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Visa Waiver Program Needs No Overhaul

In the wake of the Paris and San Bernardino tragedies, various visa programs allowing foreign nationals to enter the United States have come under fire. The Paris attackers were French and Belgian citizens who were eligible to enter the U.S. without a visa. Tashfeen Malik was able to enter on a fiancée visa. Instead of examining individual visa programs, it is far more important to focus on indications of terrorist or other criminal intent. And that is something that already happens, whether it’s under the “visa waiver” program (VWP), fiancee visa, or student, tourist, or permanent resident.  Unlike domestic law enforcement activities, it’s generally legal to profile incoming immigrants, but that doesn’t make it a good idea.

Legislated discrimination is always regretted in hindsight, yet we continue to succumb to it. That’s what Rep. Candice Miller’s amended bill, H.R. 158 did, which overwhelmingly passed the House on December 8. It overhauled the VWP to include facially discriminatory provisions on basis of national origin, and rushed to vote with no committee consideration or debate during a time of particularly virulent xenophobic rhetoric against Muslims.

The VWP facilitates low-risk travel for trade and business from allied countries. Nationals of those countries enjoy visa-free entry into the US, but “visa-free” does not mean no screening. VWP participants must have a valid, approved electronic system for travel authorization (ESTA) before being allowed into the US. VWP has always required a determination that the foreign national is not a threat, has no prior violations, and pass a background check designed to uncover hidden grounds of inadmissibility to the United States.

After Paris, the White House issued a fact sheet to suggest more improvements and newer protocols on an already robust system, continuing a process that has run since inception of the VWP. The White House directives make sense because they focused on indications of criminal behavior, not country of origin.

H.R. 158 legislates discrimination based on national origin from Iraq, Iran, Sudan and Syria, and contains provisions for other countries to be blacklisted, too. Thus, a VWP program participant, born in France who happens to have traveled to one of the blacklisted countries since March 2011, or derived nationality there at birth through parents, would now be disqualified. H.R. 158 is a show for the fan club, diverting the focus off of actual risk factors like suspect associations or concealed background information in favor of blanket discrimination. There is no exception for humanitarian travel to blacklisted countries, nor for “accidental” nationals who may have derived it through their parents.

The National Security Entry-Exit Registration System, or NSEERS, was an ill-conceived program after 9/11 required males of a certain age and from 25 countries (all but North Korea were Muslim-majority ones) to register with the government. Like H.R. 158, it facially discriminated on basis of national origin alone, casting a sweeping net of law-abiding foreign nationals. All countries were removed in 2011 so the program effectively does not exist anymore. In its active years, it resulted in not a single terror plot, much less conviction. It did, however, devastate the lives of Arabs and Muslims in the years following 9/11.  It needlessly criminalized noncompliance with its rules, manufacturing new grounds of deportation for otherwise law-abiding citizens. One of my clients fought a deportation battle that lasted nearly 8 years across two immigration courts, because he complied with NSEERS.

H.R. 158 is a mini-NSEERS. The Senate should kill this bill. It’s a medicine that only has side effects and cures nothing.

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Hassan Ahmad is an immigration lawyer in Northern Virginia. 

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