Dept of Justice Seal




Mr. Chairman, it is a pleasure to appear before this Subcommittee to discuss with you the process that the Departments of Justice and State have developed to implement the Visa Waiver Pilot Program.

As you know, section 217 of the Immigration and Nationality Act is the statutory basis for the Program. It authorizes the Attorney General and the Secretary of State to establish the Visa Waiver Pilot Program under which nationals of a foreign country may visit the United States visa-free for ninety days or less, if that country meets certain objective criteria and the Attorney General determines that the participation of the country in the Program will not adversely affect United States law enforcement interests. While the legislation defines the objective criteria, it does not define those law enforcement interests. The Attorney General therefore directed the preparation of procedures to provide a methodology to evaluate countries against the objective criteria and to define and assess law enforcement criteria, thereby enabling the Attorney General and the Secretary of State to carry out more effectively their statutory responsibilities. Toward that end, an interagency working group comprised of representatives from various components of the Departments of State and Justice prepared an “Interagency Protocol for Adjudicating VWPP Nominees.” This Protocol, a copy of which was previously furnished to you in anticipation of my testimony today, and which is attached to this testimony, provides a road map for the nomination and approval of countries which seek to participate in the Program.

As a first step in the process, the Secretary of State conducts a preliminary evaluation of a prospective nominee. The evaluation, presented in written form to the Department of Justice and the Immigration and Naturalization Service (INS), addresses the country's visa refusal rates according to the formula provided in the statute. It also discusses the patterns of visa fraud or other abuse for the previous five years. Finally, it provides a discussion of the current conditions in the country under consideration, focusing on the stability of the government and a preliminary assessment of the anticipated effect on U.S. national security of a country's participation in the Program.

The Department of State conducts this evaluation based on information provided by the relevant U.S. Embassies and other State Department offices that possess information which should be considered in the evaluation. It is designed to allow the Secretary of State to conduct a preliminary assessment of the country's suitability, taking into account foreign policy and other considerations. If the evaluation suggests that the country is a good candidate, the Secretary will provide a written notice to the Deputy Attorney General and the INS Commissioner setting forth the Secretary of State's intent formally to nominate the country for full participation in the Program.

Upon receipt of the notice of the Secretary's intent to nominate a country, the INS and other Department of Justice components review the Secretary's assessment to determine whether there are any law enforcement concerns that militate against the country's being nominated. This assessment is based on information that the agencies possess relating to crime patterns, visa abuse, or other law enforcement information. If the Department of Justice does not object to the notice of intent within ninety days, the Secretary may then submit a formal nomination in writing to the Attorney General.

The formal nomination triggers a more structured evaluation of the candidate country. Upon receipt of the nomination, the INS establishes an interagency team to conduct a site visit to the candidate country. The team will be comprised of representatives of both the INS and the Department of State, as well as representatives of law enforcement agencies such as the FBI and the DEA. This team meets with appropriate embassy staff to discuss in detail the current trends in nonimmigrant and immigrant visa issuance and travel to the United States, focusing on the processing of visas, including volume of applications, refusal rates, reasons for refusals, and similar concerns. They will also discuss issues relating to document fraud, law enforcement cooperation between the nominee country and the United States, and specific conditions in the country relating to law enforcement concerns, such as alien smuggling and narcotics. Finally, the assessment team will explore the current general conditions in the country, such as the economy and demographic trends, employment or any other conditions that might have an impact on the country's stability, and the existence of social unrest or the existence of separatist movements. Consideration of these factors is necessary to assess whether conditions in the country might provide a catalyst for illegal immigration to the United States or other countries that would warrant concern that the Visa Waiver Pilot Program might be subject to future abuses.

The assessment team will also consult with officials of the nominee country's government to discuss its programs for ensuring security of its passport and visa offices and production facilities. In addition, they will address the country's immigration laws and policies, including that country's practices concerning detention and removal of illegal aliens, as well as its overall law enforcement programs to address narcotics, terrorism, and organized criminal activities. Among the specific issues examined are the state of law enforcement training and readiness in the areas of immigration and border control. Finally, the assessment team will actually travel to ports of entry, border control points, and document production and issuance facilities to evaluate first-hand the security and integrity of the country's passport, visa, and identity document issuance process.

The site visit by the INS-led interagency team is a time-consuming but critical step in the Protocol process. It provides an opportunity for a detailed examination of the actual conditions in the nominated country to better enable the INS and other agencies to assess whether the current conditions in the country or the law enforcement situation pose the potential for abuse of the Program such as to promote visa-free entry into the United States of persons who might threaten our law enforcement interests.

Upon the completion of the site visit, the INS produces a written evaluation of the country and a preliminary recommendation whether the Attorney General should approve the nomination. The evaluation and recommendation are sent to the Department of State, the Office of the Deputy Attorney General and other law enforcement components for their review and comment. This provides a final opportunity for the interested law enforcement components to provide an assessment of the overall law enforcement relationship between the United States and the nominee country, with the benefit, of course, of the results of the on-the-ground evaluation, and to identify any concerns that might continue to exist regarding the effect of the country's participation in the Program on U.S. law enforcement interests.

At the conclusion of the process, the Attorney General notifies the Secretary of State of the Department of Justice's decision on the nomination. The decision could range from outright approval to disapproval, or it might be a conditional approval upon the occurrence of specified conditions.

We used this protocol for the first time last year when the Secretary of State nominated four countries -- Singapore, Portugal, Uruguay, and Greece -- for participation in the Program. The simultaneous evaluation of four countries was a daunting task, as you might imagine, but it provided an invaluable test for the Protocol. Each of the countries received a detailed review and analysis by the experts in both Departments, and while our interagency group is still evaluating the process we used based on the Protocol the consensus is that the process worked as intended and served the interests of both Departments well. In the end, all four countries were admitted for participation, although conditions have been placed on Greece before full participation can become a reality.

I hope that this brief description provides a useful background against which you can exercise your oversight responsibilities concerning the Visa Waiver Pilot Program. I know that you will also be hearing today from representatives of INS and the Department of State regarding the specifics of their roles in the VWPP Protocol process, but I would be happy to respond to any questions you may have for me.




The purpose of this protocol is to establish a methodology for the Secretary of State to nominate, and the Attorney General to approve, countries' participation in the Visa Waiver Pilot Program (VWPP).

The following milestones are the essential. components of the methodology:


Title 8 U.S.C. II 87 [Section 217 of the INA] provides that in order to qualify for designation as a VWPP country, the country must meet the following objective conditions:

  1. Low nonimmigrant visa refusal rate:

    1. Refusal rate for the previous two-year period was less than 2% of total nonimmigrant visitors, and nonimmigrant visa refusal rate for either of two previous years was less than 2.5% of total nonimmigrant visitors; or

    2. Nonimmigrant visa refusal rate for the previous full fiscal year was less than 3%;

  2. Reciprocal visa waivers for U.S. citizens; and

  3. Machine-readable passport program (has the program or “is in the process of developing” such a program).

In addition, the Attorney General must determine “that the United States law enforcement interests would not be compromised by the designation of the country.”

Because requirements (a), (b), and (c) are dependent on a determination of the experience with the nominee country, the Department of State (DOS) shall establish that these requirements have been met.


  1. Department of State

    1. The Department of State initiates the nomination process by notifying the Deputy Attorney General (DAG) and the Commissioner of the Immigration and Naturalization Service that the Secretary of State intends to recommend that the Attorney General designate a country to participate in the Visa Waiver Pilot Program. Identification of the nation to be nominated by the Secretary of State should be provided to the DAG at least ninety days before the Secretary of State submits the actual nomination to the Attorney General.

    2. In its written notification to the DAG and the Commissioner, the Department of State shall provide the following information:

      1. Totals (actual raw numbers) of the number of nonimmigrant visas granted, as well as denied, for the two categories cited in the statute for the stipulated fiscal years. These figures should be provided for each post located within the nation under consideration.

      2. Commentary on patterns of visa abuse, fraud, and smuggling at the post(s) located in the country being nominated. This should include any information available for the preceding five years. The Commentary should discuss not only fraud committed by nationals of the country under consideration, but also fraud or criminal activities perpetrated by third country nationals, resident or transiting the nation, who impersonate or who are likely to impersonate nationals of the country being nominated.

      3. Information regarding visa abuse, fraud, and smuggling by nationals of the nominee country which are being encountered at other posts. For example, while the nation may be policing itself well within its own borders, its nationals may be traveling to third countries and perpetrating fraud there. Honorary consuls assigned overseas may be compromising the integrity of the national passport.

      4. Current conditions in the country, with particular attention to the following areas:

        1. DOS shall certify that the nominee has, and is expected to maintain, a stable government which exercises strict control over the acquisition of citizenship.

        2. DOS shall provide an assessment of the impact of VWPP participation on U.S. national security, e.g., potential for abuse by nominee country's nationals (or by individuals who can impersonate such nationals through altered or fraudulently obtained documents evincing that country's nationality) who may be involved in terrorism, organized crime, or alien, narcotic's or strategic weapons smuggling.

    3. The Secretary of State will submit the formal nomination to the Attorney General not less than ninety days alter the initial notification specified in paragraph 1.


    Upon nomination of a country for VWPP status, the INS, with input from, and participation by other interested agencies, as necessary, will conduct a site visit to review the various immigration, nationality, and enforcement policies in the nominee country. The site visit will include the following:

    1. Meetings with American Embassy staff (footnote 1) to discuss:

      1. Trends in nonimmigrant and immigrant processing, including volume, refusal rates, types of applicants most likely to be refused, reverse migration trends, if any.

      2. Third country national (TCN) applicants for nonimmigrant and immigrant visas, including transient and resident TCNS, treatment of TCNs by the host government, volume of TCN applicants, refugees and asylees.

      3. Fraud problems, including document fraud, impostors, corruption, alien smuggling, narcotics trafficking, U.S. Government and host country countermeasures and cooperation.

      4. General social, economic, political and demographic trends and conditions, including employment, ethnic minority problems, separatist or independence movements.

      5. Level of host country cooperation with U.S. immigration and law enforcement agencies, including participation in multilateral law enforcement, information-sharing, and training efforts.

      6. Likelihood of significant legislative changes that could negatively impact host country immigration, citizenship, and nationality laws.

    2. Meetings with appropriate officials of the nominee country to discuss (footnote 2) the inspection of arriving and departing aliens and nationals; detection of fraudulent and altered documents; prosecution of users of fraudulent or altered documents; incidence of alien smuggling, third country nationals transiting, and deterrence employed; handling of asylum and refugees; acquisition of citizenship through naturalization; types of passports issued, issuance procedures within the country and at overseas posts (if lost or stolen) (footnote 3); any breaches of document security (footnote 4) or issuance (theft of blank passports, measures to recover them and deter their future use, measures to prevent future theft); timely submission of reports of lost or stolen blank passports; fraudulent document detection and deterrence; security screening of arriving and departing passengers at air, land, and sea ports of entry; handling of lookouts and INTERPOL red list; detention and removal of excluded or deported aliens; interior enforcement programs; efforts against organized criminal activity by alien residents; terrorism and security issues; and law enforcement officer training, particularly in the areas of immigration and border control.

    3. Meetings with appropriate Foreign Ministry officials who can answer policy questions concerning the issuance of nationality documents abroad, and other issues parallel to U.S. Department of State functions.

    4. Meetings with appropriate representatives of the entities (companies and government bureaus) responsible for the design, printing, manufacture, and security of the nominee country's passports and national identification cards (documents used to secure the passport),


    The following components of the Department of Justice should provide input to the vetting process as indicated.

    1. Criminal Division - The Criminal Division will provide an assessment of the overall law enforcement relationship with the nominee country against the following factors:

      1. Viable extradition relationship with the United States, preferably based upon a modem extradition treaty that covers all major offenses and that obligates the parties to surrender nationals.

      2. Willingness to consider other legal means of rendition in the absence of extradition, such as expulsion or deportation of fugitives to the United States.

      3. Viable mutual legal assistance relationship with the United States, preferably based upon a mutual legal assistance treaty or, in the alternative, on domestic laws that provide for a full range of evidential assistance in criminal matters.

      4. Multilateral law enforcement cooperation --

        1. Party to relevant international treaties and conventions (e.g., 1988 Vienna Narcotics Convention, the several anti-terrorism conventions);

        2. Participation in and support for anti-crime initiatives sponsored by the United Nations, the European Union, the Council of Europe, the Group of Seven and The Eight, the Organization of American States, or other relevant multilateral organizations.

      5. Police-to-police cooperation --

        1. Active and responsive member of INTERPOL;

        2. Cooperation with U.S. law enforcement personnel assigned to host country (e.g., FBI Legal Attache, DEA Country Representative, Immigration Officer);

        3. Operational cooperation with U.S. law enforcement as demonstrated by joint investigations, coordinated arrests and asset seizures, provision of criminal intelligence, and personnel exchange programs.

      6. Domestic legal infrastructure for combating organized crime, such as laws permitting: court-ordered electronic surveillance; undercover operations; use of cooperative witnesses and confidential informants; and the prosecution of criminal organizations and their members (e.g., “enterprise theory”).

      7. Immigration-to-immigration cooperation --

        1. Cooperation in timely issuance of travel documents and acceptance of the country's nationals who are being removed from other countries.

        2. Expeditiously provide travel documents for national to allow their removal or deportation. One method would be through a “Single Journey Document” that may be issued in accordance with Annex 9 of the Convention on International Civil Aviation. The provision provides, “[T]he last Country in which a passenger previously stayed and most recently traveled from is invited to accept him/her for re-examination when he/she has been refused admission to another country.”

        3. Timely submission of reports of lost or stolen blank passports.

      8. To deter immigration and nationality fraud, there should be national criminal penalties for passport, nationality and document fraud and alien smuggling, and law enforcement efforts to prevent or follow up on fraud and alien-smuggling attempts.

    2. Law Enforcement Agencies. All DOJ law enforcement agencies should provide current information concerning the nominee country relative to the following:

      1. The extent to which ongoing or planned operations might be adversely affected by the site visit or by any other aspect of the proposed nominee's inclusion in the VWPP.

      2. Pertinent historical patterns or trends regarding emerging ethnic criminal groups, narcotics trafficking, alien smuggling, terrorism, fraud, harboring, asylum fraud, third country national abuse of the country as a staging area, official corruption, significant tendency towards employment violations by nationals of the country; or threats to U.S. national security.

      3. The degree of cooperation received from officials of the proposed nominee country involved in mutual efforts against transnational crime and criminals.

    3. Office of Intelligence Policy Review (OIPR). OIPR will request, on behalf of the Attorney General, that the Intelligence Community provide an analysis, based on the current intelligence, of the impact that VWPP participation by the nominee country will have on the national security of the United States.



Prepared by INS Forensic Document Laboratory

The following minimum security features are required for a passport to be accepted in the U.S. VWPP:

  1. The passport must conform to ICAO machine readable standard.

  2. The photograph and biographical data shall be covered by a laminate, which must include at least one of the following security features:

    • Optical Variable Device (OVD) attached under the laminate's adhesive.
    • Unique serial number.
    • Punched, perforated, embossed, or laser-engraved unique number, initials, or seal on the laminate.
    • Ultraviolet security feature under the adhesive.
    • Printed security design.

  3. During production of the passport, a printed or perforated passport number is added to the cover, photograph and biographical, and observation (amendments) pages.

  4. All interior pages contain a watermark.

  5. An ultraviolet security feature is on all interior pages.


1. In particular, LEA attache or liaison officers with responsibility for the nominee country should participate in any site visits conducted by the INS as part of this protocol.

2. Such officials might include those who would serve roughly in counterpart positions to: the Executive Associate Commissioners for Programs and Field Operations; the General Counsel or Deputy General Counsel; the Assistant Commissioners for Inspections, Naturalization, Investigations, Intelligence, Border Patrol; the Director(s) of Refugee and Asylum Affairs, the Port Directors for the major international airport(s); and for at least two major land border port(s) and a major seaport (if any); the Director of the Forensic Document Laboratory; Director(s) of the Administrative Units/Police who issue passports and national identity cards.

3. Standards for determining identity and nationality at overseas issuing (consular) posts should be as rigorous as within the nation itself.

4. Document security can be viewed primarily in terms of the integrity of the documents produced and the security of the issuance process, i.e., ensuring that only the correct individuals receive documents. The quality of the materials, the production techniques used to produce documents, the physical security of the materials, the equipment, and work areas used in document production are the major concerns in ensuring document integrity. In the issuance process, the major concern is the ability to identify the applicants and documents they present as proof of nationality and identification. The ability to identify positively depends upon the number and type of identity documents required of applicants, the data collected and maintained on the document or in the file, the ability of the issuing personnel to verify the authenticity of the documents with the original issuers, and the ability of issuing personnel to spot fraudulent documents and imposters.

Appended to the protocol is a list of Proposed Minimum Security Standards for VWPP Passports prepared by the INS Forensic Document Laboratory (FDL). FDL shall periodically review and update the list, as necessary, for use in assessing adequacy of countries' passport security.