U.S. Department of Homeland Security Secretary Alejandro Mayorkas and U.S. Department of State Secretary Antony Blinken announced this week that the United States added Qatar to the list of countries whose nationals may enter the United States without first obtaining a visa. Qatar’s admission to the Visa Waiver Program is likely linked to the role the country has played in the negotiations between Israel and Hamas — rather than because it is in the general public’s interest to allow Qataris to enter the United States without first receiving visas.
The Visa Waiver Program, which was first adopted as a pilot program in 1986, but was made permanent in 2000, allows aliens who are citizens or nationals of participating countries to travel to the United States without a visa if they meet certain eligibility requirements. Eligibility for the Visa Waiver Program is limited to aliens who are traveling for business or tourism and only allows these visitors to stay for up to 90 days. Countries must have a nonimmigrant visa refusal rate below 3 percent for the previous fiscal year to be eligible to participate. Participating governments must also make reciprocal travel benefits available to U.S. citizens traveling to their countries. Currently, 42 countries (counting Qatar) participate in the program.
Even when a country is in the Visa Waiver Program, there are some limits. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 requires visas for nationals of Visa Waiver countries if they have traveled to or been present in North Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011, (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country). The act also makes ineligible for visa-free travel those nationals of VWP countries who have traveled to or been present in Cuba on or after January 12, 2021 (with the same limited exceptions as above) and nationals of VWP countries who are also nationals of Cuba, North Korea, Iran, Iraq, Sudan, or Syria. (These aliens must make appointments at U.S. embassies or consular offices for standard visa processing.)
Notably, there is no firm limit to the number or rate of visa overstays for citizens or nationals of a country interested in joining the program. While DHS has not published an report showing how many foreign visitors failed to depart the United States within their authorized period of stay since FY 2022, that most recent report showed that even Visa Waiver Program countries may have high rates of visa overstays. Approximately 98,000 visitors who entered under the program overstayed in FY 2022. That year, Spain led all VWP countries with an overstay rate of 5.2 percent, or 28,356 overstays. (In total, more than 850,000 foreign visitors overstayed their authorized stay in FY 2022, which equates to a rate of 3.64 percent, or more than double recent years.)
Moreover, my colleague Jessica Vaughan has explained that because DHS counts admissions rather than individuals to produce the report, DHS is able to report a deceptively low overstay rate that does not reflect the true magnitude of the problem. That is because many individuals who are compliant with visa requirements enter and depart the United States multiple times a year. Individuals who intend to stay in the United States illegally after their authorized periods of stay expire, on the other hand, are more likely to enter the United States just once.
Security Benefits and Costs
Easing the red tape associated with international travel has undoubtedly provided some economic benefits to participating countries in addition to limited national security benefits, such as encouraging countries to raise their document and identification systems standards while also giving the U.S. government a foot in the door to inspect participating countries’ security systems. Nevertheless, the program remains one of the United States’ greatest security vulnerabilities.
Administrations that have expanded the scale of the program tend to overstate the national security benefits associated with wider participation. That is not to say there are not real benefits obtained from wider participation. Specifically, the Visa Waiver Program requires that:
- Participating countries agree to report lost and stolen passport information to the United States via INTERPOL or another means designated by the secretary of State;
- Participating countries agree to share terrorism and serious criminal information with the United States;
- Participating countries must issue electronic, machine-readable passports with biometric identifiers;
- Participating countries accept the repatriation of their citizens, former citizens, and nationals ordered removed from the United States within three weeks of receiving an order of final removal; and
- Participating countries allow U.S. officials to evaluate their security and screening systems prior to joining the program, which in turn encourages prospective countries to raise their security standards.
Still, Visa Waiver Program travelers bypass the normal human-to-human consular interview process and scrutiny that is intended to help identify individuals who represent a threat to the U.S., as well as those who appear to have no intention to return to their home country after their visit. In its place, DHS requires all prospective visa-waiver travelers to obtain pre-travel authorization by submitting biographic information to the Electronic System for Travel Authorization (ESTA) system prior to boarding a plane or ship bound for the United States. Once a traveler receives authorization from ESTA, that authorization is valid for two years.
ESTA verification, however, is not a silver bullet for identifying potential security issues. The ESTA verification system is only able to screen out applicants who are already in some terrorist or criminal database. Moreover, because the system only uses biographical information to check against security databases, it is relatively easy to fool. Because travelers do not have their biometric data taken in advance of travel, that information cannot be run against DHS's Automated Biometric ID System or the FBI's Next Generation ID system.
Also troubling is that ESTA authorization is required only for visitors arriving in the United States by air or by sea; it is not required for visitors who enter at a land port of entry.
By eliminating consular screening for many short-term visitors from 42 countries, the Visa Waiver Program shifts the burden to verify travelers’ claims and identities to airlines and immigration inspectors. DHS, however, cannot and should not expect airlines with commercial interests to manage matters of U.S. national security. CBP immigration officers at airports are also under significant pressure to process arrivals quickly — and very few arrivals are referred to a secondary inspection for additional questioning. In FY 2023, only 3.1 percent of travelers were referred for a secondary inspection.
Additionally, many of the security benefits associated with the program could be obtained through alternative diplomatic means. For example, U.S. law already authorizes the secretary of State to pause the issuance of visas to countries that refuse to accept the return of their citizens or nationals, known as "recalcitrant countries". Evens so, a country that refuses to cooperate with U.S. immigration officials is extremely unlikely to also share its security data with DHS — making it a very unlikely contender for the Visa Waiver Program to begin with. Additionally, the United States could facilitate the negotiation of security-related information sharing using trade, aid, or other forms of diplomatic agreements. Expanding the Visa Waiver Program at a time when the United States is experiencing both historically high levels of illegal immigration and threats from violent extremists needlessly expands the country’s border and national security vulnerabilities.