The Heritage Foundation

Issue Brief #4492 on Terrorism

December 2, 2015

December 2, 2015 | Issue Brief on Terrorism

The Visa Waiver Program: Congress Should Strengthen a Crucial Security Tool

After the coordinated Islamist terrorist attacks in Paris on November 13 that left 130 people dead, legislators and much of the public are once again worried about the threat that terrorists pose to the U.S. homeland. After considering legislation on the vetting process for Syrian refugees, Congress is now considering altering the Visa Waiver Program (VWP)—an agreement that the U.S. currently has with 38 countries. Congress and all Americans should understand that the VWP does not mean that foreign travelers come to the U.S. unscreened. Quite the opposite: As the VWP provides U.S. officials with greater intelligence with which to stop known, and surveil suspected, terrorists. The VWP already provides immense security benefits to the U.S, and should be strengthened and judiciously expanded, not canceled or suspended.

Visa Waiver 101

In order to become a VWP member, a country must:

  • Demonstrate a non-immigrant-visa-refusal rate (the percentage of visa applicants denied by the State Department for a particular nation) of no more than 3 percent;
  • Issue all its citizens secure, machine-readable biometric passports; and
  • Present no discernable threat to U.S. law enforcement or U.S. national security.

Currently, 38 nations participate in the VWP.[1] As required by the VWP and certain laws, these nations have also agreed to stipulations and obligations. Thus, they:

  • Share intelligence about known or suspected terrorists with the U.S. (per Homeland Security Presidential Directive 6 (HSPD-6));
  • Exchange biographic, biometric, and criminal data with the U.S. (automated, via Preventing and Combating Serious Crime (PCSC) agreements);
  • Share information on lost and stolen passports (LASP agreements);
  • Increase their own airport security requirements; and
  • Provide U.S. citizens with a reciprocal ability to travel to that country without a visa.[2]

These features greatly enhance security by providing U.S. law enforcement and security agencies with more information and intelligence on potential terrorists and other bad actors. The VWP makes it easier for U.S. officials to know whether an individual presents a security threat. The VWP also allows the State Department to focus its consular and visa resources on those countries and individuals about which less is known and that are greater risks to U.S. security.[3]

Furthermore, the VWP includes screening and security procedures. Every traveler to the U.S. from a VWP country must be pre-screened through the Electronic System for Travel Authorization (ESTA), which checks various databases for information about the person’s eligibility for travel to the U.S., and whether he or she is a known security risk. Additionally, at every step, from buying a ticket to checking in to boarding a flight, individuals are checked against databases and updated information.[4] Upon landing in the U.S., individual biographic and biometric information is checked against additional sets of biometric databases controlled by the Department of Homeland Security (DHS) and the FBI. At any point in this process, U.S. officials can prevent individuals from entering the U.S. if they are deemed a security risk or ineligible for travel to the U.S.


 

It is worth considering the alternative to the VWP. Without it, foreign travelers from 38 additional countries would have to request a visa from a U.S. consulate abroad, likely resulting in long wait times. The U.S. State Department would then interview applicants and vet them against intelligence databases. However, without the VWP, these 38 countries would not be required to share intelligence with the U.S.—which means that visa decisions would be made with less information in U.S. intelligence databases. In addition, the U.S. would have to spend more of its finite counterterrorism dollars staffing consulates across the world, reducing its ability to focus limited resources on those individuals who pose the greatest threat.

Responses After Paris

The media have made much of the fact that at least one of the Paris attackers, several of whom were citizens of VWP countries, was likely eligible to travel to the U.S. because he was not flagged on a watch list.[5] If it is true that some of the killers did not appear in any intelligence database or watch list, it is, indeed, likely that they would have been able to use the VWP to come to the U.S. What is also true, however, is that they would have been just as likely to be able to come to the U.S. on a traditional visa. The underlying problem is not the VWP, but the reality that intelligence is not perfect. Both the VWP and the traditional visa process would likely not stop an individual from travelling if there is no intelligence to suggest that he poses a threat.

Thus, some legislators are looking to solve the wrong the problem. Rather than addressing the resources and tools available to the intelligence community or how well U.S. allies share information, some on Capitol Hill have suggested denying a VWP entry to anyone who has visited Syria or Iraq in recent years.[6] While on its face such an effort seems strong, it will have minimal effect. Currently, if an individual takes a suspicious trip to Syria or Iraq and the U.S. is sufficiently concerned about the individual’s actions, U.S. intelligence will likely place the individual on one of the U.S. watch lists or in a security database. When this person then applies to come to the U.S. through the VWP, the screening process will flag the application, causing it to be rejected.[7]

But this blanket ban would also punish many individuals whom the U.S. trusts. For example, European military members, advisers, or diplomats who have been to Syria and Iraq, would be banned from entering the U.S. through the VWP. Similarly, the U.S. may have good intelligence on an individual who travelled to Syria as part of Doctors Without Borders, while regardless of that intelligence, that person would be banned from traveling to the U.S with the VWP. It is worth considering that if the U.S. bans such individuals, other countries might reciprocate and not allow members of the U.S. military or diplomatic corps, nongovernmental organizations, or business people who have been to the Middle East to visit their countries via their version of the VWP.

Of course, a significant problem is that there are individuals who have travelled to Syria, Iraq, and other Middle Eastern countries without leaving an intelligence footprint. These individuals represent a serious risk because neither the VWP nor the traditional visa process is able to flag such individuals for further scrutiny or rejection. But, of course, if the U.S. does not know that an individual travelled to Syria, VWP bans based on travel history will do nothing to stop them.

The Right Way to Improve Security

Like any program, the VWP is not perfect and can be improved. One concern is that some countries may not be sharing intelligence adequately. The last public report on the matter by the Congressional Research Service found that nearly all VWP countries were sharing all or nearly all information as required.[8] Similarly, conversations with the DHS office of Legislative Affairs have confirmed this, pointing out that the primary remaining issue was automation of “preventing and combatting serious crime” (PCSC) data sharing.[9] U.S. officials also expressed a desire for more information from allies regarding individuals with suspicious travel histories,[10 ]as has the White House.[11]

The U.S. should be looking to continuously improve all VWP information-sharing arrangements. One way to encourage member countries to comply more robustly with intelligence-sharing requirements would be to provide DHS with the express authority to temporarily suspend a non-compliant country from the VWP. While DHS can currently suspend a country in light of an imminent threat, it is unclear whether DHS has suspension authority should a country not adequately share intelligence.[12] Giving DHS clear temporary suspension authority would provide DHS with a believable penalty that it can use to pressure countries into improving compliance.

Along with ensuring compliance, DHS should also be looking to judiciously expand the VWP program. Allowing low-risk friends and allies into the VWP, increases U.S. access to intelligence on terrorist threats, while allowing the State Department to focus its limited consular resources on higher-risk countries. One such example is Poland, which is currently blocked from VWP membership based on the requirement that the visa-refusal rate be less than 3 percent. In the past, this requirement could be waived up to a 10 percent refusal rate, and as of fiscal year 2014, Poland had a B-visa-refusal rate of 6.4 percent.[13] The U.S. should reinstitute the case-by-case waiver of the 3 percent visa-refusal rate and also consider changing the requirement to reflect the visa-overstay rate, a more accurate metric for determining the risk of future visa overstays in a given country.

A Better Path Forward

To improve the Visa Waiver Program and make it an even greater asset in combatting terrorist travel, Congress and the Administration should:

  • Strengthen information sharing. Given the past sluggishness in implementing information-sharing agreements, Congress should continue to monitor these agreements to ensure that information sharing is rapid, effective, and automated. Congress should also consider providing the Administration with temporary suspension authority to ensure information-sharing compliance. The Administration should also be looking to continuously improve and strengthen information-sharing relationships.
  • Reform the visa-refusal requirement. Currently, a requirement for a biometric visa-exit system effectively blocks most nations from joining the VWP. This requirement should be removed, and DHS should be given the discretion to waive the 3 percent visa-refusal rate—as long as a country has a low visa-overstay rate. This will allow DHS to judiciously expand the VWP.
  • Maintain and strengthen other essential counterterrorism tools. The U.S. should provide U.S. intelligence agencies with the resources and lawful tools they need to prevent terrorists from entering the U.S. The primary concerns after the Paris attacks is finding and stopping terrorists, which requires U.S. intelligence to be able to connect the dots on bad actors. These tools should be properly managed with executive, judicial, and congressional oversight, with respect for individual liberties.

The U.S. can and should be continually looking for ways to improve the systems that allow foreign citizens to enter the U.S. The Visa Waiver Program is part of that solution. Rather than shrink the program, Congress should be working to improve information-sharing arrangements with member countries and expand the VWP to additional friends and allies.

—David Inserra is Policy Analyst for Homeland Security and Cyber Security in the Douglas and Sarah Allison Center for Foreign and National Security Policy, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.

About the Author

David Inserra Policy Analyst, Homeland Security and Cybersecurity
Douglas and Sarah Allison Center for Foreign and National Security Policy

Show references in this report

[1] U.S. Department of State, Bureau of Consular Affairs, “U.S. Visas: Visa Waiver Program,” http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html (accessed November 24, 2015).

[2] Alison Siskin, “Visa Waiver Program,” Congressional Research Service Report for Congress, February 12, 2014, http://fas.org/sgp/crs/homesec/RL32221.pdf (accessed November 24, 2015).

[3] David Inserra and Riley Walters, “The Visa Waiver Program: Enhancing Security, Promoting Prosperity,” Heritage Foundation Issue Brief No. 4273, September 16, 2014, http://www.heritage.org/research/reports/2014/09/the-visa-waiver-program-enhancing-security-promoting-prosperity.

[4] Ibid.

[5] Evan Perez, Pamela Brown, Shimon Prokupecz, and Scott Glover, “U.S. Officials: Paris Attacker Likely Could Have Traveled to U.S.,” CNN Politics, November 21, 2015, http://www.cnn.com/2015/11/20/politics/paris-terror-attacks-visa-waiver-program/ (accessed November 24, 2015).

[6] Mike DeBonis, “Senators Eye New Restrictions on Visa Waivers After Paris Attacks,” The Washington Post, November 18, 2015, https://www.washingtonpost.com/news/powerpost/wp/2015/11/18/senators-eye-new-restrictions-on-visa-waivers-after-paris-attacks/ (accessed November 24, 2015).

[7] It is impossible to determine what will happen in every case of an individual travelling to Iraq or Syria because the U.S. intelligence community may include other intelligence in determining whether to add derogatory information about an individual to a U.S. security database. However, once the decision is made to add information about an individual to the database (or information is provided by allies and VWP partners), that information will be flagged if that individual applies for entry to the U.S. through the VWP. Phone conversation between David Inserra and DHS official, DHS Office of Legislative Affairs, November 23, 2015.

[8] Alison Siskin, “Visa Waiver Program,” Congressional Research Service Report for Congress, February 12, 2014, http://fas.org/sgp/crs/homesec/RL32221.pdf (accessed November 24, 2015).

[9] Phone conversation between David Inserra and DHS official, DHS Office of Legislative Affairs, September 10, 2014, and phone conversation between David Inserra and DHS official, DHS Office of Legislative Affairs, November 23, 2015.

[10] Phone conversation between David Inserra and DHS official, DHS Office of Legislative Affairs, November 23, 2015.

[11] White House, “FACT SHEET: Visa Waiver Program Enhancements,” November 30, 2015, https://www.whitehouse.gov/the-press-office/2015/11/30/fact-sheet-visa-waiver-program-enhancements (accessed December 1, 2015).

[12] 8 U.S. Code § 1187 (2014).

[13] U.S. Department of State, Bureau of Consular Affairs, “Adjusted Refusal Rate–B-Visas Only, by Nationality, Fiscal Year 2014,” http://travel.state.gov/content/dam/visas/Statistics/Non-Immigrant-Statistics/RefusalRates/FY14.pdf (accessed November 24, 2015).