URGENT: Changes to the Visa Waiver Program

by Raymond G. Lahoud, Esquire

WASHINGTON — The United States will begin screening passengers entering the United States under a visa waiver based on any past travel to a country known as a terrorist safe haven, the Obama administration announced Monday. The new policy was one of several changes announced to the visa waiver program in the wake of the terrorist attacks in Paris Nov. 13.  While President Obama has resisted efforts by Congress to impose new restrictions on refugees from Syria, he has indicated a willingness to work with Congress to reform the visa waiver program that allows 20 million visitors into the United States each year. The visa waiver program allows passengers from 38 countries — mostly European countries but also Australia, Brunei, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan — to visit the United States without advance approval for 90 days or less. But the White House also announced Monday that it had asked for a review of whether those 38 counties were cooperating with security reviews, raising the possibility that some countries could be suspended from the program. The United States will also expand the use of fingerprints and photographs to identify passengers, and update its databases to include any past travel to a country considered a terrorist safe haven. Such countries include Somalia, Mali, Egypt, Iraq, Lebanon, Libya, Yemen, Afghanistan, Pakistan, Colombia and Venezuela, according to the State Department.

See below for some steps the administration is taking unilaterally, per a White House release. The White House has also indicated it is working with Congress on further changes:

  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. The Director of National Intelligence, in coordination with the Secretary of Homeland Security, will identify and regularly review these countries so that traveler risk assessments can be made on the most up-to-date information.
  • The Department of Homeland Security, in consultation with the Secretary of State and other appropriate agencies will accelerate its review process for VWP partner countries and within 60 days, will provide a full report to the President:
    • Identifying possible pilot programs designed to assess the collection and use of biometrics (fingerprints and/or photographs) in the VWP to effectively increase security; and
    • Identifying any countries that are deficient in key areas of cooperation, along with recommended options to engender compliance using a range of penalties and incentives available under his current authority including the more frequent submission of ESTAs and/or the suspension of ESTA issuances (new and/or renewals) for citizens of countries that fail to meet key metrics.
  • The Director of the Federal Bureau of Investigation will evaluate the terrorism information sharing that occurs between the United States and VWP countries, in consultation with the Director of National Intelligence and the Secretaries of State and Homeland Security, and provide a report to the President of the United States within 60 days identifying options to mitigate any deficiencies.
  • DHS will offer assistance to countries to better facilitate terrorism information sharing, specifically to include biometric pilots. For example, DHS and the Terrorist Screening Center will assist all interested VWP countries in screening refugees or asylum seekers, including through the application of extensive terrorism information already provided to VWP members and through piloting capability for conducting near real time biometric checks.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes biometrics.
  • The Secretary of Homeland Security will work with Congress to seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data.
  • The Departments of Homeland Security and State, the Federal Bureau of Investigation, and U.S. intelligence community elements will deploy Foreign Fighter Surge Teams to work with countries to counter terrorist travel.
  • The Departments of Homeland Security and State will encourage and provide assistance as needed to enhance border security and legislation related to FTFs of our partner countries, and encourage more robust information sharing, better use of shared information, and more effective and efficient coordination between our partners.