Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Visa Waiver Program*

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Visa Waiver Program*

Article excerpt

CURRENT POLICY

In general, temporary foreign visitors for business or pleasure from most countries must obtain a "B" nonimmigrant visa1 from Department of State (DOS) offices at a consular post abroad before coming to the United States.2 Personal interviews are generally required, and consular officers use the Consular Consolidated Database (CCD) to screen visa applicants. In addition to indicating the outcome of any prior visa application of the alien in the CCD, the system links with other databases to flag problems that may make the alien ineligible for a visa under the so-called "grounds for inadmissibility" of the Immigration and Nationality Act (INA), which include criminal, terrorist, and public health grounds for exclusion. Consular officers are required to check the background of all aliens in the "lookout" databases, including the Consular Lookout and Support System (CLASS) and TIPOFF databases.3

Under the visa waiver program (VWP), the Secretary of Homeland Security,4 in consultation with the Secretary of State, may waive the "B" nonimmigrant visa requirement for aliens traveling from certain countries as temporary visitors for business or pleasure (tourists). Nationals from participating countries must use the web-based Electronic System for Travel Authorization (ESTA) to get an approved electronic travel authorization before embarking to the United States, and are admitted into the United States for up to 90 days.5 The VWP constitutes one of a few exceptions under the Immigration and Nationality Act (INA) in which foreign nationals are admitted into the United States without a valid visa. As of January 2014, 37 countries participate in the VWP.

Although the VWP eases the documentary requirements for nationals from participating countries, it has important restrictions. Aliens entering with a B visa may petition to extend their length of stay in the United States or may petition to change to another nonimmigrant or immigrant status. Aliens entering through the VWP are not permitted to extend their stays except for emergency reasons and then for only 30 days.6 Additionally, with some limited exceptions, aliens entering through VWP are not permitted to adjust their immigration status. An alien entering through the VWP who violates the terms of admission becomes deportable without any judicial recourse or review (except in asylum cases).7

VWP Qualifying Criteria

Currently, to qualify for the VWP a country must

* offer reciprocal privileges to United States citizens;

* have had a nonimmigrant refusal rate of less than 3% for the previous year or an average of no more than 2% over the past two fiscal years with neither year going above 2.5%;

* issue machine-readable passports (all aliens entering under the VWP must possess a machine-readable passport);

* certify that it has established a program to issue to its nationals machine-readable passports that are tamper-resistant and incorporate a biometric identifier (all passports issued after October 26, 2006, presented by aliens entering under the VWP have to be machine- readable and contain a biometric identifier);

* certify that it is developing a program to issue tamper-resident, machine-readable visa documents that incorporate biometric identifiers which are verifiable at the country's port of entry;

* enter into an agreement with the United States to report or make available through International Criminal Police Organization (INTERPOL)8 information about the theft or loss of passports;9

* accept the repatriation of any citizen, former citizen, or national against whom a final order of removal is issued no later than three weeks after the order is issued;

* enter into an agreement with the United States to share information regarding whether a national of that country traveling to the United States represents a threat to U.S. security or welfare; and

* be determined, by the Secretary of Homeland Security, in consultation with the Secretary of State, not to compromise the law enforcement or security interests of the United States by its inclusion in the program. …

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