STATEMENT OF ELISA LIANG
ASSOCIATE DEPUTY ATTORNEY GENERAL
BEFORE THE SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
COMMITTEE ON THE JUDICIARY
UNITED STATES HOUSE OF REPRESENTATIVES
CONCERNING THE VISA WAIVER PILOT PROGRAM
PRESENTED ON FEBRUARY 10, 2000
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.
INTERAGENCY PROTOCOL FOR ADJUDICATING VWPP NOMINEES
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:
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.
THE NOMINATION PROCESS
PROPOSED MINIMUM SECURITY STANDARDS FOR VWPP PASSPORTS
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. 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.