Follow-up Report on the Visa Waiver Program
Report No. I-2002-002
Overall, we found in our follow-up review that INS has implemented the recommendations in the original OIG report in an inconsistent and incomplete manner.
Status of Recommendations
Modify primary inspection policy to ensure that the passport number of each Visa Waiver Pilot Program (VWPP) applicant is checked against the lookout system.
In response to this recommendation, on February 9, 2000, INS transmitted to the OIG its October 1999 memorandum to all INS regional directors. This memorandum updated the INS Inspector Field Manual and transmitted the requirements of the OIG to the field. Specifically, it directed the inspecting officer at air and sea POEs to query the passport number of each applicant for admission, including VWP applicants, in the Treasury Enforcement Communications System/Interagency Border Inspection System (TECS/IBIS) during primary inspection. 15 When passenger data is not transmitted in advance by the airlines through the Advance Passenger Information System (APIS), as is the case with most international flights, the passport number of each applicant for admission still has to be entered into TECS/IBIS during any primary inspection. 16 The TECS/IBIS lookout system is INS's principal tool for identifying aliens attempting to enter the United States illegally.
Public Law 106-396, passed in October 2000, required that all VWP applicants be checked against an "automated electronic database" that contains information about the inadmissibility of aliens to uncover any grounds on which the alien may be inadmissible to the United States. This could be accomplished by either manually entering the VWP applicant's passport number into such a lookout system or by machine-reading the passport number into the lookout system.
Machine-readable passports expedite queries by inspectors into lookout systems such as TECS/IBIS by allowing them to swipe the machine-readable area of the passport against the lookout system's scanner. The October 2000 law that made the VWP permanent stipulated that VWP countries would have to certify that a machine-readable passport program to issue such passports to its citizens would be implemented by October 1, 2003. 17 This law also established an October 1, 2007, deadline for all foreign nationals applying for admission to have a valid, unexpired machine-readable passport that satisfies international standards for machine-readability. According to DOS officials, Switzerland is the only VWP country out of 29 without a machine-readable passport. 18 The Swiss are expected to implement one by 2003.
Interviews with INS management officials at four POEs showed that, contrary to the October 1999 INS policy memorandum, it is likely that the passport number of each VWP applicant is not being consistently checked against the TECS/IBIS lookout system. One Port Director, who stated that INS inspectors based their enforcement actions on the data in TECS/IBIS, stressed the importance of TECS/IBIS for intercepting inadmissible foreign nationals. According to POE officials from the four different POEs, this policy was being implemented at each POE in the following manners:
We concluded in our 1999 report that the national security and law enforcement benefits of the TECS/IBIS lookout system are lost for many visa waiver applicants whose passports are not machine-readable. An individual's name and date of birth might not register a hit in TECS/IBIS. That individual, however, could be fraudulently seeking to enter the United States with a lost or stolen passport that would not register if the passport were not machine-readable and the passport number was not queried properly or at all in TECS/IBIS. Although only one VWP country, Switzerland, does not currently have a machine-readable passport, INS management at the POEs we interviewed stated that passports presented to inspectors at their POEs from other VWP countries, such as Belgium, France, Italy, and Norway, were still not machine-readable. These are old passports issued by these countries before they began producing machine-readable passports. It is difficult for the INS to ensure that inadmissible aliens with fraudulent VWP passports are reliably refused entry into the United States, in large part because it is likely that the policy to ensure that each VWP passport number is checked against TECS/IBIS is inconsistently and disparately implemented across POEs.
Before our 1999 report, an INS inspector was not required to enter an alien's passport number into TECS/IBIS during primary inspection. To comply with our 1999 report, the INS requested in October 2000 that the U.S. Customs Service (Customs), which manages TECS/IBIS, make system changes to TECS/IBIS so that the system would prompt the inspector to input the passport number on a primary query when the passport number is not otherwise provided. This change would effectively make the passport number a mandatory field during a primary query. In July 2000, INS submitted 22 projects, including the above system changes, to modify TECS/IBIS; modifying TECS/IBIS to comply with the original OIG report was rated a number one priority. However, the INS stated that Customs required that INS fund these system changes due to funding limitations at Customs. According to INS, no funding was available for these TECS/IBIS changes for FY 2001 and FY 2002. The INS further informed us that funds for these modifications would be submitted in the FY 2003 budget request. Currently, TECS/IBIS still does not require an immigration inspector to enter a VWP applicant's passport number on a primary query if the applicant's passport is non-machine readable.
Designate a unit to systematically collect information on stolen blank VWPP passports and ensure timely and accurate entry of stolen passport numbers into the lookout system.
The October 1999 INS policy memorandum sent to all INS regional directors also incorporated this recommendation into the INS Inspector's Field Manual. This memorandum prescribed that information pertaining to lost or stolen passports must be forwarded immediately via facsimile to the INS Lookout Unit for immediate entry into IBIS, which is available to INS inspectors via TECS. The Lookout Unit was directed to enter this information into the IBIS lookout system within 2-3 working days. Another provision of the October 1999 INS policy memorandum stated that the Lookout Unit was responsible for entering lookouts on missing passports. Missing passports include those that have been lost or stolen from individuals, or blank passports that were stolen before being issued. If the information pertains to a blank missing passport, the Lookout Unit should enter this information directly into TECS/IBIS, including the passport number and the country of issuance.
Contrary to this recommendation, however, information about missing passports is not consistently being forwarded to the Lookout Unit, especially not by facsimile as the October 1999 INS policy memorandum requires. According to an official from the Lookout Unit, the vast majority of lookouts are entered in the field (i.e., by immigration inspectors at POEs). The Lookout Unit official stated that his Unit had never received notice of a missing passport by facsimile from a POE. The Unit occasionally receives missing passport information from INS POEs, but it is a passport lookout entered by INS field personnel, not by the Lookout Unit. According to the Lookout Unit official, INS inspectors at POEs have had the capability since 1990 to enter this information directly into NAILS, which sends these data to all inspectors in the field. Inspectors have this ability because lookout information, such as missing passport data, is perishable and needs to be entered into the lookout system immediately. Any lookout entered by an inspector at a POE has to be authorized by a supervisor. But, the Lookout Unit official was not aware of any policy that mandated that INS inspectors enter their own missing passport lookouts into NAILS, which feeds this lookout data directly into TECS/IBIS on an overnight basis. These practices contradict the INS policy stipulated in the October 1999 policy memorandum.
The Lookout Unit official stated that the primary source of missing passport information forwarded to INS originates at U.S. consular offices abroad. This information is forwarded to DOS headquarters, which then forwards it via e-mail to the INS Forensic Document Lab (FDL). The information is sent to the FDL and automatically forwarded by e-mail to the Lookout Unit. However, FDL personnel also input missing passport data into NAILS. Outside of INS, DOS uses its own NAILS terminal to directly enter missing passport data into NAILS.
It is difficult for the Lookout Unit to ensure that all information on missing passports is consistently inputted into the lookout system within a specified timeframe. The October 1999 INS policy memorandum specified that the Lookout Unit should enter information on missing passports into the lookout system within 2-3 working days. According to data provided by the Lookout Unit, missing passport information was being entered into NAILS at an average of approximately 62 to 93 lookouts per business day. 21 These data also showed that the Unit receives approximately 90 e-mail notices daily on missing passports. However, these officials estimated that it could take 10 to 15 days to enter all outstanding missing passport lookouts into NAILS, excluding the 90 new daily lookouts that it receives.
Since August 2001, the Unit has entered 1,184 lookouts into NAILS but has a current backlog of 1,610 records that still need to be entered. Therefore, the Lookout Unit prioritizes the lookouts to be entered. While the Lookout Unit enters most routine missing passport lookouts into NAILS, urgent missing passport lookouts are entered directly into TECS/IBIS. For example, series of blank missing passport numbers are entered directly into TECS/IBIS because TECS/IBIS allows the user to enter ranges of missing passport numbers.
Considering the current backlog and new incoming lookouts received by the Lookout Unit, information on missing passports is entered into the lookout system within varying timeframes. For example, an INS official with VWP program responsibility stated that he had received a list of 125 stolen Belgian passports and forwarded the list to the Lookout Unit. He checked TECS/IBIS three days later, and the data on the 125 stolen Belgian passports had not been entered yet. He subsequently entered these data into TECS/IBIS himself.
In terms of resources, the Lookout Unit has only two contractors who enter missing passport lookouts into TECS/IBIS. A supervisory contractor oversees their work, while an INS official who has programmatic responsibility for the Lookout Unit manages the contractors. The Lookout Unit official estimated that 2-3 more contract employees are needed for the Lookout Unit to eliminate the current backlog of missing passport lookouts, while also maintaining the entry of priority lookouts, such as for visa revocations. The Lookout Unit encourages the current contractors assigned to the Unit to work overtime to address the lookout backlog. Nonetheless, the Lookout Unit is not serving a centralized purpose of receiving all information regarding missing passports and subsequently entering it into TECS/IBIS.
INS officials at the four POEs contacted during this follow-up review confirmed that these POEs are not consistently forwarding information on missing passports to the Lookout Unit. In addition, the responsibility for entering lookouts into the lookout system (TECS/IBIS or NAILS) appears to be fragmented and not centralized at the Lookout Unit.
The INS port official at Honolulu International Airport stated that a port-specific lookout team, comprised of a supervisor and two officers, has been formed that enters missing passport information into NAILS. On average, this lookout team takes three days to enter a missing passport record into the lookout system. It takes three days because this port's lookout team receives many lists of missing passport data from numerous sources, such as the DOS, U.S. consulates abroad, and foreign governments. However, the lookout team prioritizes entering these data into NAILS, such as when a specific passport is suspected to be in the hands of a known terrorist.
A port official at John F. Kennedy International Airport told us that officers at his port input lookouts on missing passports directly into NAILS. These lookouts are entered almost immediately upon receipt. This port receives reports on missing passports mostly from DOS cables. An official at Dulles International Airport told us that INS inspectors also directly enter missing passport information into NAILS within a 24-hour period. This port also has its own lookout team comprised of three senior inspectors. According to the INS port officials, Miami International Airport is the only POE of the four INS ports contacted for this review that regularly calls the Lookout Unit when information on a missing passport is obtained. This same port also has its own passenger lookout unit that collects passenger statistics and identifies trends to help enforce immigration laws.
These interviews show that, while INS has issued policies that centralize the unit responsible for collection of missing passport information and the entering of that information into the lookout system, these policies are not being followed. The intent of our original recommendation was for the INS to designate a centralized unit within INS to collect information on missing visa waiver passports to ensure that this information was entered quickly and accurately into the lookout system. The INS subsequently issued a policy but our follow-up review shows that the policy is being disregarded and that reporting of this information by INS personnel in the field to the Lookout Unit is still not systematic. INS personnel in the field directly enter their own missing passport lookouts into the lookout system, without also forwarding the data to the Lookout Unit. We recommend that INS determine whether the Lookout Unit, INS field personnel, or a different mechanism is the most appropriate solution to ensure that information on missing passports are entered into the lookout system in a systematic, timely, and accurate manner.
Develop clear guidelines for the entry of passport numbers when creating lookout records.
The October 1999 INS policy memorandum to all INS regional directors, issued in response to our 1999 report's recommendations, also integrated this recommendation into the INS Inspector's Field Manual. If a non-machine readable passport is presented during primary inspection, this policy establishes a hierarchy of passport numbers to be entered into a lookout record. The perforated number on the passport, if available, should be entered into the document number field in the lookout system. If the perforated number is not discernible, then the pre-printed individual booklet number should be entered. If neither of these numbers is available, then the inspecting officer should enter the number found on the passport's biographical page.
Interviews with INS officials at the four POEs indicate a lack of uniformity among ports as to which passport number they enter for lookout records. Responses from the POE officials ranged from the document number on the passport's biographical page, to just entering the alien's name into the lookout system without any passport number. According to an INS official from Dulles International Airport, the type of passport number in the document depends upon the country from which the passport was issued. An official from INS's FDL agreed, stating that different countries interpret passport standards in varying ways.
Several INS officials stated that because INS inspectors often enter their own lookouts, the INS should reiterate which passport number should be entered and that any policy on entering passport numbers should be nationally implemented at all POEs. According to an official at John F. Kennedy International Airport, the perforated passport number is the most important number to include in missing passport lookouts related to VWP countries. However, there is "no consistency" as to which passport number is entered for a lookout. This same official stated that there was no written policy that dictates which passport number should be entered when creating lookout records on missing passports.
We were also told that countries have not agreed on a universal numbering system for passports. This lack of passport number standardization makes it difficult for inspectors at POEs to ascertain which number to input into NAILS. The original report noted that some passports contain more than one type of number, consequently, if an INS inspector queries a number other than the one that was used to create the lookout record, or if the lookout record was created using a number other than the passport number, no match will be found in the TECS/IBIS lookout system.
In accordance with the original OIG report, INS has issued clear guidelines for entry of passport numbers into IBIS when creating lookouts. However, our review shows that this policy has not been fully disseminated or uniformly implemented by INS field personnel who query the lookout system, which is INS's principal tool for identifying VWP applicants who are inadmissible.
VWP Statutory Provision - Applicant Appeal Rights
A provision in the VWP statute requires VWP applicants to give up their right to appeal an immigration officer's determination as to the admissibility of the alien or to contest, other than for an application for asylum, any action to remove the VWP applicant. A port official we interviewed called this provision a "great tool" that gives INS inspectors the ability to exclude inadmissible aliens based on information presented to INS inspectors by the VWP applicant at the POE. This provision is especially important because there is no visa screening process for VWP applicants. Several officials interviewed at different POEs, however, criticized the fact that the determination of inadmissibility of a VWP applicant did not bar that VWP applicant from being admitted to the United States "the next day." Consequently, VWP applicants can attempt to gain entry at different U.S. ports "again and again" even after being lawfully refused entry into the United States. One port official suggested that the VWP statute be amended to institute a ban for a period of time before VWP applicants found inadmissible at a U.S. port can attempt to enter the United States again.
VWP Country Reporting of Missing Passports
An external factor that limits dissemination of missing passport intelligence throughout the INS is the failure of some VWP countries to report missing passports. According to the INS, not all VWP countries consistently provide complete and timely notification of missing blank passports. 22 Data on missing passports are most frequently transmitted to the INS via cable traffic from DOS and by foreign immigration agencies. According to an INS official, the primary difficulty is that these countries are not obligated by statute to report information on missing passports to the United States in order to participate in the VWP.
INS officials at various POEs stated that country reporting of missing passport information to U.S. authorities is inadequate and inconsistent. According to one port official, often the presence of lookout records in TECS/IBIS is contingent upon countries providing the U.S. government with details on missing passports. INS officials at various POEs stated that countries are not actively reporting this information to U.S. authorities. Another port official said she receives reports of missing passports directly from foreign countries, as well as from U.S. sources. No policy exists that clearly articulates the process for countries to report missing passport data to U.S. authorities, and which U.S. agency should receive that information.
Some VWP countries are more cooperative than others in reporting missing passport information to U.S. authorities. According to an INS official, the most cooperative VWP countries are Belgium (even though its passports are frequently lost or stolen), the United Kingdom, the Netherlands, and France. One port official told us that Belgium recently submitted a list of four to five thousand numbers of stolen blank passports. While some VWP countries are more responsible in reporting missing passports to the United States, as a whole, VWP country reporting of this information is sporadic and incomplete.
To encourage VWP countries to report missing passport data to U.S. authorities, the INS drafted statutory provisions in early 2000 mandating that, as a condition of participation in the program, VWP countries report missing blank passports to the Attorney General within three business days of receiving notice that the passports have been lost or stolen. The INS stated that this provision would promote law enforcement and national security interests because INS immigration inspectors would intercept more applicants using missing passports if VWP countries promptly report the loss or theft of such passports. Furthermore, the INS advocated that requiring VWP countries to report missing passports would facilitate the creation of "lookout records that will aid officers in identifying terrorists and criminals traveling to the United States using fraudulently obtained visa waiver passports." 23
These provisions, however, were "softened" during meetings of the Interagency Working Group (IWG) for the VWP. 24 As a result, a lesser standard was incorporated into the Interagency Protocol requiring the DOS to provide information for any IWG evaluation on whether a VWP country reports data on blank, lost, or stolen passports within five business days. The DOS is required to provide a written explanation if this information cannot be obtained.
Changes in Operations Since September 11, 2001
The USA Patriot Act
The anti-terrorism legislation recently signed into law contained provisions that amended the VWP. 25 The main thrust of these new provisions was to strengthen the machine-readable passport requirements for VWP participating countries by: