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O 101951Z AUG 07
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE

UNCLAS SECTION 01 OF 04 STATE 112505 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: CVIS PREL EUN JA
SUBJECT: PRESIDENT SIGNS VISA WAIVER PROGRAM REFORM LAW 
 
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. 
 
¶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 
Introduction. 
 
¶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. 
RICE