Follow-up Report on Improving the Security
of the Transit Without Visa Program
Report No. I-2002-005
December 2001
The Office of the Inspector General (OIG) issued its report entitled "Follow-up Report on Improving the Security of the Transit Without Visa Program" (I-2002-005) to the Immigration and Naturalization Service (INS) on December 28, 2001. The report is designated as a "Limited Official Use" document, because it identifies gaps in certain specific immigration inspection procedures that might facilitate the illegal entry of aliens into the United States. For this reason, the OIG has created a version of the report for public release, which redacts a few lines that specifically identifies the sensitive INS procedures at issue. The version that follows is this redacted version.
The Office of the Inspector General (OIG) issued an inspection report, Transit Without Visa (TWOV) Program Inspection, in March 1993. This report identified several security-related concerns regarding the TWOV program. The central issue was INS's inability to ensure that TWOV passengers departed the United States as required. This follow-up review examines the progress the INS has made in resolving this security issue.
The Immigration and Nationality Act (INA) created the TWOV program in June 1952. The INA gives authority to the Attorney General, acting with the Secretary of State, to waive visa requirements for aliens who are proceeding in immediate and continuous transit through certain ports in the United States. The purpose of the legislation was to facilitate the resettlement of World War II refugees, few of whom had identity or travel documents to obtain visas.
The TWOV program allows certain non-immigrants to transit through the United States to a destination in another country. These non-immigrants remain in the United States for up to eight hours awaiting departure on their connecting flights to their final destinations. Visa requirements are waived for eligible non-immigrants in TWOV status. There are 47 U.S. ports of entry that participate in the TWOV program.
The TWOV program has subsequently evolved as an accommodation for the airlines and passengers in transit through the United States to foreign destinations. The TWOV program allows the airlines to use U.S. airline hubs to route non-immigrant passengers in transit through the United States. Without the TWOV program, the airlines would have to discontinue this practice.
All airlines participating in the TWOV program must sign the Immediate and Continuous Transit Agreement, Form I-426 (agreement). To use the TWOV program, passengers must travel on airlines that have entered into TWOV agreements with the INS. Currently, 450 airlines are listed in INS's TWOV agreement database. However, the INS is not certain how many of these airlines are currently participating in the program. Unless the INS is specifically made aware when airlines go out of business, the data is not updated in the TWOV database. An airline may also be listed in the database but may not be currently participating in the program. Therefore, the actual number of airlines participating in the TWOV program may be less than 450.
TWOV passengers enter the United States using one of two methods. In the first method, the TWOV passengers are fully inspected by immigration inspectors and are formally admitted into the United States in TWOV status. In this case, the TWOV passengers are allowed to leave the inspection area under direct airline supervision and enter the main airport. The airlines are responsible for ensuring that they depart on their connecting flights. Normally, the airlines supply guards that escort the TWOV passengers to their departure gates. TWOV passengers prepare Arrival/Departure Records, Forms I-94T. The arrival portion of the form is presented to the immigration inspector on arrival. The departure portion is collected by the airlines when the non-immigrant departs and given to the INS. The TWOV passenger is allowed a total of two stops in the United States.
In the second method, the INS and the airlines enter into an agreement that permits passengers who qualify for the TWOV program to make one stop in the United States. These passengers are visually inspected and must wait for their connecting flights in a secure, in-transit lounge (ITL). ITL inspection procedures do not require the examination of the passenger's travel documents. In addition, ITL passengers do not present I-94T forms, so there is no record of ITL passengers. Currently, 19 U.S. airports have ITLs. 1
All transit passengers, whether formally admitted to the United States or using the ITLs, must meet all TWOV requirements. TWOV passengers must possess travel documents establishing their identity, nationality, and eligibility to enter the country to which they are destined. They also must have confirmed transportation tickets to depart from the United States within eight hours of arrival, or on the first available transportation.
Under the TWOV agreement, airlines are responsible for ensuring that passengers comply with the terms of their entry. If the airlines fail to provide documentation (departure I-94Ts) to show that TWOV passengers have left the United States within the 8-hour limit, or that delays beyond the limit were unavoidable, the airline is subject to damages of $500 for each passenger whose timely departure was not confirmed. The INS does not maintain arrival or departure records for ITL passengers. Therefore, the airlines are on the honor system to report any ITL passengers who do not depart as required.
INS statistics show that in FY 1999 through FY 2001, about 5 to 6 million, or 4 to 5 percent, of all aliens entering the United States at airports came in as TWOV passengers. Most of these passengers make use of the ITL program. For example, in FY 2000 there were approximately 206,000 TWOVs passengers compared to about 1.8 million ITL passengers. In FY 2001, the INS reported more than 1.4 million ITL entrants, and about 213,000 TWOVs. The INS collects a user fee from the airlines for inspection services for TWOVs, but does not collect the fee for ITL.
We conducted our follow-up review from October 23 to November 5, 2001. This review was based on in-person and telephonic interviews; research of applicable laws and regulations; INS Inspector's Field Manual chapters; INS Inspections Summary Reports (G-22.1 series); and INS National Fines Office Liquidated Damages records. Interviews included INS Headquarters program managers from Inspections, Programs, and the National Fines Office, Deputy or Assistant Port Directors at Los Angeles, Miami, and New York's John F. Kennedy International Airports, and Department of State staff. We also interviewed the Assistant Director, Facilitation Services, International Air Transport Association (IATA), and the chairperson of the Air Transport Association (ATA) Facilitation Committee.