DOS Cable on Visa Waiver Program

STATE 210639

SUBJECT: CHANGES IN VISA WAIVER PROGRAM

REF: (A)STATE 194329, (B)STATE 197979

1. Summary: On October 30, 2000, the President signed the

Visa Waiver Permanent Program Act, making the Visa Waiver

Pilot Program permanent. The new legislation also amended

the criteria for admission to and continuation in the

program. Countries now will be required to have machine

readable passports as a Qualifying criterion, and those

countries participating in the program before May 1, 2000

must certify they will have a program in place to begin

issuing machine readable passports no later than October 1,

2003. The legislation lays out detailed requirements for

evaluation of national security interests in the nomination

phase. The Department must report to Congress on the visa

refusal rates of countries under consideration for

inclusion, and the legislation states that calculation of

visa refusal rates cannot include any visa refusals based

on race, sex or disability, unless otherwise specifically

authorized by law. The Attorney General must report to

Congress on the effect of each country's continuing

designation in the program. The Attorney General, in

consultation with the Department of State, can terminate a

country's designation under emergency circumstances. The

legislation mandates increased use of information

technology. Posts should ensure that any information

provided to the public reflects the changes. End summary.

2. As reported in reftels, the Visa Waiver Permanent

Program Act, H.R. 3767, passed in Congress in early

October. On October 30, 2000, the President signed the

legislation.

PERMANENT PROGRAM

3. The most important change brought about by the

legislation is signified by the removal of the word "pilot"

from the visa waiver provisions of INA 217. The Visa

Waiver Pilot Program is now the Visa Waiver Program (VWP);

it no longer has to be periodically renewed and will not

expire. The legislation contains a number of other changes

and modifications to VWP, which are summarized below.

RECIPROCITY

4. The new VWP bill permits the Department to determine

reciprocity for VWP purposes (visa-free entry as a visitor

for up to 90 days) based upon reciprocity with a single

country or based upon a country that in conjunction with

other countries has established a common border area, i.e.,

we would recognize a visaless 90 day stay in the common

area as reciprocal. Individual countries in the common

area must still qualify for the VWP on their own merits.

MACHINE READABLE PASSPORTS (MRPs)

5. To be considered for nomination as a VWP participant, a

country must certify that it issues MRPs to its citizens.

In the prior legislation, a country could certify that it

either had or was in the process of developing an MRP.

6. Those countries that were designated as a program

country before May 1, 2000, they must certify that they

have a program in place to begin issuing MRPs no later than

October 1, 2003 in order to continue in VWP. They must

begin issuing MRPs no later than October 1, 2003. The

Department will issue instructions septel to posts in VWP-

participant countries for obtaining the certification.

7. On and after October 1, 2007, aliens must have an MRP to

enter the U.S. under VWP. Aliens who do not have an MRP

must have a visa.

DENIAL OF PROGRAM WAIVER BASED ON GROUND OF INADMISSIBILITY

8. The legislation imposes a requirement that all aliens

applying for entry under the VWP be checked through an

automated lookout database and be found not to have any

212(a) inadmissibilities applicable to them. Where an

inadmissibility is found by use of the database or during

the inspection process, the sole means by which the alien

may appeal that determination is by subsequently applying

for a visa at a consular post abroad. All other forms of

administrative or judicial review of the inspector's

decision are statutorily barred.

LAW ENFORCEMENT AND SECURITY INTERESTS

9. The new legislation contains a more detailed description

of what the Attorney General (AG) must evaluate in the

nomination phase. The AG, in consultation with the

Secretary of State, must evaluate the effect that the

designation of the country would have on the law

enforcement and security interests of the U.S.,

specifically addressing the nominee country's interest in

enforcement of U.S. immigration laws, and the existence and

effectiveness of extradition agreements with the U.S.,

including extradition of its own nationals who violate US

laws. The AG must submit a report to Congress on the

country's qualification for designation that includes an

explanation of a favorable determination.

CONTINUING DESIGNATION

10. At least every 5 years the AG, in consultation with the

Secretary of State, must submit a written report to

Congress on each program country. The report will evaluate

the effect of the country's continued designation as a VWP

country on U.S. law enforcement interests, to include the

country's interest in enforcement of U.S. immigration laws,

and the existence and effectiveness of extradition

agreements with the U.S. The AG, in consultation with the

Secretary of State, can terminate the designation of a

country until such time as the causes of the termination

are eliminated.

EMERGENCY TERMINATION

11. The AG can immediately terminate the designation of a

country, in consultation with the Secretary of State, in

the event of an emergency in the country. Emergencies that

could lead to the termination of a country's participation

in VWP include the overthrow of a democratically elected

government, war on the territory of the program country, a

severe breakdown in law and order affecting a significant

portion of the program country's territory, a severe

economic collapse in the program country, and any other

extraordinary event in the program country that threatens

the law enforcement and security interests of the U.S. An

individual waiver already granted prior to termination

remains in effect after termination. Following an

emergency termination, the AG, in consultation with the

Secretary of State, can redesignate a country as a VWP

country if 6 months have lapsed since the termination, if

the emergency that caused the termination has ended, and

the refusal rate for NIVs during the period of termination

was less than 3 percent.

INFORMATION TECHNOLOGY

12. Entry and exit control system: The AG must develop and

implement an automated entry and exit control system by

October 1, 2001. The system must rely to the maximum

extent practicable on data collected by contract carriers.

After October 1, 2002, no alien may be admitted under the

VWP who arrives on a carrier that does not provide such

electronic information to INS. One use of the data will be

to calculate the overstay rate for VWP-participating

countries. The AG will be required to report the results

of the information collection to Congress annually and

evaluate the effectiveness of the record collection program

by December 31, 2004.

13. Datasharing: The AG and the Secretary of State must

develop and implement by October 1, 2002 an automated data

sharing system. The system must allow them to share

information and photographs of applicants for entry from

VWP countries. A record of the admission of each applicant

for VWP entry must be maintained in the system for ten

years.

VISA REFUSALS

14. Computation of visa refusal rates: The calculation of

visa refusal rates cannot include any visa refusals that

incorporated any procedures based on race, sex, or

disability, unless otherwise specifically authorized by law

or regulation. However, courts are specifically prohibited

from reviewing any visa refusal, denial of entry,

computation of the refusal rate or designation or non-

designation of a country for VWP participation based on

those grounds.

15. Refusing visas to nationals of a country under

consideration for VWP: Consular officers shall not refuse

visas under a refusal category that is not included in the

calculation of the visa refusal rate only so the refusal is

not included in the calculation of the refusal rate for VWP

purposes. In other words, consular officers shall not

knowingly refuse visas under 221(Q) instead of 214(b) in

order to lower the refusal rate.

16. New requirement to report visa refusal rates: The

Department has new reporting requirements for any country

that is under consideration for the VWP. On May 1 of each

year, for any country that is under consideration for

inclusion in VWP, the Department must tell Congress: the

total number of nationals of the country who applied for

U.S. visas in that country during the previous calendar

year; the total number of applicants issued and refused

visas, a breakdown of the refusals by refusal category, and

the refusal rate for 214(b) refusals. The Chief of Mission

must certify that the information provided is accurate.

The requirement to report calendar year vice fiscal year

statistics may necessitate a change in the NIV system

software.

PARTICIPATION OF BUSINESS AIRCRAFT IN VWP

17. VWP travelers will be able to enter the U.S. on

business aircraft, that is, aircraft owned by a domestic

corporation. The corporation must have a contract with INS

in order to take advantage of this provision.

18. The Department will be modifying its Internet site to

reflect these changes, but until that occurs, posts

overseas should review any language that they have on their

website to ensure that it corresponds with the information

provided by this telegram.

ALBRIGHT

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