DOS Cable on Visa Waiver Pilot Program
TO ALL DIPLOMATIC AND CONSULAR POSTS
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AMEMBASSY ASMARA
AMEMBASSY BUJUMBURA
AMEMBASSY SARAJEVO
INFO D/D/R USINS WASHDC
UNCLAS STATE 227459
VISAS
E.C. 12958; N/A
TAGS: CVIS
SUBJECT: P.L. 104-208 UPDATE NO. 4 - INA 217: VISA WAIVER
PILOT PROGRAM
SUMMARY
1. This cable is number 4 in the series providing information on the immigration provisions of PL 104-208, the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA 96)”. As mentioned in earlier REFTELS, many of the amendments to the INA under this Act became effective upon the president signing the bill into law on September 30. As the character of most of the changes affecting consular processing require coordination with other agencies, the Department is not in the position to provide comprehensive guidance unilaterally and immediately. It is impossible to project how long it will take the various agencies working together to develop operational procedures to the satisfaction of all interested parties. This will particularly apply to the Visa Waiver Pilot Program (VWPP) as there have been changes in the authority for it.
VWPP
3. IIRAIRA 96 extended the Visa Waiver Pilot Program (VWPP) for one year (until September 30, 1997); it also made other changes to the statutory language contained in INA 217. These changes are discussed below. Pertinent sections of amended INA 217 are provided at the end of this cable.
4. Authority for VWPP passes to the Attorney General in consultation with the Secretary of State. Before, the Attorney General and the Secretary of State acted jointly under the provisions of the INA in administering the VWPP.
5. There is no longer a probationary entry status for countries seeking to enter VWPP; Ireland (the only country formerly on probationary entry status) is made a permanent participating VWPP country (and is subject to the same “disqualification” criteria established for the other VWPP countries). Note that section 217(g) has been replaced in its entirety by a new section 217(g) now entitled “new determination and termination requirements.”
6. Under the new provisions (IIRAIRA 96), probationary status becomes effective when a participating VWPP country’s disqualification rate rises above 2 percent but is less than 3.5 percent (see paragraph 10, 217(g)(4), below). The “disqualification rate” is the combined percentage of turnarounds by INS at United States ports of entry, overstays (as measured by INS), and the nonimmigrant visitor visa refusal rate for nationals of a particular country. Under IIRAIRA 96, a country’s “disqualification rate” must remain at less than two percent in order to avoid probationary status. Participating VWPP countries whose “disqualification rate” rises above 2 percent but is less than 3.5 percent will be placed in a probationary status for no more than two years.
7. If a participating VWPP country’s “disqualification rate” rises above 3.5 percent, the country is to be dropped from the VWPP at the beginning of the second fiscal year following the fiscal year in which the Attorney General so notifies the Secretary of State (see paragraph 10, 217(g)(1)(C), below).
Eligibility and Continued Participation in VWPP:
8. Countries are eligible for VWPP if:
(1) The nonimmigrant visitor visa refusal rate for nationals of that country averages less than 2 percent for the two previous fiscal years, and,
(2) For each of those two prior years, the nonimmigrant visitor visa refusal rate (for nationals) was less than 2.5 percent, and,
(3) The country certifies that it was, or is in the process of developing, a program to issue machine-readable passports to its citizens, and,
(4) The Attorney General determines that United States law enforcement interests would not be compromised by the designation of the country under consideration.
Present Participants in VWPP:
9. The following countries participate in VWPP: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, San Marino, Spain, Sweden, Switzerland, and the United Kingdom.
INA 217 as amended by Pub. L. 104-208
10. Set forth below are sections of INA 217 that were changed by IIRAIRA 96.
217(a), (c)(1), (d) - “Attorney General in consultation with the Secretary of State”
(a) Establishment of pilot program - the Attorney General and the Secretary of State are authorized to establish a pilot program (hereinafter in this section referred to as the “pilot program”) under which the requirement of paragraph (7)(B)(i)(II) of section 212(a) may be waived by the Attorney General in consultation with the Secretary of State, actin jointly and in accordance with this section, in the case of an alien who meets the following requirements….
(c)(1) In general - the Attorney General, in consultation with the Secretary of State, may designate any country as a pilot program country if it meets the requirements of paragraph (2)….
(d) Authority - notwithstanding any other provision of this section, the Attorney General, in consultation with the Secretary of State, may for any reason (including national security) refrain from waiving the visa requirement in respect to nationals of any country which may otherwise qualify for designation or may, at any time, rescind any waiver or designation previously granted under this section….
217(a)(2)(B) - “probationary status for new VWPP countries eliminated”
….(a)(2)(B) is designated as a pilot program country under subsection (c). (The continuing phrase: “or is designated as a pilot program country with probationary status under subsection (g)” was dropped by IIRAIRA 96).
217(f) - “pilot program extended one year”
(f) definition of pilot program period. - For purposes of this section, the term “pilot program period” means the period beginning on October 2, 1988, and ending on September 30, 1997.
217(g) “New determination and termination requirements”
(g) duration and termination of designation. -
(1) In general, -
(A) Determination and notification of disqualification rate - upon determination by the Attorney General that a pilot program country’s disqualification rate is 2 percent or more, the Attorney General shall notify the Secretary of State.
(B) Probationary Status. - If the program country’s disqualification rate is greater than 2 percent but less than 3.5 percent, the Attorney General shall place the program country in probationary status for a period not to exceed 2 full fiscal years following the year in which the determination under subparagraph (A) is made.
(2) Termination of probationary status. -
(A) In general. - If the Attorney General determines at the end of the probationary period described in paragraph (1)(B) that the program country placed in probationary status under such paragraph has failed to develop a machine readable-passport program as required in section (c)(2)(C), or has a disqualification rate of 2 percent or more, the Attorney General shall terminate the designation of the country as a pilot program country. If the Attorney General determines that the program country has developed a machine-readable passport program and has a disqualification rate or less than 2 percent, the Attorney General shall redesignate the country as a pilot program country.
(B) Effective date. - A termination of the designation of a country under subparagraph (A) shall take effect on the first day of the first fiscal year following the fiscal year in which the determination under such subparagraph is made. Until such date, nationals of the country shall remain eligible for a waiver under subsection (a).
(3) Nonapplicability of certain provisions. - Paragraph (1)(C) shall not apply unless the total number of nationals of a pilot program country described in paragraph (4)(A) exceeds 100.
(A) Definition. - For purposes of this subsection, the term “disqualification rate” means the percentage which -
(A) The total number of nationals of the pilot program country who were -
(i) excluded from admission or withdrew their application for admission during the most recent fiscal year for which data are available; and
(ii) admitted as nonimmigrant visitors during such fiscal year and who violated the terms of such admission; bears to
(B) The total number of nationals of such country who applied for admission as nonimmigrant visitors during such fiscal year.
[Amended by Sec. 635 of Pub. L. 104-208, Sep. 30, 1996]
11. Minimize considered.