Visa Waiver Program (2012)
FAIR has consistently questioned both the need for and the advisability of the Visa Waiver Program (VWP) that was adopted as a pilot project at the urging of the tourist industry in 1986 and became operational in 1988. After numerous extensions, the program was made permanent in 2000 despite expressions of concern not just by FAIR, but also by the Justice Department's Inspector General, FBI Director Louis Freeh, and other immigration and security experts. The program remains intact, even after the attacks of September 11th.
The VWP allows visitors from 36 countries which have low rates of visa refusals to be admitted to the United States without applying for a U.S. visa. These travelers may enter the U.S. if they: 1) claim to be visiting for 90 days or less (or have a return ticket for the same timeframe if traveling by air/sea), 2) obtain an authorization through the Electronic System for Travel Authorization (ESTA), and 3) present a digitized passport issued from a VWP country at the U.S. port of entry. Despite these safeguards, a VWP traveler still bypasses the normal human-to-human consular scrutiny that is intended to deny persons who represent a threat to the country for health, criminal, or security reasons, as well as those who have no intention of returning to their country after their visit. From FY 2005-2010, 98 million visitors have been admitted the U.S. under these lax policies.
While the advantage of the VWP to the tourism industry by promoting tourism is obvious, so is the security danger. Potential terrorists have gained passports from visa waiver countries. Zacaraias Moussaoui, the indicted "20th terrorist" entered the United States on a French passport. Richard Reid, the arrested terrorist who tried to blow up an airliner with explosives in his shoe in 2001, was travelling to the United States on a British passport. Neither required a visa under the waiver program. Ahmad Ajaj, a participant in the first terrorist plot to blow up the World Trade Center in New York in 1993 was fortunately found to be carrying explosives and arrested upon his entry. He was travelling on a Swedish passport.
Holes in the System: Old and New
Ten years after the 9/11 attacks, major holes in the program exist and new ones continue to be created. Policies currently in place are shifting the responsibility of our national security away from security agencies and onto the public. The requirement for passengers to provide biographical data to DHS has been reduced from every trip to once every two years in order to minimize the passenger's burden associated with ESTA. Additionally, airlines are supposed to verify ESTA authorizations, but sometimes do not. In 2010, 364,000 people traveled without a verified ESTA approval, and 650 people traveled with a denied ESTA.1
Another major problem with VWP is that there is no specific analysis of unauthorized admissions. GAO Director of Homeland Security and Justice Issues Richard Stana stated, "Without analysis of data on travelers who were admitted to the U.S. without a visa after being denied by ESTA, DHS cannot determine the extent to which ESTA is accurately identifying individuals who should be denied travel under the program."2
Visa Waiver Program countries also must enter into 3 information sharing agreements with the U.S. in order to become full participants. However, by May 2011, "only half of the countries had fully complied with the requirement and many of the signed agreements had not been implemented."3 This means that the U.S. has not received information on terrorist watchlists or access to biographic, biometric, and criminal history data that should have been legally promised under these agreements.
In addition to not receiving information from VWP countries themselves, DHS is falling behind on its own security reports. In 2002, Congress mandated that every two years DHS must re-evaluate each participating country's effect on security, law enforcement, and immigration in the United States. As of May 2011, DHS had not completed 18 of 36 reports on VWP countries' security risks in a timely manner, and over half of these are at least a year overdue. This means that we are allowing minimally screened travelers into the United States on outdated security information at least 50% of the time.
Our Security Requires a Multi-Step Screening Process
"The 9/11 plot, like many terrorist plots, began overseas, which means our security layers must start there as well." — Testimony of Secretary Janet Napolitano before the U.S. Senate Committee on Homeland Security and Government Affairs, Sept. 13, 2011
It is na€ve, at best, to assume that simply because persons come from a country with a low rate of visa refusals that they represent no risk to the United States or that they are bona fide visitors who will not remain as illegal immigrants, but this is the assumption of the VWP. By eliminating consular screening, the burden is shifted to airlines and immigration inspectors. Airlines with commercial interests cannot be expected to manage matters of national security, and immigration inspectors remain under pressure to quickly process incoming passengers after cursory examinations of their travel documents.
If screening at U.S. consulates were restored in current VWP countries, the chances of spotting counterfeit documents would be greatly improved. It would also allow for follow-up contact with local law enforcement in cases of possible criminal or security ineligibility. The currently abandoned screening process is the front-line of defense in our national security and should never have been waived.
Even with a digitized passport and the ESTA screening, security would be improved by reinstituting consular screening. These officers are in a better position to recognize stolen or counterfeit documents and are able to work with local officials overseas to a greater extent than is possible under the best of circumstances by immigration inspectors at ports of entry.
To see how FAIR's position on the need to abolish the Visa Waiver Program fits into our overall legislative agenda, see FAIR's Immigration Reform Agenda for the 112th Congress.
Updated October 2011