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114th Congress    }                                   {  Rept. 114-369
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                   {         Part 1

======================================================================



 
              VISA WAIVER PROGRAM IMPROVEMENT ACT OF 2015

                                _______
                                

                December 7, 2015.--Ordered to be printed

                                _______
                                

  Mr. McCaul, from the Committee on Homeland Security, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 158]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 158) to clarify the grounds for ineligibility 
for travel to the United States regarding terrorism risk, to 
expand the criteria by which a country may be removed from the 
Visa Waiver Program, to require the Secretary of Homeland 
Security to submit a report on strengthening the Electronic 
System for Travel Authorization to better secure the 
international borders of the United States and prevent 
terrorists and instruments of terrorism from entering the 
United States, and for other purposes, having considered the 
same, report favorably thereon with an amendment and recommend 
that the bill as amended do pass.














                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
New Budget Authority, Entitlement Authority, and Tax Expenditures     5
Congressional Budget Office Estimate.............................     5
Statement of General Performance Goals and Objectives............     6
Duplicative Federal Programs.....................................     6
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     6
Federal Mandates Statement.......................................     6
Preemption Clarification.........................................     6
Disclosure of Directed Rule Makings..............................     6
Advisory Committee Statement.....................................     7
Applicability to Legislative Branch..............................     7
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill, as Reported............     9

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Visa Waiver Program Improvement Act of 
2015''.

SEC. 2. GROUNDS FOR INELIGIBILITY FOR TRAVEL TO THE UNITED STATES; 
                    REPORTS ON LAW ENFORCEMENT AND SECURITY INTERESTS; 
                    CONTINUING QUALIFICATION AND DESIGNATION 
                    TERMINATIONS; REPORT ON STRENGTHENING THE 
                    ELECTRONIC SYSTEM FOR TRAVEL AUTHORIZATION.

  (a) Grounds for Ineligibility for Travel to the United States; Period 
of Validity.--Section 217 of the Immigration and Nationality Act (8 
U.S.C. 1187) is amended--
          (1) in subsection (a)(11), by inserting ``, including 
        terrorism risk,'' after ``security risk''; and
          (2) in subsection (h)(3)--
                  (A) in subparagraph (A), by inserting ``, including 
                terrorism risk,'' after ``security risk'';
                  (B) in subparagraph (C)(i), in the second sentence, 
                by inserting before the period at the end the 
                following: ``, or, if the Secretary determines that 
                such is appropriate, may limit such period of 
                eligibility''; and
                  (C) by adding at the end the following new 
                subparagraph:
                  ``(E) Additional reports.--
                          ``(i) Reports on certain limitations on 
                        travel.--Not later than 30 days after the date 
                        of the enactment of this subparagraph and 
                        annually thereafter, the Secretary of Homeland 
                        Security, in consultation with the Secretary of 
                        State, shall submit to the Committee on 
                        Homeland Security and the Committee on the 
                        Judiciary of the House of Representatives and 
                        the Committee on Homeland Security and 
                        Governmental Affairs and the Committee on the 
                        Judiciary of the Senate a report on the number 
                        of individuals, identified by their countries 
                        of citizenship or nationality, who were denied 
                        eligibility to travel under the System or whose 
                        eligibility for such travel was revoked during 
                        the previous year and the number of such 
                        individuals determined, in accordance with 
                        subsection (a)(6), to represent a threat to the 
                        security of the United States.
                          ``(ii) Reports on certain threat 
                        assessments.--Beginning with the first report 
                        under clause (i) of subsection (c)(5)(A) that 
                        is submitted after the date of the enactment of 
                        this subparagraph and periodically thereafter 
                        (together with subsequent reports submitted 
                        under such clause (i)), the Secretary of 
                        Homeland Security, in consultation with the 
                        Director of National Intelligence, shall submit 
                        to the Committee on Homeland Security and the 
                        Committee on the Judiciary of the House of 
                        Representatives and the Committee on Homeland 
                        Security and Governmental Affairs and the 
                        Committee on the Judiciary of the Senate a 
                        report that contains a threat assessment 
                        regarding the compliance of foreign governments 
                        with the agreements described in subparagraphs 
                        (D) and (F) of subsection (c)(2), including the 
                        sharing of information about individuals with 
                        travel patterns that may pose concern to the 
                        security of the United States and the capacity 
                        to collect such information.''.
  (b) Reports on Law Enforcement and Security Interests; Continuing 
Qualification and Designation Terminations.--Subsection (c) of section 
217 of the Immigration and Nationality Act (8 U.S.C. 1187) is amended--
          (1) in paragraph (2)(C)(iii)--
                  (A) by striking ``and the Committee on International 
                Relations'' and inserting ``, the Committee on Foreign 
                Affairs, and the Committee on Homeland Security''; and
                  (B) by striking ``and the Committee on Foreign 
                Relations'' and inserting ``, the Committee on Foreign 
                Relations, and the Committee on Homeland Security and 
                Governmental Affairs''; and
          (2) in paragraph (5)--
                  (A) in subparagraph (A)(i)--
                          (i) in subclause (III), by striking ``and'' 
                        at the end;
                          (ii) in subclause (IV), by striking the 
                        period at the end and inserting ``; and''; and
                          (iii) by adding after subclause (IV) the 
                        following new subclause:
                                  ``(V) shall submit to Congress a 
                                report regarding the security 
                                parameters described in paragraph 
                                (9).''; and
                  (B) in subparagraph (B), by adding at the end the 
                following new clauses:
                          ``(v) Additional program suspension 
                        authority.--If the Secretary of Homeland 
                        Security, in consultation with the Secretary of 
                        State, determines that a country participating 
                        in the visa waiver program has failed to comply 
                        with an agreement under subparagraph (F) of 
                        paragraph (2), the Secretary of Homeland 
                        Security--
                                  ``(I) may suspend a country from the 
                                visa waiver program without prior 
                                notice;
                                  ``(II) shall notify any country 
                                suspended under subclause (I) and 
                                provide justification for the 
                                suspension; and
                                  ``(III) shall restore the suspended 
                                country's participation in the visa 
                                waiver program upon a determination 
                                that the country is in compliance with 
                                the agreement at issue.
                          ``(vi) Notification to congress.--In the case 
                        of any country being suspended as a visa waiver 
                        program country pursuant to the authority 
                        provided under clause (v), the Secretary of 
                        Homeland Security shall provide timely 
                        notification to the Committee on Homeland 
                        Security, the Committee on the Judiciary, and 
                        the Committee on Foreign Affairs of the House 
                        of Representatives and the Committee on 
                        Homeland Security and Governmental Affairs, the 
                        Committee on the Judiciary, and the Committee 
                        on Foreign Relations of the Senate of such 
                        suspension.''.
  (c) Clerical Amendments.--Section 217 of the Immigration and 
Nationality Act (8 U.S.C. 1187) is amended--
          (1) in paragraph (11) of subsection (a)--
                  (A) in the heading, by striking ``electronic travel 
                authorization system'' and inserting ``electronic 
                system for travel authorization''; and
                  (B) by striking ``electronic travel authorization 
                system'' and inserting ``electronic system for travel 
                authorization'';
          (2) in subsection (c)--
                  (A) in subclause (IV) of paragraph (5)(A)(i), by 
                striking ``electronic travel authorization system'' and 
                inserting ``electronic system for travel 
                authorization''; and
                  (B) in clause (i) of paragraph (8)(A), by striking 
                ``electronic travel authorization system'' each place 
                it appears and inserting ``electronic system for travel 
                authorization''; and
          (3) in paragraph (3) of subsection (h)--
                  (A) in the heading, by striking ``Electronic travel 
                authorization system'' and inserting ``Electronic 
                system for travel authorization''; and
                  (B) in subparagraph (A), by striking ``electronic 
                travel authorization system'' and inserting 
                ``electronic system for travel authorization''.
  (d) Report on Strengthening the Electronic System for Travel 
Authorization.--Not later than 30 days after the date of the enactment 
of this Act, the Secretary of Homeland Security, in consultation with 
the Secretary of State, shall submit to the Committee on Homeland 
Security, the Committee on the Judiciary, and the Committee on Foreign 
Affairs of the House of Representatives and the Committee on Homeland 
Security and Governmental Affairs, the Committee on the Judiciary, and 
the Committee on Foreign Relations of the Senate a report on steps to 
strengthen the automated electronic travel authorization system 
(commonly referred to as the ``Electronic System for Travel 
Authorization'') under paragraph (3) of section 217(h) of the 
Immigration and Nationality Act (8 U.S.C. 1187(h)) to better secure the 
international borders of the United States and prevent terrorists and 
instruments of terrorism from entering the United States.
  (e) Time for Report.--The first report required under subclause (V) 
of section 217(c)(5)(A)(i) of the Immigration and Nationality Act (as 
added by subsection (b)(2)(A)(iii) of this section) shall be submitted 
at the same time the next report required under subclause (IV) of such 
section 217(c)(5)(A)(i) is submitted after the date of the enactment of 
this Act.

                          Purpose and Summary

    H.R. 158 takes steps to address potential security gaps in 
the Visa Waiver Program (VWP) in light of concerns raised about 
terrorists attempting to use visa-free travel to enter the 
United States. Specifically, H.R. 158 grants the Secretary of 
Homeland Security the authority to temporarily suspend a VWP 
country from the program, if such country fails to live up to 
its agreement to provide terrorism-related information, and 
requires notification to relevant congressional committees of 
such suspension.
    The bill further requires the Department to provide the 
Committee with the number of individuals, identified by 
country, whose applications to travel under the Visa Waiver 
Program were denied or whose eligibility to travel was revoked, 
and the number whose applications were denied or revoked based 
on a determination that he or she was a threat to the security 
of the United States. The legislation also requires the 
Department to provide an assessment of how well VWP countries 
are adhering to their commitment to share Passenger Name Record 
data, Lost and Stolen Passport reports, and information about 
individuals whose travel patterns may pose a security concern 
to the U.S. Finally, it requires the Department to report to 
the Committee on steps that can be taken to improve the 
information provided through Electronic System Travel 
Authorization (ESTA) process.

                  Background and Need for Legislation

    H.R. 158 clarifies in statute that, in a post-9/11 world, 
the purpose of the VWP has evolved from a program solely for 
travel facilitation to a counterterrorism and national security 
program. In current statute, the Secretary does not have the 
authority to temporarily suspend a VWP country from the program 
if the country fails to adhere to the terms of the agreement to 
provide terrorism related information. The ability for the 
Secretary to temporarily suspend a country from the program 
will allow the Secretary to hold countries accountable without 
permanently removing them from the program. A primary national 
security component of the VWP is the Electronic System for 
Travel Authorization, or ``ESTA''. The ESTA is the online 
application that travelers from VWP countries are required to 
complete. Once their ESTA is approved, they may travel to the 
United States without a visa.

                                Hearings

    No hearings were held on H.R.158.

                        Committee Consideration

    The Committee met on June 23, 2015, to consider H.R. 158, 
and ordered the measure to be reported to the House with a 
favorable recommendation, amended, by voice vote. The Committee 
took the following actions:
    The following amendments were offered:
 An Amendment in the Nature of a Substitute offered by Mrs. 
Miller of Michigan (#1); was AGREED TO, amended, by voice vote.

 An amendment to the Amendment in the Nature of a Substitute 
offered by Mr. Vela to the Amendment in the Nature of a 
Substitute (#1A); was AGREED TO by voice vote.
     Page 4, line 2, insert before the first period the following: ``, 
including the sharing of information about individuals with travel 
patterns that may pose concern to the security of the United States and 
the capacity to collect such information''.

 An en bloc amendment to the Amendment in the Nature of a 
Substitute offered by Mrs. Torres (#1B); was AGREED TO by voice 
vote.
     Consisting of the following amendments:
     Page 3, line 3, strike ``if such individual was'' and insert ``and 
the number of such individuals''.

     Page 5, line 8, strike ``clause'' and insert ``clauses''.
     Page 6, line 5, strike the closing quotes and the second period.
     Page 6, beginning line 6, insert the following new clause entitled 
``(vi) Notification to Congress.''

                            Committee Votes

    Clause 3(b) of Rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    No recorded votes were requested during consideration of 
H.R. 158.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of Rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
158, the Visa Waiver Program Improvement Act of 2015, would 
result in no new or increased budget authority, entitlement 
authority, or tax expenditures or revenues.

                  Congressional Budget Office Estimate

    The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 21, 2015.
Hon. Michael McCaul,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 158, the Visa 
Waiver Program Improvement Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                         Robert A. Sunshine
                                        (For Keith Hall, Director.)
    Enclosure.

H.R. 158--Visa Waiver Program Improvement Act of 2015

    H.R. 158 would make administrative changes to the visa 
waiver program, under which citizens of certain countries may 
visit the United States temporarily without a visa, and would 
require the Department of Homeland Security to prepare several 
reports to the Congress on national security issues affected by 
the visa waiver program.
    Based on the costs of similar reports, CBO estimates that 
implementing H.R. 158 would cost about $1 million in 2016 and 
less than $500,000 annually thereafter, assuming appropriation 
of the necessary funds. Because enacting the legislation would 
not affect direct spending or revenues, pay-as-you-go 
procedures do not apply.
    H.R. 158 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of Rule XIII of the Rules of the 
House of Representatives, H.R. 158 contains the following 
general performance goals and objectives, including outcome 
related goals and objectives authorized.
    The general performance goals and objectives of H.R. 158 
are to improve and strengthen the Visa Wavier Program to 
prevent terrorists from entering the United States.

                      Duplicative Federal Programs

    Pursuant to clause 3(c) of Rule XIII, the Committee finds 
that H.R. 158 does not contain any provision that establishes 
or reauthorizes a program known to be duplicative of another 
Federal program.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

    In compliance with Rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of the Rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                        Preemption Clarification

    In compliance with section 423 of the Congressional Budget 
Act of 1974, requiring the report of any Committee on a bill or 
joint resolution to include a statement on the extent to which 
the bill or joint resolution is intended to preempt State, 
local, or Tribal law, the Committee finds that H.R. 158 does 
not preempt any State, local, or Tribal law.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 158 would require no 
directed rule makings.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1.   Short Title.

    This section provides that bill may be cited as the ``Visa 
Waiver Program Improvement Act of 2015''.

Section 2.   Grounds for ineligibility for travel to the United States; 
        reports on law enforcement and security interests; continuing 
        qualification and designation terminations; report on 
        strengthening the electronic system for travel authorization..

            Subsection (a)   Grounds for Ineligibility for Travel to 
                    the United States; Period of Validity.
    This subsection clarifies in statute that the purpose of 
the Visa Waiver Program (VWP) is primarily a counterterror and 
national security program. After 9/11, several changes were 
made to the law to transform what was once solely a trade and 
travel facilitation program into a strong national security 
program that plays a significant role in keeping terrorists and 
other inadmissible individuals out of the country.
    Subsection (a) also places two reporting requirements on 
the Department of Homeland Security (DHS). First, DHS must 
provide the relevant committees with the number of individuals, 
identified by country, whose application to travel under the 
VWP was denied or whose eligibility to travel was revoked, and 
the number that were denied or revoked based on a determination 
that he or she was a threat to the security of the United 
States. Second, DHS must provide the relevant committees with 
an assessment of how well VWP countries are complying with 
agreements to share Passenger Name Record data, Lost and Stolen 
Passport reports, and information about individuals whose 
travel patterns may pose a security concern to the U.S.
    The Committee acknowledges the importance of the VWP for 
travel facilitation. However, threats against our nation 
continue to evolve, including the threat of foreign fighters 
with passports from VWP nations. The Committee believes that 
the VWP is an essential national security program and should be 
revised as necessary to meet changing threats.
            Subsection (b)   Reports on Law Enforcement and Security 
                    Interests; Continuing Qualification and Designation 
                    Terminations.
    This subsection grants the Secretary of Homeland Security 
the authority to suspend a VWP country from the program if that 
country fails to fulfill its agreement to provide terrorism-
related information to the U.S. in a timely manner. It also 
requires the relevant Committees be notified of any such 
suspension.
    While the Secretary currently has the authority to 
terminate a country's participation in the VWP, this provision 
would allow the Secretary to suspend a VWP country for 
noncompliance, should it become necessary, until compliance is 
achieved.
    The Committee is concerned that vital terrorism data has 
been withheld from DHS and the intelligence community by some 
visa wavier nations. Recent reports indicate that in the wake 
of high profile terror attacks overseas, VWP nations have 
shared information on many individuals of concern. Several of 
those individuals were not known to DHS and could have posed a 
threat to the safety of the Homeland. The purpose of this 
section is to ensure that the nations being given visa waiver 
are sharing vital data with the U.S. intelligence community.
    The Committee believes that in order for it to be a 
successful national security tool, the terms and agreements of 
the Visa Waiver Program must be enforceable. While the 
Secretary has the authority to terminate a nation's involvement 
in the program, the political and practical repercussions of 
termination make such a decision unlikely. The Committee 
believes that providing a temporary suspension authority to the 
Secretary will help ensure the security of the VWP and visa 
waiver nations who do not abide by the agreements and provide 
the United States with the terrorism-related information will 
be better held accountable.
    It is the Committee's sincerest hope that this authority 
will be never need to be exercised.
            Subsection (c)   Clerical Amendments.
    This subsection is a clerical amendment to Section 217 of 
the Immigration and Nationality Act, changing the name of the 
``Electronic Travel Authorization System'' to the ``Electronic 
System for Travel Authorization.'' This change updates the law 
to reflect current practice.
            Subsection (d)   Report on Strengthening the Electronic 
                    System for Travel Authorization.
    Subsection (d) requires DHS to report to the Committee on 
steps that can be taken to improve the Electronic System Travel 
Authorization (ESTA). ESTA is the application that travelers 
from VWP countries are required to complete prior to travel to 
the U.S.
    DHS recently updated the ESTA application and the Committee 
believes they must continually evaluate the requested 
information and continue to update the ESTA questionnaire as 
appropriate. In recent months, this need is evident due to the 
thousands of foreign fighters--many of them from VWP 
countries--traveling to Iraq and Syria. The Committee believes 
that as homeland security threats continue to evolve, the 
systems in place to address these threats must also be revised 
to best protect the nation.
            Subsection (e)   Time for Report.
    This subsection requires that the report established in 
this Act be submitted at the same time as the next report 
already required under the same section in current law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

IMMIGRATION AND NATIONALITY ACT

           *       *       *       *       *       *       *



TITLE II--IMMIGRATION

           *       *       *       *       *       *       *



 Chapter 2--Qualifications for Admission of Aliens; Travel Control of 
Citizens and Aliens

           *       *       *       *       *       *       *



                visa waiver program for certain visitors

  Sec. 217. (a) Establishment of Program.--The Attorney General 
and the Secretary of State are authorized to establish a 
program (hereinafter in this section referred to as the 
``program'') under which the requirement of paragraph 
(7)(B)(i)(II) of section 212(a) may be waived by the Attorney 
General, in consultation with the Secretary of State, and in 
accordance with this section, in the case of an alien who meets 
the following requirements:
          (1) Seeking entry as tourist for 90 days or less.--
        The alien is applying for admission during the program 
        as a nonimmigrant visitor (described in section 
        101(a)(15)(B)) for a period not exceeding 90 days.
          (2) National of program country.--The alien is a 
        national of, and presents a passport issued by, a 
        country which--
                  (A) extends (or agrees to extend), either on 
                its own or in conjunction with one or more 
                other countries that are described in 
                subparagraph (B) and that have established with 
                it a common area for immigration admissions, 
                reciprocal privileges to citizens and nationals 
                of the United States, and
                  (B) is designated as a pilot program country 
                under subsection (c).
          (3) Machine readable passport.--
                  (A) In general.--Except as provided in 
                subparagraph (B), on or after October 1, 2003, 
                the alien at the time of application for 
                admission is in possession of a valid unexpired 
                machine-readable passport that satisfies the 
                internationally accepted standard for machine 
                readability.
                  (B) Limited waiver authority.--For the period 
                beginning October 1, 2003, and ending September 
                30, 2007, the Secretary of State may waive the 
                requirement of subparagraph (A) with respect to 
                nationals of a program country (as designated 
                under subsection (c)), if the Secretary of 
                State finds that the program country--
                          (i) is making progress toward 
                        ensuring that passports meeting the 
                        requirement of subparagraph (A) are 
                        generally available to its nationals; 
                        and
                          (ii) has taken appropriate measures 
                        to protect against misuse of passports 
                        the country has issued that do not meet 
                        the requirement of subparagraph (A).
          (4) Executes immigration forms.--The alien before the 
        time of such admission completes such immigration form 
        as the Attorney General shall establish.
          (5) Entry into the united states.--If arriving by sea 
        or air, the alien arrives at the port of entry into the 
        United States on a carrier, including any carrier 
        conducting operations under part 135 of title 14, Code 
        of Federal Regulations, or a noncommercial aircraft 
        that is owned or operated by a domestic corporation 
        conducting operations under part 91 of title 14, Code 
        of Federal Regulations which has entered into an 
        agreement with the Attorney General pursuant to 
        subsection (e). The Attorney General is authorized to 
        require a carrier conducting operations under part 135 
        of title 14, Code of Federal Regulations, or a domestic 
        corporation conducting operations under part 91 of that 
        title, to give suitable and proper bond, in such 
        reasonable amount and containing such conditions as the 
        Attorney General may deem sufficient to ensure 
        compliance with the indemnification requirements of 
        this section, as a term of such an agreement.
          (6) Not a safety threat.--The alien has been 
        determined not to represent a threat to the welfare, 
        health, safety, or security of the United States.
          (7) No previous violation.--If the alien previously 
        was admitted without a visa under this section, the 
        alien must not have failed to comply with the 
        conditions of any previous admission as such a 
        nonimmigrant.
          (8) Round-trip ticket.--The alien is in possession of 
        a round-trip transportation ticket (unless this 
        requirement is waived by the Attorney General under 
        regulations or the alien is arriving at the port of 
        entry on an aircraft operated under part 135 of title 
        14, Code of Federal Regulations, or a noncommercial 
        aircraft that is owned or operated by a domestic 
        corporation conducting operations under part 91 of 
        title 14, Code of Federal Regulations).
          (9) Automated system check.--The identity of the 
        alien has been checked using an automated electronic 
        database containing information about the 
        inadmissibility of aliens to uncover any grounds on 
        which the alien may be inadmissible to the United 
        States, and no such ground has been found.
          (10) Electronic transmission of identification 
        information.--Operators of aircraft under part 135 of 
        title 14, Code of Federal Regulations, or operators of 
        noncommercial aircraft that are owned or operated by a 
        domestic corporation conducting operations under part 
        91 of title 14, Code of Federal Regulations, carrying 
        any alien passenger who will apply for admission under 
        this section shall furnish such information as the 
        Attorney General by regulation shall prescribe as 
        necessary for the identification of any alien passenger 
        being transported and for the enforcement of the 
        immigration laws. Such information shall be 
        electronically transmitted not less than one hour prior 
        to arrival at the port of entry for purposes of 
        checking for inadmissibility using the automated 
        electronic database.
          (11) Eligibility determination under the [electronic 
        travel authorization system]  electronic system for 
        travel authorization.--Beginning on the date on which 
        the [electronic travel authorization system] electronic 
        system for travel authorization developed under 
        subsection (h)(3) is fully operational, each alien 
        traveling under the program shall, before applying for 
        admission to the United States, electronically provide 
        to the system biographical information and such other 
        information as the Secretary of Homeland Security shall 
        determine necessary to determine the eligibility of, 
        and whether there exists a law enforcement or security 
        risk, including terrorism risk, in permitting, the 
        alien to travel to the United States. Upon review of 
        such biographical information, the Secretary of 
        Homeland Security shall determine whether the alien is 
        eligible to travel to the United States under the 
        program.
  (b) Waiver of Rights.--An alien may not be provided a waiver 
under the program unless the alien has waived any right--
          (1) to review or appeal under this Act of an 
        immigration officer's determination as to the 
        admissibility of the alien at the port of entry into 
        the United States, or
          (2) to contest, other than on the basis of an 
        application for asylum, any action for removal of the 
        alien.
  (c) Designation of Program Countries.--
          (1) In general.--The Attorney General, in 
        consultation with the Secretary of State, may designate 
        any country as a program country if it meets the 
        requirements of paragraph (2).
          (2) Qualifications.--Except as provided in subsection 
        (f), a country may not be designated as a program 
        country unless the following requirements are met:
                  (A) Low nonimmigrant visa refusal rate.--
                Either--
                          (i) the average number of refusals of 
                        nonimmigrant visitor visas for 
                        nationals of that country during--
                                  (I) the two previous full 
                                fiscal years was less than 2.0 
                                percent of the total number of 
                                nonimmigrant visitor visas for 
                                nationals of that country which 
                                were granted or refused during 
                                those years; and
                                  (II) either of such two 
                                previous full fiscal years was 
                                less than 2.5 percent of the 
                                total number of nonimmigrant 
                                visitor visas for nationals of 
                                that country which were granted 
                                or refused during that year; or
                          (ii) such refusal rate for nationals 
                        of that country during the previous 
                        full fiscal year was less than 3.0 
                        percent.
                  (B) Machine readable passport program.--
                          (i) In general.--Subject to clause 
                        (ii), the government of the country 
                        certifies that it issues to its 
                        citizens machine-readable passports 
                        that satisfy the internationally 
                        accepted standard for machine 
                        readability.
                          (ii) Deadline for compliance for 
                        certain countries.--In the case of a 
                        country designated as a program country 
                        under this subsection prior to May 1, 
                        2000, as a condition on the 
                        continuation of that designation, the 
                        country--
                                  (I) shall certify, not later 
                                than October 1, 2000, that it 
                                has a program to issue machine-
                                readable passports to its 
                                citizens not later than October 
                                1, 2003; and
                                  (II) shall satisfy the 
                                requirement of clause (i) not 
                                later than October 1, 2003.
                  (C) Law enforcement and security interests.--
                The Attorney General, in consultation with the 
                Secretary of State--
                          (i) evaluates the effect that the 
                        country's designation would have on the 
                        law enforcement and security interests 
                        of the United States (including the 
                        interest in enforcement of the 
                        immigration laws of the United States 
                        and the existence and effectiveness of 
                        its agreements and procedures for 
                        extraditing to the United States 
                        individuals, including its own 
                        nationals, who commit crimes that 
                        violate United States law);
                          (ii) determines that such interests 
                        would not be compromised by the 
                        designation of the country; and
                          (iii) submits a written report to the 
                        Committee on the Judiciary [and the 
                        Committee on International Relations], 
                        the Committee on Foreign Affairs, and 
                        the Committee on Homeland Security of 
                        the House of Representatives and the 
                        Committee on the Judiciary [and the 
                        Committee on Foreign Relations], the 
                        Committee on Foreign Relations, and the 
                        Committee on Homeland Security and 
                        Governmental Affairs of the Senate 
                        regarding the country's qualification 
                        for designation that includes an 
                        explanation of such determination.
                  (D) Reporting lost and stolen passports.--The 
                government of the country enters into an 
                agreement with the United States to report, or 
                make available through Interpol or other means 
                as designated by the Secretary of Homeland 
                Security, to the United States Government 
                information about the theft or loss of 
                passports within a strict time limit and in a 
                manner specified in the agreement.
                  (E) Repatriation of aliens.--The government 
                of the country accepts for repatriation any 
                citizen, former citizen, or national of the 
                country against whom a final executable order 
                of removal is issued not later than three weeks 
                after the issuance of the final order of 
                removal. Nothing in this subparagraph creates 
                any duty for the United States or any right for 
                any alien with respect to removal or release. 
                Nothing in this subparagraph gives rise to any 
                cause of action or claim under this paragraph 
                or any other law against any official of the 
                United States or of any State to compel the 
                release, removal, or consideration for release 
                or removal of any alien.
                  (F) Passenger information exchange.--The 
                government of the country enters into an 
                agreement with the United States to share 
                information regarding whether citizens and 
                nationals of that country traveling to the 
                United States represent a threat to the 
                security or welfare of the United States or its 
                citizens.
          (3) Continuing and subsequent qualifications.--For 
        each fiscal year after the initial period--
                  (A) Continuing qualification.--In the case of 
                a country which was a program country in the 
                previous fiscal year, a country may not be 
                designated as a program country unless the sum 
                of--
                          (i) the total of the number of 
                        nationals of that country who were 
                        denied admission at the time of arrival 
                        or withdrew their application for 
                        admission during such previous fiscal 
                        year as a nonimmigrant visitor, and
                          (ii) the total number of nationals of 
                        that country who were admitted as 
                        nonimmigrant visitors during such 
                        previous fiscal year and who violated 
                        the terms of such admission,
                was less than 2 percent of the total number of 
                nationals of that country who applied for 
                admission as nonimmigrant visitors during such 
                previous fiscal year.
                  (B) New countries.--In the case of another 
                country, the country may not be designated as a 
                program country unless the following 
                requirements are met:
                          (i) Low nonimmigrant visa refusal 
                        rate in previous 2-year period.--The 
                        average number of refusals of 
                        nonimmigrant visitor visas for 
                        nationals of that country during the 
                        two previous full fiscal years was less 
                        than 2 percent of the total number of 
                        nonimmigrant visitor visas for 
                        nationals of that country which were 
                        granted or refused during those years.
                          (ii) Low nonimmigrant visa refusal 
                        rate in each of the 2 previous years.--
                        The average number of refusals of 
                        nonimmigrant visitor visas for 
                        nationals of that country during either 
                        of such two previous full fiscal years 
                        was less than 2.5 percent of the total 
                        number of nonimmigrant visitor visas 
                        for nationals of that country which 
                        were granted or refused during that 
                        year.
          (4) Initial period.--For purposes of paragraphs (2) 
        and (3), the term ``initial period'' means the period 
        beginning at the end of the 30-day period described in 
        subsection (b)(1) and ending on the last day of the 
        first fiscal year which begins after such 30-day 
        period.
          (5) Written reports on continuing qualification; 
        designation terminations.--
                  (A) Periodic evaluations.--
                          (i) In general.--The Secretary of 
                        Homeland Security, in consultation with 
                        the Secretary of State, periodically 
                        (but not less than once every 2 
                        years)--
                                  (I) shall evaluate the effect 
                                of each program country's 
                                continued designation on the 
                                law enforcement and security 
                                interests of the United States 
                                (including the interest in 
                                enforcement of the immigration 
                                laws of the United States and 
                                the existence and effectiveness 
                                of its agreements and 
                                procedures for extraditing to 
                                the United States individuals, 
                                including its own nationals, 
                                who commit crimes that violate 
                                United States law);
                                  (II) shall determine, based 
                                upon the evaluation in 
                                subclause (I), whether any such 
                                designation ought to be 
                                continued or terminated under 
                                subsection (d);
                                  (III) shall submit a written 
                                report to 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 regarding the 
                                continuation or termination of 
                                the country's designation that 
                                includes an explanation of such 
                                determination and the effects 
                                described in subclause (I); 
                                [and]
                                  (IV) shall submit to Congress 
                                a report regarding the 
                                implementation of the 
                                [electronic travel 
                                authorization system] 
                                electronic system for travel 
                                authorization under subsection 
                                (h)(3) and the participation of 
                                new countries in the program 
                                through a waiver under 
                                paragraph (8)[.]; and
                                  (V) shall submit to Congress 
                                a report regarding the security 
                                parameters described in 
                                paragraph (9).
                          (ii) Effective date.--A termination 
                        of the designation of a country under 
                        this subparagraph shall take effect on 
                        the date determined by the Secretary of 
                        Homeland Security, in consultation with 
                        the Secretary of State.
                          (iii) Redesignation.--In the case of 
                        a termination under this subparagraph, 
                        the Secretary of Homeland Security 
                        shall redesignate the country as a 
                        program country, without regard to 
                        subsection (f) or paragraph (2) or (3), 
                        when the Secretary of Homeland 
                        Security, in consultation with the 
                        Secretary of State, determines that all 
                        causes of the termination have been 
                        eliminated.
                  (B) Emergency termination.--
                          (i) 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.
                          (ii) Definition.--For purposes of 
                        clause (i), the term ``emergency'' 
                        means--
                                  (I) the overthrow of a 
                                democratically elected 
                                government;
                                  (II) war (including 
                                undeclared war, civil war, or 
                                other military activity) on the 
                                territory of the program 
                                country;
                                  (III) a severe breakdown in 
                                law and order affecting a 
                                significant portion of the 
                                program country's territory;
                                  (IV) a severe economic 
                                collapse in the program 
                                country; or
                                  (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.
                          (iii) Redesignation.--The Secretary 
                        of Homeland Security may redesignate 
                        the country as a program country, 
                        without regard to subsection (f) or 
                        paragraph (2) or (3), when the 
                        Secretary of Homeland Security, in 
                        consultation with the Secretary of 
                        State, determines that--
                                  (I) at least 6 months have 
                                elapsed since the effective 
                                date of the termination;
                                  (II) the emergency that 
                                caused the termination has 
                                ended; and
                                  (III) the average number of 
                                refusals of nonimmigrant 
                                visitor visas for nationals of 
                                that country during the period 
                                of termination under this 
                                subparagraph was less than 3.0 
                                percent of the total number of 
                                nonimmigrant visitor visas for 
                                nationals of that country which 
                                were granted or refused during 
                                such period.
                          (iv) 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--
                                  (I) may suspend a country 
                                from the visa waiver program 
                                without prior notice;
                                  (II) shall notify any country 
                                suspended under subclause (I) 
                                and, to the extent practicable 
                                without disclosing sensitive 
                                intelligence sources and 
                                methods, provide justification 
                                for the suspension; and
                                  (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.
                          (v) Additional program suspension 
                        authority.--If the Secretary of 
                        Homeland Security, in consultation with 
                        the Secretary of State, determines that 
                        a country participating in the visa 
                        waiver program has failed to comply 
                        with an agreement under subparagraph 
                        (F) of paragraph (2), the Secretary of 
                        Homeland Security--
                                  (I) may suspend a country 
                                from the visa waiver program 
                                without prior notice;
                                  (II) shall notify any country 
                                suspended under subclause (I) 
                                and provide justification for 
                                the suspension; and
                                  (III) shall restore the 
                                suspended country's 
                                participation in the visa 
                                waiver program upon a 
                                determination that the country 
                                is in compliance with the 
                                agreement at issue.
                          (vi) Notification to congress.--In 
                        the case of any country being suspended 
                        as a visa waiver program country 
                        pursuant to the authority provided 
                        under clause (v), the Secretary of 
                        Homeland Security shall provide timely 
                        notification to the Committee on 
                        Homeland Security, the Committee on the 
                        Judiciary, and the Committee on Foreign 
                        Affairs of the House of Representatives 
                        and the Committee on Homeland Security 
                        and Governmental Affairs, the Committee 
                        on the Judiciary, and the Committee on 
                        Foreign Relations of the Senate of such 
                        suspension.
                  (C) Treatment of nationals after 
                termination.--For purposes of this paragraph--
                          (i) nationals of a country whose 
                        designation is terminated under 
                        subparagraph (A) or (B) shall remain 
                        eligible for a waiver under subsection 
                        (a) until the effective date of such 
                        termination; and
                          (ii) 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.
          (6) Computation of visa refusal rates.--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 paragraph 
        to review any visa refusal, the denial of admission to 
        the United States of any alien by the Attorney General, 
        the Secretary's computation of the visa refusal rate, 
        or the designation or nondesignation of any country.
          (7) Visa waiver information.--
                  (A) In general.--In refusing the application 
                of nationals of a program country for United 
                States visas, or the applications of nationals 
                of a country seeking entry into the visa waiver 
                program, a consular officer shall not knowingly 
                or intentionally classify the refusal of the 
                visa under a category that is not included in 
                the calculation of the visa refusal rate only 
                so that the percentage of that country's visa 
                refusals is less than the percentage limitation 
                applicable to qualification for participation 
                in the visa waiver program.
                  (B) Reporting requirement.--On May 1 of each 
                year, for each country under consideration for 
                inclusion in the visa waiver program, the 
                Secretary of State shall provide to the 
                appropriate congressional committees--
                          (i) the total number of nationals of 
                        that country that applied for United 
                        States visas in that country during the 
                        previous calendar year;
                          (ii) the total number of such 
                        nationals who received United States 
                        visas during the previous calendar 
                        year;
                          (iii) the total number of such 
                        nationals who were refused United 
                        States visas during the previous 
                        calendar year;
                          (iv) the total number of such 
                        nationals who were refused United 
                        States visas during the previous 
                        calendar year under each provision of 
                        this Act under which the visas were 
                        refused; and
                          (v) the number of such nationals that 
                        were refused under section 214(b) as a 
                        percentage of the visas that were 
                        issued to such nationals.
                  (C) Certification.--Not later than May 1 of 
                each year, the United States chief of mission, 
                acting or permanent, to each country under 
                consideration for inclusion in the visa waiver 
                program shall certify to the appropriate 
                congressional committees that the information 
                described in subparagraph (B) is accurate and 
                provide a copy of that certification to those 
                committees.
                  (D) Consideration of countries in the visa 
                waiver program.--Upon notification to the 
                Attorney General that a country is under 
                consideration for inclusion in the visa waiver 
                program, the Secretary of State shall provide 
                all of the information described in 
                subparagraph (B) to the Attorney General.
                  (E) Definition.--In this paragraph, the term 
                ``appropriate congressional committees'' means 
                the Committee on the Judiciary and the 
                Committee on Foreign Relations of the Senate 
                and the Committee on the Judiciary and the 
                Committee on International Relations of the 
                House of Representatives.
          (8) Nonimmigrant visa refusal rate flexibility.--
                  (A) Certification.--
                          (i) In general.--On the date on which 
                        an air exit system is in place that can 
                        verify the departure of not less than 
                        97 percent of foreign nationals who 
                        exit through airports of the United 
                        States and the [electronic travel 
                        authorization system] electronic system 
                        for travel authorization required under 
                        subsection (h)(3) is fully operational, 
                        the Secretary of Homeland Security 
                        shall certify to Congress that such air 
                        exit system and [electronic travel 
                        authorization system] electronic system 
                        for travel authorization are in place.
                          (ii) Notification to congress.--The 
                        Secretary shall notify Congress in 
                        writing of the date on which the air 
                        exit system under clause (i) fully 
                        satisfies the biometric requirements 
                        specified in subsection (i).
                          (iii) Temporary suspension of waiver 
                        authority.--Notwithstanding any 
                        certification made under clause (i), if 
                        the Secretary has not notified Congress 
                        in accordance with clause (ii) by June 
                        30, 2009, the Secretary's waiver 
                        authority under subparagraph (B) shall 
                        be suspended beginning on July 1, 2009, 
                        until such time as the Secretary makes 
                        such notification.
                          (iv) Rule of construction.--Nothing 
                        in this paragraph shall be construed as 
                        in any way abrogating the reporting 
                        requirements under subsection (i)(3).
                  (B) Waiver.--After certification by the 
                Secretary under subparagraph (A), the 
                Secretary, in consultation with the Secretary 
                of State, may waive the application of 
                paragraph (2)(A) for a country if--
                          (i) the country meets all security 
                        requirements of this section;
                          (ii) 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;
                          (iii) there has been a sustained 
                        reduction in the rate of refusals for 
                        nonimmigrant visas for nationals of the 
                        country and conditions exist to 
                        continue such reduction;
                          (iv) 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; and
                          (v)(I) the rate of refusals for 
                        nonimmigrant visitor visas for 
                        nationals of the country during the 
                        previous full fiscal year was not more 
                        than ten percent; or
                          (II) the visa overstay rate for the 
                        country for the previous full fiscal 
                        year does not exceed the maximum visa 
                        overstay rate, once such rate is 
                        established under subparagraph (C).
                  (C) Maximum visa overstay rate.--
                          (i) Requirement to establish.--After 
                        certification by the Secretary under 
                        subparagraph (A), the Secretary and the 
                        Secretary of State jointly shall use 
                        information from the air exit system 
                        referred to in such subparagraph to 
                        establish a maximum visa overstay rate 
                        for countries participating in the 
                        program pursuant to a waiver under 
                        subparagraph (B). The Secretary of 
                        Homeland Security shall certify to 
                        Congress that such rate would not 
                        compromise the law enforcement, 
                        security interests, or enforcement of 
                        the immigration laws of the United 
                        States.
                          (ii) Visa overstay rate defined.--In 
                        this paragraph the term ``visa overstay 
                        rate'' means, with respect to a 
                        country, the ratio of--
                                  (I) 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 stays ended 
                                during a fiscal year but who 
                                remained unlawfully in the 
                                United States beyond such 
                                periods; to
                                  (II) 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.
                          (iii) Report and publication.--The 
                        Secretary of Homeland Security shall on 
                        the same date submit to Congress and 
                        publish in the Federal Register 
                        information relating to the maximum 
                        visa overstay rate established under 
                        clause (i). Not later than 60 days 
                        after such date, the Secretary shall 
                        issue a final maximum visa overstay 
                        rate above which a country may not 
                        participate in the program.
          (9) Discretionary security-related considerations.--
        In determining whether to waive the application of 
        paragraph (2)(A) for a country, pursuant to paragraph 
        (8), the Secretary of Homeland Security, in 
        consultation with the Secretary of State, shall take 
        into consideration other factors affecting the security 
        of the United States, including--
                  (A) airport security standards in the 
                country;
                  (B) whether the country assists in the 
                operation of an effective air marshal program;
                  (C) the standards of passports and travel 
                documents issued by the country; and
                  (D) other security-related factors, including 
                the country's cooperation with the United 
                States' initiatives toward combating terrorism 
                and the country's cooperation with the United 
                States intelligence community in sharing 
                information regarding terrorist threats.
          (10) Technical assistance.--The Secretary of Homeland 
        Security, in consultation with the Secretary of State, 
        shall provide technical assistance to program countries 
        to assist those countries in meeting the requirements 
        under this section. The Secretary of Homeland Security 
        shall ensure that the program office within the 
        Department of Homeland Security is adequately staffed 
        and has resources to be able to provide such technical 
        assistance, in addition to its duties to effectively 
        monitor compliance of the countries participating in 
        the program with all the requirements of the program.
          (11) Independent review.--
                  (A) In general.--Prior to the admission of a 
                new country into the program under this 
                section, and in conjunction with the periodic 
                evaluations required under subsection 
                (c)(5)(A), the Director of National 
                Intelligence shall conduct an independent 
                intelligence assessment of a nominated country 
                and member of the program.
                  (B) Reporting requirement.--The Director 
                shall provide to the Secretary of Homeland 
                Security, the Secretary of State, and the 
                Attorney General the independent intelligence 
                assessment required under subparagraph (A).
                  (C) Contents.--The independent intelligence 
                assessment conducted by the Director shall 
                include--
                          (i) a review of all current, credible 
                        terrorist threats of the subject 
                        country;
                          (ii) an evaluation of the subject 
                        country's counterterrorism efforts;
                          (iii) an evaluation as to the extent 
                        of the country's sharing of information 
                        beneficial to suppressing terrorist 
                        movements, financing, or actions;
                          (iv) an assessment of the risks 
                        associated with including the subject 
                        country in the program; and
                          (v) recommendations to mitigate the 
                        risks identified in clause (iv).
  (d) Authority.--Notwithstanding any other provision of this 
section, the Secretary of Homeland Security, in consultation 
with the Secretary of State, may for any reason (including 
national security) refrain from waiving the visa requirement in 
respect to nationals of any country which may otherwise qualify 
for designation or may, at any time, rescind any waiver or 
designation previously granted under this section. The 
Secretary of Homeland Security may not waive any eligibility 
requirement under this section unless the Secretary notifies, 
with respect to the House of Representatives, the Committee on 
Homeland Security, the Committee on the Judiciary, the 
Committee on Foreign Affairs, and the Committee on 
Appropriations, and with respect to the Senate, the Committee 
on Homeland Security and Governmental Affairs, the Committee on 
the Judiciary, the Committee on Foreign Relations, and the 
Committee on Appropriations not later than 30 days before the 
effective date of such waiver.
  (e) Carrier Agreements.--
          (1) In general.--The agreement referred to in 
        subsection (a)(4) is an agreement between a carrier 
        (including any carrier conducting operations under part 
        135 of title 14, Code of Federal Regulations) or a 
        domestic corporation conducting operations under part 
        91 of that title and the Attorney General under which 
        the carrier (including any carrier conducting 
        operations under part 135 of title 14, Code of Federal 
        Regulations) or a domestic corporation conducting 
        operations under part 91 of that title agrees, in 
        consideration of the waiver of the visa requirement 
        with respect to a nonimmigrant visitor under the 
        program--
                  (A) to indemnify the United States against 
                any costs for the transportation of the alien 
                from the United States if the visitor is 
                refused admission to the United States or 
                remains in the United States unlawfully after 
                the 90-day period described in subsection 
                (a)(1)(A),
                  (B) to submit daily to immigration officers 
                any immigration forms received with respect to 
                nonimmigrant visitors provided a waiver under 
                the program,
                  (C) to be subject to the imposition of fines 
                resulting from the transporting into the United 
                States of a national of a designated country 
                without a passport pursuant to regulations 
                promulgated by the Attorney General, and
                  (D) to collect, provide, and share passenger 
                data as required under subsection (h)(1)(B).
          (2) Termination of agreements.--The Attorney General 
        may terminate an agreement under paragraph (1) with 
        five days' notice to the carrier (including any carrier 
        conducting operations under part 135 of title 14, Code 
        of Federal Regulations) or a domestic corporation 
        conducting operations under part 91 of that title for 
        the failure by a carrier (including any carrier 
        conducting operations under part 135 of title 14, Code 
        of Federal Regulations) or a domestic corporation 
        conducting operations under part 91 of that title to 
        meet the terms of such agreement.
          (3) Business aircraft requirements.--
                  (A) In general.--For purposes of this 
                section, a domestic corporation conducting 
                operations under part 91 of title 14, Code of 
                Federal Regulations that owns or operates a 
                noncommercial aircraft is a corporation that is 
                organized under the laws of any of the States 
                of the United States or the District of 
                Columbia and is accredited by or a member of a 
                national organization that sets business 
                aviation standards. The Attorney General shall 
                prescribe by regulation the provision of such 
                information as the Attorney General deems 
                necessary to identify the domestic corporation, 
                its officers, employees, shareholders, its 
                place of business, and its business activities.
                  (B) Collections.--In addition to any other 
                fee authorized by law, the Attorney General is 
                authorized to charge and collect, on a periodic 
                basis, an amount from each domestic corporation 
                conducting operations under part 91 of title 
                14, Code of Federal Regulations, for 
                nonimmigrant visa waiver admissions on 
                noncommercial aircraft owned or operated by 
                such domestic corporation equal to the total 
                amount of fees assessed for issuance of 
                nonimmigrant visa waiver arrival/departure 
                forms at land border ports of entry. All fees 
                collected under this paragraph shall be 
                deposited into the Immigration User Fee Account 
                established under section 286(h).
  (f) Duration and Termination of Designation.--
          (1) In general.--
                  (A) Determination and notification of 
                disqualification rate.--Upon determination by 
                the Attorney General that a program country's 
                disqualification rate is 2 percent or more, the 
                Attorney General shall notify the Secretary of 
                State.
                  (B) Probationary status.--If the program 
                country's disqualification rate is greater than 
                2 percent but less than 3.5 percent, the 
                Attorney General shall place the program 
                country in probationary status for a period not 
                to exceed 2 full fiscal years following the 
                year in which the determination under 
                subparagraph (A) is made.
                  (C) Termination of designation.--Subject to 
                paragraph (3), if the program country's 
                disqualification rate is 3.5 percent or more, 
                the Attorney General shall terminate the 
                country's designation as a program country 
                effective at the beginning of the second fiscal 
                year following the fiscal year in which the 
                determination under subparagraph (A) is made.
          (2) Termination of probationary status.--
                  (A) In general.--If the Attorney General 
                determines at the end of the probationary 
                period described in paragraph (1)(B) that the 
                program country placed in probationary status 
                under such paragraph has failed to develop a 
                machine-readable passport program as required 
                by section (c)(2)(C), or has a disqualification 
                rate of 2 percent or more, the Attorney General 
                shall terminate the designation of the country 
                as a program country. If the Attorney General 
                determines that the program country has 
                developed a machine-readable passport program 
                and has a disqualification rate of less than 2 
                percent, the Attorney General shall redesignate 
                the country as a program country.
                  (B) Effective date.--A termination of the 
                designation of a country under subparagraph (A) 
                shall take effect on the first day of the first 
                fiscal year following the fiscal year in which 
                the determination under such subparagraph is 
                made. Until such date, nationals of the country 
                shall remain eligible for a waiver under 
                subsection (a).
          (3) Nonapplicability of certain provisions.--
        Paragraph (1)(C) shall not apply unless the total 
        number of nationals of a program country described in 
        paragraph (4)(A) exceeds 100.
          (4) Definition.--For purposes of this subsection, the 
        term ``disqualification rate'' means the percentage 
        which--
                  (A) the total number of nationals of the 
                program country who were--
                          (i) denied admission at the time of 
                        arrival or withdrew their application 
                        for admission during the most recent 
                        fiscal year for which data are 
                        available; and
                          (ii) admitted as nonimmigrant 
                        visitors during such fiscal year and 
                        who violated the terms of such 
                        admission; bears to
                  (B) the total number of nationals of such 
                country who applied for admission as 
                nonimmigrant visitors during such fiscal year.
          (5) Failure to report passport thefts.--If the 
        Secretary of Homeland Security and the Secretary of 
        State jointly determine that the program country is not 
        reporting the theft or loss of passports, as required 
        by subsection (c)(2)(D), the Secretary of Homeland 
        Security shall terminate the designation of the country 
        as a program country.
  (g) Visa Application Sole Method To Dispute Denial of Waiver 
Based on a Ground of Inadmissibility.--In the case of an alien 
denied a waiver under the program by reason of a ground of 
inadmissibility described in section 212(a) that is discovered 
at the time of the alien's application for the waiver or 
through the use of an automated electronic database required 
under subsection (a)(9), the alien may apply for a visa at an 
appropriate consular office outside the United States. There 
shall be no other means of administrative or judicial review of 
such a denial, and no court or person otherwise shall have 
jurisdiction to consider any claim attacking the validity of 
such a denial.
  (h) Use of Information Technology Systems.--
          (1) Automated entry-exit control system.--
                  (A) System.--Not later than October 1, 2001, 
                the Attorney General shall develop and 
                implement a fully automated entry and exit 
                control system that will collect a record of 
                arrival and departure for every alien who 
                arrives and departs by sea or air at a port of 
                entry into the United States and is provided a 
                waiver under the program.
                  (B) Requirements.--The system under 
                subparagraph (A) shall satisfy the following 
                requirements:
                          (i) Data collection by carriers.--Not 
                        later than October 1, 2001, the records 
                        of arrival and departure described in 
                        subparagraph (A) shall be based, to the 
                        maximum extent practicable, on 
                        passenger data collected and 
                        electronically transmitted to the 
                        automated entry and exit control system 
                        by each carrier that has an agreement 
                        under subsection (a)(4).
                          (ii) Data provision by carriers.--Not 
                        later than October 1, 2002, no waiver 
                        may be provided under this section to 
                        an alien arriving by sea or air at a 
                        port of entry into the United States on 
                        a carrier unless the carrier is 
                        electronically transmitting to the 
                        automated entry and exit control system 
                        passenger data determined by the 
                        Attorney General to be sufficient to 
                        permit the Attorney General to carry 
                        out this paragraph.
                          (iii) Calculation.--The system shall 
                        contain sufficient data to permit the 
                        Attorney General to calculate, for each 
                        program country and each fiscal year, 
                        the portion of nationals of that 
                        country who are described in 
                        subparagraph (A) and for whom no record 
                        of departure exists, expressed as a 
                        percentage of the total number of such 
                        nationals who are so described.
                  (C) Reporting.--
                          (i) Percentage of nationals lacking 
                        departure record.--As part of the 
                        annual report required to be submitted 
                        under section 110(e)(1) of the Illegal 
                        Immigration Reform and Immigrant 
                        Responsibility Act of 1996, the 
                        Attorney General shall include a 
                        section containing the calculation 
                        described in subparagraph (B)(iii) for 
                        each program country for the previous 
                        fiscal year, together with an analysis 
                        of that information.
                          (ii) System effectiveness.--Not later 
                        than December 31, 2004, the Attorney 
                        General shall submit a written report 
                        to the Committee on the Judiciary of 
                        the United States House of 
                        Representatives and of the Senate 
                        containing the following:
                                  (I) The conclusions of the 
                                Attorney General regarding the 
                                effectiveness of the automated 
                                entry and exit control system 
                                to be developed and implemented 
                                under this paragraph.
                                  (II) The recommendations of 
                                the Attorney General regarding 
                                the use of the calculation 
                                described in subparagraph 
                                (B)(iii) as a basis for 
                                evaluating whether to terminate 
                                or continue the designation of 
                                a country as a program country.
                        The report required by this clause may 
                        be combined with the annual report 
                        required to be submitted on that date 
                        under section 110(e)(1) of the Illegal 
                        Immigration Reform and Immigrant 
                        Responsibility Act of 1996.
          (2) Automated data sharing system.--
                  (A) System.--The Attorney General and the 
                Secretary of State shall develop and implement 
                an automated data sharing system that will 
                permit them to share data in electronic form 
                from their respective records systems regarding 
                the admissibility of aliens who are nationals 
                of a program country.
                  (B) Requirements.--The system under 
                subparagraph (A) shall satisfy the following 
                requirements:
                          (i) Supplying information to 
                        immigration officers conducting 
                        inspections at ports of entry.--Not 
                        later than October 1, 2002, the system 
                        shall enable immigration officers 
                        conducting inspections at ports of 
                        entry under section 235 to obtain from 
                        the system, with respect to aliens 
                        seeking a waiver under the program--
                                  (I) any photograph of the 
                                alien that may be contained in 
                                the records of the Department 
                                of State or the Service; and
                                  (II) information on whether 
                                the alien has ever been 
                                determined to be ineligible to 
                                receive a visa or ineligible to 
                                be admitted to the United 
                                States.
                          (ii) Supplying photographs of 
                        inadmissible aliens.--The system shall 
                        permit the Attorney General 
                        electronically to obtain any photograph 
                        contained in the records of the 
                        Secretary of State pertaining to an 
                        alien who is a national of a program 
                        country and has been determined to be 
                        ineligible to receive a visa.
                          (iii) Maintaining records on 
                        applications for admission.--The system 
                        shall maintain, for a minimum of 10 
                        years, information about each 
                        application for admission made by an 
                        alien seeking a waiver under the 
                        program, including the following:
                                  (I) The name or Service 
                                identification number of each 
                                immigration officer conducting 
                                the inspection of the alien at 
                                the port of entry.
                                  (II) Any information 
                                described in clause (i) that is 
                                obtained from the system by any 
                                such officer.
                                  (III) The results of the 
                                application.
          (3)  [Electronic travel authorization system]  
        Electronic system for travel authorization.--
                  (A) System.--The Secretary of Homeland 
                Security, in consultation with the Secretary of 
                State, shall develop and implement a fully 
                automated [electronic travel authorization 
                system] electronic system for travel 
                authorization (referred to in this paragraph as 
                the ``System'') to collect such biographical 
                and other information as the Secretary of 
                Homeland Security determines necessary to 
                determine, in advance of travel, the 
                eligibility of, and whether there exists a law 
                enforcement or security risk, including 
                terrorism risk, in permitting, the alien to 
                travel to the United States.
                  (B) Fees.--
                          (i) In general.--No later than 6 
                        months after the date of enactment of 
                        the Travel Promotion Act of 2009, the 
                        Secretary of Homeland Security shall 
                        establish a fee for the use of the 
                        System and begin assessment and 
                        collection of that fee. The initial fee 
                        shall be the sum of--
                                  (I) $10 per travel 
                                authorization; and
                                  (II) an amount that will at 
                                least ensure recovery of the 
                                full costs of providing and 
                                administering the System, as 
                                determined by the Secretary.
                          (ii) Disposition of amounts 
                        collected.--Amounts collected under 
                        clause (i)(I) shall be credited to the 
                        Travel Promotion Fund established by 
                        subsection (d) of the Travel Promotion 
                        Act of 2009 (22 U.S.C. 2131(d)). 
                        Amounts collected under clause (i)(II) 
                        shall be transferred to the general 
                        fund of the Treasury and made available 
                        to pay the costs incurred to administer 
                        the System.
                          (iii) Sunset of travel promotion fund 
                        fee.--The Secretary may not collect the 
                        fee authorized by clause (i)(I) for 
                        fiscal years beginning after September 
                        30, 2020.
                  (C) Validity.--
                          (i) Period.--The Secretary of 
                        Homeland Security, in consultation with 
                        the Secretary of State, shall prescribe 
                        regulations that provide for a period, 
                        not to exceed three years, during which 
                        a determination of eligibility to 
                        travel under the program will be valid. 
                        Notwithstanding any other provision 
                        under this section, the Secretary of 
                        Homeland Security may revoke any such 
                        determination at any time and for any 
                        reason, or, if the Secretary determines 
                        that such is appropriate, may limit 
                        such period of eligibility.
                          (ii) Limitation.--A determination by 
                        the Secretary of Homeland Security that 
                        an alien is eligible to travel to the 
                        United States under the program is not 
                        a determination that the alien is 
                        admissible to the United States.
                          (iii) Not a determination of visa 
                        eligibility.--A determination by the 
                        Secretary of Homeland Security that an 
                        alien who applied for authorization to 
                        travel to the United States through the 
                        System is not eligible to travel under 
                        the program is not a determination of 
                        eligibility for a visa to travel to the 
                        United States and shall not preclude 
                        the alien from applying for a visa.
                          (iv) Judicial review.--
                        Notwithstanding any other provision of 
                        law, no court shall have jurisdiction 
                        to review an eligibility determination 
                        under the System.
                  (D) Report.--Not later than 60 days before 
                publishing notice regarding the implementation 
                of the System in the Federal Register, the 
                Secretary of Homeland Security shall submit a 
                report regarding the implementation of the 
                system to--
                          (i) the Committee on Homeland 
                        Security of the House of 
                        Representatives;
                          (ii) the Committee on the Judiciary 
                        of the House of Representatives;
                          (iii) the Committee on Foreign 
                        Affairs of the House of 
                        Representatives;
                          (iv) the Permanent Select Committee 
                        on Intelligence of the House of 
                        Representatives;
                          (v) the Committee on Appropriations 
                        of the House of Representatives;
                          (vi) the Committee on Homeland 
                        Security and Governmental Affairs of 
                        the Senate;
                          (vii) the Committee on the Judiciary 
                        of the Senate;
                          (viii) the Committee on Foreign 
                        Relations of the Senate;
                          (ix) the Select Committee on 
                        Intelligence of the Senate; and
                          (x) the Committee on Appropriations 
                        of the Senate.
                  (E) Additional reports.--
                          (i) Reports on certain limitations on 
                        travel.--Not later than 30 days after 
                        the date of the enactment of this 
                        subparagraph and annually thereafter, 
                        the Secretary of Homeland Security, in 
                        consultation with the Secretary of 
                        State, shall submit to the Committee on 
                        Homeland Security and the Committee on 
                        the Judiciary of the House of 
                        Representatives and the Committee on 
                        Homeland Security and Governmental 
                        Affairs and the Committee on the 
                        Judiciary of the Senate a report on the 
                        number of individuals, identified by 
                        their countries of citizenship or 
                        nationality, who were denied 
                        eligibility to travel under the System 
                        or whose eligibility for such travel 
                        was revoked during the previous year 
                        and the number of such individuals 
                        determined, in accordance with 
                        subsection (a)(6), to represent a 
                        threat to the security of the United 
                        States.
                          (ii) Reports on certain threat 
                        assessments.--Beginning with the first 
                        report under clause (i) of subsection 
                        (c)(5)(A) that is submitted after the 
                        date of the enactment of this 
                        subparagraph and periodically 
                        thereafter (together with subsequent 
                        reports submitted under such clause 
                        (i)), the Secretary of Homeland 
                        Security, in consultation with the 
                        Director of National Intelligence, 
                        shall submit to the Committee on 
                        Homeland Security and the Committee on 
                        the Judiciary of the House of 
                        Representatives and the Committee on 
                        Homeland Security and Governmental 
                        Affairs and the Committee on the 
                        Judiciary of the Senate a report that 
                        contains a threat assessment regarding 
                        the compliance of foreign governments 
                        with the agreements described in 
                        subparagraphs (D) and (F) of subsection 
                        (c)(2), including the sharing of 
                        information about individuals with 
                        travel patterns that may pose concern 
                        to the security of the United States 
                        and the capacity to collect such 
                        information.
  (i) Exit System.--
          (1) In general.--Not later than one year after the 
        date of the enactment of this subsection, the Secretary 
        of Homeland Security shall establish an exit system 
        that records the departure on a flight leaving the 
        United States of every alien participating in the visa 
        waiver program established under this section.
          (2) System requirements.--The system established 
        under paragraph (1) shall--
                  (A) match biometric information of the alien 
                against relevant watch lists and immigration 
                information; and
                  (B) compare such biometric information 
                against manifest information collected by air 
                carriers on passengers departing the United 
                States to confirm such aliens have departed the 
                United States.
          (3) Report.--Not later than 180 days after the date 
        of the enactment of this subsection, the Secretary 
        shall submit to Congress a report that describes--
                  (A) the progress made in developing and 
                deploying the exit system established under 
                this subsection; and
                  (B) the procedures by which the Secretary 
                shall improve the method of calculating the 
                rates of nonimmigrants who overstay their 
                authorized period of stay in the United States.

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