation that became law on October 26, 2001, also contained provisions that strengthened passport security requirements that foreign countries must meet to participate in the VWP (see pages 15 and 16 of this report for further information). 14
In the border agreement signed by the United States and Canada on December 3, 2001, the two countries approved the institution of common lists of countries that will participate in the respective visa waiver programs of the two neighboring countries.
During a three-week period from October 15 through November 2, 2001, the OIG collected data from various sources to ascertain the status of the INS's implementation of our recommendations on the Visa Waiver Pilot Program and current immigration and national security issues associated with the current VWP. We interviewed the head of the INS Lookout Unit and obtained relevant workload data. We interviewed personnel from the INS Forensic Document Lab and the INS Inspections Division. We also interviewed officials from the Executive Office of National Security of the Department of Justice (DOJ) and the U.S. Department of State's Intelligence and Research Division. In addition, we reviewed statistics collected and presented by the INS, such as the INS Fiscal Year 1999 Statistical Yearbook.
We also interviewed by telephone INS management officials at four air ports of entry, focusing on policies and procedures implemented as a result of our 1999 report regarding the VWP. The four ports we contacted are the same ports reviewed in the 1999 report: Dulles International Airport, Honolulu International Airport, John F. Kennedy International Airport, and Miami International Airport.