I
113th CONGRESS
1st Session
H. R. 490
IN THE HOUSE OF REPRESENTATIVES
February 4, 2013
Mr. Quigley (for himself, Mr. Chabot, Mr. Schneider, Mr. Higgins, Ms. Kaptur, Mr. Kinzinger of Illinois, Mr. Lipinski, Ms. Schakowsky, Mr. Schock, Mr. Shimkus, Mr. Gutierrez, Mr. Keating, Mr. Amash, Mr. Heck of Nevada, Ms. Norton, Mr. Smith of Washington, Ms. Wasserman Schultz, Mrs. Carolyn B. Maloney of New York, and Mr. Foster) introduced the following bill; which was referred to the Committee on the Judiciary
A BILL
To amend section 217 of the Immigration and Nationality Act to modify the visa waiver program, and for other purposes.
Short title
This Act may be cited as the
Visa Waiver Program Enhanced Security
and Reform Act
.
Visa waiver program enhanced security and reform
Definitions
Section 217(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(1)) is amended to read as follows:
Authority to designate; definitions
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).
Definitions
In this subsection:
Appropriate congressional committees
The term appropriate congressional committees means—
the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on the Judiciary of the Senate; and
the Committee on Foreign Affairs, the Committee on Homeland Security, and the Committee on the Judiciary of the House of Representatives.
Overstay rate
Initial designation
The term overstay rate means, with respect to a country being considered for designation in the program, the ratio of—
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
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.
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—
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
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.
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.
Program country
The term program country means a country designated as a program country under subparagraph (A).
.
Technical and conforming amendments
Section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) is amended—
by striking
Attorney General
each place the term appears (except in
subsection (c)(11)(B)) and inserting Secretary of Homeland
Security
; and
in subsection (c)—
in paragraph
(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
;
in paragraph
(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
in paragraph (7), by striking subparagraph (E).
Designation of program countries based on overstay rates
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:
General numerical limitations
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.
Low nonimmigrant overstay rate
The overstay rate for that country was not more than 3 percent during the previous fiscal year.
.
Qualification criteria
Section 217(c)(3) of such Act (8 U.S.C. 1187(c)(3)) is amended to read as follows:
Qualification criteria
After designation as a program country under section 217(c)(2), a country may not continue to be designated as a program country unless the Secretary of Homeland Security, in consultation with the Secretary of State, determines, pursuant to the requirements under paragraph (5), that the designation will be continued.
.
Initial period
Section 217(c) of such Act is further amended by striking subsection (c)(4).
Continuing designation
Section 217(c)(5)(A)(i)(II) of such Act (8 U.S.C. 1187(c)(5)(A)(i)(II)) is amended to read as follows:
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;
.
Computation of visa refusal rates; judicial review
Section 217(c)(6) of such Act (8 U.S.C. 1187(c)(6)) is amended to read as follows:
Computation of visa refusal rates and judicial review
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.
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.
.
Visa waiver information
Section 217(c)(7) of such Act (8 U.S.C. 1187(c)(7)) is amended—
by striking subparagraphs (B) through (D); and
by striking
waiver
information.—
and all that follows through In
refusing
and inserting waiver information.—In refusing
.
Waiver authority
Section 217(c)(8) of such Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:
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—
the country meets all other requirements of paragraph (2);
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;
there has been a general downward trend in the percentage of nationals of the country refused nonimmigrant visas under section 101(a)(15)(B);
the country consistently cooperated with the Government of the United States on counterterrorism initiatives, information sharing, preventing terrorist travel, and extradition to the United States of individuals (including the country's own nationals) who commit crimes that violate United States law 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
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.
.
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:
Termination of designation; probation
Definitions
In this subsection:
Probationary period
The term probationary period means the fiscal year in which a probationary country is placed in probationary status under this subsection.
Program country
The term program country has the meaning given that term in subsection (c)(1)(B).
Determination, notice, and initial probationary period
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).
Initial probationary period
If the Secretary of Homeland Security determines that a program country 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.
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 1 of the following actions:
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.
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—
the Secretary may terminate the country’s participation in the program; or
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.
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 1 of the following actions:
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).
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 noncompliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).
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).
Treatment of nationals after termination
For purposes of this subsection and subsection (d)—
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
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.
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.
.
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—
to track aliens entering and exiting the United States; and
to detect any such alien who stays longer than such alien's period of authorized admission.
Evaluation of electronic system for travel authorization
Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to Congress—
an evaluation of the security risks of aliens who enter the United States without an approved Electronic System for Travel Authorization verification; and
a description of any improvements needed to minimize the number of aliens who enter the United States without the verification described in paragraph (1).
Sense of Congress on priority for review of program countries
It is the sense of Congress that the Secretary of Homeland Security, in the process of conducting evaluations of countries participating in the visa waiver program under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187), should prioritize the reviews of countries in which circumstances indicate that such a review is necessary or desirable.