US embassy cable - 00STATE229052

UNCLAS STATE 229052 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: CVIS 
SUBJECT: PASSAGE OF VWP LEGISLATION: WHERE DO WE GO FROM 
HERE? 
 
REF: STATE 210639 
 
1. SUMMARY: THE PRESIDENT SIGNED LEGISLATION MAKING THE 
VISA WAIVER PILOT PROGRAM PERMANENT. SEVERAL COUNTRIES 
HAVE EXPRESSED INTEREST IN BECOMING VWP PARTICIPANTS, AND 
SEVERAL POSTS HAVE OFFERED SUGGESTIONS FOR CHANGES TO THE 
PROGRAM. GIVEN THE EXTENSIVE PREPARATORY WORK AND 
COMPROMISE NEEDED TO OBTAIN A PERMANENT VISA WAIVER 
PROGRAM, THE DEPARTMENT DOES NOT ENVISION REQUESTING ANY 
ADDITIONAL STATUTORY CHANGES IN THE NEAR FUTURE. END 
SUMMARY. 
 
2. THE DEPARTMENT INFORMED THE FIELD IN REFTEL THAT THE 
PRESIDENT HAD SIGNED HR 3767, THE VISA WAIVER PERMANENT 
PROGRAM ACT. THIS LEGISLATION MADE THE VISA WAIVER PILOT 
PROGRAM (VWPP) A PERMANENT PROGRAM, NOW KNOWN AS THE VISA 
WAIVER PROGRAM (VWP). THE PRESIDENT'S SIGNATURE WAS THE 
CULMINATION OF A LONG PROCESS IN WHICH THE DEPARTMENT, 
OTHER AGENCIES, MEMBERS OF CONGRESS AND THEIR STAFFS MADE 
 
KNOWN THEIR CONCERNS ABOUT THE PROGRAM AND WHAT CHANGES 
THEY WANTED IN THE STATUTE. 
 
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FURTHER CHANGES TO VWP LEGISLATION 
----------------------------------- 
 
3. AS POSTS WERE ABLE TO SURMISE BASED ON THE SEVERAL 
EXTENSIONS OF THE PAROLE PROCEDURE FOR NATIONALS OF WAIVER 
COUNTRIES AFTER VWPP AUTHORITY EXPIRED ON APRIL 30, 
PASSAGE OF LEGISLATION TO EXTEND OR MAKE PERMANENT THE 
VWPP WAS A CLIFFHANGER. THE FATE OF THE PROGRAM RISKED 
BEING LEFT FOR AN END-OF-SESSION OMNIBUS WHERE ANYTHING 
CAN HAPPEN. PASSAGE OF THE BILL REQUIRED A CONCERTED AND 
COORDINATED EFFORT BY SEVERAL OFFICES IN THE DEPARTMENT, 
PARTICULARLY IN THE BUREAU OF CONSULAR AFFAIRS, TO KEEP 
THE BILL MOVING, TO MINIMIZE UNWANTED AMENDMENTS, AND TO 
DEFLECT ATTEMPTS TO DERAIL OR MODIFY IT. 
 
4. AT THE OUTSET OF THE PROCESS, THE BUREAU OF CONSULAR 
AFFAIRS WORKED CLOSELY WITH STAFF MEMBERS OF THE HOUSE 
IMMIGRATION SUBCOMMITTEE, WHICH DRAFTED AND INTRODUCED THE 
BILL, TO TRY TO GET IMPORTANT PROVISIONS INTO THE VWP 
LEGISLATION, PARTICULARLY THOSE RAISED WITH US BY POSTS. 
WHILE STAFF MEMBERS WERE SYMPATHETIC TO MANY OF OUR 
REQUESTS, THE SUBCOMMITTEE WAS INUNDATED WITH SPECIAL 
INTEREST REQUESTS FROM OTHER AGENCIES AND ORGANIZATIONS. 
OUR INTERESTS, WHILE VIEWED SYMPATHETICALLY AND EVEN 
FAVORABLY, WERE CAUGHT UP IN THE CAUSES OF EVERY GROUP 
WITH ISSUES BEARING ON VWP. AS THE IMPORTANCE OF VWP 
BECAME INCREASINGLY APPARENT ON THE HILL, THE BILL TURNED 
INTO A "CHRISTMAS TREE," USED TO HANG ALL KINDS OF SPECIAL 
INTEREST PROVISIONS, BOTH RELATED AND UNRELATED TO THE VWP 
ITSELF. THE ONLY WAY TO OBTAIN PASSAGE OF AN EXTENSION OF 
VWPP, LET ALONE A PERMANENT PROGRAM, WAS TO AVOID PRESSING 
FOR FURTHER VARIATIONS. VWPP WAS SUFFICIENTLY 
CONTROVERSIAL THAT ANY CHANGE OR ENHANCEMENT WAS HIGH RISK 
-- THE RISK BEING LOSS OF THE ENTIRE PROGRAM. 
 
5. POSTS MAY ALSO BE AWARE THAT GREECE'S STATUS IN THE VWP 
WAS A SOURCE OF CONCERN FOR SOME MEMBERS OF CONGRESS. THE 
DEPARTMENT WAS REQUIRED TO PROVIDE TO CONGRESS ALL OF THE 
DOCUMENTS RELATING TO THE NOMINATION OF GREECE. CONGRESS 
WAS PARTICULARLY CONCERNED THAT ALL INTERESTED BUREAUS IN 
THE DEPARTMENT AND OTHER AGENCIES HAD HAD AN OPPORTUNITY 
TO EXPRESS THEIR VIEWS FULLY ON THE NOMINATION OF GREECE. 
 
AN ENORMOUS AMOUNT OF MATERIAL WAS PROVIDED TO CONGRESS IN 
THREE SEPARATE TRANCHES. 
 
6. THE DEPARTMENT IS OVERJOYED FINALLY TO HAVE A PERMANENT 
VWP. NOW WE HAVE TO IMPLEMENT THE STATUTE, WHICH WILL 
CONTINUE TO REQUIRE A DELICATE BALANCING OF MANY DIFFERENT 
INTERESTS. THERE ARE NEW REPORTING REQUIREMENTS TO 
CONGRESS, INCLUDING THE REQUIREMENT THAT THE ATTORNEY 
GENERAL REVIEW EVERY VWP COUNTRY'S PARTICIPATION AT LEAST 
EVERY FIVE YEARS. REPORTS MUST ALSO BE MADE TO CONGRESS 
ABOUT THE COUNTRIES THAT ARE UNDER CONSIDERATION FOR 
INCLUSION IN VWP. IN ADDITION, WE HAVE ADDITIONAL 
RESPONSIBILITIES FOR DATASHARE WITH THE IMMIGRATION AND 
NATURALIZATION SERVICE (INS) THROUGH THE USE OF 
INFORMATION TECHNOLOGY. 
 
7. OUR SENSE IS THAT CONGRESS INTENDS VERY FIRMLY TO LIMIT 
THE VWP TO A SINGLE VISA CLASS WITH VERY STRICT 
REQUIREMENTS AND TO MONITOR THE PROGRAM VERY CLOSELY. 
GIVEN THIS IMPRESSION AND THE LACK OF APPARENT ENTHUSIASM 
TO REOPEN THIS ISSUE ON THE HILL BY THOSE WHO WOULD 
SUPPORT POSITIVE CHANGES, WE BELIEVE THAT IT WOULD BE 
COUNTER-PRODUCTIVE TO SEEK FURTHER LEGISLATIVE CHANGES AT 
THIS TIME. 
 
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ADDING NEW COUNTRIES 
--------------------- 
 
8. SOME POSTS HAVE ALREADY EXPRESSED INTEREST IN 
NOMINATING THEIR HOST COUNTRIES FOR VWP PARTICIPATION. 
WHILE THE DEPARTMENT WILL CONSIDER ANY NOMINATIONS THAT WE 
RECEIVE, WE MUST CAUTION POSTS NOT TO EXPECT A QUICK 
RESPONSE. THE DEPARTMENT MUST CONSULT WITH THE 
INTERAGENCY WORKING GROUP THAT IS RESPONSIBLE FOR 
OVERSEEING THE VWP TO BEGIN IMPLEMENTATION OF THE NEW 
REQUIREMENTS OF HR 3767. WE EXPECT THAT IMPLEMENTATION OF 
THE NEW REQUIREMENTS, REVISIONS TO THE NIV SOFTWARE TO 
CAPTURE REFUSAL STATISTICS IN A DIFFERENT MANNER, REVIEW 
OF THE CONSULAR CONSOLIDATED DATABASE TO DETERMINE IF ITS 
OUTPUT MEETS OUR NEEDS, COORDINATION OF THE MANY NEW 
REPORTING REQUIREMENTS, AND CONSULTATION WITH INS ON 
DATASHARE WILL OCCUPY THE INTERAGENCY GROUP FOR SOME TIME. 
 
9. SOME MEMBERS OF CONGRESS HAVE ALSO EXPRESSED CONCERN 
ABOUT THE LACK OF DIVERSITY IN THE VWP; I.E., EVEN THOUGH 
THE NATIONALITIES INVOLVED ARE MUCH MORE DIVERSE IN THEIR 
 
ETHNIC MAKEUP THAN EVER BEFORE, IT IS STILL THE CASE THAT 
22 OF THE 29 PARTICIPATING COUNTRIES ARE IN EUROPE. WE DO 
NOT FORESEE THE ADDITION OF NEW COUNTRIES TO THE VWP IN 
THE NEAR-TERM, SINCE WE DO NOT BELIEVE CONGRESS IS IN 
FAVOR OF EXPANSION OF THE PROGRAM. 
 
10. POSTS SHOULD CONTINUE TO REPORT THE HOST COUNTRY 
NATIONAL (HCN) REFUSAL STATISTICS IF THEY BELIEVE THAT A 
COUNTRY IS CLOSE TO MEETING, OR MEETS, THE REFUSAL RATE 
CRITERION (NO MORE THAN A 3% REFUSAL RATE FOR HCNS 
APPLYING FOR B VISAS, EXCLUDING 221(G) REFUSALS). THIS IS 
REPORT 11E ON THE NIV SYSTEM. POSTS SHOULD SEND THE 
REPORTS EVERY QUARTER VIA A CABLE SLUGGED FOR CA/VO/F/I. 
 
11. WE GENERALLY DO NOT RELEASE EXACT REFUSAL RATES. 
SHOULD HOST GOVERNMENTS APPROACH POSTS WITH A REQUEST TO 
PROVIDE THE "VWP REFUSAL RATE", WE RECOMMEND AGAINST 
PROVIDING THE EXACT RATE. INSTEAD, POSTS SHOULD RESPOND 
THAT REFUSAL RATES ARE MAINTAINED FOR INTERNAL DEPARTMENT 
USE ONLY, AND THAT THE DEPARTMENT WILL ADVISE THE HOST 
COUNTRY (VIA POST) WHEN THE REFUSAL RATE AND OTHER INITIAL 
CRITERIA HAVE BEEN MET FOR NOMINATION PURPOSES. 
 
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INTERAGENCY NOMINATION AND APPROVAL PROCESS 
-------------------------------------------- 
 
12. THE VWP NOMINATION PROCESS IS BASED ON A 1997 PROTOCOL 
ESTABLISHED BETWEEN THE DEPARTMENTS OF STATE AND JUSTICE. 
THE DEPARTMENT OF STATE (DOS) INITIATES THE PROCESS BY 
ADVISING THE DEPARTMENT OF JUSTICE (DOJ) OF ITS INTENT TO 
NOMINATE A COUNTRY FOR CONSIDERATION FOR INCLUSION IN THE 
VWP. ONCE DOS HAS ADVISED DOJ OF ITS INTENT TO NOMINATE A 
COUNTRY, AN INTERAGENCY TEAM REVIEWS THE NOMINATION, 
FOCUSING ON THE IMPACT INCLUSION OF THE COUNTRY IN VWP 
WOULD HAVE ON LAW ENFORCEMENT, NATIONAL SECURITY, AND 
IMMIGRATION CONTROL. IF NO CLEARLY DISQUALIFYING 
OBJECTIONS ARE RAISED DURING THIS PRENOMINATION REVIEW, 
THE SECRETARY OF STATE SUBMITS A FORMAL WRITTEN NOMINATION 
TO THE ATTORNEY GENERAL. 
 
13. AFTER A COUNTRY IS FORMALLY NOMINATED, INS LEADS A 
SITE TEAM OF REPRESENTATIVES FROM INTERESTED AGENCIES TO 
VISIT THE NOMINATED COUNTRY TO REVIEW PASSPORT AND 
DOCUMENT SECURITY, BORDER AND IMMIGRATION CONTROLS, LAW 
ENFORCEMENT POLICIES AND PRACTICES, POLITICAL AND ECONOMIC 
CONDITIONS, AND OTHER LAW ENFORCEMENT, IMMIGRATION, AND 
 
NATIONAL SECURITY CONCERNS. BASED ON THE PRENOMINATION 
REVIEW AND SITE VISIT, THE INTERAGENCY WORKING GROUP 
SUBMITS A RECOMMENDATION TO THE ATTORNEY GENERAL, IN WHOM 
THE LAW VESTS ULTIMATE AUTHORITY TO APPROVE VWP 
PARTICIPATION. 
TALBOTT