Press Releases

Senators Feinstein, Kyl Introduce Legislation to Secure and Strengthen the Visa Waiver Program

-Bill requires audits, greater oversight of program-

Washington, D.C. –Senators Dianne Feinstein (D-Calif.) and Jon Kyl (R-Ariz.) today introduced legislation to increase the security of the visa waiver immigration program, by requiring the Department of Homeland Security to accurately track travelers entering and exiting the United States and providing for greater oversight in how the program is implemented.

Senators Feinstein and Kyl have held multiple congressional hearings in recent years on the visa waiver program. Testimony and a recent Government Accountability Office report found that the Department of Homeland Security is still unable to accurately track visa waiver travelers – foreign visitors from eligible countries allowed to enter without having to first obtain visas or undergo background checks.

Despite this, the program has continued to expand, now numbering 35 countries, including Australia, Singapore, Slovenia and the United Kingdom.

“The Visa Waiver Program continues to leave open both a major gap in our domestic security and a way for foreign visitors to exploit our immigration laws.  We’ve heard testimony, received congressional reports, all outlining that this program is vulnerable to exploitation by dangerous people,” Senator Feinstein said. “This legislation will tighten the visa waiver program by requiring audits of member countries, limit the overstay rates of countries considered eligible for this program, and ensure that all participating countries share information on lost and stolen passports with the U.S. government.

“It is important to know whether the more than 15 million individuals who visit the U.S. through the visa waiver program overstay their visit or leave in a timely manner,” Senator Kyl said. “It is also important to prevent bad actors from entering the U.S. by presenting a fraudulent foreign or U.S. passport.  The bill will help to identify and reduce the number of individuals who overstay their visits and stay illegally in the U.S. and will help prevent illegal entry to the U.S.”

Under current law, only countries with visa refusal rates of less than 3 percent are eligible to participate in the visa waiver program.  And, under current law, in order to expand the program to countries with higher visa refusal rates, the Department of Homeland Security must first:

  • Implement a fully operational electronic travel authorization system that collects and verifies the biographical information of all visa waiver travelers before they board a plane to the United States; and
  • Certify that there is an air exit system in place to verify the departure of 97 percent of foreign nationals who leave through the airports of the United States.

Today, the Administration announced that it has met the deadline for the electronic travel authorization system (ESTA) to be fully operational. This is despite a Government Accountability Office report which found that DHS has not done the groundwork to ensure verification by airlines that travelers have registered with the program.

In addition, DHS has only tracked 97 percent of individuals who exit through U.S. airports, not whether 97 percent of individuals at U.S. airports actually left the country, according to the GAO. 
Bill Summary

The “Strengthening the Visa Waiver Program to Secure America Act” would:

  • Set a maximum low visa overstay rate for all visa waiver program countries; 
  • Require a reevaluation of visa waiver program countries within one  year;
  • Mandate that the Administration will lose its authority to continue to expand the program if it does not track 97 percent of those exiting and departing U.S. airports – based on arrival data, not just departure data; 
  • Require an audit of the electronic travel authorization system (ESTA); and
  • Require current visa waiver countries to report on lost or stolen visas in order to remain in the visa waiver program.


Every year, over 15 million people enter the United States through the visa waiver program.

It is estimated that 40 percent of the current undocumented population are people who have overstayed their visas. These are people who entered at a U.S. port through legal channels but never went home.

At a Senate Judiciary Committee hearing in September 2007, Director of National Intelligence Mike McConnell testified that Al Qaeda is recruiting Europeans because they do not require a visa to enter the United States. This tactic gives Al Qaeda “an extra edge in getting an operative or two or three into the country with the ability to carry out an attack that might be reminiscent of 9-11,” Director McConnell said.

That sentiment was echoed by DHS Secretary Michael Chertoff, who in a January 2008 interview with the BBC, acknowledged that the first time the United States encounters visa waiver travelers is when they arrive at U.S. airports and other ports of entry. “That creates a very small window of opportunity to check them out,” Secretary Chertoff said.

Between January 2002 and June 2004, 28 foreign governments, including visa waiver countries, reported 56,943 stolen blank foreign passports to the State Department. This past summer, a security van in London was hijacked, resulting in the loss of 3,000 blank British passports and visas that were destined for overseas embassies.

DHS Inspector General, Clark Ervin has testified that the lost and stolen passport problem is the greatest security threat to the Visa Waiver Program. “Our country is vulnerable because gaps in our treatment of lost and stolen passports remain.”