la Sica” Wnited States Senate COMMITTEE ON Same sumone mo HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS WASHINGTON, DC 20810-6260 January 27, 2016 Honorable Jeh C. Johnson Secretary Department of Homeland Security Washington, DC 20528 Dear Secretary Johnson, I write today to express concern over the joint announcement by the Department of Homeland Security (DHS) and the Department of State (DOS) regarding the implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.' Specifically, [ am interested in the legal justifications for expanding the limited wavier authority Congress prescribed. In December 2015, Congress approved, and the President signed into law, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.? The Act provided key enhancements to the Visa Waiver Program (VWP), including a prohibition on the use of VWP by people who are nationals of, or who have recently traveled to, Syria, Iraq, Iran, or Sudan.’ Instead, these individuals must apply for a visa using the regular immigration process at a US. embassy or consulate office.’ In the Act, Congress provided narrow exceptions to the VWP prohibition, including limited waiver authority for law enforcement or national security purposes.’ However, after Iran publicly protested the VWP provisions, Secretary Kerry wrote to his Iranian counterpart, Mohammad Javad Zarif, assuring him that such measures would not undermine Iran’s business interests or violate the terms stipulated in the Iran nuclear agreement.° Tam a supporter of the VWP for a variety of reasons because of the enhanced security it can provide if its provisions are adhered to. After the attacks in Paris late last year, my Committee convened several hearings to explore the implications these attacks have for our own national security.’ In hearing testimony, vulnerabilities were highlighted and the Visa Waiver ' The Continuing Appropriations Act, 2016, Public Law 114 $3, December 28, 2015. "id. ® Syria, Iran, and Sudan were included because of there presence on the State Department's list of state sponsors of terrorism and Irag was included because itis currently being used as a safe haven for the Islamic State in Iraq and Syria (ISIS), U.S. Dep't of State, State Sponsors of Terrorism, bttp:/Wwww-state govij/etlistieL4151.htm. “The Continuing Appropriations Act, 2016, Public Law 1 14~ 53, December 28, 2015. Sid “ Jay Solomon, U.S. Reassures Iran on Visa Restrictions, WALL STREET JOURNAL, Dec. 20, 2015, bttp:/www. ws}. convarticles/u-s-reassures-iran-on-visa-restrictions-1450654648, "The Impact of ISIS on the Homeland and Refugee Resettlement: Hearing Before the S. Comm. on Homeland Security & Governmental Affairs, 14th Cong. (20153); Strengthening the Visa Waiver Program after the Paris “Attacks: Roundtable Before the S. Comm. on Homeland Security & Governmental Affairs, \\4th Cong. (2015).‘The Honorable Jeh Johnson January 27, 2016 Page 2 Program Improvement and Terrorist Travel Prevention Act of 2015 was designed to help mitigate those. Congress has every right to expect full compliance with the new provisions. On January 21, 2016, DHS and DOS announced that nationals of VWP countries who have traveled to, or have been present in, Iran, Iraq, Sudan, or Syria on or after March 1, 2011 and nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria would no longer be eligible for travel to the United States under the Visa Waiver Program.’ However, DHS and DOS presented a general ist of categories of people who may be eligible for a waiver. According to your joint statement, the waiver will apply to: 1) individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty; 2) individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian Non-governmental organization (NGO) on official duty; 3) individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes; 4) individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and 5) individuals who. have traveled to Iraq for legitimate business-related purpose: .|" Waivers will be granted on a case-by-case basis." As the lead sponsor of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, I can attest that Congress considered and rejected expanding the waiver authority in this way, because these groups of travelers would be hard to verify and any waivers granted would be easy to exploit. In fact, we considered providing no waiver authority for fear that the Administration would abuse such authority for its own purposes. Unfortunately, it appears that now is the case. As the Act is implemented, I hope and expect that any waiver authority will be used based on national security and law enforcement interests, as the law requires, not used as a tool to further boost Iranian business interests. To better understand the Administration’s intended use of the law’s limited waiver authority and the implications to the national security of the United States, [ask that you provide responses to the following questions by February 10, 2016 1, What law enforcement and national security interests will the United States secure by granting a waiver to each of the categories presented in the January 21, 2016 announcement? Please provide a response for each specific category: "1d ° U.S Dep't of Homeland Security, United States Begins Implementation of Changes to the Visa Waiver Program, (Jan, 21, 2016), https:/www dhs govinews/20 16/01/21 /united-states-begins-implementation-changes-visa-waiver- ° id "id, Id‘The Honorable Jeh Johnson January 27, 2016 Page 3 a, individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty; b. individuals who traveled to Tran, Irag, Sudan, or Syria on behalf of a humanitarian NGO on official duty; ¢. individuals who traveled to Tran, Iraq, Sudan or Syria as a journalist for reporting purposes; 4, individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and ¢. individuals who have traveled to Iraq for legitimate business-related purposes. If waivers will be granted on a case-by-case basis, how will DHS identify the VWP travelers who meet the exception criteria? Additionally, will DHS make a determination using the ESTA form or will travelers have to proactively apply for a waiver? How will DHS determine that a traveler is providing accurate travel history information, considering the fact that the U.S, does not receive travel information of foreign nationals unless there is a U.S. nexus? Will DHS assess the security risks in granting waivers to individuals who have traveled to Iran, [raq, Sudan, and Syria, three of which make up the entirety of the Department of State’s list of State Sponsors of Terrorism,'? and, if so, how? Why is DHS exploring ways to apply a waiver to dual nationals of Iran, Iraq, Sudan, and Syria? How does this meet the provision included in the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015? If the Administration disagrees with this provision, do you intend to seek a legislative fix? ‘The Committee on Homeland Security and Governmental Affairs is authorized by Rule XXV of the Standing Rules of the Senate to investigate “the efficiency, economy, and effectiveness of all agencies and departments of the Government.”"* Additionally, 8. Res. 73 (114th Congress) authorizes the Committee to examine “the efficiency and economy of all branches and functions of Government with particular references to the operations and management of Federal regulatory policies and programs.” For purposes of this request, please refer to the definitions and instructions in enclosure. ® U.S, Department of State, State Sponsors of Terrorism, hep:/www state gov/j/ctlistfc1415 Lm. §, Rule XXV(k)}; see also 8. Res. 445, 108th Cong. (2004). "8, Res, 73 § 12, 114th Cong. (2015),‘The Honorable Jeh Johnson January 27, 2016 Page 4 Ifyou have any questions about this request, please contact Brooke Erieson of the Committee staff at (202) 224-4751. Thank you for your prompt attention to this matter. sincerely, OrAyhend off Jphnson ce: The Honorable Thomas R. Carper Ranking Member