Visa Waiver Program: A Plan to Build on Success

Congress established the Visa Waiver Program (VWP) in 1986 to strengthen the United States' relationship with key allies around the globe and it has become an invaluable program for advancing U.S. interests. The VWP:

• Encourages tourism, international business, and professional exchanges that promote economic growth;
• Builds solidarity and trust between nations that share common interests and values; and
• Promotes a positive image of the United States around the world.

In addition, reforms in recent years have made the program a better tool for thwarting terrorist and criminal travel as well as combating violations of U.S. immigration laws (while enhancing safeguards of individual privacy and improving the convenience of international travel). Unless Congress acts now, however, the window of opportunity to expand this program to include vital friends and allies around the world will close.

By instituting additional measures Congress can re-establish the momentum achieved in the past few years in restructuring and vastly improving the VWP. These additional measures are based on rigorous analysis of lessons learned from the past few years by a non-partisan, independent task force of scholars, researchers, and former government officials. Their review and recommendations for the next steps in the VWP are based on an evaluation of current and future threats, an assessment of ongoing government programs, and an analysis of trends in trade and international travel. The critical necessary steps the task force identified are:

• Congress should transfer permanent waiver authority to the Department of Homeland Security (DHS) and decouple VWP from the biometric air-exit mandate, a mandate that would require DHS to biometrically track the exit of foreign passengers leaving the United States by air, so that the current DHS visa waiver authority does not expire should DHS not deploy air exit by July 1, 2009.
• Congress should reiterate that long-time VWP member countries, just like new members, must enter into bilateral agreements to implement post-9/11 VWP security requirements.
• Congress and DHS should work together to ensure that the biennial security reviews of VWP member countries are a meaningful exercise.
• Congress should ensure that the new Electronic System for Travel Authorization (ESTA) is user-friendly through multiple-language availability and reliance on quality databases.
• Congress should oversee the membership process.

These steps are vital for enhancing the security of the United States and its international partners, spurring economic growth, improving protection of individual rights and privacy, and burnishing America's reputation as a welcoming and confident member of the community of free nations that embraces engagement between its citizens and those of its friends and allies around the world.

A Valuable Tool

The VWP was created in 1986 to develop America's relationship with its allies.[1] The program allows foreign travelers from member countries to travel to the U.S. for up to 90 days without a visa.[2] The purpose of the VWP is not just to allow easier travel for foreign visitors. VWP adds security and encourages economic growth, while developing America's image around the world.

Security. After 9/11, Congress grew concerned that terrorists from member nations--for example, "shoe bomber" Richard Reid (a French citizen) and the 2007 Heathrow plotters (citizens of the U.K.)-- might exploit the VWP and travel to the United States without any advance scrutiny. In 2007, Congress and the Bush Administration enacted legislation adding a number of new security requirements to the program:

• Pre-Approved Travel. The Electronic System for Travel Authorization requires travelers to be approved through an online portal 24 hours before their travel to the U.S. This means that the U.S. government knows more about foreign travelers before they enter the country--helping to ensure that potential terrorists do not board a plane headed for the United States in the first place.[3] Meanwhile, U.S. consulate offices have more time to concentrate on catching those who seek to do Americans harm instead of dealing with backlogs in the visa system. Once approved, an authorization is valid for two years. The data submissions required by ESTA are almost identical to those required under the current I-94 form which travelers now complete while en route. In accordance with the post-9/11 requirements, ESTA was deemed fully operational by DHS on June 3, 2008, and became mandatory for all VWP travelers on January 12, 2009.[4]
• Counterterrorism Information Sharing. Congress has required VWP members to share information about U.S.-bound travelers who might pose a security threat. These information-sharing agreements support vital U.S. counterterrorism initiatives. In 2008, the Government Accountability Office (GAO) emphasized that the expansion of VWP has led to "improve[d] information sharing" and has "stimulated watch list sharing."[5]
• Other Measures. The 2007 legislation also calls on VWP members to maintain superlative airport security standards, to assist in the operation of an effective air marshal program, and to promptly report information about lost and stolen passports.
• Collective Security. The VWP increases collective security by encouraging more states to meet common security standards--minimizing opportunities for the expansion of terrorist networks. In order to achieve that goal, it is vitally important for the same security standards to apply to all VWP countries, regardless of when they joined the program. Incumbent members and new members alike should conform to the new 2007 standards.

The Visa Waiver Program is a security partnership. Member countries agree to common standards and policies, such as limiting the entry of illegal visitors and hindering the travel of terrorists and criminals. Countries that interfere with U.S. security interests may not be admitted.[6] Once a country joins the VWP, lifetime membership is not guaranteed. A country can be evicted from the program if the statutory membership requirements are no longer met or if major security concerns arise. This option was exercised in 2001 when Argentina's membership was revoked in the wake of the country's economic collapse.[7]

Diplomacy and Cooperation. The VWP generates important public diplomacy benefits. First, member countries see membership in the VWP as a sign of trust by the United States.[8] Imparting trust to allies makes them more likely to work with the U.S. on particular policies or actions. While negotiating VWP membership with the Czech Republic, for instance, the two countries signed an agreement on a U.S. missile shield site on Czech soil.[9]

Second, when foreign travelers come to America and interact with Americans and gain an understanding of what makes America great, they share these positive experiences with members of their own societies--helping to improve America's image abroad. The United States Travel Association, through a survey conducted by the Discover America Partnership, estimatesthat 74 percent of those who have visited the United States are more likely to have a favorable opinion of America and support U.S. policies.[10] This type of "people-to-people diplomacy," as former Undersecretary of State for Public Diplomacy Karen Hughes phrases it, should not be underestimated.[11]

Economic Benefits and Cost Savings. The VWP generates tremendous economic benefits for the United States. When foreign travelers come to America, they rent cars and hotel rooms, dine in restaurants, and shop in stores--purchases that contribute to the U.S. economy. In fact, foreign tourists often spend three times that of domestic travelers.[12] In 2008, foreign travelers spent more than $100 billion in the United States.[13] The VWP accounts for $48 billion of this spending.[14] The recent economic downturn has devastated the tourism and retail sectors. Given the need to stimulate the economy, America should be encouraging legitimate travelers from around the world to come to the United States.

Not only do the taxes generated from this tourism produce as much as $115 billion in revenue to local, state, and federal governments, the VWP also saves the U.S. government millions of dollars in administrative costs at consulate offices.[15] Without the VWP, all foreign travelers would have to visit a consulate abroad and obtain a visa before traveling to the United States. The GAO estimated that the State Department would incur additional expenses of $522 million to $810 million a year to process the additional visa requests.[16]

Finally, membership in VWP requires that the member country provide reciprocal visa waiver benefits to U.S. citizens. Taking VWP membership away from countries could cause them to retaliate in kind. Americans then might have to pay a visa fee of around $100 for each country visited.[17]

The History of the Visa Waiver Program

When the VWP was created in 1986 it was created as a means of reducing consular workload, focusing consular resources on high risk individuals, and facilitating tourism and business interactions between the U.S. and other nations. Japan and the United Kingdom were the first two countries to join the program. The main requirements for VWP membership include:

• Non-immigrant visa refusal rate of less than 3 percent. The non-immigrant visa refusal rate is the number of visas that are denied by the State Department.[18] In essence, a visa refusal rate represents the State Department's prediction as to the likelihood that a country's citizens will overstay in the U.S. VWP countries are required to have a rate of less than 3 percent (this was later modifiedby the 2007 legislation so that countries with a 10 percent or lower refusal rate could enter the program under specified conditions).
• No conflict with law enforcement or U.S. security interests. A country will not be granted VWP membership if the country's participation might conflict with U.S. law enforcement or national security interests, such as inadequate airport-security standards.[19]
• Reciprocity. Countries that enter the VWP must grant U.S. citizens similar privileges of visa-free travel.[20]
• Machine-readable and biometric passports. Member countries are required to issue machine-readable and biometric (fingerprinted) passports to their citizens. A machine-readable passport is one that "has two typeface lines printed at the bottom of the biographical page which can be read by machine."[21] Such protections are an additional layer of security to avoid fraudulent passports.

Until recently, the VWP had 27 members, largely from Western Europe.[22] According to preliminary Commerce Department data, in 2008 the U.S. had more than 16 million arrivals from these Visa Waiver countries.[23] But between 1999 and 2008, the program was not expanded at all.

Click to view PDF of chart

After 9/11, Congress began to re-evaluate the policies and procedures that made up America's immigration and security structures, looking for potential terrorist loopholes. Congress identified the VWP as a program that could be exploited by terrorists to enter the U.S. illegally. As a result, Congress in 2007 enacted legislation that made sweeping changes to the VWP statute.[24] In addition to the new security measures discussed above, the mandate included the following provisions:

• 10 percent or lower visa-refusal rate. The 2007 legislation aimed at expanding VWP membership while promoting security. Congress allowed DHS to waive the 3 percent visa refusal rate and allow countries whose rate was 10 percent or lower to become members--as long as DHS met the other requirements of the 2007 law, including ESTA implementation and deployment of biometric air exit. DHS used this legislation as the impetus to begin bilateral negotiations with countries identified as "roadmap countries"--those interested in VWP membership whose visa refusal rates would reach the 10 percent requirement in the near future--eight of which later gained VWP membership.[25]
• Biometric air exit. Congress required DHS to biometrically (through the use of fingerprints) track the airport exits of 97 percent of foreign travelers by July 1, 2009. DHS, however, is not on track to meet this requirement. One reason is that Congress told DHS to perform three pilot tests and report the results to Congress before implementing biometric air exit. These pilots are in process. The Government Accountability Office examined the prospects for successful implementation of this requirement in 2007. It found that this requirement would have an enormous impact on commerce because it could require the private sector to bear the cost of additional staffing and infrastructure. A disagreement also remains over who should be tasked with collecting this information from travelers--DHS or airlines. Airlines insist that this is a government responsibility, that it is not the private sector's role to act as customs officers.[26] For its part, DHS argues that airlines already play a vital role in collecting passenger information on the government's behalf--for example, biographic information from passports. While DHS and the airlines are in the process of sorting out these responsibilities, the results of a congressionally mandated biometric air exit pilot for 2009 will likely have a major impact on this decision.

The waiver authority granted to the Secretary of the Department of Homeland Security is contingent on DHS being able to implement these requirements. To date, DHS has certified that it has met all requirements except for the development of a biometric air exit system. As a result, the Secretary will lose the ability to use the waiver authority to admit new countries on July 1, 2009.

In December of 2008, the Bush Administration exercised its powers under the new legislation to admit eight new countries to the program--the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia, and South Korea. Total VWP membership now stands at 35.[27]

The VWP received tremendous support in Congress from both sides of the aisle. President Obama's White House Chief of Staff and former congressman Rahm Emanuel (D-IL) was a primary sponsor of the VWP, enabling legislation during his time in Congress. The program was also championed by Republicans Senator George Voinovich (OH) and Representative John Shimkus (IL), and Democrats Representative Robert Wexler (FL) and Senator Barbara Mikulski (MD).

Principles of VWP Success

Given the benefits of the Visa Waiver Program, the U.S. should ensure that current legislation before Congress does not halt the program. Future actions should be based on principles that have made the VWP successful, including:

• Bipartisanship. The VWP has been a success because it has enjoyed congressional support from both sides of the aisle. It is vital that Congress continue this bipartisanship. One of the program's biggest supporters, Senator George Voinovich has announced plans to retire from the Senate in 2010, so it is vital that other senators step in to fill his shoes and support the VWP.
• Beyond traditional allies. Before the addition of eight new member countries in 2008, the VWP membership had largely been composed of "traditional" U.S. allies in Western Europe. The Bush Administration's commitment to security and expansion allowed the VWP to develop as a public diplomacy tool by allowing nations around the world with similar security goals to establish a formal relationship with the United States (including South Korea and the countries of eastern and central Europe).
• Bilateralism. One of the distinctive features of the VWP is that it centers on bilateral agreements between the United States and member countries. A bilateral approach is not only required by the VWP statute, it is sound policy because bilateral agreements allow flexibility and ensure that the interests of both participating countries are well represented.
• Basic diplomacy. VWP reform was a success because the U.S. accepted members that were committed to a simple premise of developing a mutually beneficial set of security arrangements. This allowed the U.S. to form alliances with countries on a basic level without implicating more complex questions of diplomacy. The U.S. should continue to focus the VWP on security and should not use the program as a means of accomplishing other policy priorities, which might discredit the program.

The Right Strategy for VWP: What Congress Should Do

The future of the VWP rests largely with Congress. Congress should look for ways to further strengthen and expand the VWP while ensuring that the program's benefits are not exploited by terrorists and criminals. This can be accomplished by the following:

1. Ensure that waiver authority does not expire. DHS's ability to grant refusal-rate waivers to countries will expire on July 1, 2009, if DHS does not meet the biometric air-exit requirement. Congress should make DHS's waiver authority permanent. This will ensure that this important program continues into the future.
2. Decouple VWP from air exit. DHS is not likely to meet the July deadline imposed by the 2007 VWP legislation. This means that the future membership of aspiring countries is in serious jeopardy. Congress should ensure that the air exit system is cost-effective, easy to implement, and does not overburden the already struggling airline industry. By decoupling VWP from air exit, the prospects for reform would continue past July 1, 2009. Also, DHS would have more time to develop a cost-effective and feasible biometric air-exit solution.
3. Require long-time members sign bilateral security agreements with the U.S. While newer VWP members have entered into bilateral agreements to implement the 2007 security measures, several long-time members have not. (The new measures were not required when these countries first entered the program.) Congress should demand that these members meet the new requirements and sign bilateral agreements with the United States. The VWP should not have two sets of security standards-- one for new members and one for old. Instead, the same standards should apply to all VWP countries, regardless of when they joined the program.
4. Ensure that DHS's biennial reviews are a meaningful exercise. Current law requires DHS to re-certify VWP members every two years.[28] Re-certification is an opportunity to insist that countries meet uniform security standards or face removal from the program. Congress should provide DHS with the resources it needs to aggressively enforce this procedure; it also should reiterate that DHS should suspend members that are not meeting the security standards.
5. Ensure that ESTA remains user-friendly. Now that ESTA is fully operational, DHS must ensure that the program remains user-friendly. Congress should assist DHS in:
   
   Ensuring database quality. Senator Joe Lieberman (I-CT) has emphasized that ESTA is "not working as it should" and is not "adequately tracking terrorists" because the program cannot fully check federal databases for suspected terrorists.[29] DHS should ensure quality control of databases and datasets involving ESTA. This would help alleviate concerns over ESTA by ensuring that the portal is relying on the best available information.
   
   Creating multiple-language access. Ensure that ESTA is available in multiple languages (currently participants can fill out the ESTA application only in English).This will expand the reach of VWP, and help ensure that every legitimate traveler who wishes to come to the U.S. under the program is able to do so.
   
6. Provide effective congressional oversight. During the Bush Administration, several countries expressed discontent over a lack of transparency with roadmap countries attempting to gain membership in the Visa Waiver Program.[30] Critics also suggested that DHS was trying to undermine the maximum 10 percent visa refusal rate requirement by allowing countries into the program before they achieved the required rate.[31] While this was never the reality (all of the countries admitted achieved the 10 percent or lower visa-refusal rate), DHS needs to keep Congress better informed of the process to minimize these perceived defects.

Congress can minimize these concerns by providing better oversight of the process. The goal should be to ensure that the expansion process is 1) based on milestones, not bloated expectations, 2) includes standard operating procedures and security needs, and 3) with the ultimate goal of expansion to friends and allies around the globe.

The Future of VWP

Congress is right to place the security of Americans at the forefront of America's immigration policies--but its policies can and should also promote freedom and prosperity. Compromising one good for the sake of another is not sustainable, and it is not necessary. Congress can feel proud that VWP accomplishes all three of these goals--security, freedom, and prosperity--and should take steps to ensure the program's longevity and success.

Jena Baker McNeill is Policy Analyst for Homeland Security in the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation; Nathan Alexander Sales is Assistant Professor at Law at George Mason University School of Law, and formerly served as Deputy Assistant Secretary in the Office of Policy Development at the Department of Homeland Security; James Jay Carafano, Ph.D., is Assistant Director of Heritage's Davis Institute and Senior Research Fellow for National Security and Homeland Security in the Allison Center; and James Dean is Deputy Director, Foreign, Defense, Trade, and Homeland Security Policy, in the Government Relations Department at The Heritage Foundation.