H.R. 3855 (112th): Visa Waiver Program Enhanced Security and Reform Act

112th Congress, 2011–2013. Text as of Jan 31, 2012 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

2d Session

H. R. 3855

IN THE HOUSE OF REPRESENTATIVES

January 31, 2012

(for himself, Mr. Burton of Indiana, Mr. Chabot, Ms. Ros-Lehtinen, Mr. Diaz-Balart, Mr. Dold, Mr. Grimm, Mr. Kinzinger of Illinois, Mr. Rivera, Mr. Shimkus, Mr. Higgins, Ms. Kaptur, Mr. Lipinski, Mr. Murphy of Connecticut, Ms. Schakowsky, and Mr. Meeks) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to modify the requirements of the visa waiver program and for other purposes.

1.

Short title

This Act may be cited as the Visa Waiver Program Enhanced Security and Reform Act.

2.

Definitions

(a)

Definitions

Section 217(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(1)) is amended to read as follows:

(1)

Authority to designate; definitions

(A)

Authority to designate

The Secretary of Homeland Security, in consultation with the Secretary of State, may designate any country as a program country if that country meets the requirements under paragraph (2).

(B)

Definitions

In this subsection:

(i)

Appropriate congressional committees

The term appropriate congressional committees means—

(I)

the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on the Judiciary of the Senate; and

(II)

the Committee on Foreign Affairs, the Committee on Homeland Security, and the Committee on the Judiciary of the House of Representatives.

(ii)

Overstay rate

(I)

Initial designation

The term overstay rate means, with respect to a country being considered for designation in the program, the ratio of—

(aa)

the number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(bb)

the number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during that fiscal year.

(II)

Continuing designation

The term overstay rate means, for each fiscal year after initial designation under this section with respect to a country, the ratio of—

(aa)

the number of nationals of that country who were admitted to the United States under this section or on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(bb)

the number of nationals of that country who were admitted to the United States under this section or on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during that fiscal year.

(III)

Computation of overstay rate

In determining the overstay rate for a country, the Secretary of Homeland Security may utilize information from any available databases to ensure the accuracy of such rate.

(iii)

Program country

The term program country means a country designated as a program country under subparagraph (A).

.

(b)

Technical and conforming amendments

Section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) is amended as follows:

(1)

by striking Attorney General each place the term appears and inserting Secretary of Homeland Security, except in subsection (c)(11)(B);

(2)

in subsection (c)(2)(C)(iii), by striking Committee on the Judiciary and the Committee on International Relations of the House of Representatives and the Committee on the Judiciary and the Committee on Foreign Relations of the Senate and inserting appropriate congressional committees;

(3)

in subsection (c)(5)(A)(i)(III), by striking 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 and inserting appropriate congressional committees; and

(4)

by striking subsection (c)(7)(E).

3.

Designation of program countries based on overstay rates

(a)

In general

Section 217(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(A)) is amended to read as follows:

(A)

General numerical limitations

(i)

Low nonimmigrant visa refusal rate

The percentage of nationals of that country refused nonimmigrant visas under section 101(a)(15)(B) during the previous full fiscal year was not more than 3 percent of the total number of nationals of that country who were granted or refused nonimmigrant visas under such section during such year.

(ii)

Low nonimmigrant overstay rate

The overstay rate for that country was not more than 3 percent during the previous fiscal year.

.

(b)

Qualification criteria

Section 217(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(3)) is amended to read as follows:

(3)

Qualification criteria

After the initial period, a country may not be designated as a program country unless the Secretary of Homeland Security, in consultation with the Secretary of State, determines, pursuant to the requirements of paragraph (5), that designation will be continued.

.

(c)

Continuing designation

Section 217(c)(5)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(5)(A)(i)(II)) is amended to read as follows:

(II)

shall determine, based upon the evaluation in subclause (I), whether any such designation under subsection (d) or (f), or probation under subsection (f), ought to be continued or terminated;

.

(d)

Computation of visa refusal rates; judicial review

Section 217(c)(6) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(6)) is amended to read as follows:

(6)

Computation of visa refusal rates and judicial review

(A)

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.

(B)

Judicial review

No court shall have jurisdiction under this section to review any visa refusal, the Secretary of State’s computation of a visa refusal rate, the Secretary of Homeland Security’s computation of an overstay rate, or the designation or nondesignation of a country as a program country.

.

(e)

Visa waiver information

Section 217(c)(7) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(7)) is amended—

(1)

by striking subparagraphs (B) through (E); and

(2)

by striking Waiver information— and all that follows through In refusing and inserting Waiver information—In refusing.

(f)

Waiver authority

Section 217(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:

(8)

Waiver authority

The Secretary of Homeland Security, in consultation with the Secretary of State, may waive the application of paragraph (2)(A)(i) for a country if—

(A)

the country meets all other requirements of paragraph (2);

(B)

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;

(C)

there has been a general downward trend in the percentage of nationals of the country refused nonimmigrant visas under section 101(a)(15)(B);

(D)

the country consistently cooperated with the Government of the United States on counterterrorism initiatives, information sharing, preventing terrorist travel, and extradition of the country's nationals to the United States before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State assess that such cooperation is likely to continue; and

(E)

the percentage of nationals of the country refused a nonimmigrant visa under section 101(a)(15)(B) during the previous full fiscal year was not more than 10 percent of the total number of nationals of that country who were granted or refused such nonimmigrant visas.

.

4.

Termination of designation; probation

Section 217(f) of the Immigration and Nationality Act (8 U.S.C. 1187(f)) is amended to read as follows:

(f)

Termination of designation; probation

(1)

Definitions

In this subsection:

(A)

Probationary period

The term probationary period means the fiscal year in which a probationary country is placed in probationary status under this subsection.

(B)

Program country

The term program country has the meaning given that term in subsection (c)(1)(B).

(2)

Determination, notice, and initial probationary period

(A)

Determination of probationary status and notice of noncompliance

As part of each program country’s periodic evaluation required by subsection (c)(5)(A), the Secretary of Homeland Security shall determine whether a program country is in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

(B)

Initial probationary period

If the Secretary of Homeland Security determines that a program country visa is not in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2), the Secretary of Homeland Security shall place the program country in probationary status for the fiscal year following the fiscal year in which the periodic evaluation is completed.

(3)

Actions at the end of the initial probationary period

At the end of the initial probationary period of a country under paragraph (2)(B), the Secretary of Homeland Security shall take one of the following actions:

(A)

Compliance during initial probationary period

If the Secretary determines that all instances of noncompliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in the latest periodic evaluation have been remedied by the end of the initial probationary period, the Secretary shall end the country’s probationary period.

(B)

Noncompliance during initial probationary period

If the Secretary determines that any instance of noncompliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in the latest periodic evaluation has not been remedied by the end of the initial probationary period—

(i)

the Secretary may terminate the country’s participation in the program; or

(ii)

on an annual basis, the Secretary may continue the country’s probationary status if the Secretary, in consultation with the Secretary of State, determines that the country’s continued participation in the program is in the national interest of the United States.

(4)

Actions at the end of additional probationary periods

At the end of all probationary periods granted to a country pursuant to paragraph (3)(B)(ii), the Secretary shall take one of the following actions:

(A)

Compliance during additional period

The Secretary shall end the country’s probationary status if the Secretary determines during the latest periodic evaluation required by subsection (c)(5)(A) that the country is in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

(B)

Noncompliance during additional periods

The Secretary shall terminate the country's participation in the program if the Secretary determines during the latest periodic evaluation required by subsection (c)(5)(A) that the program country continues to be in non-compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

(5)

Effective date

The termination of a country's participation in the program under paragraph (3)(B) or (4)(B) shall take effect on the first day of the first fiscal year following the fiscal year in which the Secretary determines that such participation shall be terminated. Until such date, nationals of the country shall remain eligible for a waiver under subsection (a).

(6)

Treatment of nationals after termination

For purposes of this subsection and subsection (d)—

(A)

nationals of a country whose designation is terminated under paragraph (3) or (4) shall remain eligible for a waiver under subsection (a) until the effective date of such termination; and

(B)

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.

(7)

Consultative role of the Secretary of State

In this subsection, references to subparagraphs (A)(ii) through (F) of subsection (c)(2) and subsection (c)(5)(A) carry with them the consultative role of the Secretary of State as provided in those provisions.

.

5.

Review of overstay tracking methodology

Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a review of the methods used by the Secretary of Homeland Security—

(1)

to track aliens entering and exiting the United States; and

(2)

to detect any such alien who stays longer than such alien's period of authorized admission.