The Visa Waiver Program (VWP), which allows foreigners from certain countries to enter the United States without a visa for less than 90 days, has grown from a pilot program helping the tourism industry and strengthening diplomatic relations to one of the most important programs affecting US security and the US economy. According to the US Travel Association, VWP travelers spent more than US $51 billion in the United States in 2008. This spending generated 512,000 jobs, US $13 billion in payroll and US $7.8 billion in federal, state, and local taxes. The VWP has enabled the travel industry to become an important component in the national effort to rebuild the struggling US economy.


Of course, the program has faced significant challenges, especially after the attacks of September 11, 2001, when US immigration policy began to take a more hardline approach to address perceived gaps in US homeland security.The program survived those challenges by implementing significant security enhancements.


A decade after 9/11, the VWP must now evolve further to ensure that its security contributions and economic impacts are maximized. These changes require that the Executive Branch, Congress, and US public assess the delicate balance of economic growth, diplomatic relations, and national security inherent in international travel. Such an assessment, we believe, should result in the expansion of the program to additional countries, with new security requirements in place to reflect all three of these national interests.


The history of the Visa Waiver Program can essentially be divided into three eras: facilitation (from 1988 until 9/11/2001), survival (9/11/2001 until 2006), and strengthening (2006 to present). In each phase, political forces concerned with three different but overlapping issues—economic security, terrorism, and immigration—have battled to mold the VWP, with different outcomes during each phase.


Establishment: Doors Open for Visitors


The VWP was originally created in 1986 as part of the Immigration Reform and Control Act of 1986. It was conceived as a pilot program to help the Department of State meet increasing demand for visas from countries with a low risk of immigration violations and with whom we maintained solid law enforcement and foreign policy relationships. The program quickly became a major priority for the travel industry, which saw it as a way to simplify travel to the United States. In the Immigration Act of 1990, Congress set aside the initial limit of eight countries. Congress continued to fiddle with the eligibility criteria and the methods by which countries could be placed on probationary status or removed from the program for failing to meet the program’s criteria, including provisions in the sweeping Illegal Immigrant Reform and Immigrant Responsibility Act of 1996.


The original pilot program had been extended by Congress several times and once by the Executive Branch through an internal directive by the then-Immigration & Naturalization Service. The program was finally made permanent in 2000 in the Visa Waiver Permanent Program Act. By this point, the following 29 countries had qualified for the VWP: Andorra, Argentina, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, and Uruguay.


The permanency law of 2000 also established the program criteria that were in effect when terrorists struck the United States on September 11, 2001. In order to qualify for the program, applicant countries were required to have a visa refusal rate of 3 percent or less, have machine-readable passports, and allow applicants to be checked against lookout systems. In addition, participating countries were required to undergo evaluations not less than once every five years. The program also required the collection of VWP arrival/departure data at air and sea ports of entry.



Interestingly, the only times in the VWP’s history that countries have been removed from the program was because of economic concerns about migration, not terrorism. For example, Argentina was removed from the VWP in February 2002, and Uruguay was removed in April 2003, both due to economic instability that raised fears of increased economic migration into the United States.


Survival: 9/11 Changes Policymakers’ Approach


Although none of the 9/11 hijackers arrived in the United States utilizing the VWP process, the attack exposed weaknesses in US border screening systems that placed the VWP in jeopardy. A heightened fear about terrorists potentially exploiting the US immigration system to conduct more attacks on the United States placed the VWP under the spotlight. These concerns were amplified with the arrest of the potential “20th hijacker,” Zacarias Moussaoui, who had arrived in the United States under the VWP. The subsequent near-miss terrorist attack by Richard Reid, the “shoe bomber,” later in 2001 demonstrated an on-going threat posed by VWP country nationals. The program faced new scrutiny that threatened its survival.


As a result, Congress took a number of actions to strengthen the VWP requirements for participating countries. The USA Patriot Act moved the deadline for machine-readable passports to 2003 and the subsequent Enhanced Border Security and Visa Entry Reform Act  of 2002 required that biometrics, such as fingerprints or digitized facial images, be a part of the passport requirement. The biometric component was designed to detect imposters who might have stolen or forged passports. The law also required lost and stolen passports to be reported to Interpol. In addition, VWP countries underwent strict reviews to assure that they were meeting heightened security concerns.


VWP countries struggled to meet these requirements, sparking considerable negotiations between Congress and the Executive Branch, led by President George W. Bush, on whether to extend deadlines for passport standards. The Administration viewed an extension as reasonable as VWP countries revamped passport production methods and considered it as part of broader foreign policy discussions. Congress, on the other hand, had serious concerns about the potential security gaps caused by the VWP. At one point, the House of Representatives insisted that both Secretary of State Colin Powell and Secretary of Homeland Security Tom Ridge testify in favor of an extension on the biometrics deadline. Eventually, Congress extended the biometric deadline until 2006, when all VWP countries were able to comply.


The VWP country reviews that were conducted after 9/11 raised the stakes for evaluating compliance and at least one country, Belgium, was placed on probationary status in 2003 due to concerns over passport security. In 2004, the United States developed a biometric enrollment capability to conduct watch list checks as part of the US-VISIT entry-exit process, creating more confidence in the program’s security. Successful, albeit strained, negotiations between the EU and the Bush Administration to require airlines to provide access to passenger data in 2004 and 2007 also addressed many skeptics’ fears of appropriate vetting of inbound passengers.



Late in 2006, the Bush Administration sought to solve a number of political problems by proposing that the VWP be amended to require an online travel authorization and to provide flexibility on admission for countries that were cooperating in the War on Terror. With the new Democratic Congress prioritizing legislation to implement recommendations of the 9/11 Commission, the Administration was able to negotiate inclusion of language that allowed countries with visa refusal rates between 3 and 10 percent to be considered for admission. This waiver authority was conditioned on implementation of the online travel review, known as the Electronic System for Travel Authorization, and the certification by the Department of Homeland Security (DHS) that it had implemented an entry-exit system to identify individuals who had overstayed their visa or remained in the United States beyond the 90 days allowed under the VWP. This entry-exit system was first intended to be name-based, but was then replaced by a biometric system implemented as part of the US-VISIT program at DHS, by June 30, 2009.


Despite federal laws and the support of the 9/11 Commission, the implementation of a biometric exit system proved problematic. First, such a system would require the reconfiguration of airports, an expensive proposition. Second, at land borders, the gathering of biometrics would slow down already clogged ports of entries, causing even more delays and long lines. At airports, DHS proposed that airlines manage the biometric collection systems. Airlines, not wanting to be burdened with this responsibility, successfully lobbied for a Congressional ban on this plan. As a result, biometrics systems were only piloted at a select number of airports.


Despite this challenge, the Administration used its new authority to negotiate with a number of former Soviet bloc states and new EU members to meet very stringent security criteria. South Korea also was offered admission. However, the expansion was controversial in Europe because not all EU member countries qualified for admission under the waiver authority. Moreover, the United States demanded that the new standards also be implemented by the legacy VWP countries as well.


The Bush Administration completed admission of Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Slovakia and South Korea in the VWP just before leaving office in 2009. The Administration also had commenced negotiations with Greece, which culminated in an agreement with the Obama Administration to join the VWP in 2010. Recently, the Obama Administration announced that it would nominate Taiwan for the VWP in 2012.


Despite this expansion, a number of additional countries have been denied consideration for admission. Several of these countries, as discussed below in more detail, are solid allies and business partners of the United States who have visa refusal rates between 3 and 10 percent. The gridlock over the biometric exit tracking capability has had the effect of blocking consideration of additional countries. To date, current law has essentially meant that aspirant countries cannot even be placed on a “road map” for consideration that would require them to improve security protocols with the United States.


VWP: A Tool to Bolster the Economy and Create Jobs


The VWP program has been a powerful tool to bolster the economy and to improve trade balance. Historically, when a nation joins the program, the number of visitors from that country trends upward. For example, when South Korea joined the VWP, the number of Korean nationals travelling to the United States jumped nearly 50 percent to 1.1 million people between 2009 and 2011.



Despite this record, the rules limiting the VWP program have been part of a broader decline in the United States’ ability to compete for the world travel market. The US Travel Association has also found that the US market share in global tourism has plummeted from 17 percent to 11 percent in part because of increased visa requirements, costing the United States US $606 billion and 467,000 jobs between 2000 and 2010.


In January, President Obama called for changes to the VWP because of the economic impact of the program and similar immigration measures on the economy. In a radio address on January 21, 2012 the President said that more than 1 million jobs would be created over the next decade if the United States increased its share of the international travel market: “We want more visitors coming here. We want them spending money here. It’s good for our economy, and it will help provide the boost more businesses need to grow and hire.”


The correlation between demanding visa requirements and economic impact is not only evident in the US economy, but in the economic travel trends in other countries. For example, in the United Kingdom, one study showed that an increase in visa costs resulted in decreased travel from China and India, two emerging countries whose residents are increasingly spending money on tourism. The study determined that in 2008, the United Kingdom lost approximately £80 million and £60 million in tourism receipts from China and India respectively, likely because of increased visa costs, according to Kurt Janson in his 2008 article on tourism insight, “Does the Cost of Visas Affect Tourism Demand.”


According to Hotelier MiddleEast.com, those countries with the highest grown in inbound tourism in 2010 were South Korea (+28 percent), China (+23 percent), Germany (+11 percent), Croatia (+7 percent), and Mexico (+5 percent). South Korea, interestingly, has a visa waiver list that includes more than 80 countries, as well as “designated visa-free entry” for a number of other countries. China’s policies are constantly changing, though it does maintain a mutual visa-free agreement with approximately 40 countries. In addition, specific locations on Mainland China have exemptions. Germany follows the Schengen Agreement, which governs international travel for 26 countries in Europe. Croatia allows travel to its country without a visa for members of the European Union and an additional 30 nations. Mexico has a visa waiver program for more than 72 countries, as well as waiving visa requirements for permanent residents of the United States, Canada, Japan, the United Kingdom, or countries that have implemented the Schengen Agreement.


Current Status


An increasing consensus has emerged that improving US competitiveness for the international travel market is one of the best ways to strengthen our balance of trade and create jobs in the United States that largely cannot be outsourced. In 2012, President Obama issued an Executive Order directing the development of an interagency plan to increase travel to the United States, specifically “directing my administration to see if we can add more countries” to the VWP.


Previously, the President had endorsed legislation, the Visa Waiver Program Enhanced Security and Reform Act (S.2046 and H.R.3855), introduced by Senators Barbara Mikulski and Mark Kirk and Reps. Mike Quigley and Steve Chabot that would alter the criteria by which countries can be considered for the VWP. Senators Chuck Schumer and Mike Lee and Reps. Mazie Hirino and David Dreier also included similar provisions in broader travel reform bills S.1746 and H.R.3341. Specifically, the legislation would remove the requirement that DHS certify that it has a biometric exit tracking capability in place before countries with visa refusal rates between 3 and 10 percent could be considered for VWP admission. Instead, the bill would allow countries to be considered if they have a visa overstay rate of 3 percent or less and a visa refusal rate of 10 percent or less. The bill would maintain other security criteria in place. Countries such as Brazil, Argentina, Chile, and Poland would be eligible for consideration based on the change, were the legislation to be enacted.



While the bills have attracted bipartisan support, they have not been the subject of formal legislative debate in the House or Senate Judiciary Committees, although the House held a hearing on the bill late in 2011. Advocacy groups such as the Center for Immigration Studies continue to criticize the VWP generally and proposals to expand it in particular, largely arguing that the lack of a biometric exit system and a more robust internal enforcement regime makes VWP travel a major contributor to illegal migration. Such analysis normally does not weigh the counter-terrorism benefits of the bilateral VWP agreements, but focuses instead on the aggregate levels of illegal migration.


The Obama Administration’s proposed Fiscal Year 2013 budget also may be a factor in this debate, as it would break up the current US-VISIT program office responsible for entry-exit planning and overstay identification. The overstay function would move to Immigration and Customs Enforcement (ICE) and the operational aspects of capturing and storing entry and exit records would move to US Customs and Border Protection. This proposal may intensify a simmering debate about whether the costs of a true biometric exit system are worth the costs in a budget-challenged environment or whether an improved biogaphic system based on airline manifests would be sufficient.


Moreover, as a 2011 Government Accountability Office report found, even where DHS is able to accurately identify visa overstays, the enforcement capabilities of ICE to find and deport overstays are part of the broader mismatch between the illegal alien population in the United States, estimated at 11.2 million by the Pew Hispanic Trust in 2011.


Congressional supporters of VWP reform legislation are likely to look for opportunities to attach legislative provisions to broader legislative vehicles such as appropriations or “jobs”-related bills.


Recommendations


While the VWP program has never been more critical to US competitiveness, its potential expansion and strengthening is blocked because of a fight between various parts of a Congress unable to resolve the biometric exit question. In order to continue to be a useful tool going forward, the US government must act to update the VWP to bring it in line with the economic and diplomatic interests of the United States, while also ensuring that adequate security measures remain in place.


In order to strengthen the United States’ economic and diplomatic efforts, we recommend that the following steps be taken with regards to visa policy.


Long-term entry-exit capabilities: The United States should aspire to build a biometric exit capacity to match current biometric entry systems. Fully deploying biometrics would not only help to find imposters able to defeat a biographic system but should help develop trust between countries to build trusted traveler programs that treat a departure from one country on an international flight as an arrival in the second country.


Short-term entry-exit capabilities: The current strain on homeland security budgets makes the cost of a biometric air exit system infeasible in the short-term. Thus, DHS should continue its efforts to improve data matches between entry and exit records for the purpose of identifying specific individuals who remain illegally in the country past the time permitted on their visas and developing country-specific overstay trends and figures.



VWP country eligibility: The current link between biometric exit and VWP expansion should not be retained due to budget realities. Instead, Congress should amend the VWP law to provide incentives to aspirant countries to meet the stringent law enforcement and counter-terrorism criteria in the law. For countries like Brazil, the United States would be much better off with the full-fledged cooperation of the Brazilian government to share information on potential security risks than vastly ramping up a visa issuance process where 97 percent of applicants are being approved. For immigration hawks, the requirement that VWP countries promptly repatriate deportable aliens is a very valuable benefit of VWP expansion, which ought to address some of their concerns.


VWP expansion: If current legal impediments are removed, the Department of State should formally place aspirant countries on a “road map” process to assess their compliance with the security aspects of the program. If, and only if, they meet these criteria, should they be offered admission to the program. Such an expansion would have an immense economic upside for the United States. For example, the US Travel Association has estimated that allowing Brazil and Chile to enter VWP would potentially generate US $10.3 billion in export revenues and support the creation of 95,100 US jobs.


Other tweaks to the VWP program: The VWP law should be amended to require VWP travelers arriving in the United States by air to depart by air (meaning side trips to Canada, Mexico, and the Caribbean would need to be roundtrip). This would allow the United States to better evaluate who is in the country illegally. The United States should also allow journalists from VWP countries to travel into the country under the VWP rather than under an “I” visa, thereby promoting US free speech and expression principles. In addition, DHS should be provided funding to pilot the capture of biometrics from VWP travelers at the point of departure to the United States via partnerships with foreign governments and/or airlines to push that layer of security outside our airspace and better engage foreign allies in US security efforts.


Visa reforms: Even if the VWP is expanded, most countries are unlikely to qualify, and there remains a need to reform our visa issuance systems. For example, the State Department currently requires individuals seeking visas to go to an embassy or consulate to conduct an in-person interview to determine eligibility. That process can be costly, slow, and inefficient in certain countries. To alleviate these problems, the State Department should consider piloting a secure visa videoconferencing program that will allow them to administer the interviews remotely. Furthermore, building on recent announcements by the Obama Administration aimed toward removing visa bottlenecks, the Department of State should implement plans to adjust staffing and facilities to meet a 30-day requirement for the interviewing of visa applicants around the world under normal circumstances. Part of the solution may lie in waivers for the visa interview process for certain nationals of those countries who previously held a US visa.


Long-term visa planning: The changing global economy and power structures have resulted in new countries becoming important to the United States’ economic and political future. In order to better understand how it meets visa demands from emerging countries, the United States needs to strategically map out a game-plan. The Obama Administration should put together, with Congressional support, a five-year plan for meeting visa demands for countries such as Brazil, China, and India. This plan should also contemplate how the United States can nimbly adjust as new emerging countries become important to our government.


The Visa Waiver Program has unfortunately been tarred by the word ‘waiver,’ which does not capture reality, which is that the VWP has evolved over time into a critical counter-terrorism tool for the United States. The VWP is also an essential mechanism for the United States to compete in the world travel market, particularly for tourist dollars and the business relationships that thrive in an era of international mobility. As the need to generate economic growth continues to be the nation’s highest priority, it appears likely that the forces that have affected the development of the VWP will be successful in expanding and strengthening the program. Whether that can happen in the current US political environment remains to be seen.