The Congressional Research Service recently issued a report that outlined the visa waiver program and its current status.  Since 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 a 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, as of September 30, 2004, VWP participants arriving at airports and seaports have been subject to US-VISIT.

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 2003, 13.5 million visitors entered the United States under this program, constituting 49% of all overseas. 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; however, the act allows the Secretary of State to waive the requirement until September 30, 2007, and the requirement was waived for 22 of the 27 countries participating in the VWP.  In addition, the Enhanced Border Security and Visa Reform Act of 2002 requires that by October 26, 2004, all countries participating in the VWP must issue their nationals machine-readable passports that incorporate biometric identifies.  The 9/11 Commission Report recommends that DHS complete as quickly as possible a biometric entry-exit screening system.  S. 2845 as passed by the Senate, would require that each VWP country, as a condition of being in the VWP, have a program to issue tamper-resident, machine-readable visa documents that incorporate biometric identifiers which are compatible with the biometric identifiers used in the US-VISIT program.  There is no comparable provision in the House-passed version of S.2845.  Additional legislation, H.R. 4550, would require those entering under the VWP to undergo an electronic verification of admissibility before entering the country.