The White House released a fact sheet on the Visa Waiver Program (VWP) (see below) , including information on new security changes announced yesterday. The fact sheet states that DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. In addition, DHS Secretary Jeh Johnson issued a statement on steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.

WHITE HOUSE FACT SHEET: Visa Waiver Program Enhancements

The Visa Waiver Program (VWP) permits visa free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP utilizes a layered system of security to detect and prevent terrorists, serious criminals, and other potentially dangerous individuals from traveling to the United States.  These layers of security include comprehensive screening of VWP travelers prior to departure for the United States, at various points throughout the traveler’s journey, and upon arrival at U.S. ports of entry.

Over the past year, the Administration has taken a series of steps to enhance the significant security measures in the VWP. In the wake of the attacks in Paris, the administration is announcing additional actions today that will further enhance and accelerate these changes. Additionally, the Administration is working closely with Congress to provide statutory authority for many of these security enhancements, which will further improve our ability to implement and enforce the changes.

How Does the Visa Waiver Program Work?

  • Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA). Through ESTA, DHS evaluates whether individuals are eligible to travel to the United States under the VWP before they are allowed to board a carrier bound for the United States.
  • The counterterrorism screening draws on information from U.S. law enforcement and intelligence agencies. DHS uses this information to decide if the travel poses any law enforcement or security risks.  Without DHS approval through ESTA, VWP travelers cannot travel to the United States and must appear in person for a visa interview before they can be authorized to travel to the United States.
  • This process has been enhanced repeatedly to improve security and more effectively identify individuals who might pose a threat to the United States.
  • Travelers must be a citizen of a VWP country to use the program.  Residence in a VWP country, or the possession of refugee travel documents issued by a VWP member state, does not qualify an individual for VWP travel.

Recently Enhanced Security Measures

DHS, in consultation with the Department of State, continuously adapts the VWP to address current threats. Over the last year, the Department of Homeland Security and the Department of State, in coordination with several other federal agencies, have made a number of significant enhancements to the VWP to ensure our security apparatus continues to adapt in the face of evolving threats.

  • DHS introduced additional data fields to the ESTA application in November 2014 that already have produced security benefits.
  • DHS introduced new traveler screening and information sharing requirements for VWP countries in August 2015 specifically to address the threat posed by foreign terrorist fighters.
  • DHS and the Department of State are working with VWP partners to implement the new VWP requirements, which will strengthen U.S. security and the security of our partners.
  • These security enhancements are part of our continuing assessments of U.S. security in the face of evolving threats and challenges, and our determination to stay one step ahead of those threats and challenges.

New Changes Announced Today

Given the terrorist attacks in Paris and the ongoing threat posed by foreign terrorist fighters, the United States is aggressively strengthening its Visa Waiver Program and bolstering our relationships with VWP partners by immediately moving forward on the following administrative actions:

  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven.  The Director of National Intelligence, in coordination with the Secretary of Homeland Security, will identify and regularly review these countries so that traveler risk assessments can be made on the most up-to-date information.
  • The Department of Homeland Security, in consultation with the Secretary of State and other appropriate agencies will accelerate its review process for VWP partner countries and within 60 days, will provide a full report to the President:
    • Identifying possible pilot programs designed to assess the collection and use of biometrics (fingerprints and/or photographs) in the VWP to effectively increase security; and
    • Identifying any countries that are deficient in key areas of cooperation, along with recommended options to engender compliance using a range of penalties and incentives available under his current authority including the more frequent submission of ESTAs and/or the suspension of ESTA issuances (new and/or renewals) for citizens of countries that fail to meet key metrics.
  • The Director of the Federal Bureau of Investigation will evaluate the terrorism information sharing that occurs between the United States and VWP countries, in consultation with the Director of National Intelligence and the Secretaries of State and Homeland Security, and provide a report to the President of the United States within 60 days identifying options to mitigate any deficiencies.
  • DHS will offer assistance to countries to better facilitate terrorism information sharing, specifically to include biometric pilots.  For example, DHS and the Terrorist Screening Center will assist all interested VWP countries in screening refugees or asylum seekers, including through the application of extensive terrorism information already provided to VWP members and through piloting capability for conducting near real time biometric checks.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes biometrics.
  • The Secretary of Homeland Security will work with Congress to seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data.
  • The Departments of Homeland Security and State, the Federal Bureau of Investigation, and U.S. intelligence community elements will deploy Foreign Fighter Surge Teams to work with countries to counter terrorist travel.
  • The Departments of Homeland Security and State will encourage and provide assistance as needed to enhance border security and legislation related to FTFs of our partner countries, and encourage more robust information sharing, better use of shared information, and more effective and efficient coordination between our partners.

Working with Congress to Enhance the Visa Waiver Program

The Administration is working with Congress to provide statutory authority for many of the key security enhancements to VWP, including:

  • Improving our ability to identify individuals who may have traveled to conflict zones to train or fight with terrorist organizations or other adversaries and increasing information sharing between our VWP partners and INTERPOL;
  • Maximizing the use of international agencies like INTERPOL to track lost and stolen travel documents, and to prevent their usage for illicit travel;
  • Encouraging VWP partner countries to share information and to use that information in their own border screening activities;
  • Accelerating the requirement for 100% of VWP travelers to use e-passports (i.e., passports with embedded security chips);
  • Exploring how biometrics could be effectively added to the VWP process; and
  • Expanding the use of the DHS’ Customs and Border Protection (CBP) Preclearance program, through which CBP law enforcement officers inspect passengers and their baggage – to include collecting and screening biometrics where appropriate – at foreign airports prior to departing for the United States
    • Through the current round of expansion, CBP is in negotiations with airports in seven VWP participant countries (Belgium, Japan, Norway, Netherlands, Spain, Sweden, and the United Kingdom). Support for Preclearance expansion will greatly increase border and aviation security in the United States and abroad.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.