DHS Seeks to Strengthen Security of Visa Waiver Program through Enhancements to ESTA

The Secure Travel and Counterterrorism Partnership Act of 2007 (part of the Implementing Recommendations of the 9/11 Commission Act of 2007, also known as the “9/11 Act”) amended INA 217 [8 USCA 1187] to require the Department of Homeland Security (DHS or Department) to implement an electronic travel authorization system and other measures to enhance the security of the Visa Waiver Program (VWP). On August 1, 2008, DHS implemented the Electronic System for Travel Authorization (ESTA), adding a significant layer of security to the VWP by enabling U.S. Customs and Border Protection (CBP) to conduct security vetting of prospective VWP travelers to determine if they pose a law enforcement or security risk before they board aircraft destined for the U.S. ESTA is a web-based application and screening system used to determine whether certain aliens are eligible to travel to the U.S. under the VWP.

Although the U.S. government does not currently have any credible information that the Islamic State in Iraq and the Levant (ISIL) or other Syria-based terrorist groups are planning imminent attacks against the U.S., a significant number of foreign fighters have traveled to Syria over the past three years, including citizens from the U.S. and Europe. Many of these foreign fighters have joined ISIL’s and other terrorist groups’ ranks and there are significant concerns that these groups may use these fighters to conduct external attacks. These foreign fighters are likely to gain experience and training from the Syria-based groups and eventually may return to their own countries, in CBP’s words, “battle-hardened and further radicalized.” Many of these fighters may possess valid U.S. and European passports or travel documents, and pose a potential threat for committing terrorist attacks in U.S. or Europe.

ESTA has been a highly effective security and vetting tool that has enabled DHS to deny travel under the VWP to thousands of prospective travelers who pose a risk to the U.S. Since the program’s inception, CBP has approved millions of ESTA applications, but has denied over 4,300 ESTA applications as a result of vetting against the U.S. government’s known/suspected terrorist watchlist. During that same period of time, CBP has also denied over 22,500 ESTA applications for individuals who applied for an ESTA using a passport that had been reported lost or stolen. As part of its commitment to preventing terrorist attacks in the U.S. and strengthening border and immigration security, DHS has been carefully evaluating options for further strengthening the security of the VWP, including enhancements to ESTA that would bolster CBP’s ability to identify potential security threats.

In response to increasing concerns regarding foreign fighters, DHS is strengthening the security of the VWP through enhancements to ESTA. These improvements are designed to address the immediate foreign fighter threat, provide an additional layer of security for the VWP, and facilitate visa-free travel to the U.S. DHS has determined that ESTA enhancements will improve the Department’s ability to screen prospective VWP travelers and more accurately and effectively identify those who pose a security risk to the U.S. DHS also believes enhancements to ESTA will help the Department facilitate adjudication of ESTA applications. By requiring ESTA applicants to provide additional information, DHS will enhance its ability to identify ESTA applicants on the terrorist watchlist and therefore reduce the number of inconclusive matches that currently result in an ESTA denial, requiring the applicant to apply for a visa for travel to the U.S.

DHS has entered a memorandum of agreement with the National Counterterrorism Center (NCTC) that permits the NCTC to use ESTA information to facilitate the NCTC’s counterterrorism efforts and helps to ensure travel authorizations are not issued to individuals who pose a threat to national security.

According to DHS, no single data element by itself enhances ESTA to address the foreign fighter threat; rather, it is the combined totality of existing and new ESTA data elements that will help the U.S. government mitigate the foreign fighter threat and facilitate lawful travel under the VWP. All ESTA data elements will help DHS adjudicate applications and, in many cases, enable DHS to distinguish between lawful applicants and individuals of concern.

A list of answers to frequently asked questions regarding the enhancements to ESTA is reproduced below. It is also available on the CBP website at http://www.cbp.gov/travel/international-visitors/esta/enhancements-to-esta-faqs.

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