The Visa Waiver Program and The Screening of Potential Terrorists

By Mark Krikorian on June 16, 2004

Testimony before the U.S. House of Representatives
Committee on International Relations
Subcommittee on International Terrorism, Nonproliferation and Human Rights

June 16, 2004

Statement of Mark Krikorian
Executive Director, Center for Immigration Studies

The Visa Waiver Program (VWP), under which more than 15 million people a year are admitted with only the most cursory screening, is undoubtedly a soft spot in our efforts to prevent the entry of terrorists. Utilizing a kind of positive or reverse profiling, the program offers expedited treatment to travelers from 27 different countries, not because they as individuals appear to pose little threat, but because they and their fellow citizens as a group are judged to be unlikely to violate immigration laws.

It is not hard to see why a number of terrorists have chosen this route to gain entry to this country. Recently apprehended terrorists Zacarias Moussaoui and Richard Reid, with their own French and British passports, along with Ahmed Ajaj and Ramzi Yousef, both involved in the first World Trade Center bombing, with photo-substituted Swedish and British passports, all used the Visa Waiver Program.

Rather than undergoing screening at the consulate in their country, which would include an interview with an official who speaks their language, is familiar with country conditions, and is trained to evaluate local documents, the VWP traveler steps briefly before an immigration inspector, usually at the airport, who has just a few seconds to examine the passport, ask a couple of questions in English, and quickly run a name check. In the embassy, the deck is stacked in favor of the consular officer because it is up to the traveler to prove that he qualifies for the visa. At the airport, the opposite is true -- it is up to the inspector to prove that the traveler has broken the law before he can be refused entry. The decision to refuse admission must be reviewed by a supervisor, and involves lots of paperwork.

On the other hand, eliminating one layer of scrutiny for visitors from the VWP countries has significantly reduced the overall cost of screening foreign visitors, and probably increased business and tourist travel to the United States, bringing tangible economic benefits. As it turns out, according to a recent General Accounting Office (GAO) report, VWP visitors have been a pretty good bet. While there are no truly reliable data on overstayers, according to the most recent GAO report on the subject, VWP visitors had the lowest apparent overstay rate of all the groups they looked at.1

Because for the most part the Visa Waiver Program has worked as intended, I'm not ready yet to consign it to the ash heap of immigration history, like U.S. Visa Express, the disastrous program in Riyadh that brought us some of the 9/11 hijackers. At the same time, because the VWP operates counter to our latest efforts to push out our border and because international conditions are much more dangerous now than when it was first implemented, it is absolutely vital that if we hope to continue the program, we need to strengthen it in several important ways.

Program Management Needs Fixing. Most immediately, the Department of Homeland Security (DHS) and specifically, the Bureau of Customs and Border Protection within the Border and Transportation Security Directorate (BTS), needs to assume control of the VWP and appoint a new leader to replace the one lost in the shuffle of transition from INS to DHS. Incredibly, according to an internal audit recently completed, no one in the Department, or other departments, not even the staff in the bureau, seems to know who's in charge of the VWP. One official cited in the report said the program is on autopilot . . . with no designated manager or overseer.2

Apparently, DHS has yet to assign anyone the task of conducting the periodic assessments and country reviews to determine how well the program is working. Despite direct orders from Congress and years of complaints from the outside, DHS still has not figured out how to collect and analyze data on departures and overstays, so that policymakers can make a rational decision on the program. DHS has limited systems in place that are better than nothing (APIS and ADIS, the Advance Passenger Information System and the Arrival Departure Information System) but has yet to attempt any kind of analysis.

One of the scariest observations made by the auditors was that the inspectors at the Port of Entry have no procedures for checking if an applicant is using a lost or stolen passport, even though we are doing better at getting the information on the thousands of passports stolen in VWP countries (the very existence of the VWP program is one thing that makes these passports so valuable). The report cited law enforcement officers who noted that lost and stolen passports show up several times a week or more at major international airports.

Even worse, under current procedures, if a traveler is caught with fraudulent documents, often the documents are not confiscated, but given right back to the traveler, apparently to facilitate return to the home country.

Fine Tune Criteria for Inclusion. Because the threats to our security are so much greater and more diffuse now than in the 1980s, when the VWP was launched, it is vital that we tighten up the criteria under which countries are selected and retained in the VWP. First, DHS must carry out the required country reviews on schedule. Second, the criteria for participation in the program should include a benchmark for overstay rates as well as refusal rates and disqualification rates. The reason is that overstay rates reflect actual behavior of real visitors. Refusal rates, on the other hand, only reflect consular speculation about visitors likely behavior and the risk that the visitor will overstay. Moreover, refusal rates are subject to politically motivated manipulation in the form of pressure to issue visas from senior embassy staff and the host country government. This concern is not theoretical. The State Department has proven to be very susceptible to such pressure in the past.3

To support this change, lawmakers should insist that DHS develop better information on overstays. There are no excuses now, even before US-VISIT's entry-exit feature is fully operational. Under APIS/ADIS, airlines are already providing the data, under threat of financial penalties.

DHS recently announced its intent to begin enrolling VWP travelers in US-VISIT, which will collect their fingerprints and complete a more thorough database check. While this step is appropriate, it is important to recognize that without biometric documents, it will still be difficult to authenticate identity.

In this security climate, the most important control criteria for participation has to be a hard and fast requirement that VWP travelers have biometric documents that permit authentication of identity, not just machine-readable passports that facilitate the name-check. The State Department and DHS have asked Congress to waive this requirement for another two years. This is too long a period of time to wait. I believe that, due to logistical and work load considerations, it is justified and practical to give these countries one more year to comply, but if we wait more than that, we send the signal that we are in no hurry to secure our borders. It is important to remember that these countries benefit from their membership in the program, and that they have some incentive to maintain high standards so that their citizens are not viewed as potential threats.

The requirement that countries be moving toward a machine-readable passport has been in existence since 1990, more than 10 years ago, and a firm deadline was set in 2000 (for October 1, 2007), but most countries made little progress in improving their documents until the current deadline was set in the USAPATRIOT Act after 9/11. Without a similarly accelerated time frame for the biometric requirement, we are unlikely to see progress anytime soon. Secretary of State Powell has testified that the two largest VWP countries, Japan and the United Kingdom, should be on board in 2005.4 Visitors from those two countries make up more than half of the VWP admissions. Therefore, even if Japan and the U.K. are the only two countries able to meet the deadline in one year, the increase in workload becomes reasonably manageable.

Expand Immigration Security Initiative to Visa Waiver Countries. One solution to the problem of having the first screening of the VWP travelers take place at a U.S. port of entry is to deploy immigration inspectors to airports overseas. DHS has launched a pilot program in Warsaw to test this idea, known as the Immigration Security Initiative, and it is based on a similar program run by the INS. This idea is consistent with the idea of moving our border out, and should be supported by Congress. If VWP visitors are a concern, the program could be focused on airports in those countries. Their cooperation in the initiative could become a condition of their VWP participation.

Interior Enforcement Needed. The fact remains that until someone invents a machine that can read a person's mind, there is only so much screening for terrorists that can be done at the port of entry, even with the most sophisticated technology and the most alert personnel, without inhibiting the free flow of people that keep s our economy and society alive. More muscular interior enforcement to back up the visa and border screening process is a necessary ingredient in the layered defense. We know there will be mistakes; in fact, we already have more than two million of them living here, according to the most recent estimates from DHS on overstayers.5 An effective program of interior enforcement would include: workplace enforcement, including an employment eligibility verification system; participation from state and local government and law enforcement; and penalties for overstaying or otherwise violating the terms of entry. The point of US-VISIT is not simply to count overstayers, but to facilitate their removal, and DHS must be held to this goal.

Positive Feature of VWP: Streamlined Removal of Unqualified Travelers. There is one last aspect of the VWP that is worth mentioning, not as a weakness but as a feature that may be worth replicating in other visa programs. In exchange for the privilege of applying for admission without having to get a visa, the VWP traveler signs a special form at the time of entry, known as the I-94W. By signing the visitor agrees that, if refused entry or deported, he waives any right of appeal or review of that refusal. If refused entry, the traveler is not barred from future travel, but must apply for a visa. VWP visitors caught overstaying or otherwise violating status have no right to appeal their deportation, which keeps them out of our already-clogged immigration courts.

According to immigration officers in the field, the I-94W agreement is enormously helpful in streamlining the processing of unqualified applicants, and saves a lot of time and trees, in the words of one official. Non-VWP travelers who are refused entry must complete a withdrawal of the application for admission or undergo expedited removal, both of which are more complicated procedures. One POE inspector only half-jokingly expressed his wish that we would offer the VWP to countries like Poland, which has many unqualified applicants and overstays, so that the port of entry can more efficiently deal with the volume of unqualified arrivals.

Lawmakers should consider adding this provision to other trusted traveler programs, such as the laser visa (border crossing card) for Mexicans.

In Sum: As long as the Visa Waiver Program is well-managed, appropriately selective in membership, responsive to security-related developments, and backed up by interior enforcement, it should not make us much more vulnerable to terrorism or illegal immigration in general. These conditions are not currently in place, but can be achieved promptly without undue strain on the Department of Homeland Security. While it might be appropriate to reduce the number of countries in the program or to impose stricter conditions on those countries, at this time it would be counter-productive to end it entirely. It is a better use of State Department resources to work with other countries on complying with our standards and learning more exactly which visitors should be scrutinized, than to have to begin processing large volumes of low-risk travelers.

1 General Accounting Office report GAO-04-82, Overstay Tracking: A Key Component of Homeland Security and a Layered Defense, May 2004, page 41.

2 Department of Homeland Security, Office of the Inspector General, An Evaluation of the Security Implications of the Visa Waiver Program, OIG-04-26, April 2004.

3 For an example involving Ireland, a VWP country with known terrorists operating within it, see Dissent in Dublin, Foreign Service Journal, July 1996.

4 Testimony of Colin L. Powell before the House Judiciary Committee, April 21, 2004.

5 U.S. Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990-2000, January, 2003.