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Testimony of John Ratigan

Immigration Consultant

Paul, Weiss, Rifkind, Wharton & Garrison

Washington, D.C.

House Subcommittee on Immigration and Claims

February 10, 2000

Extension of the Visa Waiver Pilot Program (VWPP)

Good morning, Mr. Chairman, Mrs. Jackson Lee, members of the subcommittee. Thank you for the opportunity to testify today. My experience in immigration includes 25 years as a State Department Foreign Service Officer, specializing in immigration and visa matters. During that time, I served as the Consul General or supervisory consular and visa officer in Singapore, Republic of Singapore; Cairo, Egypt; Toronto, Canada; and Seoul, Korea. I also served 2-½ years on detail from the State Department as Counsel to the Senate Immigration Subcommittee. Since my retirement from the State Department in 1997, I have worked as an immigration consultant to the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. The views I will express today are entirely my own, and do not reflect the views of my firm or any of its clients.

A. Extension of VWPP.

We are now in the twelfth year of the Visa Waiver Pilot Program (VWPP). It is still a "pilot program," perhaps deservedly so. When it went into effect in 1988, commencement of VWPP was supposed to have been co-incident with INS' implementation of an effective "nonimmigrant information system," which, much like current proposals for an "exit-entry" system, would have tracked nonimmigrant arrivals and departures. That "nonimmigrant information system" has never been effectively implemented, and seems as far off today as it was in 1988.

Nonetheless, VWPP has worked largely as it was intended to. Unfortunately, in some countries, "membership" in the VWPP is regarded as a status symbol, and in this country there is a tendency to regard inclusion as a "present" we can give or a "favor" we can do for an individual country. The program should not be regarded as a foreign policy tool.

The United States, however, is better off with the program than it would be without it, when one balances workload reduction, tourism facilitation and security concerns. While there are legitimate security concerns, VWPP should not bear the blame for the insecurity of the entire visa process. The program deserves to be extended.

B. Recommendations.

1. I would extend the program for at least 4 to 5 years, and would not amend the current criteria during that period. The program would benefit from a significant extension period, to remove the continuing uncertainty about it. It is less clear, however, that there are additional countries which, based on current data, clearly warrant being added to the program.

2. We should instead devote the next several years to a serious review of how the program operates, and what goals we should have for the program. How should we balance the sometimes conflicting goals of tourism promotion, workload reduction and security? Should the current program participants be retained, and on what basis should admission and retention decisions be made? The aim of this extended review should be to find the common ground that would permit Congress to end the "pilot" status and make this a permanent program.

3. We should end the ambiguity surrounding the participating countries' implementation of a Machine Readable Passport program. The law should require plainly that countries admitted in the future have a Machine Readable Passport program in full operation; it should set a fixed date by which current participants must have such a program in full operation or face removal from the program.

4. The "disqualification rate" established in subsection 217(g) is of questionable relevance, and is based on speculative estimates of status violations. It should be replaced, in making retention decisions, by a statistic which is more relevant, reliable and easily calculated.

Congress should replace the "disqualification rate" with a ratio which would measure the number of immigrants who adjust status or arrive in the United States each year from each country against the number of nonimmigrants admitted annually from the same country. This number of "immigrants per nonimmigrant arrival" would directly measure a given country's "propensity to immigrate," and would provide a more direct, relevant and reliable rationale for assessing the question of retention in the VWPP than the current "disqualification rate."

Such a ratio is in fact already available in the statistical tables compiled annually by INS in its Statistical Yearbook. These numbers are available in INS' Statistical Yearbook for 1996, for example, at Table 7 (immigrants admitted) and Table 41 (nonimmigrants admitted).

Dividing the number of newly admitted immigrants by the number of nonimmigrants admitted from the same country gives one an annual percentage of immigrants per each nonimmigrant admission, for each country.⁽¹⁾ That small percentage number is more meaningful if considered as the number of immigrants per 1000 nonimmigrant admissions (see chart below).

Tables 7 and 41 of the 1996 statistics provides the following information about the "propensity to immigrate" that year:

• The baseline rate among all countries worldwide was 3.7 percent, or 37 new immigrants annually per 1,000 nonimmigrant admissions.

• Among Visa Waiver countries, the "immigration rate" is approximately 0.32 percent, or 3.2 immigrants per 1,000 nonimmigrant admissions, less than one-tenth the worldwide rate.

• By contrast, a review of nine of the ten leading immigrant-source countries (as reported by the State Department's 1996 Report of the Visa Office) shows an immigration rate of approximately 10.8 percent, or 108 immigrants per 1,000 nonimmigrant admissions.

These figures do not attempt to estimate or include overstays or illegal immigrants, but represent solely lawfully admitted immigrants and nonimmigrants. That helps to make the numbers more consistent and reliable both from year to year and country to country.

This measure of a country's "propensity to immigrate" is also relevant to the question of whether a country should be included in the program; it might be a useful addition to the nonimmigrant refusal rate in making that determination.

This measure of "propensity to immigrate" or some similar "immigration ratio" test reflects the decisions of aliens about immigrating to the United States, and not the decisions of U.S. immigration officials. It and not the "disqualification rate" should form the basis for retention decisions made under subparagraph 217(g).

1. Technically, Table 7 reports immigrants admitted by place of birth and Table 41 reports nonimmigrants admitted by nationality. The statistical discrepancy is small, however, and should not undermine the value of the data.