8 USC 1187 - Visa waiver program for certain visitors

U.S Code last checked for updates: Nov 22, 2024

§ 1187.

Visa waiver program for certain visitors

(a)

Establishment of program

The Secretary of Homeland Security and the Secretary of State are authorized to establish a program (hereinafter in this section referred to as the “program”) under which the requirement of paragraph (7)(B)(i)(II) of section 1182(a) of this title may be waived by the Secretary of Homeland Security, in consultation with the Secretary of State and in accordance with this section, in the case of an alien who meets the following requirements:

(1)

Seeking entry as tourist for 90 days or less

(2)

National of program country

The alien is a national of, and presents a passport issued by, a country which—

(A)

extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States, and

(B)

is designated as a pilot program country under subsection (c).

(3)

Passport requirements

The alien, at the time of application for admission, is in possession of a valid unexpired passport that satisfies the following:

(A)

Machine readable

(B)

Electronic

(4)

(5)

Entry into the United States

(6)

Not a safety threat

(7)

No previous violation

(8)

Round-trip ticket

(9)

Automated system check

(10)

Electronic transmission of identification information

(11)

Eligibility determination under the electronic system for travel authorization

(12)

Not present in Iraq, Syria, or any other country or area of concern

(A)

In general

Except as provided in subparagraphs (B) and (C)—

(i)

the alien has not been present, at any time on or after March 1, 2011—

(I)

in Iraq or Syria;

(II)

in a country that is designated by the Secretary of State under section 4605(j) 2

 See References in Text note below.

of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III)

in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and

(ii)

regardless of whether the alien is a national of a program country, the alien is not a national of—

(I)

Iraq or Syria;

(II)

a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 4605(j) ² of title 50 (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 2780 of title 22, section 2371 of title 22, or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III)

any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).

(B)

Certain military personnel and government employees

Subparagraph (A)(i) shall not apply in the case of an alien if the Secretary of Homeland Security determines that the alien was present—

(i)

in order to perform military service in the armed forces of a program country; or

(ii)

in order to carry out official duties as a full time employee of the government of a program country.

(C)

Waiver

(D)

Countries or areas of concern

(i)

In general

(ii)

Criteria

In making a determination under clause (i), the Secretary shall consider—

(I)

whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;

(II)

whether a foreign terrorist organization has a significant presence in the country or area; and

(III)

whether the country or area is a safe haven for terrorists.

(iii)

Annual review

(E)

Report

(b)

Waiver of rights

An alien may not be provided a waiver under the program unless the alien has waived any right—

(1)

to review or appeal under this chapter of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or

(2)

to contest, other than on the basis of an application for asylum, any action for removal of the alien.

(c)

Designation of program countries

(1)

In general

(2)

Qualifications

Except as provided in subsection (f), a country may not be designated as a program country unless the following requirements are met:

(A)

Low nonimmigrant visa refusal rate

Either—

(i)

the average number of refusals of nonimmigrant visitor visas for nationals of that country during—

(I)

the two previous full fiscal years was less than 2.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during those years; and

(II)

either of such two previous full fiscal years was less than 2.5 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during that year; or

(ii)

such refusal rate for nationals of that country during the previous full fiscal year was less than 3.0 percent.

(B)

Passport program

(i)

Issuance of passports

(ii)

Validation of passports

(C)

Law enforcement and security interests

The Secretary of Homeland Security, in consultation with the Secretary of State—

(i)

evaluates the effect that the country’s designation would have on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);

(ii)

determines that such interests would not be compromised by the designation of the country; and

(iii)

submits a written report to the Committee on the Judiciary, the Committee on Foreign Affairs, and the Committee on Homeland Security of the House of Representatives and the Committee on the Judiciary, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate regarding the country’s qualification for designation that includes an explanation of such determination.

(D)

Reporting lost and stolen passports

(E)

Repatriation of aliens

(F)

Passenger information exchange

(G)

Interpol screening

(3)

Continuing and subsequent qualifications

For each fiscal year after the initial period—

(A)

Continuing qualification

In the case of a country which was a program country in the previous fiscal year, a country may not be designated as a program country unless the sum of—

(i)

the total of the number of nationals of that country who were denied admission at the time of arrival or withdrew their application for admission during such previous fiscal year as a nonimmigrant visitor, and

(ii)

the total number of nationals of that country who were admitted as nonimmigrant visitors during such previous fiscal year and who violated the terms of such admission,

was less than 2 percent of the total number of nationals of that country who applied for admission as nonimmigrant visitors during such previous fiscal year.

(B)

New countries

In the case of another country, the country may not be designated as a program country unless the following requirements are met:

(i)

Low nonimmigrant visa refusal rate in previous 2-year period

(ii)

Low nonimmigrant visa refusal rate in each of the 2 previous years

(4)

Initial period

(5)

Written reports on continuing qualification; designation terminations

(A)

Periodic evaluations

(i)

In general

The Secretary of Homeland Security, in consultation with the Secretary of State, periodically (but not less than once every 2 years)—

(I)

shall evaluate the effect of each program country’s continued designation on the law enforcement and security interests of the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate United States law);

(II)

shall determine, based upon the evaluation in subclause (I), whether any such designation ought to be continued or terminated under subsection (d);

(III)

shall submit a written report to the Committee on the Judiciary, the Committee on Foreign Affairs, the Permanent Select Committee on Intelligence, and the Committee on Homeland Security, of the House of Representatives and the Committee on the Judiciary, the Committee on Foreign Relations, the Select Committee on Intelligence and the Committee on Homeland Security and Governmental Affairs of the Senate regarding the continuation or termination of the country’s designation that includes an explanation of such determination and the effects described in subclause (I);

(IV)

shall submit to Congress a report regarding the implementation of the electronic system for travel authorization under subsection (h)(3) and the participation of new countries in the program through a waiver under paragraph (8); and

(V)

shall submit to the committees described in subclause (III), a report that includes an assessment of the threat to the national security of the United States of the designation of each country designated as a program country, including the compliance of the government of each such country with the requirements under subparagraphs (D) and (F) of paragraph (2), as well as each such government’s capacity to comply with such requirements.

(ii)

Effective date

(iii)

Redesignation

(B)

Emergency termination

(i)

In general

(ii)

Definition

For purposes of clause (i), the term “emergency” means—

(I)

the overthrow of a democratically elected government;

(II)

war (including undeclared war, civil war, or other military activity) on the territory of the program country;

(III)

a severe breakdown in law and order affecting a significant portion of the program country’s territory;

(IV)

a severe economic collapse in the program country; or

(V)

any other extraordinary event in the program country that threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States) and where the country’s participation in the program could contribute to that threat.

(iii)

Redesignation

The Secretary of Homeland Security may redesignate the country as a program country, without regard to subsection (f) or paragraph (2) or (3), when the Secretary of Homeland Security, in consultation with the Secretary of State, determines that—

(I)

at least 6 months have elapsed since the effective date of the termination;

(II)

the emergency that caused the termination has ended; and

(III)

the average number of refusals of nonimmigrant visitor visas for nationals of that country during the period of termination under this subparagraph was less than 3.0 percent of the total number of nonimmigrant visitor visas for nationals of that country which were granted or refused during such period.

(iv)

Program suspension authority

The Director of National Intelligence shall immediately inform the Secretary of Homeland Security of any current and credible threat which poses an imminent danger to the United States or its citizens and originates from a country participating in the visa waiver program. Upon receiving such notification, the Secretary, in consultation with the Secretary of State—

(I)

may suspend a country from the visa waiver program without prior notice;

(II)

shall notify any country suspended under subclause (I) and, to the extent practicable without disclosing sensitive intelligence sources and methods, provide justification for the suspension; and

(III)

shall restore the suspended country’s participation in the visa waiver program upon a determination that the threat no longer poses an imminent danger to the United States or its citizens.

(C)

Treatment of nationals after termination

For purposes of this paragraph—

(i)

nationals of a country whose designation is terminated under subparagraph (A) or (B) shall remain eligible for a waiver under subsection (a) until the effective date of such termination; and

(ii)

a waiver under this section that is provided to such a national for a period described in subsection (a)(1) shall not, by such termination, be deemed to have been rescinded or otherwise rendered invalid, if the waiver is granted prior to such termination.

(6)

Computation of visa refusal rates

(7)

Visa waiver information

(A)

In general

(B)

Reporting requirement

On May 1 of each year, for each country under consideration for inclusion in the visa waiver program, the Secretary of State shall provide to the appropriate congressional committees—

(i)

the total number of nationals of that country that applied for United States visas in that country during the previous calendar year;

(ii)

the total number of such nationals who received United States visas during the previous calendar year;

(iii)

the total number of such nationals who were refused United States visas during the previous calendar year;

(iv)

the total number of such nationals who were refused United States visas during the previous calendar year under each provision of this chapter under which the visas were refused; and

(v)

the number of such nationals that were refused under section 1184(b) of this title as a percentage of the visas that were issued to such nationals.

(C)

Certification

(D)

Consideration of countries in the visa waiver program

(E)

Definition

(8)

Nonimmigrant visa refusal rate flexibility

(A)

Certification

(i)

In general

(ii)

Notification to Congress

(iii)

Temporary suspension of waiver authority

(iv)

Rule of construction

(B)

Waiver

After certification by the Secretary under subparagraph (A), the Secretary, in consultation with the Secretary of State, may waive the application of paragraph (2)(A) for a country if—

(i)

the country meets all security requirements of this section;

(ii)

the Secretary of Homeland Security determines that the totality of the country’s security risk mitigation measures provide assurance that the country’s participation in the program would not compromise the law enforcement, security interests, or enforcement of the immigration laws of the United States;

(iii)

there has been a sustained reduction in the rate of refusals for nonimmigrant visas for nationals of the country and conditions exist to continue such reduction;

(iv)

the country cooperated with the Government of the United States on counterterrorism initiatives, information sharing, and preventing terrorist travel before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State determine that such cooperation will continue; and

(v)

(I)

the rate of refusals for nonimmigrant visitor visas for nationals of the country during the previous full fiscal year was not more than ten percent; or

(II)

the visa overstay rate for the country for the previous full fiscal year does not exceed the maximum visa overstay rate, once such rate is established under subparagraph (C).

(C)

Maximum visa overstay rate

(i)

Requirement to establish

(ii)

Visa overstay rate defined

In this paragraph the term “visa overstay rate” means, with respect to a country, the ratio of—

(I)

the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa whose periods of authorized stays ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(II)

the total number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa during that fiscal year.

(iii)

Report and publication

(9)

Discretionary security-related considerations

In determining whether to waive the application of paragraph (2)(A) for a country, pursuant to paragraph (8), the Secretary of Homeland Security, in consultation with the Secretary of State, shall take into consideration other factors affecting the security of the United States, including—

(A)

airport security standards in the country;

(B)

whether the country assists in the operation of an effective air marshal program;

(C)

the standards of passports and travel documents issued by the country; and

(D)

other security-related factors, including the country’s cooperation with the United States’ initiatives toward combating terrorism and the country’s cooperation with the United States intelligence community in sharing information regarding terrorist threats.

(10)

Technical assistance

(11)

Independent review

(A)

In general

(B)

Reporting requirement

(C)

Contents

The independent intelligence assessment conducted by the Director shall include—

(i)

a review of all current, credible terrorist threats of the subject country;

(ii)

an evaluation of the subject country’s counterterrorism efforts;

(iii)

an evaluation as to the extent of the country’s sharing of information beneficial to suppressing terrorist movements, financing, or actions;

(iv)

an assessment of the risks associated with including the subject country in the program; and

(v)

recommendations to mitigate the risks identified in clause (iv).

(12)

Designation of high risk program countries

(A)

In general

(B)

Criteria

In evaluating program countries under subparagraph (A), the Secretary of Homeland Security, in consultation with the Director of National Intelligence and the Secretary of State, shall consider the following criteria:

(i)

The number of nationals of the country determined to be ineligible to travel to the United States under the program during the previous year.

(ii)

The number of nationals of the country who were identified in United States Government databases related to the identities of known or suspected terrorists during the previous year.

(iii)

The estimated number of nationals of the country who have traveled to Iraq or Syria at any time on or after March 1, 2011 to engage in terrorism.

(iv)

The capacity of the country to combat passport fraud.

(v)

The level of cooperation of the country with the counter-terrorism efforts of the United States.

(vi)

The adequacy of the border and immigration control of the country.

(vii)

Any other criteria the Secretary of Homeland Security determines to be appropriate.

(C)

Suspension of designation

(D)

Report

(d)

Authority

(e)

Carrier agreements

(1)

In general

The agreement referred to in subsection (a)(4) is an agreement between a carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title and the Secretary of Homeland Security under which the carrier (including any carrier conducting operations under part 135 of title 14, Code of Federal Regulations) or a domestic corporation conducting operations under part 91 of that title agrees, in consideration of the waiver of the visa requirement with respect to a nonimmigrant visitor under the program—

(A)

to indemnify the United States against any costs for the transportation of the alien from the United States if the visitor is refused admission to the United States or remains in the United States unlawfully after the 90-day period described in subsection (a)(1)(A),

(B)

to submit daily to immigration officers any immigration forms received with respect to nonimmigrant visitors provided a waiver under the program,

(C)

to be subject to the imposition of fines resulting from the transporting into the United States of a national of a designated country without a passport pursuant to regulations promulgated by the Secretary of Homeland Security, and

(D)

to collect, provide, and share passenger data as required under subsection (h)(1)(B).

(2)

Termination of agreements

(3)

Business aircraft requirements

(A)

In general

(B)

Collections

(f)

Duration and termination of designation

(1)

In general

(A)

Determination and notification of disqualification rate

(B)

Probationary status

(C)

Termination of designation

(2)

Termination of probationary status

(A)

In general

(B)

Effective date

(3)

Nonapplicability of certain provisions

(4)

“Disqualification rate” defined

For purposes of this subsection, the term “disqualification rate” means the percentage which—

(A)

the total number of nationals of the program country who were—

(i)

denied admission at the time of arrival or withdrew their application for admission during the most recent fiscal year for which data are available; and

(ii)

admitted as nonimmigrant visitors during such fiscal year and who violated the terms of such admission; bears to

(B)

the total number of nationals of such country who applied for admission as nonimmigrant visitors during such fiscal year.

(5)

Failure to report passport thefts

(6)

Failure to share information

(A)

In general

(B)

Redesignation

(7)

Failure to screen

(A)

In general

(B)

Redesignation

(g)

Visa application sole method to dispute denial of waiver based on a ground of inadmissibility

(h)

Use of information technology systems

(1)

Automated entry-exit control system

(A)

System

(B)

Requirements

The system under subparagraph (A) shall satisfy the following requirements:

(i)

Data collection by carriers

(ii)

Data provision by carriers

(iii)

Calculation

(C)

Reporting

(i)

Percentage of nationals lacking departure record

(ii)

System effectiveness

Not later than December 31, 2004, the Secretary of Homeland Security shall submit a written report to the Committee on the Judiciary of the United States House of Representatives and of the Senate containing the following:

(I)

The conclusions of the Secretary of Homeland Security regarding the effectiveness of the automated entry and exit control system to be developed and implemented under this paragraph.

(II)

The recommendations of the Secretary of Homeland Security regarding the use of the calculation described in subparagraph (B)(iii) as a basis for evaluating whether to terminate or continue the designation of a country as a program country.

The report required by this clause may be combined with the annual report required to be submitted on that date under section 1365a(e)(1) of this title.

(2)

Automated data sharing system

(A)

System

(B)

Requirements

The system under subparagraph (A) shall satisfy the following requirements:

(i)

Supplying information to immigration officers conducting inspections at ports of entry

Not later than October 1, 2002, the system shall enable immigration officers conducting inspections at ports of entry under section 1225 of this title to obtain from the system, with respect to aliens seeking a waiver under the program—

(I)

any photograph of the alien that may be contained in the records of the Department of State or the Service; and

(II)

information on whether the alien has ever been determined to be ineligible to receive a visa or ineligible to be admitted to the United States.

(ii)

Supplying photographs of inadmissible aliens

(iii)

Maintaining records on applications for admission

The system shall maintain, for a minimum of 10 years, information about each application for admission made by an alien seeking a waiver under the program, including the following:

(I)

The name or Service identification number of each immigration officer conducting the inspection of the alien at the port of entry.

(II)

Any information described in clause (i) that is obtained from the system by any such officer.

(III)

The results of the application.

(3)

Electronic system for travel authorization

(A)

System

(B)

Fees

(i)

In general

No later than 6 months after March 4, 2010, the Secretary of Homeland Security shall establish a fee for the use of the System and begin assessment and collection of that fee. The initial fee shall be the sum of—

(I)

$17 per travel authorization; and

(II)

an amount that will at least ensure recovery of the full costs of providing and administering the System, as determined by the Secretary.

(ii)

Disposition of amounts collected

(iii)

Sunset of Travel Promotion Fund fee

(C)

Validity

(i)

Period

(ii)

Limitation

(iii)

Not a determination of visa eligibility

(iv)

Judicial review

(D)

Fraud detection

(E)

Additional and previous countries of citizenship

(F)

Report on certain limitations on travel

(i)

Exit system

(1)

In general

(2)

System requirements

The system established under paragraph (1) shall—

(A)

match biometric information of the alien against relevant watch lists and immigration information; and

(B)

compare such biometric information against manifest information collected by air carriers on passengers departing the United States to confirm such aliens have departed the United States.

(3)

Report

Not later than 180 days after August 3, 2007, the Secretary shall submit to Congress a report that describes—

(A)

the progress made in developing and deploying the exit system established under this subsection; and

(B)

the procedures by which the Secretary shall improve the method of calculating the rates of nonimmigrants who overstay their authorized period of stay in the United States.

(June 27, 1952, ch. 477, title II, ch. 2, § 217, as added Pub. L. 99–603, title III, § 313(a), Nov. 6, 1986, 100 Stat. 3435; amended Pub. L. 100–525, § 2(p)(1), (2), Oct. 24, 1988, 102 Stat. 2613; Pub. L. 101–649, title II, § 201(a), Nov. 29, 1990, 104 Stat. 5012; Pub. L. 102–232, title III, §§ 303(a)(1), (2), 307(l)(3), Dec. 12, 1991, 105 Stat. 1746, 1756; Pub. L. 103–415, § 1(m), Oct. 25, 1994, 108 Stat. 4301; Pub. L. 103–416, title II, §§ 210, 211, Oct. 25, 1994, 108 Stat. 4312, 4313; Pub. L. 104–208, div. C, title III, § 308(d)(4)(F), (e)(9), title VI, § 635(a)–(c)(1), (3), Sept. 30, 1996, 110 Stat. 3009–618, 3009–620, 3009–702, 3009–703; Pub. L. 105–119, title I, § 125, Nov. 26, 1997, 111 Stat. 2471; Pub. L. 105–173, §§ 1, 3, Apr. 27, 1998, 112 Stat. 56; Pub. L. 106–396, title I, § 101(a), title II, §§ 201–207, title IV, § 403(a)–(d), Oct. 30, 2000, 114 Stat. 1637–1644, 1647, 1648; Pub. L. 107–56, title IV, § 417(c), (d), Oct. 26, 2001, 115 Stat. 355; Pub. L. 107–173, title III, § 307(a), May 14, 2002, 116 Stat. 556; Pub. L. 110–53, title VII, § 711(c), (d)(1), Aug. 3, 2007, 121 Stat. 339, 341; Pub. L. 111–145, § 9(h), formerly § 9(e), Mar. 4, 2010, 124 Stat. 62, renumbered Pub. L. 113–235, div. B, title VI, § 606(1), Dec. 16, 2014, 128 Stat. 2219; Pub. L. 111–198, § 5(a), July 2, 2010, 124 Stat. 1357; Pub. L. 113–235, div. B, title VI, § 605(b), Dec. 16, 2014, 128 Stat. 2219; Pub. L. 114–113, div. O, title II, §§ 202(a), (b), 203–205(a), 206, 207(a), 209, Dec. 18, 2015, 129 Stat. 2989–2995; Pub. L. 115–123, div. C, title II, § 30203(a), Feb. 9, 2018, 132 Stat. 126; Pub. L. 116–94, div. I, title VIII, § 806, Dec. 20, 2019, 133 Stat. 3029; Pub. L. 117–103, div. EE, § 101, Mar. 15, 2022, 136 Stat. 1111.)

cite as: 8 USC 1187