Visa Waiver Program Enhanced Security and Reform Act

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

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).

In this subsection:

The term appropriate congressional committees means—

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

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

The term overstay rate means, with respect to a country being considered for designation in the program, the ratio of—

(aa) the number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(bb) the number of nationals of that country who were admitted to the United States on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during that fiscal year.

The term overstay rate means, for each fiscal year after initial designation under this section with respect to a country, the ratio of—

(aa) the number of nationals of that country who were admitted to the United States under this section or on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during a fiscal year but who remained unlawfully in the United States beyond such periods; to

(bb) the number of nationals of that country who were admitted to the United States under this section or on the basis of a nonimmigrant visa under section 101(a)(15)(B) whose periods of authorized stay ended during that fiscal year.

In determining the overstay rate for a country, the Secretary of Homeland Security may utilize information from any available databases to ensure the accuracy of such rate.

The term program country means a country designated as a program country under subparagraph (A).

Section 217 of the Immigration and Nationality Act (8 U.S.C. 1187) is amended—

(1) by striking Attorney General each place the term appears (except in subsection (c)(11)(B)) and inserting Secretary of Homeland Security; and

(2) in subsection (c)—

(A) in paragraph (2)(C)(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;

(B) in paragraph (5)(A)(i)(III), by striking 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; and

(C) in paragraph (7), by striking subparagraph (E).

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:

The percentage of nationals of that country refused nonimmigrant visas under section 101(a)(15)(B) during the previous full fiscal year was not more than 3 percent of the total number of nationals of that country who were granted or refused nonimmigrant visas under such section during such year.

The overstay rate for that country was not more than 3 percent during the previous fiscal year.

Section 217(c)(3) of such Act (8 U.S.C. 1187(c)(3)) is amended to read as follows:

After designation as a program country under section 217(c)(2), a country may not continue to be designated as a program country unless the Secretary of Homeland Security, in consultation with the Secretary of State, determines, pursuant to the requirements under paragraph (5), that the designation will be continued.

Section 217(c) is further amended by striking subsection (c)(4).

Section 217(c)(5)(A)(i)(II) of such Act (8 U.S.C. 1187(c)(5)(A)(i)(II)) is amended to read as follows:

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

Section 217(c)(6) of such Act (8 U.S.C. 1187(c)(6)) is amended to read as follows:

For purposes of determining the eligibility of a country to be designated as a program country, the calculation of visa refusal rates shall not include any visa refusals which incorporate any procedures based on, or are otherwise based on, race, sex, or disability, unless otherwise specifically authorized by law or regulation.

No court shall have jurisdiction under this section to review any visa refusal, the Secretary of State’s computation of a visa refusal rate, the Secretary of Homeland Security’s computation of an overstay rate, or the designation or nondesignation of a country as a program country.

Section 217(c)(7) of such Act (8 U.S.C. 1187(c)(7)) is amended—

(A) by striking subparagraphs (B) through (D); and

(B) by striking waiver information.— and all that follows through In refusing and inserting waiver information.—In refusing.

Section 217(c)(8) of such Act (8 U.S.C. 1187(c)(8)) is amended to read as follows:

The Secretary of Homeland Security, in consultation with the Secretary of State, may waive the application of paragraph (2)(A)(i) for a country if—

(A) the country meets all other requirements of paragraph (2);

(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;

(C) there has been a general downward trend in the percentage of nationals of the country refused nonimmigrant visas under section 101(a)(15)(B);

(D) the country consistently cooperated with the Government of the United States on counterterrorism initiatives, information sharing, preventing terrorist travel, and extradition to the United States of individuals (including the country's own nationals) who commit crimes that violate United States law before the date of its designation as a program country, and the Secretary of Homeland Security and the Secretary of State assess that such cooperation is likely to continue; and

(E) the percentage of nationals of the country refused a nonimmigrant visa under section 101(a)(15)(B) during the previous full fiscal year was not more than 10 percent of the total number of nationals of that country who were granted or refused such nonimmigrant visas.

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

In this subsection:

The term probationary period means the fiscal year in which a probationary country is placed in probationary status under this subsection.

The term program country has the meaning given that term in subsection (c)(1)(B).

As part of each program country’s periodic evaluation required by subsection (c)(5)(A), the Secretary of Homeland Security shall determine whether a program country is in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

If the Secretary of Homeland Security determines that a program country is not in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2), the Secretary of Homeland Security shall place the program country in probationary status for the fiscal year following the fiscal year in which the periodic evaluation is completed.

At the end of the initial probationary period of a country under paragraph (2)(B), the Secretary of Homeland Security shall take 1 of the following actions:

If the Secretary determines that all instances of noncompliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in the latest periodic evaluation have been remedied by the end of the initial probationary period, the Secretary shall end the country’s probationary period.

If the Secretary determines that any instance of noncompliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2) that were identified in the latest periodic evaluation has not been remedied by the end of the initial probationary period—

(i) the Secretary may terminate the country’s participation in the program; or

(ii) on an annual basis, the Secretary may continue the country’s probationary status if the Secretary, in consultation with the Secretary of State, determines that the country’s continued participation in the program is in the national interest of the United States.

At the end of all probationary periods granted to a country pursuant to paragraph (3)(B)(ii), the Secretary shall take 1 of the following actions:

The Secretary shall end the country’s probationary status if the Secretary determines during the latest periodic evaluation required by subsection (c)(5)(A) that the country is in compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

The Secretary shall terminate the country's participation in the program if the Secretary determines during the latest periodic evaluation required by subsection (c)(5)(A) that the program country continues to be in non-compliance with the program requirements under subparagraphs (A)(ii) through (F) of subsection (c)(2).

The termination of a country's participation in the program under paragraph (3)(B) or (4)(B) 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).

For purposes of this subsection and subsection (d)—

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

(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.

In this subsection, references to subparagraphs (A)(ii) through (F) of subsection (c)(2) and subsection (c)(5)(A) carry with them the consultative role of the Secretary of State as provided in those provisions.

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—

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

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

Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to Congress—

(1) an evaluation of the security risks of aliens who enter the United States without an approved Electronic System for Travel Authorization verification; and

(2) a description of any improvements needed to minimize the number of aliens who enter the United States without the verification described in paragraph (1).

It is the sense of Congress that the Secretary of Homeland Security, in the process of conducting evaluations of countries participating in the visa waiver program under section 217 of the Immigration and Nationality Act (8 U.S.C. 1187), should prioritize the reviews of countries in which circumstances indicate that such a review is necessary or desirable.