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July 28, 2006: 

The Honorable Jim Sensenbrenner, Jr.
Chairman:
Committee on the Judiciary:
House of Representatives: 

Subject: Process for Admitting Additional Countries into the Visa 
Waiver Program: 

Dear Mr. Chairman: 

The Visa Waiver Program enables citizens of 27 participating countries 
to travel to the United States for tourism or business for 90 days or 
less without first obtaining a visa.[Footnote 1] The program was 
created to promote the effective use of government resources and to 
facilitate international travel without jeopardizing U.S. national 
security. Indeed, in fiscal year 2004, more than 15 million travelers 
entered the United States under this program. The United States last 
expanded the Visa Waiver Program's membership in 1999 with the addition 
of Portugal, Singapore, and Uruguay;[Footnote 2] in recent years, other 
countries have expressed a desire to become members. In addition, 
Members of Congress have recently introduced bills calling for the 
expansion of the program. In February 2005, President Bush announced 
that the Departments of Homeland Security (DHS) and State (State) would 
develop a strategy, or "Road Map Initiative," to clarify to prospective 
candidates the statutory requirements for designation as a 
participating country--and work with countries to help them comply with 
these requirements. 

In response to your request, this report describes (1) the process for 
gaining admission into the Visa Waiver Program and (2) the U.S. 
government's plans for admitting additional countries into the 
program.[Footnote 3] To examine the criteria for expanding the Visa 
Waiver Program, we reviewed laws establishing the program, agency 
protocols governing the program, and DHS's Office of Inspector General 
reports. In addition, we reviewed relevant documentation and 
interviewed DHS and Consular Affairs Bureau officials in Washington, 
D.C., to determine the status of the President's initiative. To 
describe U.S. plans for expanding the program, we visited the U.S. 
embassies in the Republic of Korea and Poland--countries that are 
actively seeking to become program members--and spoke with ambassadors, 
as well as political, law enforcement, consular, and public diplomacy 
officers about their role in this process. We also reviewed public 
statements about the program made by the President and U.S. ambassadors 
to aspiring countries. We conducted our work from September 2005 
through June 2006 in accordance with generally accepted government 
auditing standards. 

Results in Brief: 

DHS is drafting procedures to help guide the process by which 
additional countries are admitted into the Visa Waiver Program. Until 
these procedures are finalized, DHS and State have an interim 
process.[Footnote 4] Specifically, under this interim process, the 
Secretary of Homeland Security, in consultation with the Secretary of 
State, may designate any country as being a member of the Visa Wavier 
Program if that country qualifies under the program's statutory 
requirements. First, State advises DHS of its intent to nominate a 
country for inclusion in the program only after State has determined 
that the country meets key criteria for visa waiver designation. Then, 
according to DHS, the departments may agree to engage in a pre- 
nomination consultation process to ensure that all parties are in 
agreement before State submits its formal nomination. After receiving 
State's formal nomination, DHS, through an interagency working group, 
evaluates the effect that the country's designation would have on the 
law enforcement, security, and immigration interests of the United 
States. On the basis of the review, the interagency working group 
submits a recommendation to the Secretary of Homeland Security, who, in 
consultation with the Secretary of State, decides whether to admit the 
country into the program. Separately, on May 1 of each year, State must 
report, to Congress, those countries that are under consideration for 
inclusion in the Visa Waiver Program. 

The U.S. government has taken steps to assist countries seeking 
membership in the Visa Waiver Program. In February 2005, President Bush 
announced that the United States would develop bilateral strategies 
with 13 "Road Map" countries that are seeking admission into the Visa 
Waiver Program. In particular, DHS and State are working with these 
countries to make sure they understand the program's statutory 
requirements, and to agree on steps to help these countries meet the 
criteria. In 2005, State tasked U.S. embassies in aspiring countries to 
form working groups with the host governments to discuss the Road Map 
process. According to DHS, these groups met to develop plans that 
specify the actions that each country may need to take to be considered 
for program membership. For example, several countries agreed to launch 
public affairs campaigns to inform their citizens about the program's 
requirements. The plans also include actions that the embassies have 
agreed to take, such as providing technical assistance on statutory 
requirements. To further clarify the initiative's objectives, in May 
2006, DHS and State jointly issued a series of cables to posts in Road 
Map countries with guidance on the types of issues that should be 
discussed in the bilateral working groups. As of June 2006, DHS and 
State have approved frameworks, (or road maps) for seven countries: 
Poland, Czech Republic, Hungary, Estonia, Latvia, Lithuania, and South 
Korea. However, according to DHS and State's Consular Affairs Bureau, 
it is unlikely that many of the new countries will meet the statutory 
requirements for designation to the program in the near future. State 
did not submit a report to Congress on May 1, 2006, indicating that it 
was considering new members, and Consular Affairs Bureau officials 
stated that they are not actively considering expanding program 
membership or nominating specific countries for possible visa waiver 
designation. 

We received written comments from State and DHS, which we have 
reprinted in enclosures I and II, respectively. State agreed with our 
conclusions, stating that the report is a balanced description of the 
process for admitting additional countries into the Visa Waiver 
Program, as well as the U.S. government's Road Map initiatives. DHS 
stated that the report's clear description of the Visa Waiver Program's 
statutory requirements and the designation process will assist the 
department's efforts to communicate these matters to the public and to 
countries seeking to participate in the program. In addition, State and 
DHS provided details about the interim procedures in place for 
admitting additional countries into the program. 

Background: 

The Immigration Reform and Control Act of 1986[Footnote 5] created the 
Visa Waiver Program as a pilot program. In October 2000, it became a 
permanent program under the Visa Waiver Permanent Program Act.[Footnote 
6] According to State's Consular Affairs Bureau, the program was 
enacted to facilitate the legitimate travel of visitors for business or 
tourism from countries whose citizens had demonstrated compliance with 
U.S. immigration laws. In recent years, Members of Congress have 
introduced legislation calling for the expansion of the program, for 
policy reasons, to U.S. allies such as Poland and South Korea. However, 
Congress did not pass any of these bills into law. More recently, in 
May 2006, the U.S. Senate passed an immigration reform bill that 
contained a provision that, among other things, allows for the 
expansion of the program to countries that contribute substantially to 
the wars in Afghanistan and Iraq.[Footnote 7] 

Visa-free travel to the United States boosts international business and 
tourism, as well as airline revenues, and creates substantial economic 
benefits to the United States. Moreover, the program allows State to 
allocate resources to visa-issuing posts in countries with higher-risk 
applicant pools. According to the Immigration Reform and Control Act, a 
country's participation in the program should not have an adverse 
effect on U.S. law enforcement and security interests. The program 
applies only to temporary visitors from participating countries 
traveling to the United States for business or tourism for 90 days or 
less, while persons traveling to the United States for other purposes-
-for example, to study or to work--are required to have a visa. 

In 2002, we reported on the legislative requirements to which countries 
must adhere before they may be considered for inclusion in the Visa 
Waiver Program.[Footnote 8] In general, they include the following: 

* A low nonimmigrant visa refusal rate. To qualify for visa waiver 
status, a country must maintain a refusal rate of less than 3 percent 
for its citizens who apply for temporary business and tourism 
visas.[Footnote 9] 

* A machine-readable passport program. The country must certify that it 
issues machine-readable passports to its citizens. As of June 26, 2005, 
all travelers are required to have a machine-readable passport to enter 
the United States under the program. 

* Reciprocity. The country must offer visa-free travel for U.S. 
citizens. 

Persons seeking to travel to the United States under the Visa Waiver 
Program must: 

* have a valid passport issued by the participating country and be a 
national of that country; 

* be seeking entry for 90 days or less for business or tourism; 

* have their identity checked at the U.S. port of entry against an 
automated electronic database containing information about the 
inadmissibility of aliens; 

* have been determined by DHS border inspectors at the U.S. port of 
entry to represent no threat to the welfare, health, safety, or 
security of the United States; 

* have complied with conditions of any previous admission under the 
program (for example, stayed in the United States for 90 days or less); 

* if entering by air or sea, possess a round-trip transportation ticket 
issued by a carrier that has signed an agreement with the U.S. 
government to participate in the program and must have arrived in the 
United States aboard such a carrier; and: 

* if entering by land, have proof of financial solvency and a domicile 
abroad to which he or she intends to return. 

Following the attacks of September 11, 2001, Congress passed additional 
laws to strengthen border security policies and procedures, and DHS, in 
consultation with State, instituted additional policy measures, some of 
which affect a country's participation in the Visa Waiver Program. For 
example, all passports issued after October 26, 2005, must contain a 
digital photograph in the document for travel to the United States 
under the program. Further, passports issued after October 26, 2006, 
must be electronic (e-passports).[Footnote 10] Travelers with passports 
that do not meet these requirements are required to obtain a visa from 
a U.S. embassy or consulate overseas before entering the United States. 
In addition, the May 2002 Enhanced Border Security and Visa Entry 
Reform Act[Footnote 11] established that participation in the Visa 
Waiver Program was conditional on a country's timely reporting of the 
theft of its stolen blank passports to the United States. 

On November 25, 2002, Congress passed the Homeland Security Act of 
2002, which established DHS and gave it responsibility for visa policy, 
including the Visa Waiver Program.[Footnote 12] Prior to this date, the 
Department of Justice (Justice) had overall responsibility for managing 
the program. In July 2004, DHS created the Visa Waiver Program 
Oversight Unit within the Office of International Enforcement and 
directed that unit to manage the oversight of participating Visa Waiver 
Program countries, as well as the process for assessing the law 
enforcement and security implications of expanding the program's 
membership. To help fulfill its responsibilities, DHS established an 
interagency working group comprised of representatives from State, 
Justice, and several DHS component agencies and offices, including 
Customs and Border Protection and Immigration and Customs Enforcement. 

Process for Admitting Additional Countries into the Visa Waiver 
Program: 

DHS is drafting procedures to help guide the process by which 
additional countries are admitted into the Visa Waiver Program. Until 
these procedures are finalized, DHS and State have an interim process. 
Under this process, the Secretary of Homeland Security, in consultation 
with the Secretary of State, can expand the membership of the Visa 
Waiver Program, assuming that a country meets certain requirements. 
First, State advises DHS of its intent to nominate a country for 
inclusion in the program. According to State, it may nominate a country 
only after it has determined that the country meets key criteria for 
visa waiver designation, including a low nonimmigrant refusal rate and 
reciprocal visa-free travel for U.S. citizens. Subsequently, State may 
also provide DHS with information on the nominated country, including: 

* patterns of passport fraud, visa fraud, and visa abuse over the past 
5 years; 

* assessments of terrorism, by the country's nationals, within or 
outside the country; and: 

* evaluations of the impact of the country's participation on U.S. 
national security and law enforcement. 

After State notifies DHS of its intent to nominate a country for 
inclusion in the program, the departments, according to DHS, may then 
agree to engage in a pre-nomination consultation process to ensure that 
all parties agree that there is a likelihood that U.S. law enforcement 
and security interests would not be compromised by the designation of 
that country, and that the country otherwise meets the program's 
statutory requirements. If no clearly disqualifying objections are 
raised during this review, the Secretary of State submits a formal 
written nomination to the Secretary of Homeland Security. After a 
country's formal nomination, DHS leads an interagency team to visit the 
nominated country. The team reviews the country's: 

* political, social, and economic conditions; 

* security over its passport and national identity documents; 

* border controls; and: 

* immigration and nationality laws, law enforcement policies and 
practices, and other matters relevant to law enforcement, immigration, 
and national security. 

On the basis of the review and site visit, the interagency working 
group submits a recommendation to the Secretary of Homeland Security, 
who, in consultation with the Secretary of State, decides whether to 
admit the country to the program. 

Separate from this review process, on May 1 of each year,[Footnote 13] 
for each country under consideration for inclusion in the Visa Waiver 
Program, the Secretary of State must report to appropriate 
congressional committees on: 

* the total number of nationals of that country who applied for U.S. 
visas in that country during the previous calendar year; 

* the total number of such nationals who received U.S. visas during the 
previous calendar year; 

* the total number of such nationals who were refused U.S. visas during 
the previous calendar year, and, specifically, under which provision of 
the Immigration and Nationality Act they were refused; and: 

* the number of such nationals that were refused visas under section 
214(b)[Footnote 14] of the Immigration and Nationality Act as a 
percentage of the visas that were issued to such nationals. 

U.S. Plans for Expanding Membership in the Visa Waiver Program: 

In February 2005, President Bush announced that the United States would 
work with governments in countries that are seeking admission into the 
Visa Waiver Program--an effort called the "Road Map Initiative"--to 
help them become program members (see fig. 1 for a map of the Road Map 
countries). DHS and State officials, as well as the President and other 
senior U.S. officials, have stated that this initiative aims to clarify 
the program's statutory requirements to prospective candidates. 
Moreover, these officials have stated that the United States will work 
with the Road Map countries to help develop strategies to meet these 
requirements. In particular, in May 2006, the Assistant Secretary of 
State for East Asian and Pacific Affairs stated that the admission of 
South Korea into the program is one of his goals. According to DHS, 
some of the countries seeking admission to the program are U.S. 
partners in the war in Iraq and have high expectations that they will 
join the program due to their close economic, political, and military 
ties to the United States. Nevertheless, all aspiring countries must 
first meet the program's statutory criteria for membership. 

Figure 1: Road Map Countries: 

[See PDF for Image] 

Source GAO MapArt. 

[End of Figure] 

In April 2005, State, in coordination with DHS, tasked the U.S. 
embassies in each of the 13 aspiring Road Map countries to form 
bilateral consular working groups to help these countries understand 
and develop strategies to meet the program's statutory criteria. 
Consular officials told us that law enforcement and security officials 
participate in some of these meetings, depending on the agenda and 
their availability. DHS representatives based in-country, or with 
regional responsibility for a country, were asked to participate in the 
consular working group meetings. For example, with funding from State, 
an Immigration and Customs Enforcement official in Vienna, Austria, 
participated in the Hungarian working group. Throughout 2005, the 
working groups discussed the actions that the individual countries 
would take, with U.S. assistance, to meet the Visa Waiver Program 
requirements. For example, the plans cover issues related to meeting 
biometric and other technical and security criteria; reporting lost and 
stolen passport information; and public affairs campaigns regarding the 
implications of violating the terms of visas. According to DHS, some 
working groups have developed a formal document that outlines future 
plans, while others have preferred a less formal approach that does not 
include development of a formal document. As of June 2006, DHS and 
State had approved the plans for seven countries: Poland, Czech 
Republic, Hungary, Estonia, Latvia, Lithuania, and South Korea. 

To further clarify the initiative's objectives, in May 2006, DHS and 
State jointly issued a series of cables to posts in Road Map countries 
containing guidance on the types of issues that should be discussed in 
the bilateral working groups, and issues that should be reported back 
to DHS and State headquarters. Each cable focused on a particular area 
for discussion, including individual countries': 

* passport and identification documents; 

* criteria for citizenship; and: 

* reporting of lost and stolen passport data. 

According to State and DHS, discussion on these subjects will be a 
valuable tool for identifying and acting on areas of possible concern. 
Moreover, DHS stated that the working groups will be critical in 
developing serious and meaningful activities for each country, which 
are based on the statutory requirements that must be met. 

Despite the President's and other officials' stated desire to help Road 
Map countries gain program membership, and despite ongoing efforts to 
provide such assistance, according to State and DHS, it is unlikely 
that many of the new countries will meet the statutory requirements for 
designation to the Visa Waiver Program in the near future. For example, 
the visa refusal rates in many of the Road Map countries are more than 
20 percent, according to consular officials. In addition, State and DHS 
have cited law enforcement and security concerns regarding some of 
these countries, including immigration and border control issues, alien 
smuggling, and a high degree of passport fraud. Consular officials 
stated that they are working actively with the governments in the Road 
Map countries to clarify the program's statutory requirements. However, 
State did not submit a report to Congress on May 1, 2006, indicating 
that it was considering new members, and Consular Affairs Bureau 
officials stated that they are not actively considering expanding 
program membership before next year's May 1, 2007, report deadline. 

Conclusions: 

Many countries are actively seeking admission into the Visa Waiver 
Program, and the President has announced his support for the program's 
expansion. Moreover, the President and other senior U.S. officials have 
stated publicly their goal to add countries to the program. However, 
legislation requires that aspiring countries meet certain criteria 
before the Secretaries of State and Homeland Security may consider them 
for membership. Several countries have already committed to improving 
in areas that are vital to attaining this status, and which would also 
benefit all countries worldwide, such as border security and passport 
issuance processes, and DHS and State are assisting these countries in 
meeting these requirements through the consular working groups. 
However, it does not appear there will be any expansion of the Visa 
Waiver Program in the short term, because despite ongoing progress, 
these countries will still fall short of the program's statutory 
requirements. 

Agency Comments and Our Evaluation: 

State and DHS provided written comments on a draft of this report (see 
enclosures I and II). 

State agreed with our conclusions, stating that the report is a 
balanced description of the process for admitting additional countries 
into the Visa Waiver Program, as well as the U.S. government's Road Map 
initiatives. In addition, State provided further detail about the 
department's role in the nomination process for countries seeking 
admission into the program. In particular, State noted that it notifies 
DHS of its intent to nominate a country only after consideration of key 
criteria--visa refusal rate, status of biometric passport 
implementation, lost and stolen passport reporting, and reciprocal visa-
free travel for U.S. citizens--while DHS is responsible for evaluating 
the impact a country's participation would have on U.S. law enforcement 
and security interests. We have reflected this point in the report. 
State also said that the department has not ruled out the possibility 
of nominating new countries into the Visa Waiver Program in a May 1, 
2007 report to Congress. Lastly, State noted that the consular working 
groups' discussions with Road Map countries provide a useful basis for 
continuing to encourage countries to pursue immigration, law 
enforcement, and security policies, which, apart from the Visa Waiver 
Program, are in their own and U.S. interests. State also provided 
technical comments, which we incorporated into the report, as 
appropriate. 

DHS stated that the report's clear description of the Visa Waiver 
Program's statutory requirements and the designation process will 
assist the department's efforts to communicate these matters to the 
public and to countries seeking to participate in the program. DHS also 
provided details about the interim procedures in place for admitting 
additional countries into the program, which we have reflected in the 
report. In addition, DHS noted that while an interagency working group 
was convened in the past to evaluate the effect that a country's 
designation would have on the law enforcement, security, and 
immigration interests of the United States, such a group may or may not 
be utilized in future evaluations of prospective countries. DHS also 
provided technical comments on a draft of this report, which we have 
incorporated, as appropriate. 

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will provide copies of this 
report to the Secretaries of Homeland Security and State, and will make 
copies available to others upon request. In addition, this report will 
be available at no charge on the GAO Web site at [Hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact me at (202) 512-4128 or fordj@gao.gov. The key contributors to 
this report were John Brummet, Assistant Director; Kathryn Bernet, 
Joseph Brown, Joseph Carney, Jane Kim, and Mary Moutsos. 

Signed by: 

Jess T. Ford: 
Director, International Affairs and Trade: 

Enclosures - 2: 

[End of Section] 

Enclosure I: Comments from the Department of State: 

United States Department of State: 
Assistant Secretary for Resource Management and Chief Financial 
Officer: 
Washington, D.C. 20520: 

Ms. Jacquelyn Williams-Bridgers: 
Managing Director: 
International Affairs and Trade: 
Government Accountability Office: 
441 G Street, N. W. 
Washington, D.C. 20548-0001: 

Jul 7 2006: 

Dear Ms. Williams-Bridgers: 

We appreciate the opportunity to review your draft report, "Border 
Security: Process for Admitting Additional Countries into the Visa 
Waiver Program," GAO Job Code 320435. 

The enclosed Department of State comments are provided for 
incorporation with this letter as an appendix to the final report. 

If you have any questions concerning this response, please contact 
Diane Bean, Senior Advisor, Bureau of Consular Affairs, at (202) 663-
1155. 

Sincerely, 

Signed by: 

Bradford R. Higgins: 

cc: GAO - Jess Ford: 
CA - Maura Harty: 
State/OIG - Mark Duda: 

Department of State Comments on GAO Draft Report Border Security: 
Process for Admitting Additional Countries into the Visa Waiver Program 
(GAO-06-835R, Job Code 320435): 

Thank you for the opportunity to respond to GAO's draft correspondence 
to the House of Representatives Judiciary Committee regarding the 
report Process for Admitting Additional Countries into the Visa Waiver 
Program. The Department appreciates the report's balanced description 
of the roadmap initiatives and the process for considering designation 
of additional countries to the Visa Waiver Program (VWP). 

The Department agrees with the report's conclusion that "visa free 
travel to the United States boosts international business and tourism, 
as well as airline revenues, and creates substantial economic benefits 
to the United States. " Moreover, because of the requirement of 
reciprocal treatment of U.S. citizen travelers by VWP countries, the 
VWP benefits American tourists and businesspeople as well. The 
Department recognizes that a major reason for the Program's success 
lies in the strict standards for participation. We support Congress' 
design of the VWP to be politically neutral and based upon measurable 
objective criteria --generally, that the nationals of the country in 
question have demonstrated their willingness to comply with U.S. 
immigration and other laws, that the countries have secure travel 
documents and exercise a high standard of border and other security and 
that Americans are treated fairly and reciprocally. We welcome the 
GAO's examination of the admission process as a vehicle to strengthen 
the VWP even more. We have the following few comments to add to this 
comprehensive report: 

In addition to the report's identification of the purposes of the 
roadmap process (clarifying statutory requirements and helping 
countries to comply with them), the consular working group discussions 
with roadmap countries also provide a useful basis for continuing to 
encourage countries to pursue policies which, apart from VWP 
designation, are in their own and U.S. interests. Development of 
secure, biometric travel documents, reporting on lost and stolen 
passports and working together to address the global threats of 
terrorism, crime, alien smuggling and document fraud are worthy goals 
independent of, but reinforced by, discussions on VWP criteria. 

With regard to the report's description of the process for nomination 
of additional countries, it is important to clarify that State's 
notification to DHS of its intent to nominate a country is only made 
after consideration of key criteria, as opposed to a "determination 
that the VWP statutory requirements have been met." By law, DHS has the 
lead role in one of the key VWP criteria, the evaluation of the impact 
on U.S. law enforcement and security interests; State does not make 
that determination and certainly would not be in a position to provide 
its final views on such a determination prior to the review process 
initiated by DHS. 

The State Department's understanding of the interim nomination process 
is slightly more involved than described in the report. It is our 
understanding that the process begins with State's identification of 
countries that have met the clearly identified VWP statutory criteria 
(refusal rate, biometric passport, lost and stolen passport reporting, 
and reciprocal visa-free travel), which is then followed by informal 
DHS/State discussions on other possible issues requiring careful review 
before any formal nomination decision. Only after these issues are 
understood would State take the next step of notification of intent to 
nominate a country for inclusion in the program. 

The State Department would then provide a full spectrum of country- 
specific information to DHS, consisting of more items, based on our 
understanding, than included in the list in the report. For example, 
State would also provide preliminary information on the country's 
passports and the integrity of its documents and production/ 
distribution systems; naturalization, citizenship, residency and visa 
laws and policies; border security and immigration-related situation; 
existence of terrorism, crime and other global threats and the 
country's efforts to address such concerns; and cooperation with the 
U.S. and other international partners on such issues. 

Next, as part of DHS' evaluation of the nomination, the interagency 
working group would conduct a site visit and solicit additional 
materials on the country's policies and procedures with regard to the 
factors noted above and any other areas that appeared relevant at the 
time of the review. Finally, as stated in the report, the interagency 
working group would submit a recommendation to the Secretary of 
Homeland Security, who, in consultation with the Secretary of State, 
would decide whether to admit the country to the program. 

Finally, while it is true that the State Department did not submit a 
report to Congress on May 1, 2006, indicating that the Department is 
considering nominating new members, and we are not at this time 
preparing such a report for 2007, the Department would emphasize that 
we are working diligently with the roadmap countries and are committed 
to assisting them to meet the VAT criteria as soon as possible. We do 
not rule out the possibility that a roadmap country could be ready for 
nomination by May 1, 2007. 

Thank you for the opportunity to contribute our views to this report. 

[End of Section] 

Enclosure II: Comments from the Department of Homeland Security: 

U.S. Department of Homeland Security: 
Washington, DC 20528: 

July 12, 2006: 

Mr. Jess T. Ford: 
Director, International Affairs and Trade: 
Government Accountability Office: 
441 G Street NW: 
Washington, DC 20548: 

Dear Mr. Ford: 

Thank you for the opportunity to comment on GAO-06-835R Process for 
Admitting Additional Countries into the Visa Waiver Program. The 
Department of Homeland Security (DHS) welcomes this evaluation of the 
important process for designating countries that meet the statutory 
requirements to participate in the Visa Waiver Program (VWP). The clear 
description of the statutory requirements and the designation process 
in the draft report itself will assist our efforts to communicate these 
to the public domestically and overseas and to countries seeking 
designation. Our following brief comments will improve the description 
of the interim procedures in place at this time so that the draft 
report provides a more accurate picture of the process. 

1. The pre-nomination process needs clarification. GAO correctly states 
on page 2 in the forth sentence under Results in Brief, that "First, 
State advises DHS of its intent to nominate a country for inclusion in 
the program only after State has determined that the country meets the 
statutory requirements for visa waiver program designation." After that 
sentence, the draft report should explain that after this notice of 
intent is delivered, the Departments may agree to engage in a pre- 
nomination process, including consultations, to ensure there is 
agreement by DHS and others that the country at issue is qualified. 
After this pre-nomination consultation process is concluded, State will 
deliver a formal nomination which will trigger the statutory 
evaluation. 

2. While an interagency working group conducted the 2004 periodic 
country evaluations, it was put in place before OIE was created in July 
2004 to institutionalize coordination and oversight of VWP compliance 
activities. Such an interagency working group may or may not be 
utilized in future evaluations of prospective countries since it is not 
required and its use will depend on the issues and information to be 
evaluated. On page 2, in the fifth sentence in the first paragraph 
under Results in Brief, however, the draft report presumes that an 
interagency working group will be convened after DHS receives State's 
notification of its intent to nominate a country to the VWP and that 
the interagency working group will perform the evaluation. Again, use 
of an interagency working group is not a given in the formal evaluation 
of US security, law enforcement and immigration interests and it would 
certainly not be utilized during initial, pre-nomination consultations 
with State unless such a tool was deemed necessary to resolve the 
evaluation of specific complex issues. That sentence should be deleted 
and replaced by the following two sentences to read: "After pre- 
nomination consultations, State may forward a formal nomination if 
there is agreement by DHS that there is a likelihood that US security, 
law enforcement and immigration interests will not be compromised by 
the country's designation and that the country otherwise meets the 
statutory requirements. After receiving a formal nomination from State, 
DHS evaluates the effect that a country's VWP designation would have on 
US security, law enforcement and immigration interest, an evaluation 
that includes consultations with State." 

3. At page 3, second paragraph under Background, to be consistent, the 
third sentence should read ".adverse effect on U.S. security, law 
enforcement and immigration interests." 

4. The last sentence of the final paragraph under Background should be 
revised as follows to reflect the information contained in the other 
GAO draft report on the VWP, "Stronger Actions Needed to Assess and 
Mitigate Risks of the Visa Waiver Program." "The 2004 country review 
process had been initiated in April 2004 by the former Border and 
Transportation Security (BTS) Office of Policy which had convened an 
interagency working group comprised of representatives from the 
Department of State (State), Justice, and several DHS components and 
offices, including Customs and Border Protection and Immigration and 
Customs Enforcement, to participate in the country review process that 
year." Again, an interagency working group is not required and may or 
may not be utilized in future evaluations of prospective countries 
depending on the issues and information to be evaluated and the need 
for more expertise and/or extensive consultations. 

5. The first full paragraph on page 5 (second full paragraph under 
Process for Admitting Additional Countries into the Visa Waiver 
Program) is confusing as written and needs clarification. There is no 
pre-nomination evaluation of US security, law enforcement and 
immigration interests. This paragraph should be revised as follows: 
"After receiving a notification of intent to nominate from State, DHS 
and State may agree to engage in a pre-nomination consultation process 
to ensure there is agreement by DHS that there is a likelihood that US 
security, law enforcement and immigration interests will not 
compromised by the country's designation and that the country otherwise 
meets the statutory requirements. If no clearly disqualifying 
objections are raised during these consultations, the Secretary of 
State submits a formal written nomination to the Secretary of Homeland 
Security. After a country's nomination, DHS will conduct a formal 
comprehensive country review of US security, law enforcement and 
immigration interests which will include leading an interagency site 
visit team to visit the nominated country." 

Thank you again for the opportunity to review and provide comments to 
the draft report. We look forward to working collaboratively with you 
to improve this important program. 

Sincerely, 

Signed by: 

Steven J. Pecinovsky: 
Director Departmental GAO/IG Liaison Office: 

[End of Section] 

(320435): 

FOOTNOTES 

[1] The United States also issues visas to those who intend to 
immigrate to the United States. In this report, we use the term "visa" 
to refer to nonimmigrant visas only. According to the Department of 
State, the Visa Waiver Program is a substitute entry mechanism for 
nonimmigrant, short term, business, and tourism visas only; it does not 
apply to students, temporary workers, and others who require visas to 
enter the United States. 

[2] In 2003, the Attorney General removed Uruguay from the Visa Waiver 
Program, stating that Uruguay's participation in the program was 
inconsistent with U.S. interests. According to a 2002 Federal Register 
notice on the subject, Uruguayan nationals were, on average, two to 
three times more likely than all nonimmigrants to have been denied 
admission at the border. Uruguayan air arrivals had an apparent 
overstay rate more than twice that of the average apparent overstay 
rate for all nonimmigrant air arrivals. In addition, Argentina was 
removed from the program in 2002, following an economic crisis in that 
country and an increase in the number of Argentinean nationals 
attempting to use the Visa Waiver Program to live and work illegally in 
the United States. 

[3] See also GAO, Border Security: Stronger Actions Needed to Assess 
and Mitigate Risks of the Visa Waiver Program, GAO-06-854 (Washington, 
D.C.: July 28, 2006). 

[4] Prior to 2002, Justice and State, through an interagency working 
group, had established a draft protocol based on the statutory criteria 
that detailed the procedures that the agencies must follow in 
nominating a country for membership in the program. According to DHS 
and State, the draft protocol was not finalized. However, Justice has 
used it to assess some countries' eligibility. 

[5] P.L. 99-603. 

[6] P.L. 106-396. 

[7] As of June 16, 2006, the Comprehensive Immigration Reform Act of 
2006, S. 2611, 109TH Cong. Sec 413 (2006), will next be sent to a joint 
conference committee of both House and Senate conferees. 

[8] GAO, Border Security: Implications of Eliminating the Visa Waiver 
Program, GAO-03-38 (Washington, D.C.: Nov. 22, 2002). 

[9] The refusal rate refers only to the temporary business and tourism 
visa applications that are denied as a percentage of the total 
temporary business and tourism visa applications for nationals of that 
country. 

[10] In general, e-passports will contain a chip, which will be 
embedded in the passport. The chip will store the same information that 
is printed in the data page of the passport: the name, date of birth, 
gender, place of birth, dates of passport issuance and expiration, 
place of issuance, passport number, and photo image of the bearer. In 
addition, it will hold the unique chip identification number and a 
digital signature to protect the stored data from alteration. 

[11] The Enhanced Border Security and Visa Entry Reform Act of 2002, 
P.L 107-173. 

[12] P.L. 107-296. 

[13] In addition, not later than May 1 of each year, the U.S. chief of 
mission (acting or permanent) to each country under consideration for 
inclusion in the Visa Waiver Program, must certify to the appropriate 
congressional committees that the information described in the report 
is accurate, and provide a copy of the certification to the 
congressional committees. 

[14] Section 214(b) of the 1952 Immigration and Nationality Act, as 
amended (P.L. 82-414, 8 U.S.C.  1101 et seq.), generally presumes that 
aliens are immigrants until they establish to the satisfaction of the 
consular officer at the time of application for a visa, and the border 
inspector at the time of application for admission, that they are 
entitled to nonimmigrant status. Pursuant to section 291, the burden of 
proof is on the applicant. If an alien cannot establish that he or she 
is entitled to nonimmigrant status, then the alien is considered to be 
an applicant for immigrant status and is not eligible to receive a 
nonimmigrant visa. 

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