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Cablegate: President Signs Visa Waiver Program Reform Law

DE RUEHC #2505/01 2221959
O 101951Z AUG 07




E.O. 12958: N/A

REF: 2006 STATE 191878

1. Summary and Introduction. Department would like to
applaud posts for continued outstanding efforts in
managing the VWP issue from both a policy and public
diplomacy perspective. This cable provides guidance for
use in responding to questions about amendments to the
Visa Waiver Program, as made by H.R. 1 "Implementing
Recommendations of the 9/11 Commission Act of 2007," known
colloquially as the "9/11 Bill," which the President
signed into law on August 3. The amendments, which will
affect both current and prospective VWP member countries,
significantly enhance the security elements of the program
- including requirements for an Electronic Travel
Authorization system, an exit system, and enhanced
information sharing - while adding limited waiver
authority for countries that meet all security
requirements, but do not meet the law's standard for visa
refusal rates. While these modifications are a positive
step towards the goal of modernizing the VWP that the
President set forth in November 2006 in Tallinn, Estonia,
they fall short of the needed flexibility with respect to
visa refusal rates sought by the Administration to
accelerate the entry into VWP of some of our closest
allies. In a statement released as the bill was signed,
the President recognized the modifications as a step
forward, especially on security, but expressed his
intention to continue working with Congress to gain
greater flexibility for program expansion.

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2. In addition to background material and talking points
on the VWP reform effort contained in reftel, embassies
and consulates may draw upon the information below to
discuss the VWP reform legislation with appropriate
officials and in responding to press and public inquiries.
Although the language of the law is not specific with
respect to countries, the target "prospective members" of
the VWP include the existing roadmap members of EU
countries not currently participating, and the Republic of
Korea. (For a list of current VWP participant countries,
visit www.travel.state.gov/visa). End Summary and

3. The President announced his twin policy goals for the
VWP - strengthening security and accelerating admission
prospects for some of our closest allies - in Tallinn,
Estonia, on November 28, 2006. Shortly thereafter, the
Administration began working with Congress on a
legislative proposal to modernize the VWP. VWP reform
legislation was ultimately proposed in the Senate as part
of the implementation of the 9/11 Commission
recommendations, and was agreed in Conference in July. On
August 3, 2007, the President signed the bill into law.

4. The new law incorporates security enhancements to the
program strongly supported by the Administration.
Modernization of the VWP, as the legislation states, will
"enhance bilateral cooperation on critical
counterterrorism and information sharing initiatives;
support and expand tourism and business opportunities to
enhance long-term economic competitiveness; and strengthen
bilateral relationships." The legislation provides for
limited flexibility on visa refusal rates, a step forward
but well short of the Administration's goal. In a
Presidential statement released upon the bill signing, the
President said, "I also appreciate the steps taken to
modernize the Visa Waiver Program, particularly the
additional security measures, but I will continue to work
with Congress to advance our security and foreign policy
objectives by allowing greater flexibility to bring some
of our closest allies into the program."

Enhanced Security Features

5. The legislation (contained in Title VII-Strengthening
Efforts to Prevent Terrorist Travel, Section 711-
Modernization of the Visa Waiver Program) adds a number of
new or enhanced security measures to the VWP that
facilitate the identification of passengers who may pose a
threat or are otherwise of interest and are seeking to
travel to the United States. Overall, these new security
measures will transform the VWP from a program that looks
for security threats on a country-by-country basis into
one that can screen for security risks on a passenger-by-
passenger basis. These measures include:

-- An Electronic Travel Authorization (ETA) System: The

STATE 00112505 002 OF 004

ETA system will collect basic biographic information
about passengers who intend to travel to the United
States under the VWP. The Department of Homeland
Security (DHS) will use the data to determine whether
travelers are eligible to travel under the VWP and
whether they are potential threats - e.g., by
comparing names against watchlists of known and
suspected terrorists. We envision that travelers
will be able to submit ETA applications over the
Internet or through other means. Passengers will pay
a nominal fee, and the system will return a quick
response. Travelers whose ETA applications are
denied cannot travel under the VWP but are not/not
necessarily ineligible to travel to the U.S. An ETA
denial requires that the traveler apply for and
obtain a visa; these travelers will be referred to a
consulate to apply for a visa. Approval under the
ETA can be valid up to 3 years. Eventually, the ETA
will make it unnecessary for VWP travelers to
complete Forms I-94W, which typically are filled out
aboard U.S.-bound aircraft. It is important to note
that an ETA is not a visa and does not meet the legal
requirements to serve as a substitute for a U.S.
visa. The ETA system is still under development, but
is expected to begin operating in 2008.

-- Reporting of Lost and Stolen Passports: VWP passports
are a valuable commodity for terrorists seeking to
infiltrate the U.S. It therefore is essential to
have complete and timely information about VWP travel
documents that have gone missing. The new
legislation calls on VWP members to enter into
agreements 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."

-- Passenger Information Exchange: Information exchange
is an essential component of U.S. counterterrorism
policy. The law calls for VWP members to enter into
agreements with the United States to share
information to assist in determining whether U.S.-
bound passengers pose a security threat.

-- Repatriation: VWP countries must accept citizens for
repatriation no more than three weeks after a U.S.
court issues a final order of removal.

6. In the context of determining whether to waive a
country into the VWP under the Administration's new waiver
authority for countries that do not meet the existing 3
percent statutory visa refusal rate [see paras 8 - 12
below], the new law also specifies that 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:

-- Airport Security in the Country: DHS could, for
example, ask VWP members to enhance security
standards, i.e. through consideration of security
background checking and credentialing procedures for
airport employees in the country, or degree of
restrictions on access to secure areas at airports to
appropriate personnel.

-- Whether the Country Assists in the Operation of an
Effective Air Marshal Program: DHS could propose, for
example, that U.S. Federal Air Marshals be permitted
to carry weapons while operating on flights to, from,
or over the U.S.; expansion of the presence of
Federal Air Marshals on foreign air carriers, or
deployment of VWP members' own air marshal services.

-- Standards for Passports and Travel Documents in the
Country: Under current law, VWP participants have
been required to transition to machine readable
biometric passports. Under the new law, DHS could
consider the security of travel documents issued by
the country. Examples include issuance of passports
by central (rather than regional or local)
authorities and tougher standards for emergency or
temporary passports.

-- Other security-related factors, including the
country's cooperation with U.S. initiatives to combat
terrorism and the country's cooperation with the U.S.
intelligence community in sharing information
regarding terrorist threats.

The Department of Homeland Security will also work with
current VWP members on implementing these discretionary

STATE 00112505 003 OF 004

security measures.

Exit system

7. The new legislation requires DHS to put in place a
system that can verify the departure of at least 97
percent of foreign visitors who leave the U.S. by air.
Initially, the system would be based on biographic data,
such as travelers' names and passport numbers. (DHS
expects it will be able to achieve the 97 percent target
using biographic information within 6-12 months.)
Biometric information, such as fingerprints, will be
required by June 30, 2009. If this deadline is not met,
Administration authority to waive the 3 percent visa
refusal rate requirement will be suspended until the
Administration certifies that a biometric exit program is
in place.

Visa refusal rates

8. The requirement for a visa refusal rate of less than 3
percent remains in the law, but new authority has been
added to waive those provisions. This waiver authority is
conditioned on a number of factors including adoption of
the enhanced security measures, counterterrorism
cooperation and sustained reduction of visa refusal rates.
The waiver will allow only countries with visa refusal
rates of not more than 10 percent in the previous fiscal
year to be considered for the waiver, or alternatively,
countries with an overstay rate (see para 12) below a
maximum level to be established by DHS and the Department
of State. As noted above, DHS must also meet the air exit
standards in the law and have an ETA in place before the
waiver authority can be exercised.

9. While a step forward, the waiver provisions in the new
law do not provide the degree of flexibility sought to
meet the President's goals for expanding membership in the
program. The Administration will continue to work with
Congress to bring needed flexibility to the VWP.

10. For countries below the 10 percent refusal rate
threshhold: Washington is already working with many of
the roadmap countries to clarify procedures on the new
security requirements. We will keep posts informed as the
process advances.

11. For countries above the 10 percent refusal rate: The
Administration is committed to work with Congress to gain
additional flexibility on refusal rate criteria.
Meanwhile, roadmap countries should seek to implement the
new security measures and continue their efforts to reduce
refusals and overstays.

12. Overstay rates: As an alternative to the 10 percent
visa refusal rate standard, the new legislation allows the
Administration to waive the 3 percent visa refusal rate
requirement if a country's visa overstay rate did not
exceed the maximum visa overstay rate to be established by
State and DHS. These rates are yet to be established and,
according to the conference report, should "reflect a
reasonable expectation" that the country can meet existing
statutory criteria for continued participation.
Calculation of the overstay rate will require exit data
that is not yet available and will be based on overstays
by nationals of the country. We will keep posts apprised
of developments in these area, which could, in practical
terms, enable the Administration to excercise its waiver
authority for some countries above the 10 percent refusal
rate threshhold.

--------------------------------------------- ----
Rolling out the changes: new and existing members
--------------------------------------------- ----

13. The new security elements impose additional
requirements both on VWP countries and on the United
States. We will not ask other countries to do what we are
not willing and able to reciprocate. The VWP amendment
includes security provisions that apply to all current
member countries. Uniform security standards are
essential because the threat of global terrorism is not
confined to particular corners of the globe. Countries
seeking to join the VWP will have to comply with the new
security measures before they are admitted into the
program. For current VWP members, although the new
security requirements are effective immediately,
transition periods, which may cover the next few years,
are anticipated to allow for their implementation, and VWP

STATE 00112505 004 OF 004

country travelers will not see any immediate changes. The
requirements and their implementation will form part of
discussions when current members are up for their regular
biannual reviews.

Roadmaps and Consular Working Groups

14. The United States will consult closely both with
current and prospective VWP partner governments as we move
forward in implementing these critically necessary
improvements to the VWP program.

15. For prospective VWP members/roadmap countries,
especially those where very high current visa refusal
rates effectively exclude them from consideration for
membership, it is especially critical that we continue to
work together and make full use of the Consular Working
Groups, as a means to convey the new security requirements
to host countries and work on ways to meet these
requirements and to continue to reduce rates of refusals
and overstays.

16. The new legislation falls short of European Union
hopes that a change in law would open up the program to
all 27 EU members (all of whom extend visa waiver benefits
to U.S. citizens). While the United States wanted greater
authority to expand the program and would be happy to
welcome all qualifying EU member states into the program,
each country must satisfy the program requirements set by
law as the United States makes decisions about visa
requirements on a country-by-country basis. The EU has
also expressed unhappiness about the new security
requirements being applied to existing VWP members. As
expressed in recent letters from European Commissioner for
Justice and Home Affairs Frattini and Portuguese Interior
Minister Pereira to the 9/11 bill conferees, the EU
believes existing member states meet most of the
requirements of the new law. DHS is preparing a response
to those letters, and indicates there are a number of
issues still to be discussed including passenger
information exchange and air marshal programs. Building
on visits to Hungary, Greece, Latvia, and Korea, DHS
intends to continue its consultations on the new security
measures with prospective member countries. DHS and State
will also be briefing Washington embassies to discuss
details and implications of the new legislation.

17. Department is ready to provide any additional
guidance that is requested. Points of contact are:
EUR/PGI Ivan Weinstein; EUR/ERA Alessandro Nardi; CA/VO
John Brennan; and DHS Dan Sullivan.

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