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Testimony:
Before the Subcommittee on Terrorism, Technology, and Homeland
Security, Committee on the Judiciary, United States Senate:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 2:30 p.m. EDT:
Wednesday, September 24, 2008:
Visa Waiver Program:
Actions Are Needed to Improve Management of the Expansion Process, and
to Assess and Mitigate Program Risks:
Statement of Jess T. Ford, Director:
International Affairs and Trade:
GAO-08-1142T:
GAO Highlights:
Highlights of GAO-08-1142T, a testimony before the Chairman,
Subcommittee on Terrorism, Technology, and Homeland Security, Committee
on the Judiciary, United States Senate.
Why GAO Did This Study:
The Visa Waiver Program, which enables citizens of participating
countries to travel to the United States without first obtaining a
visa, has many benefits, but also has risks. In 2006, GAO found the
Department of Homeland Security (DHS) needed to improve efforts to
assess and mitigate these risks. In August 2007, Congress passed the
9/11 Act, which provides DHS the authority to consider expanding the
program to countries whose short-term business and tourism visa refusal
rates were between 3 and 10 percent in the prior fiscal year, if
certain conditions are met. This testimony discusses GAO’s recent
report on the Visa Waiver Program. Specifically, it examines DHS’s
process for expanding the Visa Waiver Program and evaluates the extent
to which DHS is assessing and mitigating program risks. GAO reviewed
relevant laws and procedures; and interviewed agency officials in
Washington, D.C., and in U.S. embassies in eight aspiring and three
Visa Waiver Program countries.
What GAO Found:
The executive branch is moving aggressively to expand the Visa Waiver
Program by the end of 2008, but, in doing so, DHS has not followed a
transparent process. DHS did not follow its own November 2007 standard
operating procedures, which set forth key milestones to be met before
countries are admitted into the program. As a result, Departments of
State (State) and Justice and U.S. embassy officials stated that DHS
created confusion among interagency partners and aspiring program
countries. U.S. embassy officials in several aspiring countries told us
it had been difficult to explain the expansion process to foreign
counterparts and manage their expectations. State officials said it was
difficult to explain to countries with fiscal year 2007 refusal rates
below 10 percent that have signaled interest in joining the program
(Croatia, Israel, and Taiwan) why DHS is not negotiating with them,
given that DHS is negotiating with several countries that had refusal
rates above 10 percent (Hungary, Latvia, Lithuania, and Slovakia).
Despite this confusion, DHS achieved some security enhancements during
the expansion negotiations, including agreements with several aspiring
countries on lost and stolen passport reporting. DHS, State, and
Justice agreed that a more transparent process is needed to guide
future program expansion.
DHS has not fully developed tools to assess and mitigate risks in the
Visa Waiver Program. To designate new program countries with refusal
rates between 3 and 10 percent, DHS must make two certifications.
First, DHS must certify that it can verify the departure of not less
than 97 percent of foreign nationals who exit from U.S. airports. In
February 2008, we testified that DHS’s plan to meet this provision will
not help mitigate program risks because it does not account for data on
those who remain in the country beyond their authorized period of stay
(overstays). DHS has not yet finalized its methodology for meeting this
provision. Second, DHS must certify that the Electronic System for
Travel Authorization (ESTA) for screening visa waiver travelers in
advance of their travel is “fully operational.” While DHS has not
announced when it plans to make this certification, it anticipates ESTA
authorizations will be required for all visa waiver travelers after
January 12, 2009. DHS determined that the law permits it to expand the
program to countries with refusal rates between 3 and 10 percent after
it makes these two certifications, and after the countries have met the
required conditions, but before ESTA is mandatory for all Visa Waiver
Program. For DHS to maintain its authority to admit certain countries
into the program, it must incorporate biometric indicators (such as
fingerprints) into the air exit system by July 1, 2009. However, DHS is
unlikely to meet this timeline due to several unresolved issues. In
addition, DHS does not fully consider countries’ overstay rates when
assessing illegal immigration risks in the Visa Waiver Program.
Finally, DHS has implemented many recommendations from GAO’s 2006
report, including screening U.S.-bound travelers against Interpol’s
lost and stolen passport database, but has not fully implemented
others. Implementing the remaining recommendations is important as DHS
moves to expand both the program and the department’s oversight
responsibilities.
What GAO Recommends:
GAO recommended that DHS establish a more transparent process for Visa
Waiver Program expansion, and improve and monitor overstay rates for
current and aspiring program countries. DHS generally agreed with GAO’s
recommendations. The Department of Justice (Justice) discussed the
importance of lost and stolen passport reporting, but did not comment
on GAO’s recommendations.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-1142T]. For more
information, contact Jess Ford at (202) 512-4128 or fordj@gao.gov.
[End of section]
September 24, 2008:
Chairman Feinstein and Members of the Subcommittee:
I am pleased to be here to discuss our recent report on the Department
of Homeland Security's (DHS) oversight of the Visa Waiver Program and
executive branch's plans to expand the program by the end of 2008.
[Footnote 1] 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 from U.S.
embassies and consulates.[Footnote 2] The program has many benefits,
including facilitating international travel for millions of foreign
nationals seeking to visit the United States each year. However, as we
have reported,[Footnote 3] the program also poses inherent security,
law enforcement, and illegal immigration risks to the United States. In
September 2007, the Director of National Intelligence testified that al
Qaeda is recruiting Europeans because most of them do not require a
visa to enter the United States. Effective oversight of the Visa Waiver
Program is essential to finding the right balance between facilitating
legitimate travel and screening for potential terrorists, criminals,
and others who may pose law enforcement and illegal immigration
concerns.
The executive branch aims to expand the Visa Waiver Program to
countries in Central and Eastern Europe, and to South Korea. According
to DHS, some of these countries 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. In
August 2007, Congress passed legislation that allows DHS to consider
admitting countries with business and tourism visas refusal rates
[Footnote 4] between 3 percent and 10 percent, that otherwise meet the
program's requirements, if the countries meet certain conditions, such
as cooperating with the United States on counterterrorism initiatives.
[Footnote 5] Previously, only countries with refusal rates below 3
percent in the prior fiscal year qualified to be considered for
admission. Before DHS can exercise this new authority, the legislation-
-referred to as the "9/11 Act"--requires that the department complete
certain actions aimed at enhancing security of the Visa Waiver Program.
My testimony today will summarize our observations on the (1) process
DHS is following to admit countries into the Visa Waiver Program and
(2) actions taken to assess and mitigate potential risks in the
program. These observations are derived from our review of the Visa
Waiver Program based on a request from this subcommittee. In conducting
this work, we reviewed laws governing the Visa Waiver Program and its
expansion, and relevant regulations and agency operating procedures, as
well as our prior reports and testimonies. We met with several DHS
component agencies and offices,[Footnote 6] including the Visa Waiver
Program Office, which is responsible for oversight of Visa Waiver
Program requirements. In addition, we interviewed officials from the
Department of State (State), the International Criminal Police
Organization (Interpol), and the Department of Justice (Justice).
[Footnote 7] We also spoke with officials at U.S. embassies in three
current and eight aspiring Visa Waiver Program countries. We conducted
this performance audit from September 2007 to September 2008, in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Summary:
The executive branch is moving aggressively to expand the Visa Waiver
Program by the end of 2008, but, in doing so, DHS has not followed a
transparent process. The department did not follow its own November
2007 standard operating procedures, which set forth the key milestones
that DHS and aspiring countries must meet before additional countries
are admitted into the program. As a result, State, Justice, and U.S.
embassy officials stated that DHS created confusion among its
interagency partners and aspiring visa waiver countries. Absent clear
direction from DHS, U.S. embassy officials in several aspiring
countries told us it had been difficult to explain the expansion
process to their foreign counterparts and manage their expectations
about when those countries might be admitted into the Visa Waiver
Program. Furthermore, State officials said it was difficult to explain
to countries with fiscal year 2007 refusal rates below 10 percent that
have signaled interest in joining the Visa Waiver Program (such as
Croatia, Israel, and Taiwan) why DHS is not negotiating with them. DHS
is, however, negotiating with several countries that had fiscal year
2007 visa refusal rates above the 10 percent ceiling (Hungary, Latvia,
Lithuania, and Slovakia), with the expectation that fiscal year 2008
rates will be below this ceiling. Nevertheless, DHS achieved some
security enhancements to the Visa Waiver Program during expansion
negotiations, including new agreements with several aspiring countries
on lost and stolen passport reporting. DHS, State, and Justice agreed,
however, that a more transparent process is needed to guide any future
consideration of program expansion. In acknowledging weaknesses in the
expansion process, DHS's Assistant Secretary for Policy Development
said that DHS did not have a clear process at the outset of
negotiations in late 2007, in part because the department lacked prior
experience in expanding the Visa Waiver Program and because the
program's legislative requirements had changed in August of that year.
DHS has not fully developed tools to assess and mitigate risks in the
Visa Waiver Program. In particular, DHS has not yet met two key
certification requirements in the 9/11 Act that would allow DHS to
consider admitting additional countries to the program with refusal
rates between 3 percent and 10 percent. First, DHS must certify that it
can verify the departure of not less than 97 percent of foreign
nationals who exit from U.S. airports. In February 2008, we testified
that DHS's plan to meet this provision will not demonstrate
improvements in the air exit system and will not help the department
mitigate risks of the Visa Waiver Program, because the plan does not
account for data on those who remain in the country beyond their
authorized period of stay (referred to as "overstays"). Second, DHS
must certify that the Electronic System for Travel Authorization (ESTA)
for screening visa waiver travelers in advance of their travel is
"fully operational." DHS has not yet announced when it plans to make
this certification; however, ESTA became available on a voluntary basis
on August 1, 2008, and DHS anticipates that ESTA authorizations will be
required for all visa waiver travelers after January 12, 2009.
[Footnote 8] DHS determined that the law permits it to expand the
program to countries with refusal rates between 3 percent and 10
percent after it makes the two 9/11 Act certifications, and after the
countries have met certain conditions, but before ESTA is mandatory for
all VWP travelers. DHS may face challenges in implementing ESTA, such
as adequately informing the public and travel industry about the
system. In addition, for DHS to maintain its authority to admit certain
countries into the program, the 9/11 Act requires that the air exit
system also incorporate biometric indicators (such as fingerprints) by
July 1, 2009. However, DHS is unlikely to meet this timeline due to
several unresolved issues. In addition, DHS does not fully consider
countries' overstay rates when assessing illegal immigration risks in
the Visa Waiver Program because the department's overstay data have
weaknesses, according to the Visa Waiver Program Office.
To improve management of the Visa Waiver Program and better assess and
mitigate risks associated with it, we recommended in our report that
DHS establish a clear process, in coordination with State and Justice,
for program expansion that would include the criteria used to determine
which countries will be considered for expansion and timelines for
nominating countries, security assessments of aspiring countries, and
negotiation of any bilateral agreements to implement the program's
legislative requirements. In addition, we recommended that DHS
designate an office with responsibility for developing overstay rate
information for the Visa Waiver Program, explore cost-effective actions
to further improve these data's reliability, and use these validated
data to help evaluate whether current or aspiring Visa Waiver Program
countries pose a potential illegal immigration risk to the United
States. DHS either agreed with, or stated that it was taking steps to
implement, all of our recommendations.
Background:
In 2007, almost 13 million citizens[Footnote 9] from 27 countries
entered the United States under the Visa Waiver Program. In February
2005, President Bush announced that DHS and State would develop a
strategy, or "Road Map Initiative," to clarify the statutory
requirements for designation as a participating country. DHS and State
are consulting with 13 "Road Map" countries seeking admission into the
Visa Waiver Program--Bulgaria, Cyprus, Czech Republic, Estonia, Greece,
Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, and South
Korea.
In August 2007, Congress enacted the 9/11 Act, which provides DHS with
the authority to consider admitting into the Visa Waiver Program
countries that otherwise meet the program requirements, but have
refusal rates between 3 percent and 10 percent, provided the countries
meet certain conditions. For example, before being admitted to the
program, the countries must demonstrate a sustained reduction in
refusal rates, and must be cooperating with the United States on
counterterrorism initiatives, information sharing, and the prevention
of terrorist travel, among other things. In addition, DHS must also
complete two actions aimed at enhancing the security of the program.
[Footnote 10] Specifically, DHS must certify the following to Congress:
* A system is in place that can verify the departure of not less than
97 percent of foreign nationals who depart through U.S. airports. While
this system will initially be biographic only, Congress required the
eventual implementation of a biometric exit system at U.S. airports. If
the biometric air exit system is not in place by July 1, 2009, the
flexibility that DHS may obtain to consider admitting countries with
refusal rates between 3 percent and 10 percent will be suspended until
the system is in place.
* An electronic travel authorization system is "fully operational."
This system would require nationals from Visa Waiver Program countries
to provide the United States with biographical information before
boarding a U.S.-bound flight to determine the eligibility of, and
whether there exists a law enforcement or security risk in permitting,
the foreign national to travel to the United States under the program.
To the extent possible, according to DHS, applicants would find out
almost immediately whether their travel has been authorized, or if
their application has been rejected[Footnote 11], in which case they
are ineligible to travel to the United States under the Visa Waiver
Program.[Footnote 12]
Executive Branch Is Moving Quickly to Expand the Visa Waiver Program
without a Transparent Process:
DHS has not followed a transparent process for admitting new countries
to the program, which has created confusion among U.S. agencies and
officials in Washington, D.C., and overseas, and among countries
seeking to join the Visa Waiver Program. During the expansion
negotiations, DHS has achieved some security enhancements.
DHS Has Not Followed a Transparent Process for Visa Waiver Program
Expansion:
We found that the Visa Waiver Program Office has not followed its own
standard operating procedures, completed in November 2007, which set
forth the key milestones that DHS and aspiring countries must meet
before additional countries are admitted into the program. According to
the standard procedures, State should submit to DHS a formal, written
nomination for a particular country, after which DHS is to lead an
interagency team to conduct an in-country, comprehensive review of the
impact of the country's admission into the Visa Waiver Program on U.S.
security, law enforcement, and immigration interests. Figure 1 depicts
the standard procedures that the program office established to guide
expansion of the Visa Waiver Program compared with DHS's actions since
August 2007. Although State has only nominated one country--Greece--DHS
has nonetheless conducted security reviews for countries that State has
not yet nominated--Czech Republic, Estonia, Hungary, Latvia, Lithuania,
Slovakia, and South Korea. According to State officials, until DHS has
implemented the required provisions of the 9/11 Act, and countries have
met all of the Visa Waiver Program's statutory requirements, State does
not plan to nominate any other countries. DHS's Assistant Secretary for
Policy Development told us that the department had determined that it
would not follow the standard operating procedures during these
expansion negotiations and, thus, had to "make up the process as it
went along," in part because DHS had never expanded the program before
and because Congress significantly changed the program's legislative
requirements in August 2007.
Figure 1: Comparison of DHS's Process to Expand the Visa Waiver Program
against the Standard Operating Procedures for Expansion:
[See PDF for image]
This figure is an illustration of a comparison of DHS's process to
expand the visa waiver program against the standard operating
procedures for expansion. The following information is depicted:
Standard Visa Waiver Program Expansion Process:
* State submits a formal nomination of an individual country to DHS;
* DHS conducts a comprehensive review of the nominated country, which
includes an in-country site visit;
* DHS completes comprehensive country review and submits it to
Congress.
DHS Expansion Process:
Country: Lithuania;
Visa refusal rate, fiscal year 2007: 12.9%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: March 2008;
In-country site visit: June 2008;
DHS goal to admit new countries: December 2008.
Country: Slovakia;
Visa refusal rate, fiscal year 2007: 12.0%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: March 2008;
In-country site visit: April/May 2008;
DHS goal to admit new countries: December 2008.
Country: Latvia;
Visa refusal rate, fiscal year 2007: 11.8%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: February/March 2008;
In-country site visit: June 2008;
DHS goal to admit new countries: December 2008.
Country: Hungary;
Visa refusal rate, fiscal year 2007: 10.3%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: March 2008;
In-country site visit: April/May 2008;
DHS goal to admit new countries: December 2008.
Country: Czech Republic;
Visa refusal rate, fiscal year 2007: 6.7%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: February 2008;
In-country site visit: March 2008;
DHS goal to admit new countries: December 2008.
Country: South Korea;
Visa refusal rate, fiscal year 2007: 4.4%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: April 2008;
In-country site visit: June 2008;
DHS goal to admit new countries: December 2008.
Country: Estonia;
Visa refusal rate, fiscal year 2007: 4.0%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: February/March 2008;
In-country site visit: March/April 2008;
DHS goal to admit new countries: December 2008.
Country: Malta;
Visa refusal rate, fiscal year 2007: 2.7%;
Nomination date: [Empty];
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: March/April 2008;
In-country site visit: [Empty];
DHS goal to admit new countries: December 2008.
Country: Greece;
Visa refusal rate, fiscal year 2007: 1.6%;
Nomination date: August 2007;
Memorandum of Understanding (MOU); DHS's standard operating procedures
do not include signing MOUs: [Empty];
In-country site visit: November 2007;
DHS goal to admit new countries: December 2008.
Source: GAO analysis of DHS data. Art Explosion (images).
[End of figure]
State and Justice officials told us that the lack of a transparent
timeline and requirements for Visa Waiver Program expansion has led to
confusion among U.S. agencies in headquarters' offices and at U.S.
embassies overseas, as well as foreign governments seeking to join the
program. For example, DHS's standard procedures were not updated to
account for the department's plans to sign with each of the aspiring
Visa Waiver Program countries separate memorandums of understanding
(MOU) that lay out the new legislative requirements from the 9/11 Act.
According to DHS, while not required by the act, the U.S. government is
seeking to negotiate MOUs with current and aspiring Visa Waiver Program
countries to help put the legislative provisions in place. DHS has not
yet signed MOUs with any current program countries; the department
intends to complete negotiations with existing program countries by
October 2009. As indicated in figure 1, DHS signed MOUs with aspiring
countries before conducting in-country site visits. As of June 2008,
DHS had signed MOUs with eight Road Map countries. However, State and
Justice officials told us that DHS had not been clear in communicating
these steps to aspiring and current program countries and U.S. embassy
officials in several Road Map countries told us that it had been
difficult to explain the expansion process to their foreign
counterparts and to manage their expectations about when those
countries might be admitted into the Visa Waiver Program. In response
to our request, in late April 2008, DHS provided us with an outline of
the department's completed and remaining actions for expanding the Visa
Waiver Program by the end of the year. DHS officials stated that this
outline could be a first step in providing guidance for all
stakeholders should the program be expanded again in the future.
However, this outline does not include criteria for selecting countries
under consideration for admission into the program other than the 13
Road Map countries.
The U.S. government is only considering the Road Map countries for
potential admission into the program in 2008 because the United States
began formal discussions with these 13 countries several years ago, not
due to the application of clearly defined requirements. DHS is
negotiating with 4 Road Map countries with fiscal year 2007 refusal
rates over 10 percent (Hungary, Latvia, Lithuania, and Slovakia), with
the expectation that fiscal year 2008 refusal rates for these countries
will fall below 10 percent. State officials told us that they lacked a
clear rationale to explain to other aspiring, non-Road Map countries
with refusal rates under 10 percent (Croatia, Israel, and Taiwan) that
they will not be considered in 2008 due to the executive branch's plans
to expand the program first to countries in Central and Eastern Europe,
and South Korea. (Figure 2 shows the fiscal year 2007 refusal rates for
the 13 Road Map countries.)
Figure 2: Short-term Business and Tourism Visa Refusal Rates, by
Country, Fiscal Year 2007:
[See PDF for image]
This figure is a listing of short-term business and tourism visa
refusal rates, by country, fiscal year 2007, as follows:
Refusal rate: 30-40%;
Countries:
Romania (37.7%) ("Road Map" initiative country).
Refusal rate: 20-30%;
Countries:
Algeria;
Belarus;
Belize;
Bolivia;
Central African Republic;
Chad;
China;
Colombia;
Comoros;
Costa Rica;
Djibouti;
Ecuador;
Equatorial Guinea;
Gabon;
Grenada;
India;
Kyrgyzstan;
Lebanon;
Libya;
Maldives;
Morocco;
Panama;
Poland (25.2%; "Road Map" initiative country);
Samoa;
Serbia and Montenegro;
Sri Lanka;
St. Kitts and Nevis;
St. Lucia;
St. Vincent and the Grenadines;
Tanzania;
Tunisia;
Vanuatu.
Refusal rate: 10-20%;
Countries:
Angola;
Antigua/Barbuda;
Azerbaijan;
Bosnia-Herzegovina;
Botswana;
Bulgaria (14.32%; "Road Map" initiative country);
Hungary (10.3%; "Road Map" initiative country);
Kazakhstan;
Kiribati;
Latvia (11.8%; "Road Map" initiative country);
Lithuania (12.9%; "Road Map" initiative country);
Madagascar;
Mauritius;
Mozambique;
Papua New Guinea;
Paraguay;
North Korea;
Russia;
Seychelles;
Slovakia (12%; "Road Map" initiative country);
Suriname;
Swaziland;
Thailand;
Turkey;
Tuvalu;
Uruguay;
Venezuela.
Refusal rate: 3-10%;
Countries:
Argentina;
Barbados;
Brazil;
Chile;
Taiwan;
Croatia;
Czech Republic (6.7%; "Road Map" initiative country);
Estonia (4%; "Road Map" initiative country);
Kuwait;
Macau;
Malaysia;
Namibia;
Oman;
Marshall Islands;
Sao Tome and Principe;
Saudi Arabia;
Solomon Islands;
South Africa;
South Korea (4.4%; "Road Map" initiative country);
The Bahamas.
Refusal rate: 0-3%;
Countries:
Greece: (1.6%; "Road Map" initiative country);
Cyprus (1.8%; "Road Map" initiative country);
Malta (2.7%; "Road Map" initiative country);
Hong Kong;
Israel;
Qatar.
Source: GAO analysis of Department of State data.
Note: DHS may consider adding to the Visa Waiver Program aspiring
countries with refusal rates below 3 percent in the prior fiscal year,
without meeting the two certification requirements in the 9/11 Act.
[End of figure]
According to DHS, it could not wait until all statutory requirements
were officially met before beginning bilateral negotiations with Road
Map countries, because doing so would not allow sufficient time to add
the countries by the end of 2008. DHS plans to complete the security
reviews and sign MOUs with Road Map countries by the fall of 2008. If
these and all other statutory provisions are completed--including
countries' achievement of refusal rates below 10 percent--State
indicated that it will then formally nominate the countries. However,
DHS has acknowledged that if it and the aspiring countries cannot meet
all of the program's statutory requirements, the United States will not
admit additional countries into the program. In such an event, the U.S.
government could face political and diplomatic repercussions given the
expectations raised that many of the Road Map countries will be
admitted in 2008. DHS, State, and Justice officials acknowledged that
following a more transparent process would be useful in the future as
additional countries seek to join the program.
DHS Has Achieved Some Results in Visa Waiver Expansion Negotiations:
DHS's expansion negotiations with current and aspiring Visa Waiver
Program countries have led to commitments from countries to improve
information sharing processes with the United States. For example, by
signing MOUs, eight aspiring countries have signaled their intent to
comply with the program's statutory provision to report to the United
States or Interpol in a timely manner the loss or theft of passports--
a key vulnerability in the Visa Waiver Program. In addition, as a
result of ongoing visa waiver negotiations with the South Korean
government, in January 2008, DHS initiated the Immigration Advisory
Program at Incheon International Airport in South Korea to help prevent
terrorists and other high-risk travelers from boarding commercial
aircraft bound for the United States.[Footnote 13]
DHS Has Not Fully Developed Tools Aimed at Assessing and Mitigating
Risks in the Visa Waiver Program:
As of July 2008, DHS has not yet implemented key certification
requirements in the 9/11 Act necessary for expanding the Visa Waiver
Program to countries with refusal rates between 3 and 10 percent. In
addition, the Visa Waiver Program Office does not fully consider data
on overstay rates for current and aspiring Visa Waiver Program
countries, even though doing so is integral to meeting a statutory
requirement for continued eligibility in the Visa Waiver Program.
Finally, DHS has not yet fully implemented some of the recommendations
from our 2006 report aimed at improving efforts to assess and mitigate
program risks.
DHS Has Not yet Implemented Key Security Provisions of 9/11 Act That
Are Necessary to Admit Certain Countries into the Visa Waiver Program:
On February 28, 2008, we testified that DHS's plan for certifying that
it can verify the departure of 97 percent of foreign nationals from
U.S. airports will not help the department mitigate risks of the Visa
Waiver Program.[Footnote 14] Furthermore, DHS will face a number of
challenges in implementing ESTA by January 2009. Finally, it is
unlikely that DHS will implement a biometric air exit system before
July 2009, due to opposition from the airline industry.
Plan to Verify the Air Departure of Foreign Nationals Will Not Help DHS
Mitigate Program Risks:
As we have previously mentioned, the 9/11 Act requires that DHS certify
that a system is in place that can verify the departure of not less
than 97 percent of foreign nationals who depart through U.S. airports.
An air exit system that facilitates the development of overstay rate
data is important to managing potential risks in expanding the Visa
Waiver Program. In December 2007, DHS reported to us that it will match
records, reported by airlines,[Footnote 15] of visitors departing the
country to the department's existing records of any prior arrivals,
immigration status changes,[Footnote 16] or prior departures from the
United States. In February 2008, we testified that this methodology
will not demonstrate improvements in the air exit system and will not
help the department mitigate risks of the Visa Waiver Program. At the
time of our testimony, DHS had confirmed that it planned to employ a
methodology that begins with departure records.
We identified a number of weaknesses with the approach DHS confirmed in
December 2007. In particular, DHS's methodology will not inform overall
or country-specific overstay rates, which are key factors in
determining illegal immigration risks in the Visa Waiver Program. Also,
DHS's methodology does not begin with arrival records to determine if
those foreign nationals departed or remained in the United States
beyond their authorized periods of admission--useful data for oversight
of the Visa Waiver Program and its expansion. As we previously
testified, an alternate approach would be to track air arrivals from a
given point in time and determine whether those foreign nationals have
potentially overstayed.[Footnote 17] Figure 3 compares DHS's plan to
match visitor records using departure data as a starting point with a
methodology that would use arrival data as a starting point. An air
exit system that facilitates the development of overstay rate data is
important to managing potential risks in expanding the Visa Waiver
Program. We found that DHS's planned methodology for meeting the "97
percent provision" so it can move forward with program expansion will
not demonstrate improvements in the air exit system or help the
department identify overstays or develop overstay rates. As of July
2008, DHS had not yet certified this provision nor had it finalized a
methodology to meet the provision.
Figure 3: DHS's Current Plan to Meet Air Exit System Provision Omits
Those Who Remain in the United States:
[See PDF for image]
This figure is an illustration of DHS's Current Plan to Meet Air Exit
System Provision Omits Those Who Remain in the United States, as
follows:
DHS's plan uses departure date as starting point:
Foreign nationals depart by air;
Using air departure manifest records, DHS reports that it can match not
less than 97 percent of departure records to records of prior:
* Arrivals;
* Departures;
* Change of status.
Alternative approach uses arrival date as starting point:
Foreign nationals arrive;
Arrival data matched against subsequent records of those foreign
nationals, which will inform DHS of:
* Who has departed by air;
* Who has potentially overstayed.
Sources: GAO analysis of Department of Homeland Security data. Map
Resources (maps); Nova Development and Ingram Publishing (clip art).
[End of figure]
In the 9/11 Act conference report,[Footnote 18] Congress agreed on the
need for significant security enhancements to the Visa Waiver Program
and to the implementation of ESTA prior to permitting DHS to admit new
countries into the program with refusal rates between 3 and 10 percent.
According to DHS, ESTA will allow DHS to identify potential ineligible
visa waiver travelers before they embark on a U.S.-bound carrier. DHS
also stated that by recommending that travelers submit ESTA
applications 72 hours in advance of their departure, CBP will have
additional time to screen visa waiver travelers destined for the United
States.
DHS must follow several steps in implementing ESTA (see fig. 4). The 9/
11 Act requires that DHS must certify both the 97 percent air exit
system and ESTA as fully operational before the department can consider
expanding the Visa Waiver Program to countries with refusal rates
between 3 percent and 10 percent. In June 2008, DHS announced in the
Federal Register that it anticipates that all visa waiver travelers
will be required to obtain ESTA authorization for visa waiver travel to
the United States after January 12, 2009. DHS stated that if it admits
an additional country prior to January 12, 2009, it will require that
visa waiver travelers from that country obtain ESTA authorizations
immediately. For example, if Estonia was admitted into the program on
October 10, 2008, citizens of that country would be required to begin
using ESTA on that date; however, visa waiver travelers from existing
program countries would not be required to obtain approval through ESTA
until January 12, 2009, more than three months later. Figure 4
illustrates the steps that DHS must follow to implement ESTA.
Figure 4: DHS's Anticipated ESTA Implementation Timeline:
[See PDF for image]
The timeline provides the following information:
DHS's Anticipated ESTA Implementation Timeline:
June 9, 2008:
DHS announced plans for the Electronic System for Travel Authorization
(ESTA) in the Federal Register;
August 1, 2008:
ESTA operational in English.
Early October 2008:
Fiscal year 2008 refusal rate data available.
October 15, 2008:
ESTA operational in additional languages.
Early November 2008:
DHS anticipates publishing final notice for ESTA in the Federal
Register.
End of 2008:
DHS anticipates expanding the Visa Waiver Program.
January 12, 2009:
DHS anticipates ESTA authorization to be mandatory for all visa waiver
travelers.
Source: GAO.
[End of figure]
We identified four potential challenges to DHS's planned implementation
of ESTA by January 12, 2009. These challenges include the following:
* DHS has a limited time frame to adequately inform U.S. embassies in
Visa Waiver Program countries and the public about ESTA. U.S. embassy
officials in current and aspiring Visa Waiver Program countries told us
that the United States will need to ensure that there is sufficient
time to inform travelers, airlines, and the travel industry of ESTA
requirements and implementation timelines. However, DHS's announcement
in June 2008 accelerated the timeline for ESTA implementation in
current visa waiver countries. According to a senior U.S. official at
one embassy, DHS had previously confirmed that the department did not
plan to require ESTA authorization for travelers from this country
until the summer of 2009 or later. Following the June 2008
announcement, a senior U.S. embassy official in another country told us
that DHS did not give the embassy adequate advance notice--to prepare
translated materials, brief journalists from the major media, prepare
the embassy Web site, or set up a meeting with travel and tourism
professionals to discuss the implications of ESTA requirements--before
publishing the interim final rule for ESTA. DHS officials told us that
the department is currently working on an outreach strategy to ensure
that travelers are aware of the ESTA requirement.
* Impact on air and sea carriers could be significant. DHS estimates
that 8 U.S.-based air carriers and 11 sea carriers, as well as 35
foreign-based air carriers and 5 sea carriers, will be affected by ESTA
requirements for visa waiver travelers. On the basis of DHS's analysis,
ESTA could cost the carriers about $137 million to $1.1 billion over
the next 10 years, depending on how the carriers decide to assist the
passengers. DHS has noted that these costs to carriers are not
compulsory because the carriers are not required to apply for an ESTA
authorization on behalf of their visa waiver travelers.
* ESTA could increase consular workload. In May 2008, we reported that
State officials and officials at U.S. embassies in current Visa Waiver
Program countries are concerned with how ESTA implementation will
affect consular workload.[Footnote 19] We reported that if 1 to 3
percent of current Visa Waiver Program travelers came to U.S. embassies
for visas, it could greatly increase visa demand at some locations,
which could significantly disrupt visa operations and possibly
overwhelm current staffing and facilities.
* Developing a user-friendly ESTA could be difficult. Although the ESTA
Web site will be operational in a number of languages by October 15,
2008, ESTA will only allow travelers to fill out the application in
English, as with CBP's paper-based form. During our site visits,
embassy officials also expressed concerns that some Visa Waiver Program
travelers do not have Internet access and, thus, will face difficulties
in submitting their information to ESTA.[Footnote 20] Implementing a
user-friendly ESTA is essential, especially for those travelers who do
not have Internet access or are not familiar with submitting forms
online.
Implementation of Biometric Air Exit System before July 2009 Will Be
Difficult:
A third provision of the 9/11 Act requires that DHS implement a
biometric air exit system before July 1, 2009, or else the department's
authority to waive the 3 percent refusal rate requirement--and thereby
consider admitting countries with refusal rates between 3 percent and
10 percent--will be suspended until this system is in place. In March
2008, DHS testified that US-VISIT will begin deploying biometric exit
procedures in fiscal year 2009. According to the system's proposed rule
released in April 2008, air and sea carriers are to collect, store, and
transmit to DHS travelers' biometrics. During the public comment period
on the proposed rule, airlines, Members of Congress, and other
stakeholders have raised concerns about DHS's proposal, and resolving
these concerns could take considerable time. For example, the airline
industry strongly opposes DHS's plans to require airline personnel to
collect digital fingerprints of travelers departing the United States
because it believes it is a public sector function. We have issued a
series of reports on the US-VISIT program indicating that there is no
clear schedule for implementation of the exit portion of the system,
and that DHS will encounter difficulties in implementing the system by
July 2009.[Footnote 21] Although DHS program officials stated that DHS
is on track to implement the biometric exit system by July 2009, it is
unlikely that DHS will meet this timeline. We are currently reviewing
DHS's proposed rule and plan to report later this year on our findings.
DHS Does Not Fully Consider Overstay Rates to Assess the Illegal
Immigration Risks of the Visa Waiver Program:
Some DHS components have expanded efforts to identify citizens who
enter the United States under the Visa Waiver Program and then overstay
their authorized period of admission. In 2004, US-VISIT established the
Data Integrity Group, which develops data on potential overstays by
comparing foreign nationals' arrival records with departure records
from U.S. airports and sea ports. US-VISIT provides this data to ICE,
CBP, and U.S. Citizenship and Immigration Services, as well as to
State's consular officers to aid in visa adjudication. In fiscal year
2007, ICE's Compliance Enforcement Unit received more than 12,300
overstay leads from the Data Integrity Group. On the basis of concerns
that Visa Waiver Program travelers could be overstaying, ICE has
requested that US-VISIT place additional emphasis on identifying
potential overstays from program countries. In turn, ICE has received
funding to establish a Visa Waiver Enforcement Program within the
Compliance Enforcement Unit to investigate the additional leads from US-
VISIT. However, DHS is not fully monitoring compliance with a
legislative provision that requires a disqualification rate (this
calculation includes overstays) of less than 3.5 percent for a country
to participate in the Visa Waiver Program.[Footnote 22] Monitoring
these data is a longstanding statutory requirement for the Visa Waiver
Program. We have testified that the inability of the U.S. government to
track the status of visitors in the country, to identify those who
overstay their authorized period of visit, and to use these data to
compute overstay rates have been longstanding weaknesses in the
oversight of the Visa Waiver Program.[Footnote 23] DHS's Visa Waiver
Program Office reported that it does not monitor country overstay rates
as part of its mandated, biennial assessment process for current visa
waiver countries because of weaknesses in US-VISIT's data. [Footnote
24]
Since 2004, however, the Data Integrity Group has worked to improve the
accuracy of US-VISIT's overstay data and can undertake additional
analyses to further validate these data. For example, the group
conducts analyses, by hand, of computer-generated overstay records to
determine whether individuals identified as overstays by the computer
matches are indeed overstays. In addition, US-VISIT analysts can search
up to 12 additional databases to verify whether a potential overstay
may, in fact, be in the country illegally. While it receives periodic
reporting on potential overstays from US-VISIT, the Visa Waiver Program
Office has not requested that the Data Integrity Group provide
validated overstay rate estimates from visa waiver or Road Map
countries since 2005. Although DHS has not designated an office with
the responsibility of developing such data for the purposes of the Visa
Waiver Program, US-VISIT officials told us that, with the appropriate
resources, they could provide more reliable overstay data and estimated
rates by country to the Visa Waiver Program Office, with support from
other DHS components, such as the Office of Immigration Statistics. For
example, the Visa Waiver Program Office could request additional
analysis for countries where the preliminary, computer-generated
overstay rates raised concerns about illegal immigration risks in the
program. These resulting estimates would be substantially more accurate
than the computer-generated overstay rates. However, the resulting
estimates would not include data on departures at land ports of entry
and, as we have previously mentioned, airline departure data have
weaknesses.[Footnote 25]
DHS Has Implemented Many of GAO's Prior Recommendations Aimed at
Improving Efforts to Assess and Mitigate Risks in the Visa Waiver
Program:
In July 2006, we reported that the process for assessing and mitigating
risks in the Visa Waiver Program had weaknesses, and that DHS was not
equipped with sufficient resources to effectively monitor the program's
risks.[Footnote 26] To address these weaknesses, we recommended that
DHS take a number of actions to better assess and mitigate risks of the
Visa Waiver Program. As shown in table 1, DHS has taken actions to
implement some of our recommendations, but still needs to fully
implement others. In particular, DHS has provided the Visa Waiver
Program Office with additional resources since our 2006 report. In
addition, DHS, in coordination with the U.S. National Central Bureau,
has initiated a system that allows DHS to screen foreign nationals'
arriving at all U.S. international airports against Interpol's database
of lost and stolen travel documents before arriving in the country.
Results to date illustrate that the system identifies two to three
instances of fraudulent passports per month. According to the National
Central Bureau, Interpol's database has intercepted passports that were
not identified by DHS's other screening systems.
Table 1: Status of Prior GAO Recommendations:
Recommendation:
Provide additional resources to strengthen the Visa Waiver Program
Office;
Status: Implemented.
Recommendation:
Finalize clear, consistent, and transparent protocols for the biennial
country assessments and provide these protocols to stakeholders at
relevant agencies at headquarters and overseas. These protocols should
provide timelines for the entire assessment process, including the role
of a site visit, an explanation of the clearance process, and deadlines
for completion;
Status: Implemented.
Recommendation:
Create real-time monitoring arrangements, including the identification
of visa-waiver points of contact at U.S. embassies, for all 27
participating countries; and establish protocols, in coordination with
the appropriate headquarters offices, for direct communication between
points of contact at overseas posts and DHS's Visa Waiver Program
Office;
Status: Partially implemented.
Recommendation:
Require periodic updates from points of contact at posts in countries
where there are law enforcement or security concerns relevant to the
Visa Waiver Program;
Status: Partially implemented.
Recommendation:
Provide complete copies of the most recent country assessments to
relevant stakeholders in headquarters and overseas posts;
Status: Implemented.
Recommendation:
Require that all Visa Waiver Program countries provide the United
States and Interpol with nonbiographical data from lost or stolen blank
and issued passports;
Status: Partially implemented.
Recommendation:
Develop and communicate clear standard operating procedures for the
reporting of lost and stolen blank and issued passports, including a
definition of "timely reporting" and to whom in the U.S. government
countries should report;
Status: Implemented.
Recommendation:
Develop and implement a plan to make Interpol's stolen travel document
database automatically available during primary inspection at U.S.
ports of entry;
Status: Implemented.
Sources: GAO analysis of DHS data and 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).
[End of table]
While DHS has taken action on many of our recommendations, it has not
fully implemented others. We recommended that DHS require that all Visa
Waiver Program countries provide the United States and Interpol with
non-biographical data from lost or stolen issued and blank passports.
According to DHS, all current and aspiring visa waiver countries report
lost and stolen passport information to Interpol, and many report to
the United States. The 9/11 Act requires agreements between the United
States and Visa Waiver Program countries on the reporting of lost and
stolen passports within strict time limits; however, none of the
current visa waiver countries have established lost and stolen passport
reporting agreements by signing MOUs with DHS. DHS also still needs to
fully implement our recommendations to create real-time monitoring
arrangements, establish protocols for direct communication with
contacts at overseas posts, and require periodic updates from these
contacts. For example, while the Visa Waiver Program Office has
recently begun communicating and disseminating relevant program
information regularly with U.S. embassy points of contact at Visa
Waiver Program posts, officials at other Visa Waiver Program posts
reported that they had little contact with the office and were not
regularly informed of security concerns or developments surrounding the
program.
In closing, the executive branch is moving aggressively to expand the
Visa Waiver Program in 2008 to allies in Central and Eastern Europe and
South Korea, after the countries have met certain requirements and DHS
has completed and certified key security requirements in the 9/11 Act.
However, DHS has not followed a transparent process for expanding the
program, thereby causing confusion among other U.S. agencies and
embassies overseas. The lack of a clear process could bring about
political repercussions if countries are not admitted to the program in
2008, as expected. In addition, DHS is not fully assessing a critical
illegal immigration risk of the Visa Waiver Program and its expansion
since it does not consider overstay data in its security assessments of
current and aspiring countries. DHS should determine what additional
data and refinements of these data are necessary to ensure that it can
assess and mitigate this potential risk to the United States. Finally,
DHS still needs to take actions to fully implement our prior
recommendations in light of plans to expand the program.
Chairman Feinstein, this completes my prepared statement. I would be
happy to respond to any questions you or other Members of the
Subcommittee may have at this time.
Contact and Acknowledgments:
For further information about this statement, please contact Jess Ford
at (202) 512-4128 or fordj@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. In addition, John Brummet, Assistant Director;
Teresa Abruzzo; Kathryn Bernet; Joseph Carney; Martin de Alteriis;
Etana Finkler; Eric Larson; and Mary Moutsos made key contributions to
this statement.
[End of section]
Footnotes:
[1] GAO, Visa Waiver Program: Actions Are Needed to Improve Management
of the Expansion Process, and to Assess and Mitigate Program Risks,
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-967] (Washington,
D.C.: Sept. 15, 2008).
[2] The participating countries are Andorra, Australia, Austria,
Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland,
Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New
Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain,
Sweden, Switzerland, and the United Kingdom.
[3] GAO, Border Security: Stronger Actions Needed to Assess and
Mitigate Risks of the Visa Waiver Program, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-06-854] (Washington, D.C.: July
28, 2006).
[4] 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.
[5] See Implementing Recommendations of the 9/11 Commission Act of
2007, Pub. L. No. 110-53.
[6] Specifically, we met with officials from DHS's Customs and Border
Protection (CBP); Immigration and Customs Enforcement (ICE); and U.S.
Visitor and Immigrant Status and Indicator Technology (US-VISIT).
[7] In particular, we met with officials in Justice's Interpol-U.S.
National Central Bureau, which facilitates international law
enforcement cooperation among the United States and Interpol and its
other member countries.
[8] According to DHS, ESTA will be implemented as a mandatory program
for all visa waiver travelers 60 days after publication of a notice in
the Federal Register. DHS anticipates issuing that notice in November
2008, for implementation of the mandatory ESTA requirements on January
12, 2009.
[9] This figure does not account for multiple admissions into the
United States under the Visa Waiver Program by the same individual.
[10] Section 711 of the 9/11 Act specifically grants DHS the authority
to waive the 3 percent refusal rate requirement for countries--up to a
maximum of 10 percent--provided those countries meet other security
requirements.
[11] In addition to receiving an authorization or rejection notice upon
submitting an ESTA application, the applicant may also receive a
response noting that the application is pending.
[12] ESTA authorizations will be valid for up to 2 years and will allow
the individual to travel to the United States repeatedly within that
period. In some circumstances, such as when a passport has expired or a
traveler has changed his or her name, the traveler must apply for a new
ESTA.
[13] According to CBP, the Immigration Advisory Program aims to enhance
the safety of air travel by, among other things, reducing the number of
improperly documented passengers traveling from or through a country to
the United States. As of August 2008, the program operates in airports
in Amsterdam, the Netherlands; Frankfurt, Germany; London, England
(Heathrow Airport and Gatwick Airport); Manchester, England; Madrid,
Spain; Seoul, South Korea; Tokyo, Japan; and Warsaw, Poland.
[14] GAO, Visa Waiver Program: Limitations with Department of Homeland
Security's Plan to Verify Departure of Foreign Nationals, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-08-458T] (Washington, D.C.: Feb.
28, 2008).
[15] Air carriers transmit visitor manifest information, which is
obtained directly from government-issued passports, to CBP.
[16] This includes changes and extensions of the visits of lawfully
admitted, nonimmigrant foreign nationals.
[17] This could include foreign nationals who departed after their
authorized period of admission expired, as well as those foreign
nationals who may have remained in the country as overstays.
[18] Conference Report on H.R. 1, Implementing Recommendations of the
9/11 Commission Act of 2007, July 25, 2007.
[19] See GAO, Border Security: State Department Should Plan for
Potentially Significant Staffing and Facilities Shortfalls Caused by
Changes in the Visa Waiver Program, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-08-623] (Washington, D.C.: May 22, 2008).
[20] According to DHS, ESTA is designed to allow third parties to file
applications on behalf of another person.
[21] GAO, Homeland Security: Prospects For Biometric US-VISIT Exit
Capability Remain Unclear, [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-07-1044T] (Washington, D.C.: June 28, 2007); Border
Security: US-VISIT Program Faces Strategic, Operational, and
Technological Challenges at Land Ports of Entry, [hyperlink,
http://www.gao.gov/cgi-bin/getrpt?GAO-07-248] (Washington, D.C.: Dec.
6, 2006).
[22] The disqualification rate is the total for a given fiscal year, of
(1) those nationals of the country who were admitted as nonimmigrants
and violated the terms of their admission--this would include
overstays--and (2) the number of foreign nationals who were denied
admission upon arrival in the United States, compared with the total
number of nationals of that country who applied for admission as
nonimmigrant visitors during the same period. According to the visa
waiver statute, the country must be terminated at the beginning of the
2d fiscal year following the fiscal year in which the determination of
the disqualification rate was made. See 8 U.S.C. § 1187(f).
[23] For more than 10 years, we have recommended the collection of
departure information and the development of estimates of overstays by
air. See [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-93-25]
and [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO/PEMD-95-20].
[24] According to DHS officials, the mandated country assessments
include a placeholder for data on overstay rates, but this data is not
included in the 2003-2004 or 2005-2006 assessments.
[25] Due to limitations in DHS's data, U.S. VISIT officials also noted
that some individuals that appear in DHS's systems as being in country
legally may actually be overstays, and that country-specific
information is not available for about 2 percent of records.
[26] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-06-854].
[End of section]
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