<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:89397.wais]
SMOOTH SAILING OR AN IMPENDING WRECK? THE IMPACT OF NEW VISA AND
PASSPORT REQUIREMENTS ON FOREIGN TRAVEL TO THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JULY 10, 2003
__________
Serial No. 108-51
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
89-397 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
JOHN SULLIVAN, Oklahoma C.A. ``DUTCH'' RUPPERSBERGER,
NATHAN DEAL, Georgia Maryland
CANDICE S. MILLER, Michigan ELEANOR HOLMES NORTON, District of
TIM MURPHY, Pennsylvania Columbia
MICHAEL R. TURNER, Ohio JIM COOPER, Tennessee
JOHN R. CARTER, Texas CHRIS BELL, Texas
WILLIAM J. JANKLOW, South Dakota ------
MARSHA BLACKBURN, Tennessee BERNARD SANDERS, Vermont
(Independent)
Peter Sirh, Staff Director
Melissa Wojciak, Deputy Staff Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Philip M. Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on July 10, 2003.................................... 1
Statement of:
Jacobs, Janice L., Deputy Assistant Secretary for Visa
Services, U.S. State Department; Michael Cronin, Associate
Commissioner for Immigration Policy and Programs, Bureau of
Customs and Border Protection, Department of Homeland
Security; and Robert J. Garrity, Jr., Acting Assistant
Director, Records Management Division, Federal Bureau of
Investigation.............................................. 13
Marks, John A., national chair, Travel Industry Association
of America; Randel K. Johnson, vice president of Labor,
Immigration and Employee Benefits, U.S. Chamber of
Commerce; and Richard J. Pettler, partner, Fragomen, Del
Rey, Bernsen & Loewy, P.C.................................. 67
Letters, statements, etc., submitted for the record by:
Cronin, Michael, Associate Commissioner for Immigration
Policy and Programs, Bureau of Customs and Border
Protection, Department of Homeland Security, prepared
statement of............................................... 23
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 107
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 4
Garrity, Robert J., Jr., Acting Assistant Director, Records
Management Division, Federal Bureau of Investigation,
prepared statement of...................................... 32
Jacobs, Janice L., Deputy Assistant Secretary for Visa
Services, U.S. State Department, prepared statement of..... 16
Johnson, Randel K., vice president of Labor, Immigration and
Employee Benefits, U.S. Chamber of Commerce, prepared
statement of............................................... 78
Marks, John A., national chair, Travel Industry Association
of America, prepared statement of.......................... 69
Pettler, Richard J., partner, Fragomen, Del Rey, Bernsen &
Loewy, P.C., prepared statement of......................... 94
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 106
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 9
SMOOTH SAILING OR AN IMPENDING WRECK? THE IMPACT OF NEW VISA AND
PASSPORT REQUIREMENTS ON FOREIGN TRAVEL TO THE UNITED STATES
----------
THURSDAY, JULY 10, 2003
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
2154, Rayburn House Office Building, Hon. Tom Davis (chairman
of the committee) presiding.
Present: Representatives Tom Davis of Virginia, Ose, Lewis
of Kentucky, Platts, Deal, Miller of Michigan, Waxman, Maloney,
Kucinich, Clay, Watson, Van Hollen, Sanchez, Ruppersberger,
Norton, and Bell.
Staff present: Peter Sirh, staff director; Melissa Wojciak,
deputy staff director; Keith Ausbrook, chief counsel; Ellen
Brown, legislative director and senior policy counsel; Robert
Borden, counsel/parliamentarian; David Marin, director of
communications; Scott Kopple, deputy director of
communications; John Cuaderes, Mason Alinger, and Victoria
Proctor, professional staff members; David Young, counsel;
Teresa Austin, chief clerk; Joshua E. Gillespie, deputy clerk;
Shalley Kim, legislative assistant; Corinne Zaccagnini, chief
information officer; Brien Beattie, staff assistant; Phil
Barnett, minority chief counsel; Michael Yeager, minority
deputy chief counsel; Karen Lightfoot, minority communications
director/senior policy advisor; Earley Green, minority chief
clerk; Jean Gosa, minority assistant clerk; and Cecelia Morton,
minority office manager.
Chairman Tom Davis. Good morning. We expect a journal vote
around 10:15, so I'm going to get going with my opening
statement.
A quorum being present, the Committee on Government Reform
will come to order. I want to welcome everyone to today's
hearing on the government's management of security requirements
for foreign visitors seeking entry to this country. The issue
of visa delays should come as no surprise to most members. Next
to issues concerning Social Security, visa problems tend to be
the most requested issue when it comes to casework within our
districts.
The committee continues to be concerned that flawed
implementation of current and looming security requirements may
needlessly delay or deny entry of foreign travelers to our
country for business or tourism. We all agree that homeland
security is our top priority and, as a result of September 11,
we need to closely scrutinize visitors to our country. Today
the committee will examine the entry process for visitors to
see if there are ways that, without sacrificing security, we
can mitigate delays that impede legitimate business and tourist
travel.
Prior to the September 11 attacks, the State Department's
visa operations focused primarily on screening applicants to
determine whether they intended to work or reside illegally in
the United States. Consular officers were encouraged to
facilitate legitimate travel and overseas consular sections
were given substantial discretion in determining the level of
scrutiny applied to visa applications.
Since September 11, the U.S. Government has introduced some
changes to strengthen the security of visa issuance. For
example, the State Department has increased the types of
security checks it conducts on applicants and the number of
agencies involved with those checks. Consular officers are also
conducting longer applicant interviews and more of them. Along
with these additional precautions, however, come delays that
have seriously affected American businesses and our tourism
industry.
Longstanding business relationships are being disrupted
because legitimate travelers attempting to travel to the United
States cannot obtain visas. Opportunities for new business
relationships and normal business practices are being blocked
and personnel transfers within some U.S. corporations are being
delayed. In addition, U.S.-based foreign employees visiting
family or traveling who need to renew visas or change them to
reflect new status are being significantly delayed in their
efforts to return to work.
If current delays weren't enough, we understand that
additional delays are expected. On August 1, the State
Department will implement new regulations that will further
reduce the instances in which consular interviews can be waived
for visa applications. This is expected to change interview
rates from 10 percent of visa applicants in some locations to
close to 90 percent of applicants. A cable sent in May of this
year from Secretary Powell to all diplomatic and consular posts
states that the Bureau of Consular Affairs expects and accepts
that many posts will face processing backlogs for the
indefinite future. Posts are required to use existing resources
for the interview increase and are not permitted to use
overtime.
In some countries, the wait time for interview appointments
can be several months. For example, one of the consulates in
India, a country that is the source of many high-tech companies
and employees, has such a large interview backlog that it is no
longer accepting appointments for interviews. This means that
travelers must spend additional time and money to travel to
alternate interview locations. In some countries the toll phone
call to set up an interview appointment at the consulate can
cost a day's wages or more.
We are here today to understand what steps the State
Department is taking to minimize the impact this new
requirement will have on business and tourism in the United
States.
Committee staff visited U.S. consular operations in Germany
and Latvia to see how increased security requirements are being
implemented at both large and small missions. The embassies in
both Latvia and Germany have already ramped up interview
operations to require interviews for over 80 percent of visa
applicants. The embassy in Berlin uses an appointment system
that provides applicants an interview appointment within two
business days of the date of request. The embassy in Latvia has
set aside 1 day of the week for interviews for applicants
identified by the local chapter of the American Chamber of
Commerce as priority applicants. This scheduling accommodation
will save time for business travelers who need to obtain a visa
quickly.
Another example of an innovative idea that minimizes delays
is the way the embassy in Latvia permits maritime sailors who
register through a central crewing agency to be granted visas
safely without interviews. The embassy believes this method
allows for a secure way to streamline the visa process for what
amounts to nearly a quarter of the total visa applicants in
Latvia.
Under the impending State Department interview
requirements, such a procedure may require a waiver. The
committee hopes that the State Department will consider
reasonable alternate processes that will expedite processes
without jeopardizing security.
Another expected source of delays begins in October of this
year when the USA PATRIOT Act requires visitors to the United
States to use machine-readable passports to enter the country.
Although government sources report that many countries are in
fact producing machine-readable passports, travelers may not
actually possess them. Travelers who attempt to enter the
country without a machine-readable passport will be required to
either apply for a visa to enter the United States or to apply
for a new passport. I am interested in hearing from our panels
today about how this new requirement is being publicized both
here and abroad, what policies are in place for any waivers,
and what the airlines are expected to do when would-be
travelers are unable to present machine readable passports.
I hope that by the end of the hearing today, the committee
will have a good picture of the important security measures the
State Department, the Department of Homeland Security, and the
Federal Bureau of Investigation are taking to protect the
homeland from foreign visitors who would do us harm. But I also
hope that we can learn about ways in which potential damage to
American business and tourism can be avoided or mitigated.
We have assembled an impressive group of witnesses to help
us understand the current and expected problems pertaining to
business travel and what actions are being taken to prevent or
mitigate delays. We will hear from the Department of State, the
Department of Homeland Security, and the Federal Bureau of
Investigation. We will also receive input from the private
sector, including the U.S. Chamber, the Travel Industry
Association of America, and the law firm of Fragomen, Del Rey,
Bernsen & Loewy.
I want to thank all of our witnesses for appearing before
the committee, and I look forward to their testimony.
[The prepared statement of Chairman Tom Davis follows:]
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Chairman Tom Davis. And I now yield to our ranking member,
Mr. Waxman, for his opening statement.
Mr. Waxman. Thank you Mr. Chairman. I appreciate you
holding this hearing because today's hearing is about the
balance we need to draw between having an open society, one
that encourages international tourism and commerce, and the
need to protect ourselves against real terrorist threats. Both
are important interests. But when we take steps to advance one
of these interests, we need to recognize that it often comes at
the expense of the other. That's why we in Congress and the
executive branch need to be thoughtful and selective about the
measures we are prepared to take or not take in the name of
homeland security.
In the wake of September 11, 2001, Congress passed the
PATRIOT Act, the Homeland Security Act, and other measures to
try to elevate the importance of security at home. Some of
these reforms were necessary and long overdue. In some of these
instances, however, I think we acted too quickly, giving little
thought to the consequences.
The hearing today is going to focus mainly on two security
regulations that may significantly affect the travel and
tourism industry, exporters, and other sectors of our economy
that rely on foreign travelers to the United States. One
requires that countries participating in the Visa Waiver
Program issue machine-readable passports by October 1, 2003.
This is a requirement passed by Congress, and in concept it
appears to make a great deal of sense. The issue is the
timetable required by the law and its impact on travelers whose
governments have not acted quickly enough to issue the new
passports.
The other regulation will require consular officers around
the world to conduct far more interviews of visa applicants,
possibly causing long delays in the issuance of visas. The
travel industry and other groups represented here today argue
that this will add little to our security and will worsen the
decade-long decline in the U.S. share of world travel. They say
that it is not clear how the cursory interviews conducted at
visa windows will really improve our ability to detect
terrorists.
Although the numbers are unclear, we know that at least
some of the September 11 terrorists who obtained visas were
interviewed by consular officials. One official who interviewed
one of the terrorists asked how she could be expected to tell
from the interview that he was bent on committing an act of
terrorism. That's a good question. Even if these interviews are
a good idea, it appears the State Department is badly prepared
for the backlogs and increased workload that will certainly
follow.
A cable issued on May 3 to U.S. missions abroad, recognized
the problems, but indicated that the State Department would not
provide additional resources. The cable reads, ``Posts must
implement the new interview guidelines using existing
resources. Posts should not, repeat not, use overtime to deal
with the additional workload requirements but should develop
appointment systems and public relations strategies to mitigate
as much as possible the impact of these changes.''
To me it's a recipe for disaster. If the United States is
going to make this policy change, then the officials
implementing it need the resources to do the job. Appointment
systems and public relation strategies are not the answer.
I welcome all of our witnesses and I look forward to
hearing from them and receiving their testimony today.
[The prepared statement of Hon. Henry A. Waxman follows:]
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Chairman Tom Davis. Do any other Members wish to make a
statement? If not we will move to our first panel of witnesses
and I want to thank them for taking time from their busy
schedules to be with us today.
Welcome Ms. Janice Jacobs, the Deputy Assistant Secretary
for Visa Services, U.S. State Department; Mr. Michael Cronin,
the Associate Commissioner for Immigration Policy and Programs
from the Bureau of Customs and Border Protection, Department of
Homeland Security; and Mr. Robert Garrity, the Acting Assistant
Director of the Records Management Division of the FBI.
It's the policy of this committee that all witnesses be
sworn in before they testify. So if you would rise with me and
raise your right hands.
[Witnesses sworn.]
Chairman Tom Davis. In order to allow time for questions--
your total statement is in the record. We have a light in front
of you. When the yellow light goes on, that means 4 minutes are
up and you have a minute to sum up, and if you could move to
summary and then we can get directly into questions.
Ms. Jacobs we will start with you and thank you for being
with us.
STATEMENTS OF JANICE L. JACOBS, DEPUTY ASSISTANT SECRETARY FOR
VISA SERVICES, U.S. STATE DEPARTMENT; MICHAEL CRONIN, ASSOCIATE
COMMISSIONER FOR IMMIGRATION POLICY AND PROGRAMS, BUREAU OF
CUSTOMS AND BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY;
AND ROBERT J. GARRITY, JR., ACTING ASSISTANT DIRECTOR, RECORDS
MANAGEMENT DIVISION, FEDERAL BUREAU OF INVESTIGATION
Ms. Jacobs. Mr. Chairman, members of the committee, thank
you for inviting me to testify before you today on the subject
of visa policy and its effect on the security of the United
States, our economic health, and our openness to other
societies. Clearly these are all significant interests of the
United States that must be given their proper weight as the
Department of State and Department of Homeland Security design
and implement a visa policy that serves the broad goals of our
country.
Visa adjudication by consular offices abroad underwent a
change in the wake of the terrorist attacks on the United
States on September 11, 2001. While detecting security threats
to our country was always taken with the utmost seriousness by
our officers, we had few tools beyond our incomplete watchlist
to screen for terrorists and other security threats in the visa
process before September 11.
Suspicion of illegal immigration was and remains the
primary reason for turning down a visa applicant, and our
officers are well trained to do this job. It is hardly
surprising that their efforts were focused on the well-
documented problem of illegal immigration prior to September
11, nor should it surprise anyone now that we have shifted our
priorities toward the security of the visa process in order to
render it a more effective antiterrorism tool.
The Department of State has invested substantial time,
money, and effort in revamping our visa work to serve this end.
We have doubled our database holdings on individuals who should
not be issued visas, increased our training efforts to better
apprise consular offices of counterterrorism issues, set up
special programs to more fully vet visa applicants of
particular concern and moved to increase staffing for visa
positions abroad.
While you never achieve perfection in this area, I am
confident that we have a much stronger visa process in place at
our overseas posts than we had just 1 year ago, and the country
is safer for it.
There is a cost for all of this effort and it is not simply
borne by the Department in terms of greater personnel and
equipment needs. It also comes at a cost in time and a certain
amount of inconvenience to visa applicants who must now
navigate a process that is more rigorous than it has been in
the past. Secretary Powell has succinctly articulated our
policy as ``Secure Borders, Open Doors,'' and we at the
Department are acutely aware of the need to satisfy both of
these objectives. The U.S. economy counts on the billions of
dollars spent each year by international tourists. Our
universities reap the economic benefits of preeminence among
destination countries for international students. Our
scientific establishment flourishes in a climate of open
exchange across borders, and our entire society is accustomed
to living in a free and open manner that counts upon an ease of
movement across international borders.
We are determined to preserve these crucial benefits to the
United States even as we work to strengthen the visa process.
Most nonimmigrant visa applicants do not require any special
check beyond the enhanced consular name check. While processing
requirements have increased the burden on our officers in terms
of the data they collect and the checks they must complete,
most of this occurs out of the applicant's sight and does not
add appreciably to the time required to make a visa decision.
Much of the frustration of last summer and fall when we
were adding requirements without the resources to properly
handle them has been overcome. But applicants and their
sponsors often believe that nothing has changed, even when they
have yet to test the system with a new application. In order to
keep visas flowing smoothly with the new security requirements,
we are adding additional officers in the field. We will have a
net increase of 39 consular officers for fiscal year 2003 and
another 80 in fiscal year 2004. We have tightened the
conditions under which we allow posts to waive a personal
interview by a visa applicant and asked our 210 visa-issuing
posts to implement this new policy by August 1 of this year. By
centralizing at headquarters level the decisionmaking authority
on this issue, we can consult security experts before making
changes to general guidelines. I will point out that many posts
have met the new standard already.
Because most of our posts operate in countries where
illegal migration to the United States has been a longstanding
problem, consular officers there were already interviewing the
vast majority of applicants. Some posts not facing a
significant problem of illegal migration changed their
interview policy without prompting from us. London, for
example, went to an 80 percent interview rate in January of
this year and was able to implement this policy without great
stress to either officers or applicants. Clearly, however,
there are posts in high-volume places that will have a tougher
time coming into compliance with the policy.
We are committed to toughening our security screening, but
also to ensuring that applicants get their visas in a timely
manner and we will work closely with affected posts such as
Seoul, Rome, Paris, Tokyo and Taipei to see that both goals are
attained. We are working to effectively and smoothly implement
the requirement established by law that any visitors seeking to
enter the United States under the Visa Waiver Program after
October 1, 2003 present a machine-readable passport or
otherwise obtain a U.S. visa, which has long been machine-
readable. We are vigorously publicizing the requirement in the
VWP countries and our embassies are fully prepared to issue
visas quickly to VWP citizens unable to obtain an MRP in time
for any needed travel.
A number of non-immigrant visa applications, approximately
2 percent of our workload, are submitted by consular officers
overseas to the Department of State for Washington-level
screening by Federal intelligence and law enforcement agencies.
This is known as the ``security advisory opinion'' process. The
purpose of the new additional review is to focus on serious
issues such as hostile intelligence activity, potential
terrorist threats and access to sensitive technology. The
Department of State acts primarily as a clearinghouse in this
process. We have added significant resources to the staff of
the Visa Office to ensure that we return to posts overseas the
results of the interagency review promptly upon completion. The
analytical experts of the Department who review such cases do
so within 2 weeks.
We are also spending approximately $1 million to modernize
the transmission of data in the security advisory opinion
process to eliminate as much as possible manual manipulation of
case data and make use of a new interagency network known as
OSIS. This modernization should be complete by January 2004.
The Department of State is working hand-in-hand with our
colleagues at Homeland Security and the Department of Justice
to ensure we have a visa system that properly recognizes
threats to the United States in the visa process and stops them
from reaching our shores. We are working every day with
business and industry to see that access to our country is not
impeded for those whose business we want and whose presence we
value.
I am happy to answer any questions that you may have. Thank
you.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Jacobs follows:]
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Chairman Tom Davis. We will move to Mr. Cronin.
Mr. Cronin. Good morning, Chairman Davis, Ranking Member
Waxman and members of the committee. I am pleased to have this
opportunity to appear before you today. The focus of my
testimony will be implementation of the machine-readable
passport requirement for participation in the Visa Waiver
Program. The Visa Waiver Program was established on a pilot
basis in 1986. It allows foreign travelers from certain
countries to be admitted to the United States as visitors under
specific conditions and for a limited time without first
obtaining a nonimmigrant visa.
As Ranking Member Waxman noted in his opening remarks,
Section 217 of the Immigration and Nationality Act now requires
that, barring a waiver, an alien at the time of application for
admission must be in possession of a valid, unexpired, machine-
readable passport that satisfies the internationally accepted
standard for machine readability.
In October 2001, Section 417 of the USA PATRIOT Act
advanced the deadline for implementation of this requirement
from October 1, 2007 to October 1, 2003. Although this deadline
represents the first universal application of the machine-
readable passport requirement, it has been a longstanding Visa
Waiver Program requirement that countries in the program issue
or certify their intent to issue a machine-readable passport.
I would like to clearly note at this point that this
October 1, 2003 deadline for machine-readable passports is
distinct from the October 26, 2004 deadline for biometrics in
passports. Under Section 303 of the Border Security Act, by
October 26, 2004, visa waiver countries are required to certify
that they have in place a program to issue passports that
contain biometrics, and this will be a condition of continued
participation in the Visa Waiver Program. Also, on or after
October 26, 2004, any alien seeking admission under the program
must present a passport that contains biometrics, unless the
passport was issued prior to that date.
The use of machine-readable passports is critical to
efficient border management and to the capture of accurate
biographical and passport data relating to foreign travelers.
This capability forms the backbone of the advanced passenger
information system under which data on arriving air and sea
travelers is communicated to the Bureau of Customs and Border
Protection and to our ports-of-entry well in advance of the
conveyances on which they are traveling. It greatly reduces the
possibility of human error or misfeasance in capturing and
communicating data and adds to the integrity of the documents
presented. This data is used to identify persons seeking to
enter our country who may present a threat to our national
security or welfare.
As noted earlier, the October 1, 2003 deadline was enacted
in October 2001, following a lengthy period during which the
Visa Waiver Program countries were required to certify, as a
condition of participation in the program, that they were
issuing or preparing to issue machine-readable passports. The
majority of visa waiver travelers are presently in possession
of machine-readable passports and will not have difficulty
meeting this new requirement. Those who are not in possession
of machine-readable passports will, on and after October 1,
2003, have to acquire such a passport from their country of
nationality in order to enter the United States under the Visa
Waiver Program. Alternatively, persons not in possession of a
machine-readable passport will have to secure a nonimmigrant
visa from the U.S. Embassy or consulate in order to enter the
United States.
Clearly the Department of Homeland Security is mandated to
implement this important requirement at our ports-of-entry on
October 1, 2003, and it is our intention to do so. The
Department will endeavor to work with interested parties,
especially businesses associated with international travel and
with foreign governments, to meet our statutory requirements
without adversely impacting the vital flow of international
visitors from Visa Waiver Program countries. We note that under
the statutory scheme, this mandate extends to transportation
lines which are signatory to agreements to transport VWP, Visa
Waiver Program travelers, and which are further required under
Section 273 of the Immigration and Nationality Act to ensure
that their passengers are in possession of valid passports and
visas if visas are required.
This Department will also work closely with the Department
of State and with transportation lines to ensure that this
requirement is widely known and understood by travelers who
will be subject to it. Though this is not a new requirement,
having been enacted nearly 2 years ago, it is very different
from historic documentary requirements for which transportation
lines have been responsible. Up to now, transportation lines'
staff have been required to ensure that travelers were in
possession of facially valid, unexpired passports and visas, if
visas were required. In the case of visa waiver travelers,
their passports and machine readability or lack thereof will
now regulate whether or not a visa is required. Before and
after implementation of the requirement, we will work closely
with transportation lines to ensure they have a clear
understanding of the document-checking requirements for which
they are liable. We will work with transportation lines to
provide feedback on what we are seeing at ports-of-entry
concerning the presentation of machine-readable passports by
visa waiver travelers.
I would like to thank the committee for the opportunity to
present this testimony. The Department of Homeland Security
welcomes implementation of this provision of the USA PATRIOT
Act as a necessary step in ensuring that adequate and accurate
data is available to our inspectors at ports-of-entry and to
all law enforcement and national security agencies. We
acknowledge the challenge of implementation of this requirement
because it does represent a departure from document-checking
standards. Nonetheless, in our view, it represents critical
progress toward strengthening our intelligence, border
protection, and transportation security capabilities and will
serve as a model for international enhancements in these areas.
The Department will achieve this security enhancement while
endeavoring to facilitate the valuable economic and social
benefits brought to our country by international travelers.
And I would be pleased to respond to any questions from the
committee.
Mrs. Miller. Thank you.
[The prepared statement of Mr. Cronin follows:]
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Mrs. Miller. We certainly appreciate the testimony thus
far. As you can see, we have been called to the House floor for
a vote and I am going to recess at this time and the chairman
will be back shortly. Thank you very much.
[Recess.]
Chairman Tom Davis. Mr. Cronin, I don't want to ignore your
testimony, but I want to keep things moving.
Mr. Garrity, I think you're on.
Mr. Garrity. On behalf of Director Mueller, I want to thank
you for inviting the FBI to testify this morning. I have
submitted a detailed statement for the record but will
summarize the highlights of my testimony this morning.
My name is Robert Garrity and I have been a Special Agent
of the FBI for 27 years. Here with me today is David Hardy,
chief of the Record/Information Dissemination Section which
handles that part of the FBI's national name check program.
First, I want to emphasize to you that the FBI is sensitive
to the impact that delays in visa processing may have on
business, education, tourism, this country's foreign relations
and worldwide perception of the United States. At the same
time, the FBI mission for homeland security requires that our
name check process be primarily focused on accurate and
thorough results. This means that there are instances when the
FBI's review of a visa request must require as much time as
needed to obtain an unequivocally correct result. Thus we are
striving to meet the challenges of ensuring the security
without unduly disrupting legitimate commerce and foreign
relations to this Nation.
With these considerations in mind, the FBI is working
diligently with the Department of State toward the common goals
of improving the expediency and efficiency of the visa
clearance process.
I would like to give the committee some background. And if
you will refer to the chart in my statement or also on the side
here, prior to September 11, the FBI processed approximately
2.5 million name checks per year. For this fiscal year we
estimate the number to reach 9.8 million requests. This
represents an increase in excess of 300 percent. We will
process approximately 200,000 visa name check requests,
including approximately 75,000 Visas Condor and 25,000 Visas
Mantis requests.
I invite your attention to the portions in my written
testimony to provide a detailed description of the process that
is used to check the FBI records for information on an
individual. But in short, the process must resolve whether
information on a specific individual requesting a visa is
contained in FBI records and, if so, whether that information
is such as to raise national security concerns about this
individual entering the United States. Our goal is to have all
visa name check requests resolved within 120 days.
I will show you two other charts that reflect the status of
visa name check processing for the past year. The second chart
reflects the status of Visas Condor name checks. For example,
we received 7,384 requests during the month of June 2003. We
resolved all but 649 of these requests, a 92 percent resolution
rate. For the month of May, we received 5,059 Visas Condor
requests and resolved all about 105, a 98 percent resolution
rate.
Our next chart on Visas Mantis shows that we received 2,589
requests in the month of June and resolved 2,226 or 86 percent
of them. Visas Mantis are particularly difficult to resolve due
to a predominance of requests from China and the commonality of
Asian names. On average, 80 to 85 percent of visa requests are
resolved in 72 hours. As shown on the graphs, 86 to 92 percent
are completed in 30 days.
For both Condor and Mantis visas, 98 to 99 percent of the
requests are resolved within 120 days. These numbers provide
you with accurate information to assess whether, both in time
and numbers, the FBI visa name check process unduly disrupts
the commerce of this Nation.
Nonetheless, we are striving to improve the process.
Working closely with State, we are improving our interagency
communication processes. This will result in significant
improvement in the overall visa process. Likewise, internally
we have made our name check processes much more efficient. We
continue to aggressively seek additional efficiencies. However,
the FBI recognizes that it needs a more modern name check
application to meet the new demands of name checks. That
process has already begun.
The FBI also recognizes that the retrieval of record
information from FBI files constitutes our single greatest
impediment to a more rapid process. FBI files are currently
stored at one of approximately 265 locations worldwide. This
provides some unique challenges to our efforts to be optimally
effective and efficient. While the FBI's decentralized paper
records management process does ease field investigations and
local prosecutions, a process that may have sufficed before
September 11, those terrorist attacks have forced the FBI to
shift from parochial investigations to nationwide intelligence
gathering and sharing. As the FBI is called upon to share and
jointly investigate complex cases, it must share information
internally with other cooperating organizations. Currently,
analysts conducting research on terrorism or intelligence
topics, who develop leads based on information indexed in files
located outside Washington, must request those files to be
retrieved and shipped to FBI headquarters.
The decentralized records management system hinders timely
nationwide investigations and information sharing since much
time and effort is expended simply locating and shipping the
files across country. These delays have resulted from national
name check program personnel identifying a file's location and
then requesting the file from a field office. Time delays mount
as field office staff search file rooms and ship the needed
file back to FBI headquarters.
One possible solution to these problems that the FBI is
currently exploring would be the creation of a central records
repository where all of our closed paper files could be located
and our active files stored electronically. Our frequently-
requested closed files would be scanned and uploaded into our
recordkeeping system so that agents and analysts worldwide
would have instant and electronic access to the information
they need to do their jobs. We believe that the current
development of new FBI records systems and the establishment of
a central records repository will have great promise in
eliminating this problem.
In closing, I want to emphasize the visa name check
processing has the direct attention of Director Mueller. The
FBI has in place the process that provides certainty for
businesses for their planning purposes. We are striving to
reduce the time required for a visa name check, yet maintaining
our primary focus of identifying potential threats to this
Nation.
And I would be pleased to answer any questions you may
have.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Garrity follows:]
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Chairman Tom Davis. Let me start the questioning.
Ms. Jacobs, let me ask you: Our country has a lot of
interactions with students, athletes, tourists and business
people from our ally, Israel. Where does Israel stand in regard
to the Visa Waiver Program? Are there ways the Israelis could
receive expedited entry into the country? I mean, they have a
pretty good security screening system just to be there. And I
talked to the Ambassador. There is a lot of concern over there
about how that is working. Can you help me with this?
Ms. Jacobs. The Visa Waiver Program has certain statutory
requirements that have to be in place before a country can
join. One of those is a low refusal rate for the visa
applicants in the country. At this particular time, the refusal
rate for Israeli nationals is higher than the statutory level
that's required. And so on that basis, they wouldn't be able to
qualify at this time. Also----
Chairman Tom Davis. Can you explain to me what you mean by
the refusal rate?
Ms. Jacobs. The refusal rate is the rate of people that are
turned down for visas that are not found eligible for visas
because of one of the various provisions.
Chairman Tom Davis. What's the major reason they're turned
down?
Ms. Jacobs. I think in the majority of cases it is because
they have not been able to overcome the statutory presumption
that they are intending immigrants, that they are coming here
perhaps to work, to stay.
Chairman Tom Davis. Basically be illegal once they come in.
Come here and disappear.
Ms. Jacobs. That's one of the problems. DHS is the one who
decides who participates in the program. All of the countries
are also looked at. There are several different factors that
are considered: the integrity of the documents, border
protection, whether there are any particular security threats
presented by the nationals of the country. So it's really an
interagency process where we all look at the different issues
and criteria to make a decision.
Chairman Tom Davis. I understand from the Swiss American
Chamber that Switzerland has a 4-month backlog on getting folks
machine-readable passports. Is there going to be a State
Department waiver for folks from that country who don't have
machine-readable passports? I understand there may be similar
problems for French citizens who get passports, which I don't
care as much about. Will there be waivers for those people?
Ms. Jacobs. As Mr. Cronin mentioned in his testimony, in
order to join the program all of the countries had to certify
that they were either already issuing machine-readable
passports or that they had a program in place to do so. All of
the countries that are currently in the program have been in
for over a decade. I think the feeling is they have had
sufficient time to get machine-readable passports into the
hands of their nationals.
Admittedly, some of these countries waited a long time,
even though they certified they had a program in place.
Switzerland did not start issuing until 2000. France, I think
it was 1999. So some of the countries waited a long time before
starting. Now they are going to be pressed to get the machine-
readable passports into the hands of travelers. Certainly we
will be prepared to issue visas to people who are not able to
get machine-readable passports in time for their travel, and
that is something that all of our posts in the visa waiver
countries are aware of and trying to take into account as they
set up their appointment systems.
Chairman Tom Davis. We have gotten concerns from business
groups in India and Korea. Are there going to be facility
upgrades and staffing increases to accommodate increased
interview requirements there?
Ms. Jacobs. All of the posts, in addition to the general
categories of exemptions that we sent out to all of the posts
whereby they can still waive interviews--the young, the old,
officials, diplomats, people who already had visas--we have
already said you don't need to interview those people. Posts
have come in with additional requests for other categories that
they can exempt from the interview. Seoul has come in with such
a request and we are taking a very hard look at that. I think
it's safe to say we will grant them some additional exemptions.
We are aware of the business interests there. I think they
received a lot of referrals through AMCHIN and I think we are
going to be looking at some of those as people we can waive the
interview requirement for.
Chairman Tom Davis. Our committee staff recently visited
the embassy in Latvia in preparation for this hearing and the
embassy staff mentioned that they had planned to ask for a
class waiver for recruitment visas for sailors who had been
prescreened through Latvian crewmen agencies and have high
degrees of security. Because crewman visas make up about a
quarter of the total number of visas issued at the embassy in
Latvia, such a waiver would allow the staff to devote more time
to applicants who need more scrutiny. If these crewing agencies
provide adequate security safeguards, would this be the type of
program for which the Department might grant a class waiver
interview?
Ms. Jacobs. We would certainly take a look at that. I am
not sure that Latvia has come in with that request yet, but
when they do, we will certainly take a look at it. Crewmen a
lot of times apply outside of their own country just because of
the circumstances, the nature of their work. And so we would
have to think about whether we could waive that requirement for
any particular nationality, but it's certainly something that
we will look at.
Chairman Tom Davis. Mr. Cronin, can you give me an update
on the Memorandum of Understanding between DHS and the State
Department that outlines the responsibilities of the two
departments with regard to entry policy and procedures?
Mr. Cronin. The two departments are very, very close to
being finished with the MOU. It appears to be a matter of
weeks. Under Secretary Hutchinson and Assistant Secretary Hardy
have been meeting regularly and discussing the provisions of
the MOU. Basically, it's designed to outline the roles and
responsibilities of the two departments in terms of the
Department of Homeland Security's role in setting visa policy
versus the Department of State's role in managing and
controlling consular operations overseas. I am not on the
negotiating team, but my understanding is that we are down to
the point of fine-tuning language.
Chairman Tom Davis. Who at DHS is going to be responsible
for entry policies?
Mr. Cronin. Essentially it would be the Director of Border
and Transportation Security under Secretary Hutchinson who has
control over the Bureau of Customs and Border Protection and
the Bureau of Immigration and Customs Enforcement.
Chairman Tom Davis. Will DHS provide staff at embassies and
consulates?
Mr. Cronin. There is discussion within the MOU meetings
about assignment of DHS staff overseas as the statute requires.
Staff will be assigned to Saudi Arabia and there's discussion
about assignment of staff to other locations.
Chairman Tom Davis. I understand that Customs and Border
Patrol have implemented programs such as SENTRY and NEXUS,
similar to programs in the commercial environment, to speed the
low-risk travelers while enhancing security. Could these
programs be expanded to other countries?
Mr. Cronin. Well, in terms of SENTRY and NEXUS, those are
land border programs, so obviously we are limited to contiguous
territory. There is a possibility of doing a program similar to
that in the airport environment. We operated a program like
that in the past called INPASS. We are working with Canada
which is looking at developing a program similar to that. And
there is also a Dutch program currently in existence that we
are observing very closely.
Given the nature and speed of the implementation schedule
we have at the ports-of-entry coming up in the coming year, I
don't think we are going to be looking at development of the
U.S. program similar to that in the near term, but it is
something that is very much--that would be beneficial to the
process of moving people through the ports-of-entry and in
which we are very interested.
Chairman Tom Davis. Mr. Garrity, I have a couple of
questions for you. When will the FBI have the necessary
technology in place to be able to receive State Department
referrals electronically instead of by tape?
Mr. Garrity. We have the technology in place right now to
receive names electronically.
Chairman Tom Davis. Is it being implemented today?
Mr. Garrity. We are working with State to make sure the two
systems are compatible. Our system receives most of our names
electronically.
Chairman Tom Davis. Does the FBI have long-term plans in
the area of electronically capturing FBI records so consular
and border officials can quickly download the security check
information without having to refer records to the FBI for
review?
Mr. Garrity. We have two systems that we are looking at.
With our fingerprints, and particularly with the Enhanced
Border Security Act, which will require some biometrics that
will be run through our criminal justice information systems.
And the biometrics we plan to use, that will be one way of
getting almost an instantaneous check against the FBI's
database of our fingerprint records. The name check that we do
here for State, UN visas, right now is checks of FBI records;
whether or not the FBI has an investigation or information on
an individual. We are looking at putting that in a database to
be more proactive so that we have information in the database.
Our system is not set up to capture those names until we
actually go through the files. So, as we get a name and as we
are responding to State, we are going to try to start putting
those in a database so we don't have to do that name again.
Chairman Tom Davis. Are there ways to avoid duplicates of
name checks? And by that, when the Commerce Department issues a
deemed export license for a particular person in a particular
technology, security checks are required; couldn't that
security check also be used as a security check necessary for
visa purposes?
Mr. Garrity. To my knowledge, Commerce does not check the
name against us. They make the decision on the technology but
do not run that name through our name check process.
Chairman Tom Davis. And Ms. Jacobs, you mentioned you
vigorously publicize the new visa interview and machine-
readable passport requirements. How is that word getting out,
outside of publishing it? Are you doing anything else to inform
the public on these requirements? We keep getting feedback from
the traveling public that they are not aware of this.
Ms. Jacobs. We actually are engaging in active outreach in
getting the word out about the October 2003 requirement for
MRPs. When the Visa Waiver Program was made permanent, we
notified posts that everyone would have to enter with a
machine-readable passport by a date certain. When the Patriot
Act was passed moving that date to 2003, we went out with a
telegram to all of our posts advising them of this new
requirement so they could tell host governments. This year,
earlier in the year, we sent out another telegram to all of our
posts asking them to reach out to the host government to remind
them about the requirement. And by the end of this month we
will have held press conferences and we will have made--this
information is posted on our Web site and the Web sites of our
embassies and consulates abroad. We are going to publish
something in IATA's newsletter and we are taking a number of
other steps. We are going to meet also with the embassies to
let them know or remind them about the requirement.
Chairman Tom Davis. Thank you. Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman.
Ms. Jacobs, I and the other members who serve on this
committee have the benefit of having at least two perspectives
on this question of visas. On the one hand we look at it from
the vantage point of broad national policy, and also we look at
it from the perspective of real individuals who are trying to
play by the rules and obtain visas. And a big part of our job
is to help our constituents deal with these visa problems so
we're able to see which parts of the system work and which
parts are clearly broken.
I am going to give you a summary of five cases that my
office has been working on that all seem to have fallen through
the cracks of your Department, and I am asking for your
assistance in resolving them. Nothing else has worked, so I
hope you will be able to make sure that these matters receive
immediate attention. They are a few examples of what seems to
be broken.
In one case, an immigrant visa petitioned for Ms. Asra
Sharifi has been pending since June 2002. She was interviewed
at the Ankara embassy in June 2002. A year has now elapsed and
my office continues to be told that the case is pending,
pending a security clearance. Just last week we were told that
the case is pending an FBI check. But when we checked with the
FBI, we were told they have no record of ever receiving a
security clearance request from the State Department. In other
words, she has fallen into a big black hole.
And your office confirmed again as recently as yesterday
that the official policy is applications should be completed 30
days following an embassy request. So in this case, that means
the process should have been finalized last July or August.
I am obviously interested in the specific case, but I am
also interested in the broader perspective of the problem it
reveals. I understand, for instance, that the FBI and State
Department have intentionally not linked their computers and
the State Department must hand-deliver requests for security
checks. This sometimes results in inexcusable delays. It seems
obvious that you can do more to process embassy requests in a
timely and efficient way. Can you give us specific improvements
you intend to make?
Ms. Jacobs. We are working toward, I think both of our
agencies, working toward eventually doing all of this
electronically. I agree completely that would speed up the
process. We are undergoing changes right now within the Visa
Office. We are spending about $1 million in order to take
information from our consolidated consular database and put
that into an electronic format that we can send out to the FBI
to help speed up this process. We hope to have that in place by
the beginning of next year and that would essentially eliminate
the need for these telegrams that come in, which is not a
terribly efficient way of doing things. So that is something we
are trying to do and we hope eventually to be able to talk to
each other completely electronically, because I think that is
absolutely essential as we do more of these checks.
Mr. Waxman. Do you prioritize security checks? Are medical
emergencies given special consideration, and are there
circumstances in which the security checks can be expedited?
Ms. Jacobs. There are circumstances. In fact we do expedite
all the time for emergency cases for people who really need to
be here for a certain event. The embassies themselves, I have
asked them to try to give priority in the summer months, for
example, to students and exchange scholars who need to be here
by the beginning of the school year. So yes, we have taken
steps to try to address those situations.
Mr. Waxman. The chairman has asked about the situation in
Israel. Here is an ally working with us to combat terrorism,
and people have gone back and forth between the United States
and Israel on a regular basis; I have one constituent who
contacted our office regarding the difficulties his mother was
experiencing with her tourist visa at the Tel Aviv Embassy.
This woman happened to have been born in Iraq. She fled to
Israel to escape religious persecution in the early 1950's. Her
visa has been undergoing administrative processing for 3 months
and she missed the birth of her first grandchild. The Bureau of
Consular Affairs doesn't have any indication as to when this
visa will be complete and the status of the security check
process. And this particular woman has been traveling to the
United States over the past 20 years to visit her U.S. citizen
children and she's never experienced this problem in the past.
I have a large population from Russia living in my
district. One is an academic from the department of physics and
astronomy at UCLA who contacted us regarding three of his
Russian associates. They applied for visas at the embassy in
Moscow in early February 2003, and although two of the visas
were issued, one is still stuck in this administrative
processing. And he is part of an important research project at
UCLA. They cannot begin the project without this individual. To
me it's reminiscent of the time when I used to go to the Soviet
Union and they had the bureaucracy there to prevent people from
leaving. Now we have the bureaucracy run by our government
preventing them leaving to come here, even though it seems on
the surface that they should be able to come here.
How can congressional offices determine what has happened
with a security check? None of us wants security risks to be
pushed through the system, but we also don't want legitimate
applications to be lost. Unfortunately we aren't told by the
Visa Office if a delay is due to legitimate security questions,
if a case is still being processed, or if it is lost in the
bureaucracy. Why can't we get this information?
Ms. Jacobs. I think probably part of the problem is the
entire clearance process is an interagency process. The State
Department serves more as a clearinghouse. Once these telegrams
come in from the posts, they go to the other agencies involved
in the name check process. And you know, we have to wait and
hear back and get a positive response from everyone involved
before we can go ahead and authorize issuance of a visa.
And so I think perhaps in the case of the mother in Israel
that you talked about, born in Iraq, I think in that particular
case, that probably is a case falling under Section 306 of the
Enhanced Border Security act, which talks about people from
countries on the state-sponsored list. There is a new
requirement for them that takes longer and that perhaps
explains why her visa is taking longer to get this time.
Mr. Waxman. On that particular case, if she were a citizen
of France or Great Britain, having been born in Iraq, would she
need a visa at all?
Ms. Jacobs. She would come in under probably the Visa
Waiver Program if she had a French or UK passport.
Mr. Waxman. It raises the question in my mind whether it's
reasonable for us to have this discrimination against Israel,
which has been as close an ally to the United States as
countries in western Europe. And to deny a woman the
opportunity to come here to see her grandchildren being born
simply because she was born not just in Iraq, but because she
happens to live in Israel.
Ms. Jacobs. Right. We are taking a look at Section 306 and
how it's implemented. At this time it's all undergoing
interagency review, and that's one issue we are all looking at,
whether it should be applied to people who are from a country
but actually have moved and now live in another place as
opposed to current nationality.
Mr. Waxman. I know it's a balancing act and we want the
security of our country to be protected, but we want the
bureaucracy to do this efficiently, thoroughly, and certainly
quickly, because people are waiting for determinations and it
affects their lives. So I am going to send you the information
about these cases, and it would help us as Members of Congress
help you to make sure we do the right thing.
Thank you very much Mr. Chairman.
Chairman Tom Davis. Thank you very much. Mr. Deal.
Mr. Deal. Thank you, Mr. Chairman. The comment I heard was
that you use only the FBI database and there was some reference
to State records, and I did not understand fully what your
reference was there. Let me clarify where I am coming from. I
understand that most States have their criminal records--are
now being incorporated into the Federal database; is that
correct?
Mr. Garrity. Talking about our Criminal Justice Information
Service Center in Virginia. Yes, sir. That handles our
fingerprint cards and also our NCIC. That's where most States
provide their arrest information and disposition of a
particular case, yes, sir.
Mr. Deal. Have you also integrated the old INS record base,
which I presume now is under Homeland Security? And, for
example, suppose someone has been deported previously from this
country, but was not processed through the criminal system for
criminal charges, either at the State or Federal level, but
deportation was considered as the option in lieu of
prosecution; do you have those records available to you?
Mr. Garrity. I believe we do, but let me check. If I am
answering wrong, I will get back to you.
I believe that we do have access to that, that there is a
relationship between those two systems.
Mr. Deal. All right.
Another area that is of concern growing out of September 11
is the student visa program. Would any of you choose to comment
on several aspects of that, first of all, the responsibility of
the institution in the United States, the educational
institution to which these students are supposedly going, both
in the initial application process and then with regard to any
followup requirement that we have tried to tighten up on?
Would you comment on that part of the process?
Mr. Cronin. Let me start by saying, Congressman, that I am
not an expert in the area. There is a whole separate office
working on implementation of the student and exchange visitor
information system.
My understanding is that, yes, there is much greater
regulation now on the issuance of certificates of eligibility
to students. The schools basically have to communicate to the
Bureau, I think it is the Bureau of Immigration and Customs
Enforcement, that the student has been accepted in the school;
they have to identify the student. That student has to have
documentation when he or she arrives which indicates that nexus
has occurred between the student and the school.
And, of course, under the implementation of the new system,
the tracking begins with visa issuance overseas, through the
port-of-entry and through arrival at the institution.
Mr. Deal. So it is much more thorough followup, both from
the beginning through the end of the process, than it was?
Mr. Cronin. Absolutely, sir.
Mr. Deal. Mr. Garrity, with regard to background checks, I
presume that in large part you have to rely on the
recordkeeping of the country from which these individuals are
coming for background information of what they may or may not
have done in their homeland?
Mr. Garrity. No, sir. The background investigation that we
do, or the name check that we conduct, is against the FBI's
records. Does the FBI have a record of having conducted an
investigation on this individual, or was this individual
mentioned as a reference in an FBI investigation?
It is not going to other countries and seeking information.
Mr. Deal. What responsibility, if any, is placed on the
Nation from which this individual is coming to provide that
kind of information in the initial screening process, or is
there any requirement?
Mr. Garrity. That would be from Ms. Jacobs, at the
interview process. I am not certain.
Ms. Jacobs. For the student visas on the interviews?
Mr. Deal. No, I am talking about all visas.
Ms. Jacobs. You are asking about the requirement for
additional interviews?
Mr. Deal. Well, let's take somebody that is coming from a
country, that has a lengthy criminal record--murder,
manslaughter, armed robbery--and they come in and apply for a
visa. Now, they are probably not going to show up on the FBI's
list, because they didn't commit those crimes in the United
States.
What responsibility is there and what verification system
do we have in place to determine that background in the initial
application process? Is there any responsibility placed on that
country?
Ms. Jacobs. Most of the responsibility is placed on the
applicant to establish his or her eligibility for the visa.
There are forms, application forms that the applicant fills out
that ask specifically about various grounds of ineligibility to
include any criminal activity, other types of activities that
would make them ineligible under our law.
Mr. Deal. So we assume then, that a felon is going to
truthfully answer those?
Ms. Jacobs. We assume that in large part.
We also have very good relations with law enforcement
entities in the countries where we have embassies. Sometimes
they do share information with us, and we would have that
available to us.
Any time we got information like that, we would go ahead
and put it into our look-out system, so if this person came in
to apply, we would know about it.
Mr. Deal. But the bottom line is, it sounds like there is
no obligation on the country to provide that information, and
that there is no effort to seek out that information within the
country of origin.
Ms. Jacobs. There is. Certainly, if we suspect anything,
then we go to the host government to get more information; and
we do expect them to be responsive, and they usually are. I
should say for immigrant visa applicants, they do in fact have
to present a police certificate, a clean record if you will,
before they get a visa.
Mr. Deal. So there is a distinction between the types of
applications then?
Ms. Jacobs. Yes.
Mr. Deal. Thank you.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much.
Ms. Watson.
Ms. Watson. Thank you, Mr. Chairman. And thank you, panel.
I am very interested in the visa process, having had some
experience with it in the past. And I am concerned about maybe
profiling, and I am concerned about the impact on the travel
business and the free flow.
First, the problem that Congressman Waxman mentioned, the
people he has been trying to help. Why would somebody be held
up a year? What would be the process that would stall that visa
approval for a year? That is the first question.
Can you respond, Ms. Jacobs?
Ms. Jacobs. No one should be held up for a year; I should
say that. Back last summer when we were instituting a lot of
these new procedures, the agencies involved did not necessarily
have all of the resources needed to handle the enormous growth
in cases that we had; and I think there were a number of cases
that were backlogged at that point. And I don't know if the
particular case in question would fall in that category or not.
Sometimes another agency has a serious concern about an
applicant, and then, as Mr. Garrity said, they will take
whatever time they need to go ahead and complete their
analysis, their research, before they get back to us with an
answer.
So I don't know if that particular case falls in that
category.
I can tell you that the visa office now, once a case gets
beyond a certain time and we have not heard back from agencies,
we go back to them and ask what the status is.
So we are putting out those reminders.
Ms. Watson. So you can go into the system on a specific
case, because I would think that the time ticking on this
raises the suspicion that there is something not quite right
about this applicant.
Ms. Jacobs. That could very well be, and I look forward to
getting the details on the case, so we can look into it.
Ms. Watson. Are the visa applications coming from a certain
region in the Middle East treated differently--and I am reading
your list of visa types--than some of the other kinds of visa
applications? Are we targeting areas where we have troubles,
disputes, or we know that there are people who are trying to
defraud the system and so on?
But are we looking at these troubled areas differently?
Ms. Jacobs. I think after September 11 that there was an
interagency process to take a look at applicants who might be
higher risk than others; and in fact there was a new check,
security check, instituted in January 2002, called Visas, which
really gets at those types of applicants, the ones considered
to be of highest risk.
So I think, yes, the answer is that after September 11, we
are doing more checks of people that we consider to be high
risk.
Ms. Watson. Is there, and I think there has been, a quota
placed on visa applicants and visa approvals in various
countries?
Ms. Jacobs. No. We have never--our immigrant visa system is
based on worldwide limits, and in that regard there is----
Ms. Watson. Can you explain ``worldwide limits?'' I guess
that is what I am getting to, using the wrong language.
Ms. Jacobs. OK. For people coming here for temporary
reasons--businessmen, tourists, students, visitors, people of
that sort--there is no quota at all. Everyone comes in,
applies, and either does or does not qualify for the visa based
on the merits of the case.
For the immigrant system, there is a law set as a worldwide
cap on the number of people who can come in, and then within
that cap we control the numbers of visas that are issued every
year.
Ms. Watson. Let me give you a for instance.
My office gets quite a few contacts on visa issuance from
the continent of Africa. When you talk about worldwide limits,
what are the criteria that are used to put a limit on, say,
countries from the continent of Africa versus Western
countries?
Ms. Jacobs. There is no--it is a per-country cap. It
doesn't apply to any particular region. It is a worldwide cap
that is set by law.
Ms. Watson. OK. Well, let's deal with the continent of
Africa.
Ms. Jacobs. Every country in Africa would have a certain
number of immigrant numbers allowed every year, as would any
other country. There is no--it is not divided up by region.
There is no difference between the regions.
Ms. Watson. What is the meaning of the ``worldwide limit?''
Give me a definition.
Ms. Jacobs. That is a cap that the law puts on the number
of immigrants who can come into the country in any year.
Ms. Watson. Who can come into the country?
Ms. Jacobs. Who can immigrate, who can move here
permanently.
Ms. Watson. It is taken nation by nation?
Ms. Jacobs. It is a worldwide cap. And to distribute the
numbers evenly, it is done on a country; there is a maximum
number that each country can use.
Ms. Watson. That is what I would like to know more about. I
will put a request for information in writing.
Ms. Jacobs. OK.
Ms. Watson. Thank you, Mr. Chairman.
Chairman Tom Davis. Who was next over on this side?
I think Mr. Ruppersberger was here, Mr. Bell, and then Ms.
Sanchez.
Mr. Ruppersberger. Thank you, Mr. Chairman.
First thing, the issue of consular offices that are
checking on the visa applicants. Do those consular offices have
the technology and the information readily available to
determine if a waiver should be granted?
In other words, what I am getting to, is the amount of
volume that you deal with, is the technology there to do what
is needed to be done in the consular offices throughout the
world?
Ms. Jacobs. Consular officers have a number of automated
tools to help them do their job. We have given them
computerized systems that help them in the adjudication
process, help them speed up data entry, help them speed up and
do name checks, do the telegrams that have to come back for
name checks; all of that is automated.
So, yes, I think we have tried to automate as much of the
processing as possible to make it easier for them.
Mr. Ruppersberger. As much as possible. What I am getting
to next is the issue of, say, a terrorist suspect who might be
trying to get into the United States.
Are the databases sophisticated enough that the consular
office at that front line would be able to check on these
suspects?
Ms. Jacobs. Everyone who comes for a visa is checked
through our look-out system. And that system has doubled since
September 11 because of all of the information that we have
received from other agencies.
On terrorists in particular--that particular category of
look-out has increased substantially since September 11--we
depend on the other agencies to provide us the information. And
we have had--after September 11, as I said, the database itself
has actually doubled because of all of the increase in data-
sharing that has taken place.
So, yes, if another agency knows about or suspects that
someone is a terrorist and has shared that information with us,
that information would be readily available.
Mr. Ruppersberger. In the average situation, if someone is
there, does that system tie into, say, an FBI system or to your
own intelligence-type system or to CIA?
Are we sophisticated at that front level with our
technology?
Ms. Jacobs. Right.
Mr. Ruppersberger. Probably not.
Ms. Jacobs. No. The system doesn't actually tie into the
FBI or CIA, but we do have a very healthy system whereby CIA
shares information with us, on terrorists in particular. It is
called the tip-off system, and we know immediately how to
handle those cases. They come back to Washington for a review.
Mr. Ruppersberger. It is almost like the issue of port
security. You have to deal with it at the beginning stage, and
this is the front line. And it seems to me that we should be
working a lot closer.
I think that the--in my experience, being around in
government and law enforcement, that the CIA, the FBI, the NSA,
local, State, they are all working together, and better than I
have ever seen it, because there always were some territorial
disputes.
But in the volume that you have and that we have to deal
with, it seems that we have to start really focusing on the
resources of technology and tie into that system so there will
be red flags or alarms that will be set off right away. And
that would help.
OK. Let me get into another area, because I won't be here
for the second round. The issue of reaching out to the business
community with respect to what we are talking about. We need a
balance. We have to keep our commerce going. But, you know,
since September 11 a lot of things have changed. So we have to
have that balance.
I just know in the area of--the region that I represent, we
have two major teaching hospitals, Johns Hopkins and University
of Maryland--thousands and thousands of employees there; I
think Johns Hopkins is 20,000 or so--and constantly they have
individuals that need to come, from a research point of view or
whatever; and it is as important to them, I am sure, as to
other businesses.
Has there been a--some type of government program to reach
out to the business community to try to understand the issues,
other than just a hearing like this, and maybe even reach out
to the business community to help us develop systems that would
help and expedite, and also ask the business community to even
help from a financial point of view?
It seems to me that a partnership here might really make a
difference and get things moving a lot quicker than just the
typical government bureaucracy situation.
Ms. Jacobs. We at the State Department have made a special
effort, I think, to meet with business, to meet with the travel
and tourism representatives, to meet with the schools,
academics, people interested in bringing researchers and
scientists here to the country. Assistant Secretary Harty has
met with these groups, I have met with them, and we have tried
very hard to explain to them why we are doing what we are doing
now with these new security requirements.
And we do listen to them. We have a very I think healthy
exchange on problem cases that we are trying to resolve
together.
Mr. Ruppersberger. It seems to me that that needs to be a
strong effort and hopefully we will move forward there.
Thank you.
Chairman Tom Davis. Thank you very much.
Mr. Bell.
Mr. Bell. Thank you, Mr. Chairman. And thank you very much
for holding this hearing on what I think is an extremely
important issue. I want to followup on some of the questions
raised by my good friend from Maryland, Mr. Ruppersberger,
because it is not just the travel and tourism industry that is
suffering under the new rules. Obviously, there are businesses,
primarily in the medical community, who are experiencing
extreme consequences as a result of the new measures.
I represent a District in Texas that has the largest
medical center in the world, the Texas Medical Center. And they
are routinely calling about various problems that they face.
And the problems are really twofold. And Ms. Jacobs, I think
you are aware of this, because you appeared before the Science
Committee last March, and many of these issues were raised; and
we have doctors and researchers who have come to the United
States on various types of visas and return home for personal
reasons and then find that they can't get back to the United
States, causing significant personnel problems for the various
institutions as a result.
And, of course, then you have foreign patients. And the
Texas Medical Center had relied for a long time for a
substantial portion of their business on patients coming from
the Middle East; that was one of the primary areas where
patients would come from.
And now these patients can no longer afford to wait for an
answer and are going to Europe to seek care in many instances.
And I heard just this week that Middle Eastern nations,
realizing the situation, are now reaching out to medical
institutions here in the United States and asking them if they
would like to come and partner with existing medical
institutions in the Middle East to offer care there so people
won't have to come to the Middle East.
And so from my standpoint, while we are all interested in
increased security and salute and support those efforts, I
think it is fairly clear that we are starting to enter into the
unintended consequences stage. I don't think it was ever the
intent of officials in the United States to be sending business
back to the Middle East, business that would have been coming
to the United States, or to severely impact tourism dollars in
the United States.
And when you appeared before the Science Committee, Ms.
Jacobs, it was my understanding that the State Department was
well aware of those problems, that you were taking them into
consideration and that steps would be taken to do something
about the problem.
And so I ask you here today, what has been done in these
last almost 4 months?
Ms. Jacobs. We have taken, I think, a number of steps on
cases, especially unresolved cases as I mentioned earlier, to
continue following up with the other agencies involved in the
name check process, to make them aware that certain cases have
been pending for a long time.
We have, I think, engaged in outreach in all of the
countries about visa requirements, the processing requirements.
I know that within the appointment systems, that are being set
up by posts, that they do give consideration to people for
medical cases, for example, true emergencies, people who need
to come here quickly. So I think that within the system, we are
taking the steps that we can to try to expedite processing.
I think once we have more electronic data-sharing between
the name check agencies that a lot of these problems are going
to be resolved.
Mr. Bell. And as far as data-sharing goes, what steps are
being taken to perhaps expedite that process?
Ms. Jacobs. We at the visa office, at least as a
preliminary step, are trying to eliminate the need for
telegrams. We are trying now to use our consolidated database
to extract people who need name checks and pass that
information on electronically to the other agencies involved in
the name check process. We hope to have that up and running by
the beginning of next year.
Eventually we hope that we are all talking to each other,
perhaps through the new system that has been set up, the OSI
system.
Mr. Bell. What about an idea that I think was mentioned and
discussed at the Science Committee hearing, this idea of a
medical--a special medical visa. Has that been pursued at all
or discussed further?
Ms. Jacobs. I am not sure that we did discuss a specific
visa for medical cases. Normally, we have to use the visa
categories that exist in the immigration law. So there wouldn't
be a way to create a new category. But certainly we can take
steps for true emergencies to try to get those cases handled as
quickly as possible. I think all of our embassies and
consulates do that.
Mr. Bell. Why could a new category not be considered, if
the need is appearing to be so great that we need to move in
that direction?
Ms. Jacobs. I think it could be considered. I think it is
something that would require legislative action to create a new
category.
Mr. Bell. Is that anything that has been discussed by the
State Department?
And tell me, do you believe I am off base? Are these just
unique circumstances because I represent an area with a medical
center, or are these complaints that you all are hearing all
across the Nation?
Ms. Jacobs. Well, I think that they probably tie in with
the other complaints that we have heard about visa delays in
general. I think all of these are because of all of the new
security checks that have been put into place after September
11.
I think, to the extent that all of us can make this an
electronic process, it is going to eliminate a lot of the
problems that occur now because of technical glitches, the need
to manually enter data, manipulate data; I think that is the
real answer here.
Mr. Bell. And, Mr. Chairman, I know my time has expired.
Let me just close by saying, I hope, because I would
disagree that it is just outreach efforts--the people that I
represent, they understand what is required, but they also
understand what is it doing in real-life terms to their
businesses; and I hope that we are not just giving lip service
to it and that in another 4 or 6 months you will be back before
this committee or another committee testifying to the same old
problems.
Some of the processes are going to have to change in order
to deal with the problem; and I hope that the State Department
understands that and will be taking the necessary steps. Thank
you.
Ms. Watson. Mr. Chairman.
Chairman Tom Davis. Thank you.
Let me say--I am going to recognize Ms. Watson in a
second--one out of five adults in my congressional district was
born in a foreign country. This is impacting their lives as
well. So a lot of us have a keen interest in this, and we are
going to continue to watch it vigilantly. And that is why we
appreciate your being here, but there is a lot of concern that
we hear from our constituents. So I appreciate your questions.
Ms. Watson.
Ms. Watson. Just a clarification on this issue.
Under your visa types, you have a B2 visa. And I don't know
if it would relate to the Congressman's question or not. But it
says ``for aliens coming for medical treatment.'' Could that be
a visa category that could be extended for students coming in
for medical school or for other kinds of related medical
reasons?
I am just wondering if the B2 type could be used for his
suggestion or recommendation.
Ms. Jacobs. The B2 visa is, in fact, the one that we do use
for people coming for medical treatment or medical emergencies.
There is a different category for students. There is a long
alphabet of different types of visas. But, yes, there is a visa
category right now that would allow people to come here for
medical treatment.
Ms. Watson. Rather than developing a new category, could
this not be extended or broadened and fit into the B2 category?
Ms. Jacobs. I think it is already included.
Ms. Watson. Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you.
Mr. Clay, any questions?
Mr. Clay. Thank you, Mr. Chairman. Let me ask about--Ms.
Jacobs, the worldwide limits on visas. Let's take the continent
of Africa. Do you have limits on the number of visas issued for
people that come from the continent of Africa?
Ms. Jacobs. No, sir, we don't. For nonimmigrant applicants,
there are no limits there.
There are certain categories of temporary workers where
there are limits set by Congress, but again, those are
worldwide; they do not apply to any particular region or
continent.
The immigrant visas are by law set at a certain--there is a
certain cap each year on the number of people who can come in
as immigrants, and those numbers are distributed among the
different countries equally. There is no difference between
what an African country would get, or any other country.
Mr. Clay. So there is a cap that they hit, and then you
shut it off? Is that what happens?
Ms. Jacobs. Right.
Mr. Clay. Let me ask Mr. Garrity, how long does it take--
what is the running time when a visa expires, and I guess you
all are notified and then the--I mean, what is the running time
as far as finding this person whose visa has expired and then
processing it, I guess for deportation or whatever?
Mr. Garrity. I think you want to direct that question to
Mr. Cronin.
Mr. Clay. OK, Mr. Cronin, if you could help me with that.
Mr. Cronin. Sure, Congressman.
Basically, we do try to prioritize the cases that we track
in terms of persons overstaying their visas, to look if there
are national security implications, to look if there are other
priority indicators that would necessitate actual dispatch of
agents to attempt to locate the individual, to arrest him, to
deport him.
There are a large number of overstays. We have--the Bureau
of Immigrations and Customs Enforcement has roughly something
on the area of 5,000 agents nationwide to enforce the
immigration and customs laws. So there is a necessity to
prioritize those cases, to be sure we are focusing on persons
who are criminals, who present security threats.
Basically those are the cases that would trigger the kind
of proactive investigation of an overstay. Certainly we have
individuals who encounter local law enforcement, who might come
into an immigration office or something like that, but
basically there is no set period or no set time during which
this would happen.
It is a matter of prioritization on an enforcement basis.
Mr. Clay. What is your success rate of locating these
individuals?
Mr. Cronin. I would have to get back to you on that, in
terms of specific data. I can't give it to you off the top of
my head. But generally if there is a case of this nature, I
think the success rate is fairly high. The agents are fairly
unflagging in their attempt to locate and find those
individuals when a specific threat is indicated.
Mr. Clay. What is the running time as far as locating them?
Mr. Cronin. That would vary from case to case, Congressman.
I really can't give you a specific number.
Mr. Clay. So you prioritize individuals based on background
and criminal information, and then, what, you go out and find
them? And----
Mr. Cronin. They will go out and attempt to locate the
individual.
Mr. Clay. But you can't tell me how successful you are in
getting them?
Mr. Cronin. Again, as far as I know, when the agents are
looking for someone specifically, when there is a national
security reason to locate someone, there is--I mean, there is
no limit to the efforts that are placed on trying to locate the
individual.
They are certainly not always successful. And I can't give
you--and I am not sure that there would be a way to give an
estimate or data on the success rate in terms of that.
Certainly I will go back and attempt to get whatever we
have on that.
Mr. Clay. I would like to see it.
We have got visa types, a little sheet here. What types of
visas did the hijackers of September 11 have?
Mr. Cronin. If I recall correctly, I think one had a
student visa. Most of the others entered as visitors.
Mr. Clay. As visitors?
Mr. Cronin. Yes.
Mr. Clay. That stay is for how long?
Mr. Cronin. Normally it would depend on the category. A B1
visitor for business is admitted for a period of time set by
the inspector at the time port-of-entry. That can vary
according to what the person states the nature of their
business is and how much time they need.
Persons coming in as tourists under a B2 visa are
automatically admitted for 6 months.
Mr. Clay. All of theirs had expired, correct?
Mr. Cronin. No. No. Several were in status.
Mr. Clay. In status. All right.
Thank you very much.
Chairman Tom Davis. Thank you.
Ms. Miller, any questions?
OK. We will move on to the next panel. Why don't we take a
2-minute recess and get the next panel up. Thank you very much
for staying with us.
[Recess.]
Chairman Tom Davis. Thank you very much. We have our next
panel.
If you will rise with me, it is the policy of the committee
that the witnesses be sworn.
[Witnesses sworn.]
Chairman Tom Davis. Please be seated.
I think you know the rules, 5 minutes, and then we can get
right to questions. There is a lot of interest among committee
members on this subject, and we very much appreciate your being
here today.
Mr. Marks, we will start with you and move straight on
down.
STATEMENTS OF JOHN A. MARKS, NATIONAL CHAIR, TRAVEL INDUSTRY
ASSOCIATION OF AMERICA; RANDEL K. JOHNSON, VICE PRESIDENT OF
LABOR, IMMIGRATION AND EMPLOYEE BENEFITS, U.S. CHAMBER OF
COMMERCE; AND RICHARD J. PETTLER, PARTNER, FRAGOMEN, DEL REY,
BERNSEN & LOEWY, P.C.
Mr. Marks. Thank you very much, Mr. Chairman, Ranking
Member Waxman and members of the committee. I appreciate the
opportunity to testify before you on several recent decisions
by the Federal Government concerning visa processing and entry
into the United States for international visitors.
My name is John Marks. I am national chairman of the Travel
Industry Association of America. And I am here to testify on
TIA's behalf. I am also the president and CEO of the San
Francisco Convention and Visitors Bureau. TIA is the national
nonprofit organization representing all components of the
travel and tourism industry whose mission is to promote and
facilitate increased travel to and within the United States.
International business and leisure travel to the United
States is a vital component of our national economy. In 2002,
over 41 million international visitors generated some $88
billion in expenditures, $12 billion in Federal, State and
local tax revenues, accounted for 1 million jobs nationwide,
and a $7.7 billion positive balance of trade.
The U.S. travel industry is struggling to survive in an
environment where international travel to the United States is
down nearly 20 percent since the terrorist attacks of September
2001. U.S. jobs have been lost. Despite this dire situation,
the U.S. Department of State has decided to move forward with
two new initiatives without sufficient resources and without
the necessary outreach and communication. If implemented as
planned, we believe these initiatives will deter legitimate
low-risk international travelers from visiting our Nation.
The government's decisions are, first, to increase the
number of personal interviews for nonimmigrant visa applicants
and, second, to require a machine-readable passport for Visa
Waiver Program travelers.
I would like to emphasize, we support efforts to improve
U.S. national security, but we also believe there must be a
better balance that also recognizes the need to promote U.S.
economic security.
While personal interview rates now vary, I look to South
Korea as an example of how the interview rule will hurt
international travel to the United States. Only 27 percent of
business and tourist visa applicants are currently interviewed.
If a 100 percent visa interview policy were to be implemented
for the U.S. Embassy in Seoul with no additional resources, TIA
estimates this would result in a loss of approximately 114,000
travelers, or one of every six Korean visitors. Financially,
this would mean a loss of $205 million in expenditures from the
South Korean travel market alone.
Expand this to other travel markets, and I think it is easy
to see how the increase in interviews will cost the U.S. travel
and tourism industry hundreds of millions of dollars and
thousands of lost jobs.
The second decision concerns the Visa Waiver Program. By
law, starting October 1, 2003, Visa Waiver travelers must
possess machine-readable passports for entry into the United
States. We support increasing the number of machine-readable
passports in circulation. However, this new requirement will
affect millions of international travelers, particularly in
countries which have only recently begun issuing machine-
readable passports.
The State Department was granted the authority to waive
this deadline in the event it would disrupt travel from those
countries that had just started issuing the newer passports.
The travel industry is absolutely dismayed to learn that the
State Department will not utilize this authority. The State
Department only recently announced this decision to the
international traveling public.
With travelers booking their trips as far in advance as 6
months and travel companies making their business plans and
purchases even father in advance, a 3-month notice is just
insufficient. This lack of communication is particularly
problematic for the U.S. airline industry, which is required by
law to board only travelers who hold valid documentation.
The lack of communication on this rule even extends to the
Department of Homeland Security. As of mid-June, Homeland
Security officials were not prepared to state whether arriving
visitors with the older, nonmachine-readable passports would be
deported or allowed to enter the United States.
TIA calls on the State Department to implement immediately
the following solutions to avoid serious disruption in
international travel to the United States: TIA requests the
Secretary of State to delay implementation of the increase in
personal appearances for nonimmigrant visa applicants until
such time as additional resources are requested and received
from Congress.
An increased rate of personal interviews should be phased
in only as additional personnel and facilities are made
available at each consulate and embassy.
TIA urges the Secretary of State to exercise the waiver
authority granted by Congress and delay the machine-readable
passport requirement by at least 18 months for countries that
have begun issuing machine-readable passports in 2000 or later.
In conclusion, TIA and the U.S. travel industry strongly
support the efforts of the Federal Government to protect our
homeland. We stand ready to work with Congress and the
administration to develop and implement policies that prevent
the entry of terrorists, while truly facilitating the entry of
tens of millions of legitimate business and leisure travelers
who provide a great economic, social and political benefit for
this country.
Thank you, Mr. Chairman and members of the committee. I
look forward to your questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Marks follows:]
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Chairman Tom Davis. Mr. Johnson.
Mr. Johnson. Mr. Chairman, members of the committee, I
would like to extend our thanks to you and the other members of
the committee for holding this hearing on projected problems of
delayed entry for foreign nationals traveling to the United
States for legitimate business purposes, with a particular
focus on the visa issuance process.
I am Randel Johnson, vice president for labor, immigration
and employee benefits for the U.S. Chamber. And let me note
that I do represent the Chamber on the Data Management
Improvement Act Task Force, which was established by the
Congress to study entry and exit problems at our Nation's
borders; I am Chair of the Americans for Better Borders
Coalition; and I am a member of the Board of Directors of the
National Immigration Forum.
Well, as other speakers have made clear, we are all aware
of the new environment in which not only businesses but all of
us must live post-September 11. The need for security to
protect our homeland is very real, and the U.S. Chamber has
been part of that role.
We pledged our support to the administration early on, and
to the Congress. We are still working with them. We worked
closely on the development of the Department of Homeland
Security legislation, and ``key voted'' that legislation in
support in both the House and the Senate.
Now, at that time, certain provisions, as many of you know,
were included in the legislation, which reassured, I think,
quiet concerns among the business community that in
implementing the Department, many would pursue a Fortress
America mentality and would not weigh the potential negative
economic impact on the country as a whole, which could result
from significant increases at our borders, in delays at our
borders.
And since the Homeland Department has come up and running,
the decisionmakers within the government certainly have
repeatedly assured those of us on the outside that the
government will continue to search for ways to both expedite--
to improve security and to expedite or at least not
significantly hinder legitimate international commerce, travel
and immigration.
However, I believe that the common concern or thread that
you will hear today is a growing perception among the private
sector that words are not matching the policies that have been
announced, and that the policies coming down the road--many of
which you went over in your opening statement, Mr. Chairman.
For example, I have just returned from a trip to El Paso,
as part of my work on the DMIA task force, and these people--we
met with various stakeholders in the community, and the State
and local governments, and these people have the view that the
government is simply not listening to their concerns. And they
are in a state of panic looking at what the new entry/exit
system may look like.
That is not atypical of experiences I have seen up in
Buffalo and Detroit. There is concern that no one is listening,
much less understanding that there is a way of life, there are
questions of the environment, and the fabric and the future of
a community are at stake here when these government decisions
are made.
Now, none of this is to demean those in the government
agencies that are struggling with very difficult questions. But
I think we can all acknowledge that those within government--
and I spent half of my career with the government--can isolate
the real impact of their decisions and accept that impact as an
acceptable cost to them of reaching a goal. Now, the fact that
Congress, in some cases, imposes perhaps unrealistic deadlines
on these same agencies, needless to say, makes that rationale
all the easier sometimes.
Now, in the business community, we hesitate to be critical
in this area of the government because, frankly, we are then
sometimes accused of being not sensitive enough to national
security concerns. Well, we are sensitive, but there are
problems here and they need to be laid out. And in my written
testimony, I have covered many examples which we have gathered
from the American AmChams, which is the American Chambers
abroad, from member companies. Each one is an individual story
and each one, taken individually, may not seem like that big of
a deal, except to those people who are immediately affected.
But taken as a whole, I think they accurately paint a picture,
a mosaic that everything is not as kosher or OK as the prior
panel seemed to imply.
I mean, there are problems out there. And certainly many of
the questions of the Members made that clear also.
Now, why is all of this important? Should it matter if
people can travel to the United States in a timely manner, even
after the tragic day of September 11? Well, yes, it does,
because the Nation's business, their workers and the economy
benefit from such international commerce.
It is important that a potential customer from overseas can
visit the United States to examine and, hopefully, purchase
products. It is important that visitors can come and, frankly,
spend their money here and not in other countries. It is
important sometimes that the business community has access to
available labor when there is not domestic labor available.
Now, Congress has a visa system established, but a visa
system that doesn't work because of significant delays is not a
visa system at all. So we need to find a way to make the law
that is on the books work. We made our concerns to the State
Department and other government agencies known. We frankly feel
that our concerns are not even given a fair hearing, that the
concerns of the business community are not weighted as heavily
as they should be.
That being said, we look forward certainly to working with
the government as we work through these difficult issues in the
future, and certainly this hearing is helpful to us in doing
that. We appreciate that.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Johnson follows:]
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Chairman Tom Davis. Mr. Pettler, thanks for being with us.
Mr. Pettler. Good morning, Chairman Davis, Ranking Member
Waxman, distinguished members of the committee. These hearings
provide an opportunity to begin a dialog for change, a
partnership, so to speak, between business and government, the
common objective of which is to maintain U.S. competitiveness
and economic interests while improving the security of our
borders and the effectiveness of our visa process.
Since September 11, it has become increasingly evident that
our government agencies are not communicating sufficiently with
one another. The first step toward a solution is to make sure
that all interested government stakeholders are provided needed
input to policy and process decisions. Unfortunately, this is
not happening on a consistent basis.
For example, under the Visas Mantis screening process,
information elicited by consular officers is forwarded for
necessary technical analysis by the Department of Commerce
through industry and security. The Department of State has
formed a working group to address these protocols, but for
whatever reason, the Department of Commerce is not a full
participant. This is simply not effective from a planning or an
implementation standpoint.
Second, we need to avoid duplication of agency that causes
unnecessary delay. Foreign nationals who require an export
license for access to sensitive technology undergo an extremely
rigorous background review as part of the licensing process.
However, when that same individual applies for a visa, a de
novo review is conducted without regard to the previous
clearance.
In another example, the Bureau of Citizenship and
Immigration Services conducts a background review prior to
approval of certain nonimmigrant visa petitions. The BCIS
clears the individual, approves the petition; but when the
subject takes the approval and applies for a visa at a
consulate, the Department of State conducts ostensibly the same
check a second time, predictably with the same negative result.
The consolidation of visa policy in the Department of
Homeland Security provides a unique opportunity for increased
coordination, yet it is not clear that all interested agencies
and bureaus are being consulted or that agency processes are in
synch. This clearly must change.
A second area of focus should be industry-government
cooperation. We recommend that an industry-government advisory
panel be established. This panel could, for example, explore
precertification programs to streamline all or parts of the
visa application process for companies with proven immigration
and export control compliance programs.
A precedent for this approach exists in the customs arena.
Under the Customs-Trade Partnership Against Terrorism
initiative, participating companies play a cooperative role and
receive expedited clearances and a reduced number of
inspections for their cargos. A similar effort should be
considered with respect to the movement of people.
Improved communication with the U.S. business community is
necessary for both corporate planning and corporate security.
Companies can prepare and make the necessary contingency plans
if they simply know the rules sufficiently in advance. From a
corporate security standpoint, companies want and need to know
whether an employee poses a security risk in order to take
necessary steps to mitigate possible breaches and to protect
the propriety interests and those of their customers and
business partner.
As we have heard, effective August 1, new guidelines will
substantially increase the number of nonimmigrant visa
applicants required to appear for personal interviews. What had
been a 1-day process to certain folks may now require weeks, if
not months, for an appointment followed by an additional hiatus
for security reviews to be conducted.
The threshold question is whether universal interviews are
useful and necessary. Leaving that aside and assuming the
guidelines are implemented, what can be done to create
efficiencies? Ideally, a visa applicant anywhere in the world
should be able to go on the Internet, schedule an appointment
utilizing an automated appointment system, and at the same
time, submit his or her visa application online; upon receipt
of the application, the consul would immediately commence any
relevant security review so that, barring any complications,
the visa could be issued on the day of the interview.
Automated and electronic processes save time and government
resources. Electronic filing and other innovations such as
digital signatures prevent fraud and protect the integrity of
documents. These technologies must be linked with other planned
technology enhancements, such as biometric identifiers,
machine-readable passports and visas, and the U.S. VISIT system
to ensure a coordinated effort.
The U.S. business community has a shared interest in
national security and achieving efficiencies in global
mobility. U.S. industry, with its advanced technology, stands
ready and willing to participate in a cooperative effort with
government agencies. If such a partnership can work in the
customs arena, it can and must work here as well.
I have submitted a full statement for the record and look
forward to answering any questions you may have. Thank you very
much.
Chairman Tom Davis. Well, thank you very much.
[The prepared statement of Mr. Pettler follows:]
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Chairman Tom Davis. Let me just start. Mr. Pettler
suggested a private industry advisory panel.
What are your opinions on that, Mr. Marks?
Mr. Marks. Excuse me?
Chairman Tom Davis. Mr. Pettler has suggested a private
industry advisory panel.
Mr. Marks. I think the concept, Mr. Chairman, of including
the private sector in the decisionmaking process and in the
guidance of the program is a very good idea, because we have
been left somewhat in the cold after a long and very good
relationship with the State Department.
In this particular case, it has just been a directive, this
is what it will be, with little opportunity to share with those
people that influence travel around this world and those folks
that travel to the United States of America; and we are left a
little bit holding the bag in this case.
But we just haven't been able to tell our story. Had there
been a private sector panel involved from the get-go, I think
we may have mitigated some of these issues.
Chairman Tom Davis. Airlines are the first line of defense
in passport checks. What are they saying about the upcoming
requirements and is there any impact on bookings?
Mr. Marks. Well, clearly, anything that we do that deters
booking an airline passage to America is going to hurt our
economy.
You have to remember, we are in a very competitive
environment. This isn't just a matter of my home city of San
Francisco competing for business against Los Angeles or New
York, but we are competing against Spain. We are competing
against Switzerland. We are competing against all areas of the
world, and the more difficult we make it for someone to enter
this country, the harder it will be and the more it will cost
us economically.
Now, at the same time, we are extraordinarily sensitive to
homeland security. But it shouldn't be an either/or situation;
both are terribly important. And we just need to be perceived
as something other than Fortress America.
And I would just add, I was participating in a press
conference in Geneva at a Global Summit on Peace Through
Tourism earlier this year. And that was the first question
asked of me as I sat alongside the former mayor of Tel Aviv and
a minister from Jordan, fully assuming they would get the first
question. But, rather, it came to me, and it was, ``Tell us
what it is like in Fortress America.''
That doesn't send a very good sales message.
Chairman Tom Davis. No. But to what extent do travelers
seem to be choosing other countries for tourism, to go to on
vacation or to conduct business as a result of our increased
requirements? Are you seeing that?
Mr. Marks. Well, the----
Chairman Tom Davis. I will ask that to you and Mr. Johnson.
Mr. Marks. There is no question that our country has lost
market share. In fact, we have lost some 37 percent of market
share of world travel and tourism in the last decade. There are
many things that can probably come into play here, one being
that this country has not been as effective marketing from a
national perspective as maybe others have.
Congress has just put $50 million to the Department of
Commerce to, hopefully, solve some of this problem. But we are
doing that also at a time when we are making it more difficult
in order to achieve entry into this country.
The longer the lines that we have for people applying for
visas--and those situations where the machine-readable
passports are not yet totally in vogue, if you will, because
this was going to begin in 2007; it was we, after the USA
Patriot Act moved us forward to 2003.
It just seems to me, based on the feedback that we have
gotten from international tour operators--and we were just
together at what we call the ``International Pow-Wow,'' which
is the one time of the year our country brings together about
4,000 people to sell and buy the U.S. travel product. For the
more than 1,000 buyers that were here, they are very, very
concerned about our ability to facilitate their travel,
particularly from those countries that require visas.
I will give you a very specific example. In Brazil, we have
one embassy and three consulates. We are now requiring personal
interviews in Brazil. And, again, personal interviews can work
if it is--the personnel are there to do it. But in a directive
from Secretary Powell to all of the consulates, it is very
clear in that May 21 directive that this is to be done without
any additional expense or workload or overtime. So I don't know
how we do that in Brazil.
A family not living in Sao Paulo, Rio, Brasilia or one
other city that I don't recall, that--where we have a
consulate, it seems to me that they are going to have to make a
trip just for the purpose of having the personal interview to
make the ultimate trip--to come to America. Now, if I am one of
those families in a very large country that has to go through
that time and expense, I am going to think very hard about
that. I may choose to go somewhere where it is just a little
bit easier.
Chairman Tom Davis. Any comments from you?
Mr. Johnson. Mr. Chairman, with regard to the advisory
council--and certainly we support that concept--I have seen
enough of those to know that, depending on how the details are
written in the implementing legislation, how they are staffed
will determine whether or not the agency involved actually
listens to that council. So in a setting like that, some
attention has to be given to those kinds of details. Certainly
we would like to be helpful on that.
With regard to problems out there what we are hearing, you
know, we do have these examples in our testimony. But I think
the better test is where the rubber meets the road. We are
hearing from the American Chambers abroad, we are hearing from
our member companies that they are having serious issues with
what is going on and we are trying to meet their needs.
They don't come to the Chamber until they have really
exhausted their own resources to try and work through these
problems. We are sort of at the top here in Washington,
removed, and it is kind of like a last--let's go to Washington
and get some help because we can't figure out this mess.
That is what brings us here today. It is a serious problem.
Chairman Tom Davis. Thank you. My time is up. I am going to
recognize Mr. Bell.
Mr. Bell. Thank you, Mr. Chairman.
Mr. Marks, I am curious if you were here for the previous
panel. I believe you were. You may have heard me refer to the
phrase, ``unintended consequences,'' and I guess if there was
no communication whatsoever prior to the new measures being
implemented, it was sort of impossible to avoid unintended
consequences. Would you agree with that?
Mr. Marks. Absolutely, Congressman. Like you, we in San
Francisco have a large medical center at the University of
California that has had some similar issues that you shared
earlier. There is no question that we have not done a good job
of telling this story. And the travel and tourism industry has
not been asked to help engage in telling that story.
We have 37 Visit USA committees around the world, people
whose only intent in life is to help direct visitation to our
country. These are people that work at no cost on our behalf.
They represent both U.S. companies and they represent
international tour operators that send people here. That is
really the communications link.
And we have some other issues falling through the cracks
when it comes to a Web site. I mean, we have a Web site that
links to visas. It is in English. You know, we have been
promised that this was going to be put into five different
languages, but it is in English. If you are sitting in Japan or
in Germany, you just can't assume that everyone speaks English.
And there are also some linkage problems, we understand,
between our consulates in the field and the State Department.
Mr. Bell. And just so it will be clear also, since I talked
about the--what the impact on the medical industry,
previously--it is not an expression that I am necessarily fond
of--medical tourism really doesn't paint the picture of
everyone's favorite vacation.
But that is a very real piece of business here in the
United States, is it not, people traveling to the United States
for medical reasons?
Mr. Marks. Congressman, it is a very real piece of
business, because probably in 99.9 percent of the cases, the
person seeking the treatment, consultation, whatever it may be,
has family members traveling with him or her, along the way.
And so, in fact, they are filling hotel rooms, they are
eating in restaurants and, yes, they are probably doing some
things along the way to maybe take their mind off the
seriousness of what the original intent of that trip may have
been. So it is very real.
Mr. Bell. Is there any kind of estimate that any of you may
have on the dollars associated with that kind of tourism?
Mr. Marks. I would not have that available.
Mr. Bell. And we have talked about outreach efforts now,
and working with business to let them know about the new
requirements. But in your way of thinking--and any of you can
speak to this--is that really the problem?
There seems--at least in my district there seems to be a
full understanding of what the requirements are. It is just,
the impact that the requirements are having is what the concern
is.
And my question is, is there any discussion taking place in
that regard now between the private sector now that we have
realized some of the unintended consequences to address those?
Mr. Marks. I think I would start by coming right back to
the fact that, as Mr. Johnson said, that is one of the reasons
I think we are here today. And the fact simply is, when
something is put forward, it will happen on this date, it is
not widely circulated; I don't believe it is widely circulated
amongst those of us on this end.
We certainly understand it, but the message is being
received in these countries that are sending visitors our way
in a very negative way; and what just doesn't seem to connect
is the fact that the State Department was given by Congress the
ability to waive machine-readable passports, a timing issue
that will allow them to have an orderly transition to this.
Because everybody agrees this is the right way to go; no one
will disagree with that, I don't believe.
On the issue of the personal interviews for the visa
scenario, that is a whole different issue. That is a resource
issue. And we are not objecting to the personal interviews,
although from a marketing perspective, it isn't viewed as
friendly. We certainly accept and understand that.
So if you are going to do it, you have to do it in such a
way that people have the ability to be assured, if I have an
appointment on this day, I can get a visa, it will be done in a
timely fashion unless they find something out; and we just
don't have the people to do that.
If we are doing 27 percent out of South Korea, and they say
they are maxed, how can we expect to reach the--I think it is a
90 percent guide that has been required. How do we get there?
Mr. Bell. I think the emphasis has to be on the timely
fashion aspect, because that seems to be what is driving people
to other places. And as you point out, there is global
competition in all of those areas now.
But thank you all for being here today. I appreciate it.
Thank you, Mr. Chairman.
Chairman Tom Davis. Mrs. Miller.
Mrs. Miller. Thank you, Mr. Chairman. I might pick up a bit
on what my colleague from Texas, I think, was trying to drive
at as well; and that is just education, I suppose, of letting
people know exactly what the requirements are and what their
expectations are.
And to the Chamber, Mr. Johnson, I am just wondering, are
you working with your local chamber affiliates throughout the
Nation as well as overseas in some of your consular offices?
Mr. Johnson. Well, we are in the entry/exit issue in the
U.S. visa system. I think, coming back to the prior
questioning, too, if we had better lead time on these
announcements from State and other groups, we could then--two
things.
Frankly, we would like to get some lead time so we can have
some input with regard to, hey, maybe this isn't the right way
to go. And in doing that, we could collect information from our
American chambers abroad and local chambers--and in this case,
it would be mostly local along the borders--and get some
feedback as to some factors you might want to look at.
If you are not willing to go that far, at least give us
lead time so that we can get it out to the American chambers
abroad and our local and State chambers. We have that apparatus
and fortunately most of it now is on e-mail, which is how we
are able to gather the information we did for our testimony.
But give us the stuff ahead of time.
And maybe they don't want to because maybe the feedback
might be negative. But that is how people are going to learn
about these things.
And the employers over here in the medical community, they
are very sophisticated. I would say they are atypical. They
have lawyers tracking this stuff. But most people, they just
want to go on a trip or come to the country for a while.
Mrs. Miller. Is there a public hearing time now, through
State, if you are talking about some lead time, whether from
the Department of State or even from the Department of Homeland
Security? Obviously they need to communicate better in some
format.
Maybe you can give us some feedback on what kind of lead do
you need, actually?
Mr. Johnson. I don't know of any hearings that they've set
up on any of these issues. I am on the Data Management
Information Task Force and so we go on our separate trips to
listen to stakeholders and try to give the feedback back to
DHS.
Mrs. Miller. A comment as well to Mr. Pettler: I know you
were speaking about some of the different licensing
requirements that many of the other agencies might have, and I
think you talked about driver's license requirements. Let me
mention to you, as a former Michigan Secretary of State whose
job it was to do motor vehicle administration, particularly
after September 11, we found that--it was actually the case in
our State, and I have now subsequently found in most States,
that there is a requirement, even if the Department of Motor
Vehicles knows that you are in the country illegally, if you
are here as an illegal alien, we are required, for example,
under Michigan law to give you a driver's license or a State
identification card; and we have been unable to change the law
in Michigan. That will be one of the things I will be working
on as a Member of Congress, the possibility of a national
driver's license.
The licensing requirements are probably the most porous
security breach that we have in our Nation as well. We would
like to--I think many of the people in the motor vehicle
business would like to work more closely with perhaps licensing
people that are here as people with visas and that type of
thing. I just make that comment.
Also, Mr. Marks, one other question as well. You
mentioned--trying to take some notes you were mentioning what I
felt were startling numbers. I think you used South Korea as an
example about the business travel and that kind of thing, the
subsequent loss of dollars. You were also asking for a time
extension or a waiver, which would seem to me to be--and I
think you mentioned 18 months, which would seem to me to be a
security breach.
But do you have any ideas that would really ensure national
security and at the same time try to mitigate some of the
problems that you've articulated?
Mr. Marks. First and foremost, as I said in my testimony
and as I said just a moment ago, the notion of homeland
security and economic security truly are not coequals. But one
cannot be overlooked for the other; I think we need to make
that clear.
In terms of the timing issues, when it comes to the
machine-readable passports, to begin with, these are our
trading partners. These are the 27 countries that we have
strong relationships with, like Spain, the United Kingdom,
Japan, Switzerland and even France, the point being we are
starting at a destination where we are dealing, we believe,
with low-risk situations.
And so to give them, if you will, their head just a bit to
implement the machine-readable passport, because what we don't
know the result of will at this point be if someone appears at
an airline stand in a country with a machine-readable passport,
but they have the old one, by law the airline won't be able to
board that individual. Some will because you know that is just
going to happen, so they are going to end up in the United
States.
Are we going to deport them or will they need then to apply
for a visa here? It becomes a very confusing issue. And there
doesn't seem to be much clarity between the State Department
and Department of Homeland Security in this matter.
We do think, going back--the original date was 2007, and
these 27 countries have known that for a long time; following
the USA Patriot Act, following the events of September 11, that
was moved up to this October, and just about everyone is making
a pretty good attempt to get this done. The United Kingdom and
Japan are just about there. Others are getting close, but there
are countries--France, trading partners, that have only begun
the process. They are just not there, but we think even just
given a little bit of a window, they can succeed.
On the other issue of the personal interviews, once again,
the PR marketing spin aside, I understand the need for and have
no problem with it. We just have to be able to put the
resources behind it so it doesn't become a black eye on our
country, so it isn't an unimaginable situation with lines going
around blocks, people having to take trips waiting 2 days, pay
for one trip to take the ultimate trip. At that stage of the
game, I just think we will find ourselves in a terrible
situation from a competitive standpoint having lost market
share, as I indicated, over the past decade of some 37 percent.
And I will tell you in my home city of San Francisco, where
I spend the vast majority of my life, we have been hit even
harder than that. And the reason for it is that we are a major
gateway city. And if you would have talked to New York, San
Francisco, Los Angeles, Miami, Boston, talk to some of our
major gateways, I think they will sing similar tunes.
Mr. Pettler. Excuse me, Congressman. If I may add something
to that, to the issue of unintended consequences, I think one
thing we haven't talked about here is that other countries are
looking at what we do. And there is certainly the risk that if
we take too aggressive an approach in these situations, we may
see other countries reciprocating in kind, against U.S.
individuals who are seeking visas to enter those destinations,
and it could have a collateral damage effect in that regard.
Getting back to your comment about licenses, I was
referring more to the export control licenses which are
licenses that the U.S. Government, in many cases, if
applicable, require that companies obtain prior to release of
certain sensitive technologies to foreign nationals. And that
process is collateral with the visa issuing process. There is a
screen that takes place as part of that.
Just overall and just addressing the overall problem and
leaving machine-readable passports aside, I agree with the
other speakers that it is primarily a resource issue when it
comes to the concern about the interview situation. If we can
throw enough resources there, we can put some dent into those
timeframes.
I think, no matter what we do, we are going to see delays
and have a universal mandatory interview requirement. I also
think the process is extremely important. If you look at the
report that came out from the GAO, that talked about watch
lists and the need for better coordination between agencies and
these various watch lists, what we find is, nine different
agencies of the Federal Government have 12 different watch
lists. They have been developed independent of one another
based upon criteria and mission statements of those agencies.
There is a need to coordinate those better.
I think in the end result, we will see a point down the
line where there's going to be at the terminal, where the
consular officer sits, the ability for that consular officer to
go in and run the clearance on-line in real-time on these name-
check issues.
I think the issues of the technology reviews, which require
more in-depth technical analysis, that cannot be done by a
consular officer. That has to be referred back to the
appropriate agencies--Department of Commerce, one of those--for
more intensive review. But that process needs to be refined.
I can envision a time, if we really get on it and we deploy
our technology, where we can have a situation that even with an
interview being mandatory, we can turn this around in a much
more acceptable period of time. We are not anywhere near there
now. We are not utilizing the right tools nor do we have the
necessary coordination to see that on the immediate horizon.
Chairman Tom Davis. Thank you very much.
Mr. Platts, any questions?
Let me thank our witnesses for appearing today, and I want
to thank the staff who worked on this hearing and Foreign
Service Officers Landon Taylor and Nick Fetchko who provided
assistance to the staff who traveled to Latvia and Germany for
this hearing.
I want to add that the record will be kept open for 2 weeks
to allow witnesses to include other information in the record
if something occurs to you that would be very helpful to us. We
are going to continue to monitor this. It is very, very
important from a lot of different perspectives; and we will
stay on top of it with your assistance.
Thank you very much and the hearing is adjourned.
[Whereupon, at 12:20 p.m., the committee was adjourned.]
[The prepared statements of Hon. Christopher Shays, Hon.
Elijah E. Cummings, and additional information submitted for
the hearing record follows:]
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