§1187. Visa waiver program for certain visitors
(a) Establishment of program
The Secretary of Homeland Security and the Secretary of State are authorized to establish a program (hereinafter in this section referred to as the "program") under which the requirement of paragraph (7)(B)(i)(II) of section 1182(a) of this title may be waived by the Secretary of Homeland Security, in consultation with the Secretary of State and in accordance with this section, in the case of an alien who meets the following requirements:
(1) Seeking entry as tourist for 90 days or less
The alien is applying for admission during the program as a nonimmigrant visitor (described in section 1101(a)(15)(B) of this title) for a period not exceeding 90 days.
(2) National of program country
The alien is a national of, and presents a passport issued by, a country which-
(A) extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States, and
(B) is designated as a pilot program country under subsection (c).
(3) Passport requirements
The alien, at the time of application for admission, is in possession of a valid unexpired passport that satisfies the following:
(A) Machine readable
The passport is a machine-readable passport that is tamper-resistant, incorporates document authentication identifiers, and otherwise satisfies the internationally accepted standard for machine readability.
(B) Electronic
Beginning on April 1, 2016, the passport is an electronic passport that is fraud-resistant, contains relevant biographic and biometric information (as determined by the Secretary of Homeland Security), and otherwise satisfies internationally accepted standards for electronic passports.
(4) Executes immigration forms
The alien before the time of such admission completes such immigration form as the Secretary of Homeland Security shall establish.
(5) Entry into the United States
If arriving by sea or air, the alien arrives at the port of entry into the United States on a carrier, including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations, or a noncommercial aircraft that is owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations 1 which has entered into an agreement with the Secretary of Homeland Security pursuant to subsection (e). The Secretary of Homeland Security is authorized to require a carrier conducting operations under part 135 of title 14, Code of Federal Regulations, or a domestic corporation conducting operations under part 91 of that title, to give suitable and proper bond, in such reasonable amount and containing such conditions as the Secretary of Homeland Security may deem sufficient to ensure compliance with the indemnification requirements of this section, as a term of such an agreement.
(6) Not a safety threat
The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.
(7) No previous violation
If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant.
(8) Round-trip ticket
The alien is in possession of a round-trip transportation ticket (unless this requirement is waived by the Secretary of Homeland Security under regulations or the alien is arriving at the port of entry on an aircraft operated under part 135 of title 14, Code of Federal Regulations, or a noncommercial aircraft that is owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations).
(9) Automated system check
The identity of the alien has been checked using an automated electronic database containing information about the inadmissibility of aliens to uncover any grounds on which the alien may be inadmissible to the United States, and no such ground has been found.
(10) Electronic transmission of identification information
Operators of aircraft under part 135 of title 14, Code of Federal Regulations, or operators of noncommercial aircraft that are owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations, carrying any alien passenger who will apply for admission under this section shall furnish such information as the Secretary of Homeland Security by regulation shall prescribe as necessary for the identification of any alien passenger being transported and for the enforcement of the immigration laws. Such information shall be electronically transmitted not less than one hour prior to arrival at the port of entry for purposes of checking for inadmissibility using the automated electronic database.
(11) Eligibility determination under the electronic system for travel authorization
Beginning on the date on which the electronic system for travel authorization developed under subsection (h)(3) is fully operational, each alien traveling under the program shall, before applying for admission to the United States, electronically provide to the system biographical information and such other information as the Secretary of Homeland Security shall determine necessary to determine the eligibility of, and whether there exists a law enforcement or security risk in permitting, the alien to travel to the United States. Upon review of such biographical information, the Secretary of Homeland Security shall determine whether the alien is eligible to travel to the United States under the program.
(12) Not present in Iraq, Syria, or any other country or area of concern
(A) In general
Except as provided in subparagraphs (B) and (C)-
(i) the alien has not been present, at any time on or after March 1, 2011-
(I) in Iraq or Syria;
(II) in a country that is designated by the Secretary of State under section 4605(j) 2 of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or
(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and
(ii) regardless of whether the alien is a national of a program country, the alien is not a national of-
(I) Iraq or Syria;
(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 4605(j) 2 of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or
(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).
(B) Certain military personnel and government employees
Subparagraph (A)(i) shall not apply in the case of an alien if the Secretary of Homeland Security determines that the alien was present-
(i) in order to perform military service in the armed forces of a program country; or
(ii) in order to carry out official duties as a full time employee of the government of a program country.
(C) Waiver
The Secretary of Homeland Security may waive the application of subparagraph (A) to an alien if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.
(D) Countries or areas of concern
(i) In general
Not later than 60 days after December 18, 2015, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.
(ii) Criteria
In making a determination under clause (i), the Secretary shall consider-
(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;
(II) whether a foreign terrorist organization has a significant presence in the country or area; and
(III) whether the country or area is a safe haven for terrorists.
(iii) Annual review
The Secretary shall conduct a review, on an annual basis, of any determination made under clause (i).
(E) Report
Beginning not later than one year after December 18, 2015, and annually thereafter, the Secretary of Homeland Security shall submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report on each instance in which the Secretary exercised the waiver authority under subparagraph (C) during the previous year.
(b) Waiver of rights
An alien may not be provided a waiver under the program unless the alien has waived any right-
(1) to review or appeal under this chapter of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or
(2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.
(c) Designation of program countries
(1) In general
The Secretary of Homeland Security, in consultation with the Secretary of State, may designate any country as a program country if it meets the requirements of paragraph (2).
(2) Qualifications
Except as provided in subsection (f), a country may not be designated as a program country unless the following requirements are met:
(A) Low nonimmigrant visa refusal rate
Either-
(i) the average number of refusals of nonimmigrant visitor visas for nationals of that country during-
(I) the two previous full fiscal years was less than 2.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years; and
(II) either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year; or
(ii) such refusal rate for nationals of that country during the previous full fiscal year was less than 3.0 percent.
(B) Passport program
(i) Issuance of passports
The government of the country certifies that it issues to its citizens passports described in subparagraph (A) of subsection (a)(3), and on or after April 1, 2016, passports described in subparagraph (B) of subsection (a)(3).
(ii) Validation of passports
Not later than October 1, 2016, the government of the country certifies that it has in place mechanisms to validate passports described in subparagraphs (A) and (B) of subsection (a)(3) at each key port of entry into that country. This requirement shall not apply to travel between countries which fall within the Schengen Zone.
(C) Law enforcement and security interests
The Secretary of Homeland Security, in consultation with the Secretary of State-
(i) evaluates the effect that the country's designation would have on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);
(ii) determines that such interests would not be compromised by the designation of the country; and
(iii) submits a written report to the Committee on the Judiciary, the Committee on Foreign Affairs, and the Committee on Homeland Security of the House of Representatives and the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate regarding the country's qualification for designation that includes an explanation of such determination.
(D) Reporting lost and stolen passports
The government of the country enters into an agreement with the United States to report, or make available through Interpol or other means as designated by the Secretary of Homeland Security, to the United States Government information about the theft or loss of passports not later than 24 hours after becoming aware of the theft or loss and in a manner specified in the agreement.
(E) Repatriation of aliens
The government of the country accepts for repatriation any citizen, former citizen, or national of the country against whom a final executable order of removal is issued not later than three weeks after the issuance of the final order of removal. Nothing in this subparagraph creates any duty for the United States or any right for any alien with respect to removal or release. Nothing in this subparagraph gives rise to any cause of action or claim under this paragraph or any other law against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien.
(F) Passenger information exchange
The government of the country enters into an agreement with the United States to share information regarding whether citizens and nationals of that country traveling to the United States represent a threat to the security or welfare of the United States or its citizens, and fully implements such agreement.
(G) Interpol screening
Not later than 270 days after December 18, 2015, except in the case of a country in which there is not an international airport, the government of the country certifies to the Secretary of Homeland Security that, to the maximum extent allowed under the laws of the country, it is screening, for unlawful activity, each person who is not a citizen or national of that country who is admitted to or departs that country, by using relevant databases and notices maintained by Interpol, or other means designated by the Secretary of Homeland Security. This requirement shall not apply to travel between countries which fall within the Schengen Zone.
(3) Continuing and subsequent qualifications
For each fiscal year after the initial period-
(A) Continuing qualification
In the case of a country which was a program country in the previous fiscal year, a country may not be designated as a program country unless the sum of-
(i) the total of the number of nationals of that country who were denied admission at the time of arrival or withdrew their application for admission during such previous fiscal year as a nonimmigrant visitor, and
(ii) the total number of nationals of that country who were admitted as nonimmigrant visitors during such previous fiscal year and who violated the terms of such admission,
was less than 2 percent of the total number of nationals of that country who applied for admission as nonimmigrant visitors during such previous fiscal year.
(B) New countries
In the case of another country, the country may not be designated as a program country unless the following requirements are met:
(i) Low nonimmigrant visa refusal rate in previous 2-year period
The average number of refusals of nonimmigrant visitor visas for nationals of that country during the two previous full fiscal years was less than 2 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years.
(ii) Low nonimmigrant visa refusal rate in each of the 2 previous years
The average number of refusals of nonimmigrant visitor visas for nationals of that country during either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year.
(4) Initial period
For purposes of paragraphs (2) and (3), the term "initial period" means the period beginning at the end of the 30-day period described in subsection (b)(1) and ending on the last day of the first fiscal year which begins after such 30-day period.
(5) Written reports on continuing qualification; designation terminations
(A) Periodic evaluations
(i) In general
The Secretary of Homeland Security, in consultation with the Secretary of State, periodically (but not less than once every 2 years)-
(I) shall evaluate the effect of each program country's continued designation on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);
(II) shall determine, based upon the evaluation in subclause (I), whether any such designation ought to be continued or terminated under subsection (d);
(III) shall submit a written report to the Committee on the Judiciary, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on Homeland Security, of the House of Representatives and the Committee on the Judiciary, the Committee on Foreign Relations, the Select Committee on Intelligence and the Committee on Homeland Security and Governmental Affairs of the Senate regarding the continuation or termination of the country's designation that includes an explanation of such determination and the effects described in subclause (I);
(IV) shall submit to Congress a report regarding the implementation of the electronic system for travel authorization under subsection (h)(3) and the participation of new countries in the program through a waiver under paragraph (8); and
(V) shall submit to the committees described in subclause (III), a report that includes an assessment of the threat to the national security of the United States of the designation of each country designated as a program country, including the compliance of the government of each such country with the requirements under subparagraphs (D) and (F) of paragraph (2), as well as each such government's capacity to comply with such requirements.
(ii) Effective date
A termination of the designation of a country under this subparagraph shall take effect on the date determined by the Secretary of Homeland Security, in consultation with the Secretary of State.
(iii) Redesignation
In the case of a termination under this subparagraph, the Secretary of Homeland Security shall redesignate the country as a program country, without regard to subsection (f) or paragraph (2) or (3), when the Secretary of Homeland Security, in consultation with the Secretary of State, determines that all causes of the termination have been eliminated.
(B) Emergency termination
(i) In general
In the case of a program country in which an emergency occurs that the Secretary of Homeland Security, in consultation with the Secretary of State, determines threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States), the Secretary of Homeland Security shall immediately terminate the designation of the country as a program country.
(ii) Definition
For purposes of clause (i), the term "emergency" means-
(I) the overthrow of a democratically elected government;
(II) war (including undeclared war, civil war, or other military activity) on the territory of the program country;
(III) a severe breakdown in law and order affecting a significant portion of the program country's territory;
(IV) a severe economic collapse in the program country; or
(V) any other extraordinary event in the program country that threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States) and where the country's participation in the program could contribute to that threat.
(iii) Redesignation
The Secretary of Homeland Security may redesignate the country as a program country, without regard to subsection (f) or paragraph (2) or (3), when the Secretary of Homeland Security, in consultation with the Secretary of State, determines that-
(I) at least 6 months have elapsed since the effective date of the termination;
(II) the emergency that caused the termination has ended; and
(III) the average number of refusals of nonimmigrant visitor visas for nationals of that country during the period of termination under this subparagraph was less than 3.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during such period.
(iv) Program suspension authority
The Director of National Intelligence shall immediately inform the Secretary of Homeland Security of any current and credible threat which poses an imminent danger to the United States or its citizens and originates from a country participating in the visa waiver program. Upon receiving such notification, the Secretary, in consultation with the Secretary of State-
(I) may suspend a country from the visa waiver program without prior notice;
(II) shall notify any country suspended under subclause (I) and, to the extent practicable without disclosing sensitive intelligence sources and methods, provide justification for the suspension; and
(III) shall restore the suspended country's participation in the visa waiver program upon a determination that the threat no longer poses an imminent danger to the United States or its citizens.
(C) Treatment of nationals after termination
For purposes of this paragraph-
(i) nationals of a country whose designation is terminated under subparagraph (A) or (B) shall remain eligible for a waiver under subsection (a) until the effective date of such termination; and
(ii) a waiver under this section that is provided to such a national for a period described in subsection (a)(1) shall not, by such termination, be deemed to have been rescinded or otherwise rendered invalid, if the waiver is granted prior to such termination.
(6) Computation of visa refusal rates
For purposes of determining the eligibility of a country to be designated as a program country, the calculation of visa refusal rates shall not include any visa refusals which incorporate any procedures based on, or are otherwise based on, race, sex, or disability, unless otherwise specifically authorized by law or regulation. No court shall have jurisdiction under this paragraph to review any visa refusal, the denial of admission to the United States of any alien by the Secretary of Homeland Security, the Secretary's computation of the visa refusal rate, or the designation or nondesignation of any country.
(7) Visa waiver information
(A) In general
In refusing the application of nationals of a program country for United States visas, or the applications of nationals of a country seeking entry into the visa waiver program, a consular officer shall not knowingly or intentionally classify the refusal of the visa under a category that is not included in the calculation of the visa refusal rate only so that the percentage of that country's visa refusals is less than the percentage limitation applicable to qualification for participation in the visa waiver program.
(B) Reporting requirement
On May 1 of each year, for each country under consideration for inclusion in the visa waiver program, the Secretary of State shall provide to the appropriate congressional committees-
(i) the total number of nationals of that country that applied for United States visas in that country during the previous calendar year;
(ii) the total number of such nationals who received United States visas during the previous calendar year;
(iii) the total number of such nationals who were refused United States visas during the previous calendar year;
(iv) the total number of such nationals who were refused United States visas during the previous calendar year under each provision of this chapter under which the visas were refused; and
(v) the number of such nationals that were refused under section 1184(b) of this title as a percentage of the visas that were issued to such nationals.
(C) Certification
Not later than May 1 of each year, the United States chief of mission, acting or permanent, to each country under consideration for inclusion in the visa waiver program shall certify to the appropriate congressional committees that the information described in subparagraph (B) is accurate and provide a copy of that certification to those committees.
(D) Consideration of countries in the visa waiver program
Upon notification to the Secretary of Homeland Security that a country is under consideration for inclusion in the visa waiver program, the Secretary of State shall provide all of the information described in subparagraph (B) to the Secretary of Homeland Security.
(E) Definition
In this paragraph, the term "appropriate congressional committees" means the Committee on the Judiciary and the Committee on Foreign Relations of the Senate and the Committee on the Judiciary and the Committee on International Relations of the House of Representatives.
(8) Nonimmigrant visa refusal rate flexibility
(A) Certification
(i) In general
On the date on which an air exit system is in place that can verify the departure of not less than 97 percent of foreign nationals who exit through airports of the United States and the electronic system for travel authorization required under subsection (h)(3) is fully operational, the Secretary of Homeland Security shall certify to Congress that such air exit system and electronic system for travel authorization are in place.
(ii) Notification to Congress
The Secretary shall notify Congress in writing of the date on which the air exit system under clause (i) fully satisfies the biometric requirements specified in subsection (i).
(iii) Temporary suspension of waiver authority
Notwithstanding any certification made under clause (i), if the Secretary has not notified Congress in accordance with clause (ii) by June 30, 2009, the Secretary's waiver authority under subparagraph (B) shall be suspended beginning on July 1, 2009, until such time as the Secretary makes such notification.
(iv) Rule of construction
Nothing in this paragraph shall be construed as in any way abrogating the reporting requirements under subsection (i)(3).
(B) Waiver
After certification by the Secretary under subparagraph (A), the Secretary, in consultation with the Secretary of State, may waive the application of paragraph (2)(A) for a country if-
(i) the country meets all security requirements of this section;
(ii) the Secretary of Homeland Security determines that the totality of the country's security risk mitigation measures provide assurance that the country's participation in the program would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States;
(iii) there has been a sustained reduction in the rate of refusals for nonimmigrant visas for nationals of the country and conditions exist to continue such reduction;
(iv) the country cooperated with the Government of the United States on counterterrorism initiatives, information sharing, and preventing terrorist travel before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State determine that such cooperation will continue; and
(v)(I) the rate of refusals for nonimmigrant visitor visas for nationals of the country during the previous full fiscal year was not more than ten percent; or
(II) the visa overstay rate for the country for the previous full fiscal year does not exceed the maximum visa overstay rate, once such rate is established under subparagraph (C).
(C) Maximum visa overstay rate
(i) Requirement to establish
After certification by the Secretary under subparagraph (A), the Secretary and the Secretary of State jointly shall use information from the air exit system referred to in such subparagraph to establish a maximum visa overstay rate for countries participating in the program pursuant to a waiver under subparagraph (B). The Secretary of Homeland Security shall certify to Congress that such rate would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States.
(ii) Visa overstay rate defined
In this paragraph the term "visa overstay rate" means, with respect to a country, the ratio of-
(I) the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa whose periods of authorized stays ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to
(II) the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa during that fiscal year.
(iii) Report and publication
The Secretary of Homeland Security shall on the same date submit to Congress and publish in the Federal Register information relating to the maximum visa overstay rate established under clause (i). Not later than 60 days after such date, the Secretary shall issue a final maximum visa overstay rate above which a country may not participate in the program.
(9) Discretionary security-related considerations
In determining whether to waive the application of paragraph (2)(A) for a country, pursuant to paragraph (8), the Secretary of Homeland Security, in consultation with the Secretary of State, shall take into consideration other factors affecting the security of the United States, including-
(A) airport security standards in the country;
(B) whether the country assists in the operation of an effective air marshal program;
(C) the standards of passports and travel documents issued by the country; and
(D) other security-related factors, including the country's cooperation with the United States' initiatives toward combating terrorism and the country's cooperation with the United States intelligence community in sharing information regarding terrorist threats.
(10) Technical assistance
The Secretary of Homeland Security, in consultation with the Secretary of State, shall provide technical assistance to program countries to assist those countries in meeting the requirements under this section. The Secretary of Homeland Security shall ensure that the program office within the Department of Homeland Security is adequately staffed and has resources to be able to provide such technical assistance, in addition to its duties to effectively monitor compliance of the countries participating in the program with all the requirements of the program.
(11) Independent review
(A) In general
Prior to the admission of a new country into the program under this section, and in conjunction with the periodic evaluations required under subsection (c)(5)(A), the Director of National Intelligence shall conduct an independent intelligence assessment of a nominated country and member of the program.
(B) Reporting requirement
The Director shall provide to the Secretary of Homeland Security, the Secretary of State, and the Attorney General the independent intelligence assessment required under subparagraph (A).
(C) Contents
The independent intelligence assessment conducted by the Director shall include-
(i) a review of all current, credible terrorist threats of the subject country;
(ii) an evaluation of the subject country's counterterrorism efforts;
(iii) an evaluation as to the extent of the country's sharing of information beneficial to suppressing terrorist movements, financing, or actions;
(iv) an assessment of the risks associated with including the subject country in the program; and
(v) recommendations to mitigate the risks identified in clause (iv).
(12) Designation of high risk program countries
(A) In general
The Secretary of Homeland Security, in consultation with the Director of National Intelligence and the Secretary of State, shall evaluate program countries on an annual basis based on the criteria described in subparagraph (B) and shall identify any program country, the admission of nationals from which under the visa waiver program under this section, the Secretary determines presents a high risk to the national security of the United States.
(B) Criteria
In evaluating program countries under subparagraph (A), the Secretary of Homeland Security, in consultation with the Director of National Intelligence and the Secretary of State, shall consider the following criteria:
(i) The number of nationals of the country determined to be ineligible to travel to the United States under the program during the previous year.
(ii) The number of nationals of the country who were identified in United States Government databases related to the identities of known or suspected terrorists during the previous year.
(iii) The estimated number of nationals of the country who have traveled to Iraq or Syria at any time on or after March 1, 2011 to engage in terrorism.
(iv) The capacity of the country to combat passport fraud.
(v) The level of cooperation of the country with the counter-terrorism efforts of the United States.
(vi) The adequacy of the border and immigration control of the country.
(vii) Any other criteria the Secretary of Homeland Security determines to be appropriate.
(C) Suspension of designation
The Secretary of Homeland Security, in consultation with the Secretary of State, may suspend the designation of a program country based on a determination that the country presents a high risk to the national security of the United States under subparagraph (A) until such time as the Secretary determines that the country no longer presents such a risk.
(D) Report
Not later than 60 days after December 18, 2015, and annually thereafter, the Secretary of Homeland Security, in consultation with the Director of National Intelligence and the Secretary of State, shall submit to the Committee on Homeland Security, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on the Judiciary of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, the Select Committee on Intelligence, and the Committee on the Judiciary of the Senate a report, which includes an evaluation and threat assessment of each country determined to present a high risk to the national security of the United States under subparagraph (A).
(d) Authority
Notwithstanding any other provision of this section, the Secretary of Homeland Security, in consultation with the Secretary of State, may for any reason (including national security) refrain from waiving the visa requirement in respect to nationals of any country which may otherwise qualify for designation or may, at any time, rescind any waiver or designation previously granted under this section. The Secretary of Homeland Security may not waive any eligibility requirement under this section unless the Secretary notifies, with respect to the House of Representatives, the Committee on Homeland Security, the Committee on the Judiciary, the Committee on Foreign Affairs, and the Committee on Appropriations, and with respect to the Senate, the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Appropriations not later than 30 days before the effective date of such waiver.
(e) Carrier agreements
(1) In general
The agreement referred to in subsection (a)(4) is an agreement between a carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title and the Secretary of Homeland Security under which the carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title agrees, in consideration of the waiver of the visa requirement with respect to a nonimmigrant visitor under the program-
(A) to indemnify the United States against any costs for the transportation of the alien from the United States if the visitor is refused admission to the United States or remains in the United States unlawfully after the 90-day period described in subsection (a)(1)(A),
(B) to submit daily to immigration officers any immigration forms received with respect to nonimmigrant visitors provided a waiver under the program,
(C) to be subject to the imposition of fines resulting from the transporting into the United States of a national of a designated country without a passport pursuant to regulations promulgated by the Secretary of Homeland Security, and
(D) to collect, provide, and share passenger data as required under subsection (h)(1)(B).
(2) Termination of agreements
The Secretary of Homeland Security may terminate an agreement under paragraph (1) with five days' notice to the carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title for the failure by a carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title to meet the terms of such agreement.
(3) Business aircraft requirements
(A) In general
For purposes of this section, a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations 1 that owns or operates a noncommercial aircraft is a corporation that is organized under the laws of any of the States of the United States or the District of Columbia and is accredited by or a member of a national organization that sets business aviation standards. The Secretary of Homeland Security shall prescribe by regulation the provision of such information as the Secretary of Homeland Security deems necessary to identify the domestic corporation, its officers, employees, shareholders, its place of business, and its business activities.
(B) Collections
In addition to any other fee authorized by law, the Secretary of Homeland Security is authorized to charge and collect, on a periodic basis, an amount from each domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations, for nonimmigrant visa waiver admissions on noncommercial aircraft owned or operated by such domestic corporation equal to the total amount of fees assessed for issuance of nonimmigrant visa waiver arrival/departure forms at land border ports of entry. All fees collected under this paragraph shall be deposited into the Immigration User Fee Account established under section 1356(h) of this title.
(f) Duration and termination of designation
(1) In general
(A) Determination and notification of disqualification rate
Upon determination by the Secretary of Homeland Security that a program country's disqualification rate is 2 percent or more, the Secretary of Homeland Security shall notify the Secretary of State.
(B) Probationary status
If the program country's disqualification rate is greater than 2 percent but less than 3.5 percent, the Secretary of Homeland Security shall place the program country in probationary status for a period not to exceed 2 full fiscal years following the year in which the determination under subparagraph (A) is made.
(C) Termination of designation
Subject to paragraph (3), if the program country's disqualification rate is 3.5 percent or more, the Secretary of Homeland Security shall terminate the country's designation as a program country effective at the beginning of the second fiscal year following the fiscal year in which the determination under subparagraph (A) is made.
(2) Termination of probationary status
(A) In general
If the Secretary of Homeland Security determines at the end of the probationary period described in paragraph (1)(B) that the program country placed in probationary status under such paragraph has failed to develop a machine-readable passport program as required by section 3 (c)(2)(C), or has a disqualification rate of 2 percent or more, the Secretary of Homeland Security shall terminate the designation of the country as a program country. If the Secretary of Homeland Security determines that the program country has developed a machine-readable passport program and has a disqualification rate of less than 2 percent, the Secretary of Homeland Security shall redesignate the country as a program country.
(B) Effective date
A termination of the designation of a country under subparagraph (A) shall take effect on the first day of the first fiscal year following the fiscal year in which the determination under such subparagraph is made. Until such date, nationals of the country shall remain eligible for a waiver under subsection (a).
(3) Nonapplicability of certain provisions
Paragraph (1)(C) shall not apply unless the total number of nationals of a program country described in paragraph (4)(A) exceeds 100.
(4) "Disqualification rate" defined
For purposes of this subsection, the term "disqualification rate" means the percentage which-
(A) the total number of nationals of the program country who were-
(i) denied admission at the time of arrival or withdrew their application for admission during the most recent fiscal year for which data are available; and
(ii) admitted as nonimmigrant visitors during such fiscal year and who violated the terms of such admission; bears to
(B) the total number of nationals of such country who applied for admission as nonimmigrant visitors during such fiscal year.
(5) Failure to report passport thefts
If the Secretary of Homeland Security and the Secretary of State jointly determine that the program country is not reporting the theft or loss of passports, as required by subsection (c)(2)(D), the Secretary of Homeland Security shall terminate the designation of the country as a program country.
(6) Failure to share information
(A) In general
If the Secretary of Homeland Security and the Secretary of State jointly determine that the program country is not sharing information, as required by subsection (c)(2)(F), the Secretary of Homeland Security shall terminate the designation of the country as a program country.
(B) Redesignation
In the case of a termination under this paragraph, the Secretary of Homeland Security shall redesignate the country as a program country, without regard to paragraph (2) or (3) of subsection (c) or paragraphs (1) through (4), when the Secretary of Homeland Security, in consultation with the Secretary of State, determines that the country is sharing information, as required by subsection (c)(2)(F).
(7) Failure to screen
(A) In general
Beginning on the date that is 270 days after December 18, 2015, if the Secretary of Homeland Security and the Secretary of State jointly determine that the program country is not conducting the screening required by subsection (c)(2)(G), the Secretary of Homeland Security shall terminate the designation of the country as a program country.
(B) Redesignation
In the case of a termination under this paragraph, the Secretary of Homeland Security shall redesignate the country as a program country, without regard to paragraph (2) or (3) of subsection (c) or paragraphs (1) through (4), when the Secretary of Homeland Security, in consultation with the Secretary of State, determines that the country is conducting the screening required by subsection (c)(2)(G).
(g) Visa application sole method to dispute denial of waiver based on a ground of inadmissibility
In the case of an alien denied a waiver under the program by reason of a ground of inadmissibility described in section 1182(a) of this title that is discovered at the time of the alien's application for the waiver or through the use of an automated electronic database required under subsection (a)(9), the alien may apply for a visa at an appropriate consular office outside the United States. There shall be no other means of administrative or judicial review of such a denial, and no court or person otherwise shall have jurisdiction to consider any claim attacking the validity of such a denial.
(h) Use of information technology systems
(1) Automated entry-exit control system
(A) System
Not later than October 1, 2001, the Secretary of Homeland Security shall develop and implement a fully automated entry and exit control system that will collect a record of arrival and departure for every alien who arrives and departs by sea or air at a port of entry into the United States and is provided a waiver under the program.
(B) Requirements
The system under subparagraph (A) shall satisfy the following requirements:
(i) Data collection by carriers
Not later than October 1, 2001, the records of arrival and departure described in subparagraph (A) shall be based, to the maximum extent practicable, on passenger data collected and electronically transmitted to the automated entry and exit control system by each carrier that has an agreement under subsection (a)(4).
(ii) Data provision by carriers
Not later than October 1, 2002, no waiver may be provided under this section to an alien arriving by sea or air at a port of entry into the United States on a carrier unless the carrier is electronically transmitting to the automated entry and exit control system passenger data determined by the Secretary of Homeland Security to be sufficient to permit the Secretary of Homeland Security to carry out this paragraph.
(iii) Calculation
The system shall contain sufficient data to permit the Secretary of Homeland Security to calculate, for each program country and each fiscal year, the portion of nationals of that country who are described in subparagraph (A) and for whom no record of departure exists, expressed as a percentage of the total number of such nationals who are so described.
(C) Reporting
(i) Percentage of nationals lacking departure record
As part of the annual report required to be submitted under section 1365a(e)(1) of this title, the Secretary of Homeland Security shall include a section containing the calculation described in subparagraph (B)(iii) for each program country for the previous fiscal year, together with an analysis of that information.
(ii) System effectiveness
Not later than December 31, 2004, the Secretary of Homeland Security shall submit a written report to the Committee on the Judiciary of the United States House of Representatives and of the Senate containing the following:
(I) The conclusions of the Secretary of Homeland Security regarding the effectiveness of the automated entry and exit control system to be developed and implemented under this paragraph.
(II) The recommendations of the Secretary of Homeland Security regarding the use of the calculation described in subparagraph (B)(iii) as a basis for evaluating whether to terminate or continue the designation of a country as a program country.
The report required by this clause may be combined with the annual report required to be submitted on that date under section 1365a(e)(1) of this title.
(2) Automated data sharing system
(A) System
The Secretary of Homeland Security and the Secretary of State shall develop and implement an automated data sharing system that will permit them to share data in electronic form from their respective records systems regarding the admissibility of aliens who are nationals of a program country.
(B) Requirements
The system under subparagraph (A) shall satisfy the following requirements:
(i) Supplying information to immigration officers conducting inspections at ports of entry
Not later than October 1, 2002, the system shall enable immigration officers conducting inspections at ports of entry under section 1225 of this title to obtain from the system, with respect to aliens seeking a waiver under the program-
(I) any photograph of the alien that may be contained in the records of the Department of State or the Service; and
(II) information on whether the alien has ever been determined to be ineligible to receive a visa or ineligible to be admitted to the United States.
(ii) Supplying photographs of inadmissible aliens
The system shall permit the Secretary of Homeland Security electronically to obtain any photograph contained in the records of the Secretary of State pertaining to an alien who is a national of a program country and has been determined to be ineligible to receive a visa.
(iii) Maintaining records on applications for admission
The system shall maintain, for a minimum of 10 years, information about each application for admission made by an alien seeking a waiver under the program, including the following:
(I) The name or Service identification number of each immigration officer conducting the inspection of the alien at the port of entry.
(II) Any information described in clause (i) that is obtained from the system by any such officer.
(III) The results of the application.
(3) Electronic system for travel authorization
(A) System
The Secretary of Homeland Security, in consultation with the Secretary of State, shall develop and implement a fully automated electronic system for travel authorization (referred to in this paragraph as the "System") to collect such biographical and other information as the Secretary of Homeland Security determines necessary to determine, in advance of travel, the eligibility of, and whether there exists a law enforcement or security risk in permitting, the 4 alien to travel to the United States.
(B) Fees
(i) In general
No later than 6 months after March 4, 2010, the Secretary of Homeland Security shall establish a fee for the use of the System and begin assessment and collection of that fee. The initial fee shall be the sum of-
(I) $17 per travel authorization; and
(II) an amount that will at least ensure recovery of the full costs of providing and administering the System, as determined by the Secretary.
(ii) Disposition of amounts collected
Amounts collected under clause (i)(I) shall be credited to the Travel Promotion Fund established by subsection (d) of section 2131 of title 22. Amounts collected under clause (i)(II) shall be transferred to the general fund of the Treasury and made available to pay the costs incurred to administer the System.
(iii) Sunset of Travel Promotion Fund fee
The Secretary may not collect the fee authorized by clause (i)(I) for fiscal years beginning after October 31, 2028.
(C) Validity
(i) Period
The Secretary of Homeland Security, in consultation with the Secretary of State, shall prescribe regulations that provide for a period, not to exceed three years, during which a determination of eligibility to travel under the program will be valid. Notwithstanding any other provision under this section, the Secretary of Homeland Security may revoke any such determination or shorten the period of eligibility under any such determination at any time and for any reason.
(ii) Limitation
A determination by the Secretary of Homeland Security that an alien is eligible to travel to the United States under the program is not a determination that the alien is admissible to the United States.
(iii) Not a determination of visa eligibility
A determination by the Secretary of Homeland Security that an alien who applied for authorization to travel to the United States through the System is not eligible to travel under the program is not a determination of eligibility for a visa to travel to the United States and shall not preclude the alien from applying for a visa.
(iv) Judicial review
Notwithstanding any other provision of law, no court shall have jurisdiction to review an eligibility determination under the System.
(D) Fraud detection
The Secretary of Homeland Security shall research opportunities to incorporate into the System technology that will detect and prevent fraud and deception in the System.
(E) Additional and previous countries of citizenship
The Secretary of Homeland Security shall collect from an applicant for admission pursuant to this section information on any additional or previous countries of citizenship of that applicant. The Secretary shall take any information so collected into account when making determinations as to the eligibility of the alien for admission pursuant to this section.
(F) Report on certain limitations on travel
Not later than 30 days after December 18, 2015, and annually thereafter, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Foreign Affairs of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Foreign Relations of the Senate a report on the number of individuals who were denied eligibility to travel under the program, or whose eligibility for such travel was revoked during the previous year, and the number of such individuals determined, in accordance with subsection (a)(6), to represent a threat to the national security of the United States, and shall include the country or countries of citizenship of each such individual.
(i) Exit system
(1) In general
Not later than one year after August 3, 2007, the Secretary of Homeland Security shall establish an exit system that records the departure on a flight leaving the United States of every alien participating in the visa waiver program established under this section.
(2) System requirements
The system established under paragraph (1) shall-
(A) match biometric information of the alien against relevant watch lists and immigration information; and
(B) compare such biometric information against manifest information collected by air carriers on passengers departing the United States to confirm such aliens have departed the United States.
(3) Report
Not later than 180 days after August 3, 2007, the Secretary shall submit to Congress a report that describes-
(A) the progress made in developing and deploying the exit system established under this subsection; and
(B) the procedures by which the Secretary shall improve the method of calculating the rates of nonimmigrants who overstay their authorized period of stay in the United States.
(June 27, 1952, ch. 477, title II, ch. 2, §217, as added
Editorial Notes
References in Text
Section 4605(j) of title 50, referred to in subsec. (a)(12)(A)(i)(II), (ii)(II), was repealed by
The International Emergency Economic Powers Act, referred to in subsec. (a)(12)(A)(i)(II), (ii)(II), is title II of
This chapter, referred to in subsecs. (b)(1) and (c)(7)(B)(iv), was in the original, "this Act", meaning act June 27, 1952, ch. 477,
Amendments
2022-Subsec. (h)(3)(B)(iii).
2019-Subsec. (h)(3)(B)(i)(I).
2018-Subsec. (h)(3)(B)(iii).
2015-
Subsec. (a)(3).
Subsec. (a)(11).
Subsec. (a)(12).
Subsec. (c)(2)(B).
Subsec. (c)(2)(C)(iii).
Subsec. (c)(2)(D).
Subsec. (c)(2)(F).
Subsec. (c)(2)(G).
Subsec. (c)(5)(A)(i)(III).
Subsec. (c)(5)(A)(i)(V).
Subsec. (c)(12).
Subsec. (f)(6), (7).
Subsec. (h)(3).
Subsec. (h)(3)(C)(i).
Subsec. (h)(3)(D) to (F).
2014-Subsec. (h)(3)(B)(iii).
2010-Subsec. (h)(3)(B).
"(i) set at a level that will ensure recovery of the full costs of providing and administering the System; and
"(ii) available to pay the costs incurred to administer the System."
Subsec. (h)(3)(B)(ii).
Subsec. (h)(3)(B)(iii).
2007-Subsec. (a).
Subsec. (a)(11).
Subsec. (c)(2)(D).
Subsec. (c)(2)(E), (F).
Subsec. (c)(5)(A)(i).
Subsec. (c)(5)(A)(i)(III).
Subsec. (c)(5)(A)(i)(IV).
Subsec. (c)(5)(A)(ii), (iii), (B)(i), (iii).
Subsec. (c)(5)(B)(iv).
Subsec. (c)(8), (9).
Subsec. (c)(10), (11).
Subsec. (d).
Subsec. (f)(5).
Subsec. (h)(3).
Subsec. (i).
2002-Subsec. (c)(2)(D).
Subsec. (c)(5)(A)(i).
Subsec. (f)(5).
2001-Subsec. (a)(3).
2000-
Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(2)(A).
Subsec. (a)(3), (4).
Subsec. (a)(5).
Subsec. (a)(6), (7).
Subsec. (a)(8).
Subsec. (a)(9).
Subsec. (b).
Subsec. (c).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(2)(B).
Subsec. (c)(2)(C).
Subsec. (c)(3).
Subsec. (c)(3)(A).
Subsec. (c)(3)(B).
Subsec. (c)(5).
Subsec. (c)(6).
Subsec. (c)(7).
Subsec. (e)(1).
Subsec. (e)(1)(B).
Subsec. (e)(1)(D).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (f).
Subsec. (f)(1)(A), (C).
Subsec. (f)(2) to (4).
Subsec. (g).
Subsec. (h).
1998-Subsec. (c)(2).
Subsec. (f).
1997-Subsec. (f).
1996-Subsec. (a).
Subsec. (a)(2)(B).
Subsec. (b)(2).
Subsec. (c)(1).
Subsec. (c)(3)(A)(i).
Subsec. (d).
Subsec. (f).
Subsec. (g).
Subsec. (g)(4)(A)(i).
1994-Subsec. (a)(2)(B).
Subsec. (c)(2).
Subsec. (f).
Subsec. (g).
1991-Subsec. (a).
Subsec. (a)(4).
Subsec. (b).
Subsec. (e)(1).
1990-Subsec. (a)(2).
Subsec. (a)(3).
"(A) completes such immigration form as the Attorney General shall establish under subsection (b)(3) of this section, and
"(B) executes a waiver of review and appeal described in subsection (b)(4) of this section".
Subsec. (a)(4).
Subsec. (a)(7).
Subsec. (b).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1988-
Subsec. (a).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on International Relations of House of Representatives changed to Committee on Foreign Affairs of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007.
Effective Date of 2007 Amendment
Effective Date of 1996 Amendment
Amendment by section 308(d)(4)(F), (e)(9) of
Effective Date of 1991 Amendment
Amendment by section 303(a)(1), (2) of
Effective Date of 1990 Amendment
Effective Date of 1988 Amendment
Amendment by
Abolition of Immigration and Naturalization Service and Transfer of Functions
For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of related references, see note set out under section 1551 of this title.
Date of Submission of First Report
Modernizing and Strengthening of Security of Visa Waiver Program
"(1) the United States should modernize and strengthen the security of the visa waiver program under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) by simultaneously-
"(A) enhancing program security requirements; and
"(B) extending visa-free travel privileges to nationals of foreign countries that are partners in the war on terrorism-
"(i) that are actively cooperating with the United States to prevent terrorist travel, including sharing counterterrorism and law enforcement information; and
"(ii) whose nationals have demonstrated their compliance with the provisions of the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] regarding the purpose and duration of their admission to the United States; and
"(2) the modernization described in paragraph (1) will-
"(A) enhance bilateral cooperation on critical counterterrorism and information sharing initiatives;
"(B) support and expand tourism and business opportunities to enhance long-term economic competitiveness; and
"(C) strengthen bilateral relationships."
Machine Readable Passports
Report Required
Transition Provisions
Operation of Automated Data Arrival and Departure Control System; Report to Congress
Report on Visa Waiver Pilot Program
1 So in original. Probably should be followed by a comma.
2 See References in Text note below.