The Visa Waiver Program: Suspend It or Eliminate It

December 2015

Background

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 VWP allows visitors from 38 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:

• Claim to be visiting for 90 days or less (or have a return ticket for the same timeframe if traveling by air/sea).
• Obtain an authorization through the Electronic System for Travel Authorization (ESTA), an automated system that determines the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP).
• 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. Currently, there are annually about 20 million admissions to the U.S. by travelers without visas.

VWP a Security Threat in Light of Global Terrorism

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” in the 9/11 attacks 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.

In late 2015, an estimated 3,000 European passport holders were known to be in Syria fighting for ISIS and other jihadist organizations. In addition, there are untold numbers of so-called “homegrown” jihadists who are citizens, by birth or by naturalization, of any of the 38 VWP nations. While some are on terrorist watch lists, many are not and can easily enter the U.S. under the VWP.

Holes in the System: Old and New

Fourteen 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.

One significant problem is that ESTA authorization is required only for visitors arriving in the United States by air or by sea. It is not required for VWP passport holders who enter by land. Moreover, the ESTA verification process can only screen out visitors who are already in some terrorist or criminal database. The problem is that many terrorists have not been identified by international law enforcement bodies. Consequently, “sleeper” terrorists can easily gain access to the U.S. According to DHS, 99 percent of all ESTA applications are approved within five seconds.

Additionally, the system can only verify the validity of the passport information that is entered by the traveler. It cannot verify that the person entering that information is the legitimate bearer of that passport. 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.

The weaknesses in the system were acknowledged by DHS Secretary Jeh Johnson even before the Nov. 13, 2105 terrorist attacks in Paris. Ten days before the attacks Johnson announced that “those seeking to travel to the United States from countries in our Visa Waiver Program (VWP) will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA). The new information sought includes additional passport data, contact information, and other potential names or aliases.”

Subsequent to the Paris attacks, the Obama administration announced that it would begin screening VWP passport holders who have traveled to countries considered safe havens for terrorists and assess the cooperation of the 38 VWP nations in carrying out security reviews. Despite these policy declarations, effectively tracking the travel histories of citizens of 38 countries presents formidable challenges. Moreover, for a variety of diplomatic and commercial reasons, carrying through on the threat to suspend countries from the VWP programs is probably unlikely.

Our Security Requires a Multi-Step Screening Process

It is naive, 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.

The human element that has served as a second line of defense is also being phased out. Many travelers avoid Customs and Border Patrol (CPB) officials by using Automated Passport Control (APC) kiosks that have been set up at a growing number of airports. According to the CPB website, “Travelers use self-service kiosks to submit their Customs declaration form and biographic information. APC is a free service, does not require pre-registration or membership, and maintains the highest levels of protection when it comes to the handling of personal data or information. Travelers using APC experience shorter wait times, less congestion, and faster processing.”

According to CPB’s website, as of December 2015, APC kiosks were operational at 37 domestic and international airports. Among the international airports where passengers can clear passport control before boarding a U.S.-bound flight is Abu Dhabi International Airport.

Automated entry is useful for reducing wait times for travelers entering or returning to the United States, but it all but eliminates the only contact travelers have with immigration enforcement officials. CPB officers are trained to spot suspicious travelers and can carry out additional inspection before admitting them to the United States. Human contact with APC entrants generally entails nothing more than the traveler handing a completed customs form to an officer on the way out the door.

FAIR Urges Suspension or Elimination of VWP

In addition to the Obama administration’s actions, the Paris attacks spurred bipartisan calls for significant changes to, or abolishment of the VWP. As of December 2015, a number of bills aimed at upgrading the security of VWP had been introduced, but none had been enacted. All of the security upgrades called for in legislation would require significant time to implement and the cooperation of numerous foreign governments.

When VWP was established in 1986, the world was a very different place. In light of the realities of 2015 and beyond, FAIR recommends that the program be suspended until such time as it can be demonstrated that effective systems are in place to screen out security threats. If the VWP cannot be effectively reformed to address security concerns, the program should be eliminated.