The Visa Waiver Program (VWP) was established to facilitate international travel without jeopardizing United States security. But balancing national security interests against efforts to facilitate international travel through the VWP presents challenges. Moreover, motivation to err on the side of facilitating travel is compelling politically. The United States has a very large travel and tourism industry. In 2013, it accounted for 2.6% of U.S. gross domestic product and directly employed nearly 5.4 million Americans. International travelers spent approximately $215 billion in 2013 on passenger fares and travel-related goods and services, which makes tourism the United States' single-largest services sector export.
Aliens who are citizens of countries participating in the VWP can obtain authorization to visit the United States without a visa by registering for the program online using the Electronic System for Travel Authorization [ESTA] system. According to Homeland Security Department (DHS) Secretary Jeh Charles Johnson, efforts have been made to increase the security of the ESTA system. For instance, ESTA information is screened against the same counterterrorism and law enforcement databases that are used to screen travelers who have visas.
I do not doubt that DHS has been trying to make the VWP more secure, but the fact remains that once an applicant has completed an online application and received approval, he/she just needs a valid passport from one of the VWP countries to board a flight to the United States and seek admission. The only remaining barrier to entering the United States is the U.S Customs and Border Protection (CBP) officer at the port of entry who stamps passports after asking a few questions.
In contrast, aliens who are not citizens of a VWP country generally need a visa to enter the United States as visitors for business or pleasure, and this is a more involved process than the one for the VWP. First, the person seeking a visitor’s visa must complete an online visa application, Form DS-160, which among other things requires the applicant to upload a photograph of himself/herself. If the applicant is between the ages of 14 and 79, an interview also is required. In addition to a passport, Form DS-160 confirmation, and an application fee payment receipt, additional documentation may be required to establish such things as the purpose of the trip, evidence of intent to depart the United States at the end of the trip, and evidence of ability to pay all costs of the trip. During the interview, a consular officer will determine whether the applicant is qualified to receive a visitor’s visa, and, if so, which visa category is appropriate. Then the person’s fingerprints are taken with digital fingerprint scans. This makes it possible to run checks against databases that use biometrics, such as the Automated Biometric Identification System (IDENT) and FBI’s Integrated Automated Fingerprint Identification System (IAFIS). Other requirements may apply depending on the circumstances of the individual applicant and the requirements of the consulate office at which the interview is being conducted.
Secretary Jeh also mentioned the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which placed additional restrictions on eligibility for travel to the U.S. without a visa under the VWP. It was moved through the legislative process rapidly in reaction to the terrorist attacks in Europe which occurred in VWP countries. Its measures include excluding aliens from the VWP who have 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 as a country, the government of which has repeatedly provided support for acts of international terrorism; or (III) in any other country or area of concern designated by the DHS Secretary. DHS has added three countries – Libya, Yemen, and Somalia.
The Visa Waiver Improvement and Terrorist Prevention Act satisfied the political need to do something, but it is not going to prevent terrorists from using the VWP to come here without visas. ISIS and other terrorist organizations have or can recruit citizens of Visa Waiver countries who will not be excluded from the VWP under that Act. When the terrorists in VWP countries decide that it is time to attack the United States, they will have no difficulty using the VWP to come here. The door is still wide open.
Our government is not limited to choosing between the ineffective screening of the VWP and the more thorough screening of the application process for a nonimmigrant visitor’s visa. Alternatives are available that would fall between those two in terms of security and convenience for the alien travelers, such as a modified version of the CBP’s Global Entry program, which allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. At airports, the program members go to Global Entry kiosks and present their machine-readable passport or U.S. permanent resident card, place their fingerprints on a scanner for fingerprint verification, and complete a customs declaration. The kiosk issues a transaction receipt and directs the traveler to the baggage claim and the exit. While it is unlikely that all of the aliens currently using the VWP would be able to pass the more rigorous screening of such a program, many and perhaps most of them would. The result would be an initial screening that would include fingerprints, facial photographs, and perhaps other biometrics which would permit checks against databases that use biometric data. And subsequent entries could be authorized using an abbreviated form of the current ESTA system. This would result in a very substantial increase in the government’s ability to identify terrorists seeking to travel to the United States without greatly inconveniencing alien travelers who are bona fide visitors.