Visa Waiver Program
DHS Has Implemented the Electronic System for Travel Authorization, but Further Steps Needed to Address Potential Program Risks Gao ID: GAO-11-335 May 5, 2011The Visa Waiver Program (VWP) allows eligible nationals from 36 member countries to travel to the United States for tourism or business for 90 days or less without a visa. In 2007, Congress required the Secretary of Homeland Security, in consultation with the Secretary of State, to implement an automated electronic travel authorization system to determine, prior to travel, applicants' eligibility to travel to the United States under the VWP. Congress also required all VWP member countries to enter into an agreement with the United States to share information on whether citizens and nationals of that country traveling to the United States represent a security threat. In 2002, Congress mandated that the Department of Homeland Security (DHS) review, at least every 2 years, the security risks posed by each VWP country's participation in the program. In this report, GAO evaluates (1) DHS's implementation of an electronic system for travel authorization; (2) U.S. agencies' progress in negotiating informationsharing agreements; and (3) DHS's timeliness in issuing biennial reports. GAO reviewed relevant documents and interviewed U.S., foreign government, and travel industry officials in six VWP countries.
DHS has implemented the Electronic System for Travel Authorization (ESTA) and has taken steps to minimize the burden associated with the new program requirement. However, DHS has not fully evaluated security risks related to the small percentage of VWP travelers without verified ESTA approval. DHS requires applicants for VWP travel to submit biographical information and answers to eligibility questions through ESTA prior to travel. Travelers whose ESTA applications are denied can apply for a U.S. visa. In developing and implementing ESTA, DHS has made efforts to minimize the burden imposed by the new requirement. For example, although travelers formerly filled out a VWP application form for each journey to the United States, ESTA approval is generally valid for 2 years. Most travel industry officials GAO interviewed in six VWP countries praised DHS's widespread ESTA outreach efforts, reasonable implementation time frames, and responsiveness to feedback, but expressed dissatisfaction with the costs associated with ESTA. In 2010, airlines complied with the requirement to verify ESTA approval for almost 98 percent of VWP passengers prior to boarding, but the remaining 2 percent-- about 364,000 travelers--traveled under the VWP without verified ESTA approval. DHS has not yet completed a review of these cases to know to what extent they pose a risk to the program. To meet the legislative requirement, DHS requires that VWP countries enter into three information-sharing agreements with the United States; however, only half of the countries have fully complied with this requirement and many of the signed agreements have not been implemented. Half of the countries have entered into agreements to share watchlist information about known or suspected terrorists and to provide access to biographical, biometric, and criminal history data. By contrast, almost all of the 36 VWP countries have entered into an agreement to report lost and stolen passports. DHS, with the support of interagency partners, has established a compliance schedule requiring the last of the VWP countries to finalize these agreements by June 2012. Although termination from the VWP is one potential consequence for countries not complying with the information-sharing agreement requirement, U.S. officials have described it as undesirable. DHS, in coordination with State and Justice, has developed measures short of termination that could be applied to countries not meeting their compliance date. DHS has not completed half of the most recent biennial reports on VWP countries' security risks in a timely manner. According to officials, DHS assesses, among other things, counterterrorism capabilities and immigration programs. However, DHS has not completed the latest biennial reports for 18 of the 36 VWP countries in a timely manner, and over half of these reports are more than 1 year overdue. Further, in the case of two countries, DHS was unable to demonstrate that it had completed reports in the last 4 years. DHS cited a number of reasons for the reporting delays. For example, DHS officials said that they intentionally delayed report completion because they frequently did not receive mandated intelligence assessments in a timely manner and needed to review these before completing VWP country biennial reports. GAO recommends that DHS establish time frames for the regular review of cases of ESTA noncompliance and take steps to address delays in the biennial review process. DHS concurred with the report's recommendations.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Jess T. Ford Team: Government Accountability Office: International Affairs and Trade Phone: (202) 512-4268GAO-11-335, Visa Waiver Program: DHS Has Implemented the Electronic System for Travel Authorization, but Further Steps Needed to Address Potential Program Risks
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United States Government Accountability Office:
GAO:
Report to the Committee on Homeland Security and Governmental Affairs,
U.S. Senate:
May 2011:
Visa Waiver Program:
DHS Has Implemented the Electronic System for Travel Authorization,
but Further Steps Needed to Address Potential Program Risks:
GAO-11-335:
GAO Highlights:
Highlights of GAO-11-335, a report to the Committee on Homeland
Security and Governmental Affairs, U.S. Senate.
Why GAO Did This Study:
The Visa Waiver Program (VWP) allows eligible nationals from 36 member
countries to travel to the United States for tourism or business for
90 days or less without a visa. In 2007, Congress required the
Secretary of Homeland Security, in consultation with the Secretary of
State, to implement an automated electronic travel authorization
system to determine, prior to travel, applicants‘ eligibility to
travel to the United States under the VWP. Congress also required all
VWP member countries to enter into an agreement with the United States
to share information on whether citizens and nationals of that country
traveling to the United States represent a security threat. In 2002,
Congress mandated that the Department of Homeland Security (DHS)
review, at least every 2 years, the security risks posed by each VWP
country‘s participation in the program. In this report, GAO evaluates
(1) DHS‘s implementation of an electronic system for travel
authorization; (2) U.S. agencies‘ progress in negotiating information-
sharing agreements; and (3) DHS‘s timeliness in issuing biennial
reports. GAO reviewed relevant documents and interviewed U.S., foreign
government, and travel industry officials in six VWP countries.
What GAO Found:
DHS has implemented the Electronic System for Travel Authorization
(ESTA) and has taken steps to minimize the burden associated with the
new program requirement. However, DHS has not fully evaluated security
risks related to the small percentage of VWP travelers without
verified ESTA approval. DHS requires applicants for VWP travel to
submit biographical information and answers to eligibility questions
through ESTA prior to travel. Travelers whose ESTA applications are
denied can apply for a U.S. visa. In developing and implementing ESTA,
DHS has made efforts to minimize the burden imposed by the new
requirement. For example, although travelers formerly filled out a VWP
application form for each journey to the United States, ESTA approval
is generally valid for 2 years. Most travel industry officials GAO
interviewed in six VWP countries praised DHS‘s widespread ESTA
outreach efforts, reasonable implementation time frames, and
responsiveness to feedback, but expressed dissatisfaction with the
costs associated with ESTA. In 2010, airlines complied with the
requirement to verify ESTA approval for almost 98 percent of VWP
passengers prior to boarding, but the remaining 2 percent”about
364,000 travelers”traveled under the VWP without verified ESTA
approval. DHS has not yet completed a review of these cases to know to
what extent they pose a risk to the program.
To meet the legislative requirement, DHS requires that VWP countries
enter into three information-sharing agreements with the United
States; however, only half of the countries have fully complied with
this requirement and many of the signed agreements have not been
implemented. Half of the countries have entered into agreements to
share watchlist information about known or suspected terrorists and to
provide access to biographical, biometric, and criminal history data.
By contrast, almost all of the 36 VWP countries have entered into an
agreement to report lost and stolen passports. DHS, with the support
of interagency partners, has established a compliance schedule
requiring the last of the VWP countries to finalize these agreements
by June 2012. Although termination from the VWP is one potential
consequence for countries not complying with the information-sharing
agreement requirement, U.S. officials have described it as
undesirable. DHS, in coordination with State and Justice, has
developed measures short of termination that could be applied to
countries not meeting their compliance date.
DHS has not completed half of the most recent biennial reports on VWP
countries‘ security risks in a timely manner. According to officials,
DHS assesses, among other things, counterterrorism capabilities and
immigration programs. However, DHS has not completed the latest
biennial reports for 18 of the 36 VWP countries in a timely manner,
and over half of these reports are more than 1 year overdue. Further,
in the case of two countries, DHS was unable to demonstrate that it
had completed reports in the last 4 years. DHS cited a number of
reasons for the reporting delays. For example, DHS officials said that
they intentionally delayed report completion because they frequently
did not receive mandated intelligence assessments in a timely manner
and needed to review these before completing VWP country biennial
reports.
What GAO Recommends:
GAO recommends that DHS establish time frames for the regular review
of cases of ESTA noncompliance and take steps to address delays in the
biennial review process. DHS concurred with the report‘s
recommendations.
View [hyperlink, http://www.gao.gov/products/GAO-11-335] or key
components. For more information, contact Jess Ford at (202) 512-4268
or fordj@gao.gov.
[End of section]
Contents:
Letter:
Background:
DHS Implemented ESTA to Meet Mandated Requirement but Has Not Fully
Analyzed Risks from Noncompliance:
Only Half of VWP Countries Have Entered Into All Required Information-
Sharing Agreements:
DHS Has Not Consistently Completed Timely Biennial Reports:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: How to Apply for ESTA Approval:
Appendix III: Comments from the Department of Homeland Security:
Appendix IV: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Visa Waiver Program Eligibility Questions in the ESTA
Application:
Table 2: U.S. Government Outreach Efforts Undertaken to Publicize ESTA:
Table 3: Status of Information-Sharing Agreements Required Since 2007
for VWP Countries as Reported by U.S. Government Agencies:
Figures:
Figure 1: Visa Waiver Program Member Countries:
Figure 2: DHS Process for ESTA Application Review:
Figure 3: ESTA Applications Approved and Denied, 2008-2010:
Figure 4: Percentage of VWP Passengers Boarded with Verified ESTA
Approval, 2008-2010:
Figure 5: The ESTA Application Welcome Page:
Abbreviations:
9/11 Act Implementing Recommendations of 9/11 Commission Act of 2007
CBP: U.S. Customs and Border Protection:
DNI: Director of National Intelligence:
DHS: Department of Homeland Security:
ESTA: Electronic System for Travel Authorization:
HSPD-6: Homeland Security Presidential Directive 6:
Interpol: International Criminal Police Organization:
Justice: Department of Justice:
LASP: Lost and Stolen Passports:
PCSC: Preventing and Combating Serious Crime:
State: Department of State:
TPA: Travel Promotion Act of 2009:
TSC: Terrorist Screening Center:
VWP: Visa Waiver Program:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
May 5, 2011:
The Honorable Joseph Lieberman:
Chairman:
The Honorable Susan Collins:
Ranking Member:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
In 2010, more than 17 million foreign nationals from 36 participating
countries entered the United States for tourism or business for 90
days or less under the Visa Waiver Program (VWP). Congress established
the program in 1986 to facilitate international travel without
threatening U.S. security. The Implementing Recommendations of the
9/11 Commission Act of 2007 (9/11 Act) called for the Department of
Homeland Security (DHS), which implements the program, to take steps
to enhance the security of the VWP.[Footnote 1] Among the mandated
changes were (1) the implementation of an electronic system for travel
authorization designed to determine in advance of travel the
eligibility of VWP applicants to travel to the United States under the
program, (2) a requirement that all VWP countries enter into
agreements to share information with the United States on whether
citizens and nationals of that country traveling under the program
represent a threat to the security or welfare of the United States,
and (3) a requirement that all VWP countries enter into agreements
with the United States to report or make available lost and stolen
passport data to the United States. Prior to these changes, Congress
also mandated in 2002 that DHS evaluate and report on the security
risks posed by each visa waiver country's participation in the program
at least once every 2 years. In 2006, GAO identified deficiencies in
DHS's biennial reporting process and recommended the finalization of
protocols that included deadlines for report completion.[Footnote 2]
VWP travelers are not subject to the same degree of screening as those
with visas because they are not interviewed by a Department of State
(State) consular officer before arriving at a U.S. port of entry. As a
result, concerns have been raised that the VWP could be exploited to
gain illegal entry into the United States. Effective oversight of the
VWP is essential to find the right balance between facilitating
legitimate travel and screening for potential terrorists, criminals,
and others that may pose national security, law enforcement, or
immigration concerns.
In response to your request, this report (1) reviews DHS's
implementation of the Electronic System for Travel Authorization
(ESTA); (2) assesses U.S. agencies' progress in negotiating the
required information-sharing agreements with VWP countries; and (3)
assesses the timeliness of DHS's biennial reports on VWP countries.
To assess the implementation of ESTA, we reviewed relevant
documentation, including 2006 and 2008 GAO reports evaluating the VWP
and statistics on program applicants and travelers.[Footnote 3] We
also interviewed consular, public diplomacy, and law enforcement
officials at U.S. embassies in six VWP countries: France, Ireland,
Japan, South Korea, Spain, and the United Kingdom. We met with
political and commercial officers at five of the six U.S. embassies.
In the six countries, we also met with airline officials and travel
industry officials regarding ESTA implementation. While the results of
our site visits are not generalizable, they provided perspectives on
VWP and ESTA implementation. To assess DHS's progress in meeting
information-sharing agreement requirements, we reviewed the templates
used to begin negotiations for information-sharing agreements and
lists of countries that have met the requirement to enter into
information-sharing agreements with the United States. We interviewed
officials from DHS, State, and the Department of Justice (Justice) at
headquarters and at U.S. embassies in six VWP countries who have
participated in negotiating or implementing information-sharing
agreements with VWP countries. We also interviewed foreign government
officials from agencies responsible for negotiating information-
sharing agreements with the U.S. government and International Criminal
Police Organization (Interpol) officials in Lyon, France, who receive
the information on lost and stolen passports from VWP country
governments. To assess the timeliness of biennial reports on VWP
countries, we reviewed documentation of DHS biennial report completion
and DHS's standard operating procedures for conducting biennial
reviews.
We conducted this performance audit from January 2010 to May 2011, in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
We received written comments from DHS, which we have reprinted in
appendix III. We also received technical comments from DHS, State, and
Justice and incorporated those comments, as appropriate. DHS agreed
with our recommendations and stated that it is undertaking and
considering efforts to address them. DHS provided additional
information on its efforts to monitor and assess issues that may pose
a risk to U.S. interests.
Background:
Legislation Authorizing the VWP:
The Immigration Reform and Control Act of 1986 created the VWP as a
pilot program,[Footnote 4] and the Visa Waiver Permanent Program Act
permanently established the program in October 2000.[Footnote 5] The
program's purpose is to facilitate the legitimate travel of visitors
for business or tourism. By providing visa-free travel to the United
States, the program is intended to boost international business and
tourism, as well as airline revenues, and create substantial economic
benefits to the United States. Moreover, the program allows State to
allocate more resources to visa-issuing posts in countries with higher
risk applicant pools.
In November 2002, Congress passed the Homeland Security Act of 2002,
which established DHS and gave it responsibility for establishing visa
policy, including policy for the VWP.[Footnote 6] Previously, Justice
had overall responsibility for managing the program. In July 2004, DHS
created the Visa Waiver Program Oversight Unit within the Office of
International Enforcement and directed that unit to oversee VWP
activities and monitor participating VWP countries' adherence to the
program's statutory and policy requirements. In September 2007, the
office was renamed the Visa Waiver Program Office. To help fulfill its
responsibilities, DHS established an interagency working group
comprising representatives from State, Justice, and several DHS
component agencies and offices, including U.S. Customs and Border
Protection (CBP) and U.S. Immigration and Customs Enforcement.
Since the attacks on the United States on September 11, 2001, Congress
has passed several other laws to strengthen border security policies
and procedures. For example, the Enhanced Border Security and Visa
Entry Reform Act of 2002[Footnote 7] increased the frequency--from
once every 5 years to at least once every 2 years--of mandated
assessments of the effect of each country's continued participation in
the VWP on U.S. security, law enforcement, and immigration
interests.[Footnote 8] The 9/11 Act also added security requirements
for all VWP countries, such as the requirement that countries enter
into an agreement with the United States to share information on
whether citizens and nationals of that country traveling to the United
States represent a threat to the security or welfare of the United
States or U.S. citizens.
VWP Member Countries:
When the Visa Waiver Pilot Program was established in 1986,
participation was limited to eight countries. Since then, the VWP has
expanded to 36 countries.[Footnote 9] Figure 1 shows the locations of
the current member countries.
Figure 1: Visa Waiver Program Member Countries:
[Refer to PDF for image: illustrated maps]
Andorra;
Austria;
Australia;
Belgium;
Brunei;
Czech Republic;
Denmark;
Estonia;
Finland;
France;
Germany;
Greece;
Hungary;
Iceland;
Ireland;
Italy;
Japan;
Latvia;
Liechtenstein;
Lithuania;
Luxembourg;
Malta;
Monaco;
The Netherlands;
New Zealand;
Norway;
Portugal;
San Marino;
Singapore;
Slovakia;
Slovenia;
South Korea;
Spain;
Sweden;
Switzerland;
United Kingdom.
Sources: DHS (data); Map Resources (map).
[End of figure]
VWP Requirements:
To qualify for the VWP a country must:
* offer reciprocal visa-free travel privileges to U.S. citizens;
* have had a refusal rate of less than 3 percent for the previous
fiscal year for its nationals who apply for business and tourism visas;
* issue machine-readable passports to its citizens;
* enter into an agreement with the United States to report or make
available through Interpol or other means as designated by the
Secretary of Homeland Security information about the theft or loss of
passports;
* accept the repatriation of any citizen, former citizen, or national
against whom a final order of removal is issued no later than 3 weeks
after the order is issued;
* enter into an agreement with the United States to share information
regarding whether citizens and nationals of that country traveling to
the United States represents a threat to U.S. security or welfare; and:
* be determined not to compromise the law enforcement (including
immigration enforcement) or security interests of the United States by
its inclusion in the program.
In addition, all passports issued after October 26, 2005, must contain
a digital photograph in the document for travel to the United States
under the program, and passports issued after October 26, 2006, must
be e-passports that are tamper-resistant and incorporate a biometric
identifier.[Footnote 10] Nationals from countries that have joined the
VWP since 2008 must use e-passports in order to travel under the VWP.
Effective July 1, 2009, all emergency or temporary passports must be e-
passports as well for use under the VWP.
To be eligible to travel without a visa under the program, nationals
of VWP countries must:
* have received an authorization to travel under the VWP through ESTA;
* have a valid passport issued by the participating country and be a
national of that country;
* seek entry for 90 days or less as a temporary visitor for business
or tourism;
* have been determined by CBP at the U.S. port of entry to represent
no threat to the welfare, health, safety, or security of the United
States;
* have complied with conditions of any previous admission under the
program (for example, individuals must not have overstayed the 90-day
limit during prior visits under the VWP);
* if entering by air or sea, possess a return trip ticket to any
foreign destination issued by a carrier that has signed an agreement
with the U.S. government to participate in the program, and must have
arrived in the United States aboard such a carrier; and:
* if entering by land, have proof of financial solvency and a domicile
abroad to which they intend to return.
Travelers who do not meet these requirements are required to obtain a
visa from a U.S. embassy or consulate overseas before traveling to the
United States. Unlike visa holders, VWP travelers generally may not
apply for a change in status or an extension of the allowed period of
stay. Individuals who have been refused admission to the United States
previously must also apply for a visa. VWP travelers waive their right
to review or appeal a CBP officer's decision regarding their
admissibility at the port of entry or to contest any action for
removal, other than on the basis of an application for asylum.
DHS Implemented ESTA to Meet Mandated Requirement but Has Not Fully
Analyzed Risks from Noncompliance:
DHS has implemented ESTA to meet the 9/11 Act requirement intended to
enhance program security and has taken steps to minimize the burden on
travelers to the United States added by the new requirement, but it
has not fully analyzed the risks of carrier and passenger
noncompliance with the requirement. DHS developed ESTA to collect
passenger data and complete security checks on the data before
passengers board a U.S. bound carrier. In developing and implementing
ESTA, DHS took several steps to minimize the burden associated with
ESTA use. For example, ESTA reduced the requirement that passengers
provide biographical information to DHS officials from every trip to
once every 2 years. In addition, because of ESTA, DHS has informed
passengers who do not qualify for VWP travel that they need to apply
for a visa before they travel to the United States. Moreover, most
travel industry officials we interviewed in six VWP countries praised
DHS's widespread ESTA outreach efforts, reasonable implementation time
frames, and responsiveness to feedback but expressed dissatisfaction
over ESTA fees. Also, although carriers complied with the ESTA
requirement to verify ESTA approval for almost 98 percent of VWP
passengers before boarding them in 2010, DHS does not have a target
completion date for a review to identify potential security risks
associated with the small percentage of cases of traveler and carrier
noncompliance with the ESTA requirement.
DHS Implemented ESTA to Meet Congressional Requirement and Use Rose
Rapidly After DHS Made It Mandatory:
DHS Implemented ESTA to Assist with Preboarding Checks of Passenger
Data:
Pursuant to the 9/11 Act, DHS implemented ESTA, an automated, Web-
based system, to assist in assessing passengers' eligibility to travel
to the United States under the VWP by air or sea before they board a
U.S. bound carrier.[Footnote 11] DHS announced ESTA as a new
requirement for travelers entering the United States under the VWP on
June 9, 2008, and began accepting ESTA applications on a voluntary
basis in August 2008. Beginning January 12, 2009, DHS required all VWP
travelers to apply for ESTA approval prior to travel to the United
States. DHS began enforcing compliance with ESTA requirements in March
2010, exercising the right to fine a carrier or rescind its VWP
signatory status for failure to comply with the ESTA requirement.
Although passengers may apply for ESTA approval anytime before they
board a plane or ship bound for the United States, DHS recommends that
travelers apply when they begin preparing travel plans.[Footnote 12]
Prior to ESTA's implementation, all travelers from VWP countries
manually completed a form--the I-94W--en route to the United States,
supplying biographical information and answering questions to
determine eligibility for the VWP. DHS officials collected the forms
from VWP passengers at U.S. ports of entry and used the information on
the forms to qualify or disqualify the passengers for entry into the
United States without a visa.
DHS uses ESTA to electronically collect VWP applicants' biographical
information and responses to eligibility questions. The ESTA
application requires the same information collected through the I-94W
forms. When an applicant submits an ESTA application, DHS systems
evaluate the applicant's biographical information and responses to VWP
eligibility questions. (See table 1.) If the DHS evaluation results in
a denial of the application, the applicant is directed to apply for a
U.S. visa.[Footnote 13] For all other applications, if this review
process locates no information requiring further analysis, DHS
notifies the applicant that the application is approved;[Footnote 14]
if the process locates such information, DHS notifies the applicant
that the application is pending, and DHS performs a manual check on
the information. For example, if an applicant reports that a previous
U.S. visa application was denied, DHS deems the ESTA application
pending and performs additional review. If on further review of any
pending application DHS determines that information disqualifies the
applicant from VWP travel, the application is denied, and the
individual is directed to apply for a visa; otherwise the applicant is
approved.
Table 1: Visa Waiver Program Eligibility Questions in the ESTA
Application:
a) Do you have a communicable disease; physical or mental disorder; or
are you a drug abuser or addict?
b) Have you ever been arrested or convicted for an offense or crime
involving moral turpitude or a violation related to a controlled
substance; or have been arrested or convicted for two or more offenses
for which the aggregate sentence to confinement was five years or
more; or have been a controlled substance trafficker; or are you
seeking entry to engage in criminal or immoral activities?
c) Have you ever been or are you now involved in espionage or
sabotage; or in terrorist activities; or genocide; or between 1933 and
1945 were you involved, in any way, in persecutions associated with
Nazi Germany or its allies?
d) Are you seeking to work in the U.S.; or have you ever been excluded
and deported; or been previously removed from the United States or
procured or attempted to procure a visa or entry into the U.S. by
fraud or misrepresentation?
e) Have you ever detained, retained or withheld custody of a child
from a U.S. citizen granted custody of the child?
f) Have you ever been denied a U.S. visa or entry into the U.S. or had
a U.S. visa canceled?
g) Have you ever asserted immunity from prosecution?
Source: DHS Electronic System for Travel Authorization application.
Note: This table is a direct download from the DHS application with no
changes.
[End of table]
Figure 2 illustrates the ESTA application review process. (See
appendix II for information on how to apply for ESTA.)
Figure 2: DHS Process for ESTA Application Review:
[Refer to PDF for image: illustration]
Electronic submission of ESTA application:
1) Electronic evaluation of application.
If no disqualifying information is identified: Application approved.
If confirmed disqualifying information is identified Application
denied[A].
If potentially disqualifying information is identified: Pending.
2) Manual review of application.
3) If manual review clears DHS concerns: Application approved.
Or:
4) If manual review determines that applicant is ineligible for
travel: Application denied[A].
Source: GAO analysis of DHS data.
[A] When an application is denied, the response from DHS directs the
applicant to State's Web site for information about applying for a
visa.
[End of figure]
ESTA Use Rose Rapidly Once Mandatory; DHS Has Approved Most ESTA
Applications but Deemed Thousands Ineligible:
According to DHS data, the number of individuals submitting ESTA
applications increased from about 180,000 per month in 2008, when
applying was voluntary, to more than 1.15 million per month in 2009
and 2010 after DHS made ESTA mandatory. DHS approved over 99 percent
of the almost 28.6 million ESTA applications submitted from August
2008 through December 2010, but it also denied the applications of
thousands of individuals it deemed ineligible to travel to the United
States under the VWP. The denial rate has decreased slightly from 0.42
percent in 2008 to 0.24 percent in 2010. (See figure 3.)
Figure 3: ESTA Applications Approved and Denied, 2008-2010:
[Refer to PDF for image: vertical bar graph]
Year: 2008 (Application voluntary);
Number of applicants: 900,155;
Denied applications: 3,751 (0.42%).
Year: 2009 (Application mandatory after January 12, 2009);
Number of applicants: 13,765,000;
Denied applications: 40,695 (0.29%).
Year: 2010 (Application mandatory after January 12, 2009)
Number of applicants: 13,855,899;
Denied applications: 32,784 (0.24%).
Source: GAO analysis of DHS data.
[End of figure]
DHS data show that DHS denied 77,132 of the almost 28.6 million
applications for VWP travel submitted through ESTA from 2008 through
2010. Reasons for denials included applicants' responses to the
eligibility questions, as well as DHS's discovery of other information
that disqualified applicants from travel under the VWP. Examples are
as follows:
* DHS denied 19,871 applications because of applicant responses to the
eligibility questions.
* DHS denied 36,744 pending applications because of the results of
manual reviews of passenger data.
* DHS denied 15,078 applications because the applicants had unresolved
cases of a lost or stolen passport that DHS decided warranted an in-
person visa interview with a State consular officer.
In addition, ESTA applications are regularly reevaluated as new
information becomes available to DHS, potentially changing applicants'
ESTA status.
DHS Made Efforts to Minimize Burden of ESTA Requirement:
In developing and implementing ESTA, DHS has taken steps to minimize
the burden associated with ESTA's use.
* Less frequent applications. ESTA approval for program participants
generally remains valid for 2 years. Prior to ESTA implementation,
passengers traveling under the program were required to complete the I-
94W form to determine their program eligibility each time they boarded
a carrier to the United States. When DHS implemented ESTA, the burden
on passengers increased because DHS also required ESTA applicants to
complete an I-94W form. However, on June 29, 2010, DHS eliminated the
I-94W requirement for most air and sea travelers who had been approved
by ESTA. According to travel industry officials in the six VWP
countries we visited, this change has simplified travel for many
travelers, especially business travelers who travel several times each
year. DHS officials said the change also eliminated the problems of
deciphering sometimes illegible handwriting on the I-94W forms.
* Earlier notice of ineligibility. ESTA notifies passengers of program
ineligibility, and therefore of the need to apply for a visa, before
they embark for the United States. Prior to ESTA implementation,
passengers from VWP countries did not learn until reaching the U.S.
port of entry whether they were eligible to enter under the VWP or
would be required to obtain a visa. Because DHS received passengers'
completed I-94W forms at the port of entry, DHS officials did not
recommend that carriers prevent passengers from VWP countries from
boarding a U.S. bound carrier without a visa unless they were deemed
ineligible based on other limited preboarding information provided by
carriers.
* Widespread U.S. government outreach. VWP country government and
travel industry officials praised widespread U.S. government efforts
to provide information about the ESTA requirements.[Footnote 15] After
announcing ESTA, DHS began an outreach campaign in VWP countries and
for foreign government embassy staff in the United States, with the
assistance of other U.S. agencies, to publicize the requirement. DHS
officials said they spent $4.5 million on ESTA outreach efforts.
Although none of the six embassies we visited tracked the costs
associated with outreach, each embassy provided documentation of their
use of many types of outreach efforts listed in table 2. VWP country
government officials and travel industry officials we met said that
although they were initially concerned that ESTA implementation would
be difficult and negatively affect airlines and many VWP passengers,
implementation went more smoothly than expected.
Table 2: U.S. Government Outreach Efforts Undertaken to Publicize ESTA:
Outreach effort: ESTA ads;
Target audience: General public, travel industry officials;
Where used (examples): U.S. embassy Web sites, travel industry
publications, national newspapers, YouTube™.
Outreach effort: Informational and promotional materials;
Target audience: General public, travel industry officials;
Where used (examples): U.S. embassies, airports, travel agencies,
travel industry events.
Outreach effort: Conferences and media events;
Target audience: General public, travel industry officials;
Where used (examples): U.S. embassies, airports, travel industry
events.
Outreach effort: Outreach to U.S. and foreign government officials;
Target audience: U.S. embassy officials, foreign government officials;
Where used (examples): U.S. embassies, embassy day events.
Sources: DHS and State officials.
[End of table]
* Reasonable implementation time frames. Most of the VWP country
airline officials with whom we met said that the ESTA implementation
time frames set by DHS were reasonable. In 2008, DHS introduced ESTA
and made compliance voluntary. The following year, DHS made ESTA
mandatory but did not levy fines if airlines did not verify
passengers' ESTA approval before boarding them. This allowed the U.S.
government more time to publicize the requirement, according to DHS
officials. Enforcement began in March 2010. According to most of the
officials we interviewed from 17 airlines in the six VWP countries we
visited, the phased-in compliance generally allowed passengers
sufficient time to learn about the ESTA requirement and allowed most
airlines sufficient time to update their systems to meet the
requirement. ESTA officials said that the phased-in compliance also
provided time to fix problems with the system before enforcing airline
and passenger compliance.
* DHS responsiveness to travel industry feedback. VWP travel industry
officials said that DHS officials' efforts to adapt ESTA in response
to feedback have clarified the application process. Since initial
implementation of ESTA in 2008, DHS has issued updates to the system
on 21 occasions. According to DHS officials, many of these changes
addressed parts of the application that were unclear to applicants.
For example, DHS learned from some travel industry officials that many
applicants did not know how to answer a question on the application
about whether they had committed a crime of moral turpitude because
they did not know the definition of "moral turpitude." In September
2010, DHS released an updated ESTA application that included a
definition of the term directly under the question. Further, updates
have made the ESTA application available in 22 languages instead of
only English. DHS also made it possible for denied applicants to
reapply and be approved if they mistakenly answered "yes" to select
eligibility questions. Although travel industry officials we met with
in six VWP countries said there are still ways ESTA should be
improved, they said that DHS's responsiveness in amending the ESTA
application had made the system more user friendly.
* Shorter reported passenger processing times. According to a study
commissioned by DHS and conducted at three U.S. ports of entry, ESTA
has reduced the average time DHS takes to process a VWP passenger
before deciding whether to admit them into the United States by a
range of between 17.8 and 54 percent.[Footnote 16] The study
attributed this time savings to factors such as the reduction in
number of documents DHS officers needed to handle and evaluate and the
reduction in data entry needed at the port of entry.
Although DHS took steps to minimize the burden imposed by ESTA
implementation, almost all government and travel industry officials we
met in six VWP countries expressed dissatisfaction over the Travel
Promotion Act of 2009 (TPA)[Footnote 17] fee collected as part of the
ESTA application. In September 2010, the U.S. government began to
charge ESTA applicants a $14 fee when they applied for ESTA approval,
including $10 for the creation of a corporation to promote travel to
the United States and $4 to fund ESTA operations.[Footnote 18]
According to many of the VWP country government and travel industry
officials with whom we met, the TPA fee is unfair because it burdens
those traveling to the United States with an added fee to encourage
others to travel to the United States. Some of the officials pointed
out that it was unrelated to VWP travel and that it runs counter to
the program objective of simplifying travel for VWP participants. DHS
officials said that many government and travel industry officials from
VWP countries view the fee as a step away from visa-free travel and
consider ESTA with the fee "visa-lite." By comparison, a nonimmigrant
visitor visa costs over $100 but is generally valid for five times as
long as ESTA approval. Several foreign officials said they expected
that the fee amount would continue to rise over time. DHS officials
stated that they cannot control the TPA portion of the ESTA fee
because it was mandated by law.[Footnote 19]
In addition, some airline officials expressed concern that the ESTA
requirement was one of many requirements imposed by DHS that required
the carriers to bear the cost of system updates. DHS officials said
that the ESTA requirement did impose a new cost to carriers, but that
it was necessary to strengthen the security of the VWP.
Carrier Compliance with ESTA Requirement Increased After DHS Made ESTA
Mandatory, but DHS Has Not Fully Assessed Risks of Noncompliance:
According to DHS, air and sea carriers are required to verify that
each passenger they board has ESTA approval before boarding them.
Carriers' compliance with the requirement has increased since DHS made
ESTA mandatory and has exceeded 99 percent in recent months. DHS data
show the following:
* 2008. In 2008, when VWP passenger and carrier compliance was
voluntary, airlines and sea carriers verified ESTA approval for about
5.4 percent of passengers boarded under the VWP. According to DHS
officials, carriers needed time to update their systems to receive
passengers' ESTA status, and DHS needed time to publicize the new
travel requirement.
* 2009. ESTA became mandatory in January 2009, and carriers verified
ESTA approval for about 88 percent of passengers boarded under the VWP
that year.
* 2010. In March 2010, DHS began enforcing carrier compliance. In that
year, carriers verified ESTA approval for almost 98 percent of VWP
passengers. As of January 2011, DHS had imposed fines on VWP carriers
for 5 of the passengers who had been allowed to board without ESTA
approval.[Footnote 20]
Figure 4 shows the percentage of VWP passengers boarded by carriers
who had verified the passengers' ESTA approval. In addition, from
September 2010 through January 2011, carrier compliance each month
exceeded 99 percent.
Figure 4: Percentage of VWP Passengers Boarded with Verified ESTA
Approval, 2008-2010:
[Refer to PDF for image: 3 pie-charts]
2008:
Verification voluntary.
VWP travelers boarded without verified ESTA approval: 94.6%;
VWP travelers boarded with verified ESTA approval: 5.4%.
2009:
Verification mandatory as of January 12, 2009.
VWP travelers boarded without verified ESTA approval: 12.3%;
VWP travelers boarded with verified ESTA approval: 87.7%.
2010:
Compliance enforced as of March 20, 2010.
VWP travelers boarded without verified ESTA approval: 2.2%;
VWP travelers boarded with verified ESTA approval: 97.8%.
Source: GAO analysis of DHS data.
[End of figure]
DHS Has Not Fully Analyzed Risks Associated with ESTA Noncompliance:
Although carriers verified ESTA approval for almost 98 percent of VWP
passengers before boarding them for VWP travel in 2010, DHS has not
fully analyzed the potential risks posed by cases where carriers
boarded passengers for VWP travel without verifying that they had ESTA
approval. In 2010, about 2 percent--364,086 VWP passengers--were
boarded without verified ESTA approval. For most of these passengers--
363,438, or about 99.8 percent--no ESTA application had been recorded.
The remainder without ESTA approval--648, or about 0.2 percent--were
passengers whose ESTA applications had been denied.[Footnote 21] DHS
officials told us that, although there is no official agency plan for
monitoring and oversight of ESTA, the ESTA office is undertaking a
review of each case of a carrier's boarding a VWP traveler without an
approved ESTA application; however, DHS has not established a target
date for completing this review. In its review of these cases, DHS
officials said they expect to determine why the carrier boarded the
passengers, whether and why DHS admitted these individuals into the
United States, and whether the airline or sea carrier should be fined
for noncompliance.
DHS tracks some data on passengers that travel under the VWP without
verified ESTA approval but does not track other data that would help
officials know the extent to which noncompliance poses a risk to the
program. For example, although DHS officials said that about 180 VWP
travelers who arrive at a U.S. port of entry without ESTA approval are
admitted to the United States each day, they have not tracked how
many, if any, of those passengers had been denied by ESTA.[Footnote
22] DHS also reported that 6,486 VWP passengers were refused entry
into the United States at the port of entry in 2010, but that number
includes VWP passengers for whom carriers had verified ESTA approval.
Officials did not track how many of those had been boarded without
verified ESTA approval. DHS also did not know how many passengers
without verified ESTA approval were boarded with DHS approval after
system outages precluded timely verification of ESTA approval.
Without a completed analysis of noncompliance with ESTA requirements,
DHS is unable to determine the level of risk that noncompliance poses
to VWP security and to identify improvements needed to minimize
noncompliance. In addition, without analysis of data on travelers who
were admitted to the United States without a visa after being denied
by ESTA, DHS cannot determine the extent to which ESTA is accurately
identifying individuals who should be denied travel under the program.
Only Half of VWP Countries Have Entered Into All Required Information-
Sharing Agreements:
Although DHS and partners at State and Justice have made progress in
negotiating information-sharing agreements with VWP countries,
required by the 9/11 Act, only half of the countries have entered into
all required agreements. In addition, many of the agreements entered
into have not been implemented. The 9/11 Act does not establish an
explicit deadline for compliance, but DHS with support from State and
Justice has produced a completion schedule that requires agreements to
be entered into by the end of each country's current or next biennial
review cycle, the last of which will be completed by June 2012. In
coordination with State and Justice, DHS also outlined measures short
of termination that may be applied to VWP countries not meeting their
compliance date.
DHS Requires VWP Countries to Enter Into Three Agreements:
The 9/11 Act specifies that each VWP country must enter into
agreements with the United States to share information regarding
whether citizens and nationals of that country traveling to the United
States represent a threat to the security or welfare of the United
States and to report lost or stolen passports. DHS, in consultation
with other agencies, has determined that VWP countries can satisfy the
requirement by entering into the following three bilateral agreements:
* Homeland Security Presidential Directive 6 (HSPD-6),
* Preventing and Combating Serious Crime (PCSC), and:
* Lost and Stolen Passports (LASP).[Footnote 23]
According to DHS officials, countries joining the VWP after the 9/11
Act entered into force are required to enter into HSPD-6 and PCSC
agreements with the United States as a condition of admission into the
program. In addition, prior to joining the VWP, such countries are
required to enter into agreements containing specific arrangements for
information sharing on lost and stolen passports. As illustrated in
table 3 below, DHS, State, and Justice have made some progress with
VWP countries in entering into the agreements.
Table 3: Status of Information-Sharing Agreements Required Since 2007
for VWP Countries as Reported by U.S. Government Agencies:
Agreement: HSPD-6;
Number entered into: 19;
Percentage entered into: 53%;
Number implemented: 13;
Percentage implemented: 36%;
Type of information shared: Known and suspected terrorists.
Agreement: PCSC;
Number entered into: 18[A];
Percentage entered into: 50%;
Number implemented: 0;
Percentage implemented: 0%;
Type of information shared: Perpetrators of serious crime.
Agreement: LASP;
Number entered into: 34;
Percentage entered into: 94%;
Number implemented: 34[B];
Percentage implemented: 94%;
Type of information shared: Lost and stolen passports.
Sources: DHS, Justice, and State.
[A] As of January 2011, the following 18 countries have met the
requirement to enter into PCSC agreements: Austria, the Czech
Republic, Denmark, Estonia, Finland, Germany, Greece, Italy, Latvia,
Lithuania, Hungary, Malta, the Netherlands, Portugal, Slovakia, South
Korea, Spain, and the United Kingdom. According to DHS officials, pre-
existing agreements with one of these countries fulfill PCSC
information-sharing requirements and eliminate the need to enter into
a separate PCSC agreement.
[B] Although 2 VWP countries have not signed LASP agreements,
according to Interpol officials, all VWP countries share LASP data.
[End of table]
All VWP countries and the United States share some information with
one another on some level, but the existence of a formal agreement
improves information sharing, according to DHS officials. As opposed
to informal case-by-case information sharing, formal agreements expand
the pool of information to which the United States has systematic
access. They can draw attention to and provide information on
individuals of whom the United States would not otherwise be aware.
According to officials, formal agreements generally expedite the
sharing of information by laying out specific terms that can be easily
referred to when requesting data. DHS officials observed that timely
access to information is especially important for CBP officials at
ports of entry.
HSPD-6 Agreement:
HSPD-6 agreements establish a procedure between the United States and
partner countries to share watchlist information about known or
suspected terrorists. As of January 2011, 19 of the 36 VWP countries
had signed HSPD-6 agreements, and 13 have begun sharing information
according to the signed agreements.[Footnote 24] (See table 3.)
Justice's Terrorist Screening Center (TSC) and State have the primary
responsibility to negotiate and conclude these information-sharing
agreements. An interagency working group, co-led by TSC and State that
also includes representatives from U.S. law enforcement, intelligence,
and policy communities, addresses issues with the exchange of
information and coordinates efforts to enhance information exchange.
While the agreements are based on a template that officials use as a
starting point for negotiations, according to TSC officials, the terms
of each HSPD-6 agreement are unique, prescribing levels of information
sharing that reflect the laws, political will, and domestic policies
of each partner country. TSC officials said most HSPD-6 agreements are
legally nonbinding. Officials said that this allows more flexibility
in information-sharing procedures and simplifies negotiations with
officials from partner countries. The TSC officials noted that the
nonbinding nature of the agreements may allow some VWP countries to
avoid bureaucratic and political hurdles.
Noting that State and TSC continue to negotiate HSPD-6 agreements with
VWP countries, officials cited concerns regarding privacy and data
protection expressed by many VWP countries as reasons for the delayed
progress. According to these officials, in some cases, domestic laws
of VWP countries limit their ability to commit to sharing some
information, thereby complicating and slowing the negotiation process.
The terms of HSPD-6 agreements are also extremely sensitive, TSC
officials noted, and therefore many HSPD-6 agreements are classified.
Officials expressed concern that disclosure of the agreements
themselves might either (1) cause countries that had already signed
agreements to become less cooperative in sharing data on known or
suspected terrorists and reduce the exchange of information or (2)
cause countries in negotiation to become less willing to sign
agreements or insist on terms prescribing less information sharing.
The value and quality of information received through HSPD-6
agreements vary, and some partnerships are more useful than others,
according to TSC officials. The officials stated that some partner
countries were more willing than others to share data on known or
suspected terrorists. For example, according to TSC officials, some
countries do not share data on individuals suspected of terrorist
activity but only on those already convicted. In other cases, TSC
officials stated that some partner countries did not have the
technical capacity to provide all information typically obtained
through HSPD-6 agreements. For example, terrorist watchlist data
include at least the name and date of birth of the suspect and may
also include biometric information such as fingerprints or
photographs. According to DHS officials, some member countries do not
have the legal or technical ability to store such information.
TSC has evidence that information is being shared as a result of HSPD-
6 agreements. They provided the number of encounters with known or
suspected terrorists generated through sharing watchlist information
with foreign governments.[Footnote 25] TSC officials noted that they
viewed these data as one measure of the relevance of the program, but
not as comprehensive performance indicators. Although TSC records the
number of encounters, HSPD-6 agreements do not contain terms requiring
partner countries to reveal the results of these encounters, and there
is no case management system to track and close them out, according to
TSC officials.
PCSC Agreement:
The PCSC agreements establish the framework for law enforcement
cooperation by providing each party automated access to the other's
criminal databases that contain biographical, biometric, and criminal
history data. (See table 3.) As of January 2011, 18 of the 36 VWP
countries had met the PCSC information-sharing agreement requirement,
but the networking modifications and system upgrades required to
enable this information sharing to take place have not been completed
for any VWP countries. The language of the PCSC agreements varies
slightly because, according to agency officials, partner countries
have different legal definitions of what constitutes a serious crime
or felony, as well as varying demands regarding data protection
provisions.
Achieving greater progress negotiating PCSC agreements has been
difficult, according to DHS officials, because the agreements require
lengthy and intensive face-to-face discussions with foreign
governments. Justice and DHS, with assistance from State, negotiate
the agreements with officials from partner countries that can include
representatives from their law enforcement and justice ministries, as
well as their diplomatic corps. Further, sharing sensitive personal
information with the United States is publicly unpopular in many VWP
countries, even if the countries' law enforcement agencies have no
reluctance to share information. Officials in some VWP countries told
us that efforts to overcome political barriers have caused further
delays.
Though officials expect to complete networking modifications necessary
to allow queries of Spain's and Germany's criminal databases in 2011,
the process is a legally and technically complex one that has not yet
been completed for any of the VWP countries. According to officials,
DHS is frequently not in a position to influence the speed of PCSC
implementation for a number of reasons. For example, according to DHS
officials, some VWP countries require parliamentary ratification
before implementation can begin. Also U.S. and partner country
officials must develop a common information technology architecture to
allow queries between databases.
LASP Agreement:
In a 2006 GAO report,[Footnote 26] we found that not all VWP countries
were consistently reporting data on lost and stolen passports. We
recommended that DHS develop clear standard operating procedures for
such reporting, including a definition of timely reporting. As of
January 2011, all VWP countries were sharing lost and stolen passport
information with the United States, and 34 of the 36 VWP countries had
entered into LASP agreements.[Footnote 27] (See table 3.)
The 9/11 Act requires VWP countries to enter into an agreement with
the United States to report, or make available to the United States
through Interpol or other means as designated by the Secretary of
Homeland Security information about the theft or loss of passports.
According to DHS officials, other international mandates have helped
the United States to obtain LASP information. Since 2005, all European
Union countries have been mandated to send data on lost and stolen
passports to Interpol for its Stolen and Lost Travel Documents
database. In addition, Australia and New Zealand have agreements to
share lost and stolen passport information through the Regional
Movement Alert System. According to officials, in fiscal year 2004,
more than 700 fraudulent passports from VWP countries were intercepted
at U.S. ports of entry; however, by fiscal year 2010, this number had
decreased to 64. DHS officials attributed the decrease in the use of
fraudulent passports in part to better LASP reporting to Interpol.
More complete data has allowed DHS to identify more individuals
attempting VWP travel with a passport that has been reported lost or
stolen before they begin travel.
DHS Established a Compliance Schedule for Entering Into Information-
Sharing Agreements:
Although the 9/11 Act does not establish an explicit deadline, DHS,
with the support of partners at State and Justice, has produced a
compliance schedule that requires agreements to be entered into by the
end of each country's current or next biennial review cycle, the last
of which will be completed by June 2012. In March 2010, State sent a
cable to posts in all VWP countries that instructed the appropriate
posts to communicate the particular compliance date to the government
of each noncompliant VWP country. However, DHS officials expressed
concern that some VWP countries may not have entered into all
agreements by the specified compliance dates.
DHS Has Outlined Measures to Encourage VWP Countries to Enter Into
Information-Sharing Agreements:
According to DHS officials, termination from the VWP is one potential
consequence for VWP countries that do not enter into information-
sharing agreements. However, U.S. officials described termination as
undesirable, saying that it would significantly impact diplomatic
relations and would weaken any informal exchange of information.
Further, termination would require all citizens from the country to
obtain visas before traveling to the United States. According to
officials, particularly in the larger VWP countries, this step would
overwhelm consular offices and discourage travel to the United States,
thereby damaging trade and tourism. U.S. embassy officials in France
told us that when the United States required only a small portion of
the French traveling population--those without machine-readable
passports--to obtain visas, U.S. embassy officials logged many
overtime hours, while long lines of applicants extended into the
embassy courtyard.
DHS helped write a classified strategy document that outlines a
contingency plan listing possible measures short of termination from
the VWP that may be taken if a VWP country does not meet its specified
compliance date for entering into information-sharing agreements.
[Footnote 28] The strategy document provides steps that would need to
be taken prior to selecting and implementing one of these measures.
According to officials, DHS plans to decide which measures to apply on
a case-by-case basis.
DHS Has Not Consistently Completed Timely Biennial Reports:
DHS conducts reviews to determine whether issues of security, law
enforcement, or immigration affect VWP country participation in the
program; however, the agency has not completed half of the mandated
biennial reports resulting from these reviews in a timely manner. In
2002, Congress mandated that, at least once every 2 years, DHS
evaluate the effect of each country's continued participation in the
program on the security, law enforcement, and immigration interests of
the United States. The mandate also directed DHS to determine based on
the evaluation whether each VWP country's designation should continue
or be terminated and to submit a written report on that determination
to select congressional committees.[Footnote 29]
To fulfill this requirement, DHS conducts reviews of VWP countries
that examine and document, among other things, counterterrorism and
law enforcement capabilities, border control and immigration programs
and policies, and security procedures. To document its findings, DHS
composes a report on each VWP country reviewed and a brief summary of
the report to submit to congressional committees. In conjunction with
DHS's reviews, the Director of National Intelligence (DNI) produces
intelligence assessments that DHS reviews prior to finalizing its VWP
country biennial reports.[Footnote 30] According to VWP officials,
they visited 12 program countries in fiscal year 2009 and 10 countries
in fiscal year 2010 to gather the data needed to complete these
reports. As of February 2011, the Visa Waiver Program Office had
completed 3 country visits and anticipated conducting 10 more for
fiscal year 2011. If issues of concern are identified during the VWP
country review process, DHS drafts an engagement strategy documenting
the issues of concern and suggesting recommendations for addressing
the issues. According to VWP officials, they also regularly monitor
VWP country efforts to stay informed about any emerging issues that
may affect the countries' VWP status.
In 2006, we found that DHS had not completed the required biennial
reviews in a timely fashion, and we recommended that DHS establish
protocols including deadlines for biennial report completion. DHS
established protocols in 2007 that include timely completion of
biennial reports as a goal. Our current review shows that DHS has not
completed the latest biennial reports for 50 percent, or 18 of the 36
VWP countries in a timely manner. Also, over half of those reports are
more than 1 year overdue. In the case of two countries, DHS was unable
to demonstrate that they had completed reports in over 4 years.
[Footnote 31] Further, according to the evidence supplied by DHS, of
the 17 reports completed since the beginning of 2009, over 25 percent
were transmitted to Congress 3 or more months after report completion,
and 2 of those after more than 6 months. DHS cited a number of reasons
for the reporting delays, including a lack of resources needed to
complete timely reports. In addition, DHS officials said that they
sometimes intentionally delayed report completion for two reasons: (1)
because they frequently did not receive DNI intelligence assessments
in a timely manner and needed to review these before completing VWP
country biennial reports or (2) in order to incorporate anticipated
developments in the status of information-sharing agreement
negotiations with a VWP country. Further, DHS officials cited lengthy
internal review as the primary reason for delays in submitting the
formal summary reports to Congress. Without timely reports, it is not
clear to Congress whether vulnerabilities exist that jeopardize
continued participation in the VWP.
Conclusions:
The VWP facilitates travel for nationals from qualifying countries,
removing the requirement that they apply in-person at a U.S. embassy
for a nonimmigrant visa for business or pleasure travel of 90 days or
less. In an attempt to facilitate visa-free travel without sacrificing
travel security, Congress has mandated security measures such as ESTA,
information-sharing requirements, and VWP country biennial reviews.
While ESTA has added a fee and a new pretravel requirement that place
additional burdens on the VWP traveler, it has reduced the burden on
VWP travelers in several other ways. DHS does not fully know the
extent to which ESTA has mitigated VWP risks, however, because its
review of cases of passengers being permitted to travel without
verified ESTA approval is not yet complete. Although the percentage of
VWP travelers without verified ESTA approval is very small, DHS
oversight of noncompliant travelers may reduce the risk that an
individual that poses a security risk to the United States could board
a plane or ship traveling to the United States. Even if DHS has
authority to deny individuals entry to the United States in such
cases, ESTA was designed to screen such individuals before they embark
on travel to the United States. Moreover, with only half of the
countries participating in the VWP in full compliance with the
requirement to enter into information-sharing agreements with the
United States, DHS may not have sufficient information to deny
participation in the VWP to individuals who pose a security risk to
the United States. In addition, the congressional mandate requiring
VWP country biennial reports provides important information to
Congress on security measures in place in VWP countries but also on
potential vulnerabilities that could affect the countries' future
participation in the program. Because DHS has not consistently
submitted the reports in a timely manner since the legal requirement
was imposed in 2002, Congress does not have the assurance that DHS
efforts to require program countries to minimize vulnerabilities and
its recommendations for continued status in the VWP are based on up-to-
date assessments.
Recommendations for Executive Action:
To ensure that DHS can identify and mitigate potential security risks
associated with the VWP, we recommend that the Secretary of Homeland
Security take the following two actions:
* establish time frames for the regular review and documentation of
cases of VWP passengers traveling to a U.S. port of entry without
verified ESTA approval, and:
* take steps to address delays in the biennial country review process
so that the mandated country reports can be completed on time.
Agency Comments and Our Evaluation:
DHS provided written comments on a draft of this report. These
comments are reprinted in appendix III. DHS, State, and Justice
provided technical comments that we have incorporated into this
report, as appropriate. In commenting on the draft, DHS stated that it
concurred with GAO's recommendations and expects to be able to
implement them. DHS provided additional information on its efforts to
ensure that VWP countries remain compliant with program requirements
and to monitor and assess issues that may pose a risk to U.S.
interests. DHS also provided information on actions it is taking to
resolve the issues identified in the audit. For example, DHS stated it
will have established procedures by the end of May 2011 to perform
quarterly reviews of a representative sample of VWP passengers who do
not comply with the ESTA requirement.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the appropriate congressional committees, the Secretary of Homeland
Security, the Secretary of State, the Attorney General, and other
interested parties. The report also will be available on the GAO Web
site at no charge at [hyperlink, http://www.gao.gov].
If you or your staff members have any questions about this report,
please contact me at (202) 512-4268 or fordj@gao.gov. Contact points
for our Offices of Congressional Relations and Public Affairs may be
found on the last page of this report. Key contributors are listed in
appendix IV.
Signed by:
Jess T. Ford:
Director, International Affairs and Trade:
[End of section]
Appendix I: Scope and Methodology:
To assess the implementation of the Electronic System for Travel
Authorization (ESTA), we reviewed relevant documentation, including
2006 and 2008 GAO reports evaluating the Visa Waiver Program (VWP) and
statistics on program applicants and travelers. Between June and
September 2010, we interviewed consular, public diplomacy, and law
enforcement officials at U.S. embassies in six VWP countries: France,
Ireland, Japan, South Korea, Spain, and the United Kingdom. We also
interviewed political and commercial officers at embassies in five of
these countries. While the results of our site visits are not
generalizable, they provided perspectives on VWP and ESTA
implementation. We met with travel industry officials, including
airline representatives, and foreign government officials in the six
countries we visited to discuss ESTA implementation. We selected the
countries we visited so that we could interview officials from VWP
countries in diverse geographic regions that varied in terms of
information-sharing signature status, number of travelers to the
United States, and the existence in-country of potential program
security risks. We met with officials from the Department of Homeland
Security (DHS) in Washington, D.C. We used data provided by DHS from
the ESTA database to assess the usage of the program and airline
compliance with the ESTA requirements and determined that the data was
sufficiently reliable for our purposes.
To evaluate the status of information sharing, we analyzed data
regarding which countries had signed the agreements and interviewed
DHS, Department of State (State), and Department of Justice (Justice)
officials in Washington, D.C., and International Criminal Police
Organization (Interpol) officials in Lyon, France. We reviewed the
Implementing Recommendations of the 9/11 Commission Act of 2007, which
contained the information-sharing requirement. We received and
reviewed copies of many Preventing and Combating Serious Crime and
Lost and Stolen Passport agreements. While conducting our fieldwork,
we confirmed the status of the agreements in each of the countries we
visited. We determined that the data on the status of information
sharing were sufficiently reliable for our purposes. However, we were
unable to view the signed Homeland Security Presidential Directive 6
agreements, because Justice's Terrorist Screening Center declined to
provide us requested access to the agreements. We also met with
foreign government officials from agencies involved with VWP
information-sharing agreement negotiations in the six countries we
visited to discuss their views regarding VWP information-sharing
negotiations with U.S. officials. In addition, with Interpol officials
in France, we discussed the status of the sharing of information on
lost and stolen passports. Interpol officials were unable to provide
country-specific statistics regarding sharing of lost and stolen
passport information due to its data privacy policy.
To assess DHS efforts to complete timely biennial reviews of each VWP
country, we reviewed DHS documents, as well as the links to completed
reviews on the DHS intranet Web site to determine whether the reviews
were completed in a timely manner. We also reviewed a 2006 GAO report
that recommended improvements to the timeliness of DHS's biennial
reporting process.
We conducted this performance audit from January 2010 to May 2011, in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: How to Apply for ESTA Approval:
The official ESTA application can be completed online at [hyperlink,
https://esta.cbp.dhs.gov/esta/]. (See fig 5.) DHS officials told us
they actively publicize the official Web site, because many unofficial
Web sites exist that charge an additional fee to fill out an
application for an individual. They said the unofficial Web sites are
not fraudulent if they do not use the official DHS or ESTA logos and
provide the service they promise.
Figure 5: The ESTA Application Welcome Page:
[Refer to PDF for image: web page illustration]
U.S. Customs and Border Protection:
ESTA:
Electronic System for Travel Authorization:
U.S. Department of Homeland Security:
Welcome to the Electronic System for Travel Authorization Web Site.
International travelers who are seeking to travel to the United States
under the Visa Waiver Program (AYP) are now subject to enhanced
security requirements and win be required to pay an administrative
fee. At eligible travelers who wish to travel to the U.S. under the
Visa Waiver Program must apply for authorization and then pay the fee
using the following process:
Step 1: Complete your application.
Step 2: Submit your application.
Step 3: Record your application number.
Step 4: Make payment.
Step 5: View your application status.
Please refer to the Help link at the top of each Web page if you have
questions.
Before you begin this application, make sure that you have a valid
passport and credit card available. This application will only accept
the following credit cards: MasterCard, VISA, American Express, and
Discover (JCB, Diners Club).
Please provide at responses in English. Mandatory fields are indicated
by a red asterisk.
Apply for an Authorization to Travel to the United States:
Select this option if:
* You are a citizen or eligible national of a Visa Waiver Program
country;
* You are currently not in possession of a visitor's visa;
* Your travel is for 90 days or less;
* You plan to travel to the United States for business or pleasure.
Apply:
Update or Check the Status of a Previously Submitted Authorization to
Travel to the United States:
Select this option if:
* You previously submitted an application for an electronic travel
authorization and you want to perform one of the following:
- Determine the status of your travel authorization application;
- Update your travel authorization application;
- You saved your application information and want to return to it to
pay the fee.
Please provide the following information about your application:
* Application Number:
* Birth Date:
* Passport Number.
If you are missing your Application Number, please click here.
Update or Check Status:
Paperwork Reduction Act Statement: an agency may not conduct or
sponsor an information collection and a person is not required to
respond to this information unless it displays a current valid OMB
control number. The control number for this collection is 1651-0111.
The estimated average time to complete this submission is 15 minutes
per respondent. If you have any comments regarding the burden estimate
you can write to U.S. Customs and Border Protection, 1300 Pennsylvania
Avenue, Room 3.2.C., Washington DC 20229. Exp. Mar 31, 2011.
The ESTA logo is a registered trademark of the U.S. Department of
homeland Security. Its use, without permission, is unauthorized and in
violation of trademark law. For more information, or to request the
use of the logo, please go to hetp.cbp.gov and submit a request by
clicking on "Ask a Question." When selecting the Product (under
Additional Information) use "ESTA" and the sub-product "Logo
Assistance" to expedite handling of your request.
For inquiries or questions regarding this application, please click
here.
Source: DHS.
[End of figure]
[End of section]
Appendix III: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
April 25, 2011:
Jess T. Ford:
Director, International Affairs and Trade:
U.S. Government Accountability Office:
441 G Street, N.W.
Washington, D.C. 20548:
Re: GA0-11-335, Visa Waiver Program: DHS Has Implemented Electronic
System for Travel Authorization but Further Steps Needed to Address
Potential Program Risks.
Dear Mr. Ford:
Introduction:
The Department of Homeland Security (DHS) appreciates the opportunity
to review and provide comments on draft report number GA0-11-335 by
the Government Accountability Office (GAO) titled "Visa Waiver
Program: DHS Has Implemented Electronic System for Travel
Authorization but Further Steps Needed to Address Potential Program
Risks." The Department is actively resolving the issues identified in
the audit.
Context:
The draft report is broadly supportive of the Department's efforts to
date to enhance the security requirements of the U.S. Visa Waiver
Program (VWP). It recognizes that DHS has implemented the Electronic
System for Travel Authorization (ESTA) to conduct pre-travel screening
for VWP travelers, and that the Department has minimized the burden of
this requirement on VWP travelers and carriers. The draft report also
concludes that DHS and the Departments of State and Justice have made
progress in completing information sharing agreements with VWP
countries, as required by the Implementing Recommendations of the 9/11
Commission Act of 2007, Pub. L. No. 110-53 (9/11 Act). Moreover, the
two report recommendations arc consistent with the Department's
current approach, and we expect to be able to implement them.
Nonetheless, the Department finds that the report does not fully take
into account important initiatives DHS undertakes outside of our
continuing eligibility reviews of VWP countries to ensure that these
countries remain compliant with the program's requirements and to
monitor and assess issues that may pose a risk to U.S. interests.
I am confident that the steps DHS and its interagency partners have
taken to implement the security-related provisions of the 9/11 Act and
other VWP-related legislation continue to reduce program risks. In
addition, the Department regularly monitors VWP countries, regardless
of where they are in the eligibility review process. This also reduces
program risks.
The following describes more fully the Department's response to issues
raised by GAO's report:
1. GAO States:
DHS has implemented ESTA to meet the 9/11 Act requirement intended to
enhance program security and has taken steps to minimize the burden on
travelers to the United States added by the new requirement, but has
not fully analyzed the risks of carrier and passenger noncompliance
with the requirement... DHS does not have a target completion date for
a review to identify potential security risks associated with the
small percentage of cases of traveler and carrier noncompliance with
the ESTA requirement... Without a completed analysis of noncompliance
with ESTA requirements, DHS is unable to determine the level of risk
that noncompliance poses to VWP security and to identify improvements
needed to minimize noncompliance.
DHS has been reviewing and evaluating ESTA non-compliance since the
system's inception. By the end of May 2011, DHS will have established
procedures to review quarterly a representative sample of non-
compliant passengers to evaluate, identify, and mitigate potential
security risks associated with the ESTA program.
2. GAO States:
DHS conducts reviews to determine whether issues of security, law
enforcement, or immigration affect VWP country participation in the
program; however, the agency has not completed half of the mandated
biennial reports resulting from these reviews in a timely manner. In
2002, Congress mandated that, at least once every two years, DHS
evaluate the effect of each country's participation in the program on
the law enforcement, immigration and security interests of the United
States...In conjunction with DIN 's reviews, the Director of National
Intelligence (DNI) produces intelligence assessments, that DHS reviews
prior to finalizing the VWP reports...
As noted by GAO, DHS has protocols in place that are intended to meet
the goal of completing all VWP continuing eligibility reviews in the
statutorily prescribed period. DHS has made significant improvements
since the establishment of these protocols, but the Department does
acknowledge that the reports to Congress associated with VWP
countries' continuing eligibility reviews are still not always
finalized within this period. The Department discussed with GAO
several impediments to completing all continuing eligibility reviews
and reports within the 2-year period, which are addressed in more
detail below.
3. GAO States:
DHS cited a number of reasons for the reporting delays, including a
lack of resources. In addition, DHS officials said that they sometimes
intentionally delayed report completion for two reasons: (1) Because
they frequently did not receive DNI intelligence assessments in a
timely manner and needed to review these before completing VWP country
biennial reports; or (2) In order to incorporate anticipated
developments in the status of information sharing agreement
negotiations with a VWP country.
DHS informed GAO that the process of receiving DNI's independent
intelligence assessments--which arc drafted by the DHS Office of
Intelligence and Analysis (I&A) on behalf of DNI and by law are to be
completed in conjunction with the continuing eligibility reviews”
caused DHS to postpone finalizing a number of VWP reviews and reports
in fiscal years 2009, 2010, and 2011. As noted by GAO, in several
instances, the Department chose to postpone finalizing reviews and
reports beyond the 2-year time period so that up-to-date information
on VWP countries' compliance with the 9/11 Act information sharing
requirements could be documented. Given congressional interest in VWP
countries' compliance with the 9/11 Act, DHS felt it necessary to
provide current information on this important issue.
Over the past year, the DHS Visa Waiver Program Office (VWPO) has
worked with DES ISLA to address the timeliness of the intelligence
assessments. Since 2008, DHS I&A has drafted independent intelligence
assessments on each VWP country, as required by law. These assessments
have established an analytical base line on a range of security
issues. Now that an analytical baseline has been established, a new
format for the intelligence assessment has been adopted that focuses
on key security issues that may have shifted since the previous
assessment. With the new format, DNI assessments are expected to be
finalized more expeditiously. Additionally, DHS VWPO is considering
process changes to address GAO concerns with the timeliness of
continuing eligibility VWP reports.
4. GAO States:
According to VWP officials, they also regularly monitor VWP country
efforts to stay informed about emerging issues that may affect the
countries' VWP status.
DHS uses both the statutorily required eligibility reviews and a
continuous monitoring process to ensure that VWP countries remain
compliant with the program's requirements and to monitor and assess
issues that may pose a risk to U.S. interests. For example, on a daily
basis DHS VWPO monitors and assesses available information to ensure
awareness of changing conditions in VWP countries so as to verify that
these countries' participation in the VWP do not pose a risk to U.S.
security and law enforcement interests (including immigration
enforcement interests). VWPO has established points of contact at U.S.
Embassies and Consulates with law enforcement, security, and consular
officials in the 36 participating VWP countries as well as with the
Departments of State and Justice and the Intelligence Community. This
network of contacts allows for continuous and substantive information
exchange between VWPO and diplomatic posts, as well as VWPO and its
Washington-based partners.
During the GAO audit, DHS discussed its regular monitoring process for
VWP countries in detail and provided specific examples where the
Department detected issues of concern outside of countries' formal
continuing eligibility reviews. Through engagement with its contacts,
DHS worked with the VWP countries to remedy issues of concern before
they threatened the countries' VWP statuses and/or U.S. interests.
5. GAO States:
Without timely reports, it is not clear to Congress whether
vulnerabilities exist that jeopardize continued participation in the
VWP... Because DHS has not consistently submitted the reports in a
timely manner since the legal requirement was imposed in 2002,
Congress does not have the assurance that DHS efforts to require
program countries to minimize vulnerabilities and its recommendations
for continued status in the VWP are based on up-to-date assessments.
DHS uses both the statutorily required eligibility reviews and a
continuous monitoring process to ensure that VWP countries remain
compliant with the program's requirements and to monitor and assess
issues that may pose a risk to U.S. interests. The Department
recognizes that timely reports provide Congress with information on a
country's VWP status. Therefore, DHS VWPO is considering process
changes to address GAO concerns with the timeliness of continuing
eligibility VWP reports. However, DHS informed GAO that if a
significant issue and/or vulnerability were detected during or outside
of a continuing eligibility review, DHS, in consultation with its
interagency partners, would take the appropriate steps to notify
Congress expeditiously.
Recommendations:
Recommendation #1: Establish timeframes for the regular review and
documentation of cases of VWP passengers traveling to a U.S. port of
entry without verified ESTA approval.
DHS concurs with the recommendation. DHS has been reviewing and
evaluating ESTA noncompliance since the system's inception. By the end
of May 2011, DHS will have established procedures to review quarterly
a representative sample of non-compliant passengers to evaluate,
identify, and mitigate potential security risks associated with the
ESTA program.
Recommendation #2: Take steps to address delays in the biennial
country review process so that the mandated country reports can be
completed on time.
DHS concurs with the recommendation. DHS VWPO is considering process
changes to address GAO concerns with the timeliness of continuing
eligibility VWP reports. Additionally, over the past year, DHS VWPO
has worked with DHS I&A to address the timeliness of the intelligence
assessments. Since 2008, DHS I&A has drafted independent intelligence
assessments on each VWP country, as required by law. These assessments
have established an analytical baseline on a range of security issues.
Now that an analytical baseline has been established, a new format for
the intelligence assessment has been adopted that focuses on key
security issues that may have shifted since the previous assessment.
With the new format, DNI assessments are expected to be finalized more
expeditiously.
Conclusion:
In summary, the Department concurs with the recommendations of the
draft report. Once again, thank you for the opportunity to comment on
the draft report. The Department looks forward to working with you on
future Homeland Security engagements.
Sincerely,
Signed by:
Jim H. Crumpacker:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix IV: GAO Contact and Staff Acknowledgments:
GAO Contact:
Jess T. Ford, (202) 512-4268, or fordj@gao.gov:
Staff Acknowledgments:
In addition to the individual named above, Anthony Moran, Assistant
Director; Jeffrey Baldwin-Bott; Mattias Fenton; Reid Lowe; and John F.
Miller made key contributions to this report. Martin DeAlteriis, Joyce
Evans, Etana Finkler, Richard Hung, Mary Moutsos, Jena Sinkfield, and
Cynthia S. Taylor also provided technical assistance.
[End of section]
Footnotes:
[1] Pub. L. No. 110-53 (Aug. 3, 2007).
[2] See GAO, Border Security: Stronger Actions Needed to Assess and
Mitigate Risks of the Visa Waiver Program, [hyperlink,
http://www.gao.gov/products/GAO-06-854] (Washington, D.C.: July 28,
2006).
[3] See GAO, Visa Waiver Program: Actions Are Needed to Improve
Management of the Expansion Process, and to Assess and Mitigate
Program Risks, [hyperlink, http://www.gao.gov/products/GAO-08-967]
(Washington, D.C.: Sept. 15, 2008).
[4] Pub. L. No. 99-603 (Nov. 6, 1986).
[5] Pub. L. No. 106-396 (Oct. 30, 2000).
[6] Pub. L. No. 107-296 (Nov. 25, 2002).
[7] Pub. L. No. 107-173 (May 14, 2002).
[8] The Visa Waiver Permanent Program Act mandated that the U.S.
government conduct VWP country reviews at least every 5 years.
[9] The Immigration Act of 1990 (Pub. L. No. 101-649) removed the
limit on the number of countries that could participate in the program.
[10] In general, e-passports contain a chip embedded in the passport
that stores the same information that is printed on the data page of
the passport, such as the name, date of birth, gender, place of birth,
dates of passport issuance and expiration, place of issuance, passport
number, and a photo image of the bearer. In addition, e-passports hold
a unique identification number and a digital signature to protect the
stored data from alteration. E-passports provide two key pieces of
information: the digital signature and the digital image of the
passport holder. Digital signatures provide a higher level of security
for the passport by providing a means to electronically verify the
authenticity of the data on the chip, including the traveler's
photograph and biographical information.
[11] In addition to ESTA, Secure Flight and the Advanced Passenger
Information System also provide data on passengers that DHS uses to
determine whether any passenger poses a security risk.
[12] Although DHS officials said that most applicants receive
notification of ESTA approval or denial within seconds of submitting
the online application, DHS reserves the right to do manual checks
that may take up to 72 hours before making a final decision on an ESTA
application.
[13] A denied ESTA application means the applicant may not travel to
the United States under the VWP. Travel to the United States is still
possible if the applicant successfully applies for and obtains a visa
for travel. State consular officers at five of the six U.S. embassies
we visited in VWP countries said that people whose ESTA applications
are denied frequently obtain a visa to travel to the United States
after undergoing a full visa interview by a consular officer. State
officials said they did not maintain statistics on how many visa
applicants had been denied an ESTA or how many applicants who had been
denied an ESTA were successful in obtaining a visa to visit the United
States. Consular officers in the countries we visited said that they
interviewed visa applicants every week who had been denied an ESTA.
[14] ESTA approval does not guarantee an applicant the right to enter
the United States. It means that the applicant can board a U.S. bound
airplane or ship without a visa if the passport presented at the port
of departure matches the information provided in the approved ESTA
application.
[15] Some of the travel officials said, however, that initial efforts
to publicize ESTA were confusing and that U.S. government officials
could not answer some of their questions.
[16] GAO did not independently verify the results or methodology of
this study. The study was completed by RTR Technologies, LLC, at three
high-volume ports of entry. According to the study, RTR chose a sample
size to ensure results at a 95 percent confidence level and compared
the baseline data collected in 2008 with a control group in 2010 to
ensure that the results were not attributable to factors other than
ESTA.
[17] Pub. L. No. 111-145, 124 Stat. 49, 56 (Mar. 4, 2010).
[18] The law requires that the fee be the sum of $10 per travel
authorization and an amount that will at least ensure recovery of the
full cost of providing and administering the system. DHS may only
collect the $10 fee until September 30, 2015. See 8 U.S.C. §
1187(h)(3)(B). According to DHS officials, the $4 fee is paid for each
application submitted and the $10 TPA fee is only paid if the ESTA
application is approved. The TPA fee is not for DHS use.
[19] DHS received an appropriation of $36 million for ESTA in fiscal
year 2008. It carried over $11 million of that into fiscal year 2009.
DHS officials said that because no funding was appropriated to the
ESTA office in fiscal year 2010, DHS had to reallocate funds from
other DHS components to cover ESTA operations. DHS completed a study
to determine the fee amount that would cover its costs and, according
to a DHS official, DHS policy allows for reevaluation of the fee
amount as necessary.
[20] DHS began enforcing carrier compliance with ESTA requirements in
March 2010, exercising the right to fine a carrier $3,300 for each
passenger boarded under the VWP on a U.S. bound carrier without an
approved ESTA application or to rescind the carrier's VWP signatory
status for failure to comply with the ESTA requirement.
[21] Representatives of 17 airlines with whom we met told us that they
did not track the number of passengers not permitted to board because
of a denied VWP application or failure to apply through ESTA. However,
the officials said that at least a few such passengers were denied
permission to board each day. DHS officials said that they had no way
of tracking the number of passengers that airlines refused to board
due to lack of ESTA approval.
[22] DHS officials reported that CBP does not typically deny VWP
travelers admission to the United States solely for lack of an
approved ESTA. Most of those denied entry are deemed inadmissible for
other reasons.
[23] For the HSPD-6 and PCSC agreements, DHS made the determination in
consultation with State and Justice. For the LASP agreement, DHS made
the determination in consultation with State alone.
[24] HSPD-6 agreements are not exclusive to VWP countries and can be
signed with any countries with the approval of the interagency working
group. As of January 2011, in addition to the 19 VWP countries, 3 non-
VWP countries have signed HSPD-6 agreements.
[25] TSC defines an encounter as an authorized official contact with a
person, such as when an individual attempts to board an aircraft or
apply for a passport or visa, enter a country at a port of entry, etc.
[26] See [hyperlink, http://www.gao.gov/products/GAO-06-854].
[27] According to DHS, LASP agreements took the form of either
Memorandums of Understanding (MOU) or diplomatic notes, declaring the
countries' intent to comply with the information-sharing requirement.
Countries that joined the VWP between 2008 and 2010 each signed an MOU
prior to their designation. These MOUs contain language on the
exchange of LASP data, and therefore these countries were not also
required to exchange diplomatic notes.
[28] DHS drafted this classified document in coordination with State
and Justice. It was submitted to the National Security Staff in
January 2010 and subsequently approved.
[29] See the Enhanced Border Security and Visa Entry Reform Act of
2002. Prior to this change, DHS was required to report at least once
every 5 years.
[30] The 9/11 Act requires the DNI to conduct an independent
intelligence assessment of countries prior to their admission to the
VWP and for all VWP countries in conjunction with the VWP biennial
reports and to submit them to, among others, the Secretary of Homeland
Security.
[31] In our review of DHS biennial reports, we identified
inconsistencies in DHS recordkeeping. For example, as evidence of all
completed biennial reports, DHS provided access to an internal DHS Web
site that contained links to many, but not all completed reports.
Further, DHS was unable to provide documentation of two reports that
they said had been completed.
[End of section]
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