IMMIGRATION ALERT
State Department Considers Delaying Machine-Readable Passport Requirement for Visa Waiver Entrants; Worldwide Caution Published
September 11, 2003The Department of State (DOS) recently announced that Secretary of State Colin Powell is considering exercising his authority to waive the requirement for machine-readable passports (MRPs) for Visa Waiver Program (VWP) entrants until October 26, 2004; the requirement was initially scheduled to go into effect on October 1, 2003. The waivers are expected to be offered on a country-by-country basis, and would not affect Belgian nationals entering on the Visa Waiver Program, who are already required to have machine-readable passports. MRPs are documents that conform to international passport standards and contain biographic data that may be electronically read and transmitted.
Though there is authority to waive the machine-readable passport requirement, the Secretary of State had indicated earlier in the year a desire to move swiftly to impose the requirement on October 1 of this year. Foreign nationals who do not have machine-readable passports would be required to obtain visas. Please note that this change would affect only Visa Waiver travel. Applicants for visas at U.S. consular sections would not be required to obtain machine-readable passports.
Until we receive final word, it is advisable for nationals who plan to travel via the Visa Waiver Program to obtain machine-readable passports. This may be particularly prudent since the Department of State, in the past day, has issued a heightened Worldwide Travel Caution as a result of perceived accelerated activities by the terrorist group Al Qaeda, which could affect Secretary Powell's decision-making. Families and groups should obtain an individual passport for each traveler, including infants. Machine-readable passports typically have biographic data for only one traveler in the machine-readable zone (MRZ), and families may be denied visa-free entry into the U.S. if the biographic data for only one traveler is machine-readable.
Background
The Visa Waiver Program permits citizens of designated countries to apply for admission to the United States for ninety days or less as nonimmigrant visitors for business or pleasure without first obtaining a B-1 or B-2 nonimmigrant visa from a U.S. consular officer. B-1 and B-2 visits are generally short-term and, with very limited exceptions, cannot involve employment in the United States or the undertaking of an academic study program. Entrants under the Visa Waiver Program cannot change their status to another nonimmigrant category, nor can they extend their stays beyond ninety days, except in very limited circumstances. The following countries are participants: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom.
The Visa Waiver Permanent Program Act of 2000 (Pub. L. 106-396) imposed an October 1, 2007 deadline for nationals of Visa Waiver Program participating countries to have machine-readable passports, but this was moved up to October 1, 2003 by the USA PATRIOT Act (Pub. L. 107-56). Additionally, last year's Enhanced Border Security and Visa Entry Reform Act (Pub. L. 107-173) introduces a requirement that, no later than October 26, 2004, Visa Waiver Program participating countries must issue its nationals machine-readable passports that are also tamper-resistant and comply with biometric and document identifying standards established by the Civil Aviation Organization. Foreign nationals applying for admission to the United States after October 26, 2004 must present passports that meet the new requirements on biometric identifiers and tamper resistance, though only if the passport is issued after that date.
Considerations in Allowing for the Possible Waiver
Last week, in preparation for a final decision, U.S. consular posts were sent a cable that included language to be presented to Visa Waiver Program participating countries suggesting that a waiver from the machine-readable passport requirement might be available, provided that certain conditions were met. Among the conditions for participating countries are the following:
A State Department spokesperson indicated that feedback from the affected countries and consular posts on the ability of Visa Waiver participating countries to comply with these conditions would be necessary in order to assure the Secretary of State that countries are preparing to be in compliance and that waivers would be granted with the understanding that compliance would be expected in October 2004, when other anti-fraud measures will take effect.
Defining a Machine-Readable Passport
Machine-readable passports are defined in accordance with international standards. A machine-readable passport generally has two typeface lines printed at the bottom of the biographical page which can be read by a machine, similar to a bar code. When read, these lines electronically provide identical information to that contained on the biographical page. The standards regarding size of the passport and photograph, and arrangement of data fields, especially the two lines of printed machine readable data, are set by the International Civil Aviation Organization. As mentioned earlier, the Enhanced Border Security and Visa Entry Reform Act of 2002 requires the Department, no later than October 26, 2004, to issue visas using biometric identifiers, and to require that visa waiver entrants also have passports that contain biometric identifiers and are tamper-resistant. Biometric identifiers may include fingerprints, photographs, eye scans, etc.
Machine-Readable Passports Already Required for Belgium
The Immigration and Nationality Act permits the Attorney General, in consultation with the Secretary of State, to review a country's Visa Waiver Program designation, which may be terminated if the country's continued participation would jeopardize the law enforcement, security, and extradition interests of the United States. As we reported in an earlier client alert, the Department of Justice (DOJ) issued an interim rule that altered the participation of several countries in the Visa Waiver Program, including Belgium and Uruguay (68 Fed. Reg. 10954). Under the March 7, 2003 interim rule, Uruguay's participation in the program was terminated effective April 15, 2003. In addition, Belgian citizens seeking to enter the United States under the program are now required to possess a machine-readable Belgian passport. In March 2001, the Belgian Government began issuing machine-readable passports with security features, but to date many non-machine-readable passports are still in circulation. At the time the MRP requirement was imposed on Belgian nationals, the Justice Department expressed concern that the Belgian Government had inadequately reported lost and stolen blank passports, thus posing a security concern. The State Department has indicated that any possible waiver will not be afforded to Belgium, since the deadline for compliance has already passed.
Worldwide Caution, the MRP Requirement and Consular Backlogs
A decision by Secretary Powell to waive the machine-readable passport requirement might be affected by a Worldwide Caution issued by the Department of State late yesterday. The Worldwide Caution was issued to remind U.S. citizens of the continuing terrorist threats against U.S. citizens and U.S. interests, both domestically and abroad, and advises "a high state of vigilance."
The Worldwide Caution also advises that U.S. government facilities, including consulates abroad, remain at a heightened state of alert and may temporarily close or suspend public service from time to time to assess their security. The Worldwide Caution is available at http://travel.state.gov/. Specific information on possible consular closings would be available at http://travel.state.gov/links.html.
Closings and additional security procedures would undoubtedly slow down the process of visa issuance. In the event that Secretary Powell does not issue waivers of the machine-readable passport requirement, there will likely be increased numbers of applications for nonimmigrant visas, thus exacerbating already lengthy waiting periods for visa appointments at U.S. consulates and embassies worldwide. As we discussed in our earlier alerts, the Department of State has initiated a new policy curtailing the ability to obtain nonimmigrant visas without interviews. As expected, this has already resulted in quite serious backlogs and in the increased use of scheduling systems that may require applicants to wait several weeks for a nonimmigrant visa appointment.
Procedures and wait times vary widely amongst the posts; therefore, it is advisable to monitor consular web sites for specific information. Again, see http://travel.state.gov/links.html for links to consular web sites.
If you have any questions regarding this alert, please do not hesitate to contact the legal professional with whom you work at Fragomen, Del Rey, Bernsen & Loewy, P.C.
Copyright © 2003 by Fragomen, Del Rey, Bernsen & Loewy, P.C.
