S 497 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 497CommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to modify the requirements of the visa waiver program and for other purposes.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

March 7, 2011CommentsClose CommentsPermalink

Ms. MIKULSKI (for herself and Mr. KIRK) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To amend the Immigration and Nationality Act to modify the requirements of the visa waiver program and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Secure Travel and Counterterrorism Partnership Program Act of 2011’.CommentsClose CommentsPermalink

SEC. 2. DEFINITIONS.

(a) Definitions- Section 217(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(1)) is amended to read as follows:CommentsClose CommentsPermalink





‘(1) AUTHORITY TO DESIGNATE; DEFINITIONS-CommentsClose CommentsPermalink





‘(A) AUTHORITY TO DESIGNATE- The Secretary of Homeland Security, in consultation with the Secretary of State, may designate any country as a program country if that country meets the requirements under paragraph (2).CommentsClose CommentsPermalink





‘(B) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink





‘(i) APPROPRIATE CONGRESSIONAL COMMITTEES- The term ‘appropriate congressional committees’ means--CommentsClose CommentsPermalink





‘(I) the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on the Judiciary of the Senate; andCommentsClose CommentsPermalink





‘(II) the Committee on Foreign Affairs, the Committee on Homeland Security, and the Committee on the Judiciary of the House of Representatives.CommentsClose CommentsPermalink





‘(ii) PROGRAM COUNTRY- The term ‘program country’ means a country designated as a program country under subparagraph (A).CommentsClose CommentsPermalink





‘(iii) VISA OVERSTAY RATE-CommentsClose CommentsPermalink





‘(I) IN GENERAL- The term ‘visa overstay rate’ means, with respect to a country, the ratio of--CommentsClose CommentsPermalink

‘(aa) 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 stay ended during a fiscal year but who remained unlawfully in the United States beyond such periods; toCommentsClose CommentsPermalink

‘(bb) 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.CommentsClose CommentsPermalink

‘(iv) COMPUTATION OF VISA OVERSTAY RATE- In determining the visa overstay rate for a country the Secretary of Homeland Security--CommentsClose CommentsPermalink





‘(I) shall utilize information from all available databases to ensure the accuracy of such rate; andCommentsClose CommentsPermalink





‘(II) shall not include any visa overstay which incorporates any procedures based on, or are otherwise based on, race, sex, or disability, unless otherwise specifically authorized by law or regulation.’.CommentsClose CommentsPermalink





(b) Technical and Conforming Amendments- Section 217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c)) is amended as follows:CommentsClose CommentsPermalink





(1) In paragraph (2)(C)--CommentsClose CommentsPermalink





(A) in the matter preceding clause (i), by striking ‘Attorney General,’ and inserting ‘Secretary of Homeland Security,’; andCommentsClose CommentsPermalink





(B) in clause (iii), by striking ‘Committee on the Judiciary and the Committee on International Relations of the House of Representatives and the Committee on the Judiciary and the Committee on Foreign Relations of the Senate’ and inserting ‘appropriate congressional committees’.CommentsClose CommentsPermalink





(2) In paragraph (5)(A)(i)(III), by striking ‘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’ and inserting ‘appropriate congressional committees’.CommentsClose CommentsPermalink





(3) In paragraph (7)--CommentsClose CommentsPermalink





(A) in subparagraph (D), by striking ‘Attorney General’ both places that term appears and inserting ‘Secretary of Homeland Security’; andCommentsClose CommentsPermalink





(B) by striking subparagraph (E).CommentsClose CommentsPermalink

SEC. 3. DESIGNATION OF PROGRAM COUNTRIES BASED ON VISA OVERSTAY RATES.

(a) In General- Section 217(c)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(2)(A)) is amended to read as follows:CommentsClose CommentsPermalink





‘(A) LOW NONIMMIGRANT VISA OVERSTAY RATE- The visa overstay rate for that country was not more than 3 percent during the previous fiscal year.’.CommentsClose CommentsPermalink





(b) Qualification Criteria- Section 217(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(3)) is amended to read as follows:CommentsClose CommentsPermalink





‘(3) QUALIFICATION CRITERIA- For each fiscal year after the initial period, a country may not be designated as a program country unless requirements of paragraph (2)(A) are met.’.CommentsClose CommentsPermalink





(c) Judicial Review- Section 217(c)(6) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(6)) is amended to read as follows:CommentsClose CommentsPermalink





‘(6) INAPPLICABILITY OF JUDICIAL REVIEW- No court shall have jurisdiction to review the denial of admission to the United States of any alien by the Secretary of Homeland Security, the Secretary’s computation of a visa overstay rate, or the designation or nondesignation of a country as a program country.’.CommentsClose CommentsPermalink





(d) Reporting Requirements- Section 217(c)(7) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(7)), as amended by section 2(b)(3), is further amended--CommentsClose CommentsPermalink





(1) in the heading, by striking ‘VISA WAIVER INFORMATION- ’ and inserting ‘REPORTING REQUIREMENT- ’;CommentsClose CommentsPermalink





(2) by striking subparagraph (A);CommentsClose CommentsPermalink





(3) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (A), (B), and (C), respectively;CommentsClose CommentsPermalink





(4) in subparagraph (A), as so redesignated--CommentsClose CommentsPermalink





(A) in the heading, by striking ‘REPORTING REQUIREMENT- ’ and inserting ‘IN GENERAL- ’;CommentsClose CommentsPermalink





(B) in clause (iii), by striking ‘were refused’ and inserting ‘overstayed’;CommentsClose CommentsPermalink





(C) in clause (iv)--CommentsClose CommentsPermalink





(i) by striking ‘who were refused’ and inserting ‘who overstayed’; andCommentsClose CommentsPermalink





(ii) by striking ‘refused; and’ and inserting ‘issued.’; andCommentsClose CommentsPermalink





(D) by striking clause (v);CommentsClose CommentsPermalink





(5) in subparagraph (B), as so redesignated, by striking ‘subparagraph (B)’ and inserting ‘subparagraph (A)’; andCommentsClose CommentsPermalink





(6) in subparagraph (C), as so redesignated, by striking ‘subparagraph (B)’ and inserting ‘subparagraph (A)’.CommentsClose CommentsPermalink





(e) Waiver Authority- Section 217(c)(8) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:CommentsClose CommentsPermalink





‘(8) WAIVER AUTHORITY- The Secretary of Homeland Security, in consultation with the Secretary of State, may waive the application of paragraph (2)(A) for a country if--CommentsClose CommentsPermalink





‘(A) the country meets all security requirements of this section;CommentsClose CommentsPermalink





‘(B) 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; andCommentsClose CommentsPermalink





‘(C) 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.’.CommentsClose CommentsPermalink

SEC. 4. TERMINATION OF DESIGNATION; PROBATION.

Section 217(f) of the Immigration and Nationality Act (8 U.S.C. 1187(f)) is amended to read as follows:CommentsClose CommentsPermalink





‘(f) Termination of Designation; Probation-CommentsClose CommentsPermalink





‘(1) DEFINITIONS- In this subsection:CommentsClose CommentsPermalink





‘(A) PROBATIONARY COUNTRY- The term ‘probationary country’ means a program country placed in probationary status under paragraph (2)(B).CommentsClose CommentsPermalink





‘(B) PROBATIONARY PERIOD- The term ‘probationary period’ means the fiscal year in which a probationary country is placed in probationary status under paragraph (2)(B).CommentsClose CommentsPermalink





‘(C) PROGRAM COUNTRY- The term ‘program country’ has the meaning given that term in subsection (c)(1)(B).CommentsClose CommentsPermalink





‘(D) VISA OVERSTAY RATE- The term ‘visa overstay rate’ has the meaning given that term in subsection (c)(1)(B).CommentsClose CommentsPermalink





‘(2) DETERMINATION AND NOTICE OF DISQUALIFICATION-CommentsClose CommentsPermalink





‘(A) DETERMINATION- Upon a determination by the Secretary of Homeland Security that a program country’s visa overstay rate was more than 3 percent for the preceding fiscal year or that the program country is not in compliance with all other program requirements under subsection (c)(2), the Secretary shall notify the Secretary of State.CommentsClose CommentsPermalink





‘(B) PROBATIONARY STATUS- If the Secretary of Homeland Security makes a determination under subparagraph (A) for a program country, the Secretary of Homeland Security shall place the program country in probationary status for the fiscal year following the fiscal year for which such determination was made.CommentsClose CommentsPermalink





‘(3) ACTIONS AT TERMINATION OF THE PROBATIONARY PERIOD- At the end of the probationary period of a probationary country, the Secretary of Homeland Security shall take one of the following actions:CommentsClose CommentsPermalink





‘(A) COMPLIANCE DURING PROBATIONARY PERIOD- The Secretary shall redesignate the probationary country as a program country if the Secretary determines that during the probationary period the probationary country--CommentsClose CommentsPermalink





‘(i) had a visa overstay rate not more than 3 percent; andCommentsClose CommentsPermalink





‘(ii) was in compliance with all other program requirements under subsection (c)(2).CommentsClose CommentsPermalink





‘(B) COMPLIANCE WITH VISA OVERSTAY RATE- The Secretary may redesignate the probationary country as a program country if the Secretary determines that during the probationary period the probationary country had a visa overstay rate of not more than 3 percent.CommentsClose CommentsPermalink





‘(C) NONCOMPLIANCE WITH VISA OVERSTAY RATE-CommentsClose CommentsPermalink





‘(i) IN GENERAL- Subject to clause (ii), the Secretary shall terminate the probationary country’s participation in the program if the Secretary determines that during the probationary period the probationary country had a visa overstay rate of more than 3 percent.CommentsClose CommentsPermalink





‘(ii) ADDITIONAL PROBATIONARY PERIOD- The Secretary may waive the application of clause (i) for the probationary country if the Secretary, in consultation with the Director of National Intelligence, certifies that the probationary country’s continued participation in the program does not pose a threat to law enforcement, security, or enforcement of immigration laws, and place the country in probationary status for one additional fiscal year.CommentsClose CommentsPermalink





‘(4) ACTIONS AT THE END OF ADDITIONAL PROBATIONARY PERIOD- At the end of the additional 1-year period of probation granted to a probationary country pursuant to subparagraph (C)(ii), the Secretary shall take one of the following actions:CommentsClose CommentsPermalink





‘(A) COMPLIANCE DURING ADDITIONAL PERIOD- The Secretary shall redesignate the probationary country as a program country if the Secretary determines that during such additional period the probationary country had a visa overstay rate not more than 3 percent.CommentsClose CommentsPermalink





‘(B) NONCOMPLIANCE DURING ADDITIONAL PERIOD- The Secretary shall terminate the probationary country’s participation in the program if the Secretary determines that during such additional period the probationary country had a visa overstay rate of more than 3 percent.CommentsClose CommentsPermalink





‘(5) EFFECTIVE DATE- The termination of a country’s participation in the program under paragraph (3) or (4) shall take effect on the first day of the first fiscal year following the fiscal year in which the Secretary determines that such participation shall be terminated. Until such date, nationals of the country shall remain eligible for a waiver under subsection (a).CommentsClose CommentsPermalink





‘(6) NONAPPLICABILITY OF CERTAIN PROVISIONS- Paragraphs (3) and (4) shall not apply to a program country unless the total number of nationals of the program country that entered the United States during the prior fiscal year exceeds 100.CommentsClose CommentsPermalink





‘(7) EMERGENCY TERMINATION-CommentsClose CommentsPermalink





‘(A) IN GENERAL- In the case of a program country in which an emergency occurs that the Secretary of Homeland Security, in consultation with the Secretary of State, determines threatens the law enforcement or security interests of the United States (including the interest in enforcement of the immigration laws of the United States), the Secretary of Homeland Security shall immediately terminate the designation of the country as a program country.CommentsClose CommentsPermalink





‘(B) EMERGENCY DEFINED- In this paragraph, the term ‘emergency’ means--CommentsClose CommentsPermalink





‘(i) the overthrow of a democratically elected government in the program country;CommentsClose CommentsPermalink





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





‘(iii) a severe breakdown in law and order affecting a significant portion of the program country’s territory;CommentsClose CommentsPermalink





‘(iv) a severe economic collapse in the program country; orCommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(C) REDESIGNATION- The Secretary of Homeland Security may redesignate the country as a program country, without regard to paragraph (3) or (4) or subsection (c)(2), if the Secretary, in consultation with the Secretary of State, determines that--CommentsClose CommentsPermalink





‘(i) at least 6 months have elapsed since the effective date of the emergency termination under subparagraph (A);CommentsClose CommentsPermalink





‘(ii) the emergency that caused the termination has ended; andCommentsClose CommentsPermalink





‘(iii) the average visa overstay rate for that country during the period of termination under this subparagraph was not more than 3 percent.CommentsClose CommentsPermalink





‘(D) 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--CommentsClose CommentsPermalink





‘(i) may suspend a program country from the visa waiver program without prior notice;CommentsClose CommentsPermalink





‘(ii) shall notify any country suspended under clause (i) and, to the extent practicable without disclosing sensitive intelligence sources and methods, provide justification for the suspension; andCommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(8) TREATMENT OF NATIONALS AFTER TERMINATION- For purposes of this subsection and subsection (d)--CommentsClose CommentsPermalink





‘(A) nationals of a country whose designation is terminated under paragraph (3), (4), or (7) shall remain eligible for a waiver under subsection (a) until the effective date of such termination; andCommentsClose CommentsPermalink





‘(B) 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.’.CommentsClose CommentsPermalink

SEC. 5. REVIEW OF OVERSTAY TRACKING METHODOLOGY.

Not later than 180 days after the date of the enactment of this Act, the Comptroller General of the United States shall conduct a review of the methods used by the Secretary of Homeland Security--CommentsClose CommentsPermalink





(1) to track aliens entering and exiting the United States; andCommentsClose CommentsPermalink





(2) to detect any such alien who stays longer than such alien’s period of authorized admission.CommentsClose CommentsPermalink