US VISIT Authority

HISTORY OF US-VISIT

Statutory Authority for US-VISIT

Numerous Congressional enactments provide for the creation of an integrated and automated system to record the arrival and departure of aliens; the deployment of equipment at all ports of entry to verify aliens' identities and authenticate travel documents through the comparison of biometric identifiers; and the recording of alien arrival and departure information from biometrically authenticated travel documents.¹ DHS may control alien travel and inspect aliens under sections 215(a) and 235 of the INA, 8 U.S.C. §§ 1185, 1225. Aliens may be required to provide fingerprints, photographs, or other biometric identifiers upon arrival in, or departure from, the United States, and select classes of aliens may be required to provide information at any time. See, e.g., INA sections 214, 215(a), 235(a), 262(a), 263(a), 264(c), 8 U.S.C. 1184, 1185(a), 1225(a), 1302(a), 1303(a), 1304(c). Pursuant to section 215(a) of the INA, and Executive Order No. 13323, 69 Fed. Reg. 241 (Jan. 2, 2004), the Secretary of Homeland Security, with the concurrence of the Secretary of State, has the authority to require certain aliens to provide requested biographic identifiers and other relevant identifying information as they depart the United States. Under section 214 of the INA, 8 U.S.C. § 1184, DHS may make compliance with US-VISIT departure procedures a condition of admission and maintenance of status for nonimmigrant aliens while in the United States.

Statutes

1. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat 3009 (Sept. 30, 1996), at Div. C, Section 110, provided for the development of an automated entry-exit control system.²

2. The Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Pub. L. 106-215, 114 Stat. 337 (June 15, 2000), codified as amended at 8 U.S.C. § 1365a, amended section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to call for an integrated entry and exit data system.³ The creation of an automated entry-exit system that integrates electronic alien arrival and departure information was first authorized in the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA). The DMIA provided that the entry-exit system consist of the integration of all authorized or required alien arrival and departure data that is maintained in electronic format. The DMIA also provided for DHS to use the entry-exit system to match the available arrival and departure data on aliens. DMIA section 2, 8 U.S.C. § 1365a(e).

3. The Visa Waiver Permanent Program Act of 2000 (VWPPA), Pub. L. 106-396, 114 Stat. 1637 (Oct. 30, 2000), codified as amended at 8 U.S.C. § 1187(h), provided for a fully automated entry and exit control system for visa waiver program applicants.⁴ In addition, section 205 of the Visa Waiver Permanent Program Act of 2000 (VWPPA), amending INA section 217(h), 8 U.S.C. § 1187(h), provides for the creation of a system that contains a record of the arrival and departure of every alien admitted under the VWP at air or sea ports of entry. The provisions of the DMIA resulted in the integration of the VWP arrival/departure information into the primary entry-exit system component of US-VISIT.

4. The Uniting and Strengthening America By Providing Appropriate Tools Required To Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001, Pub. L. 107-56, 115 Stat 272 (Oct. 26, 2001), codified as amended at 8 U.S.C. § 1379. Section 403(c) of the USA PATRIOT Act required the Attorney General and the Secretary of State jointly, through the National Institute of Standards and Technology (NIST), and in consultation with the Secretary of the Treasury and other appropriate Federal law enforcement and intelligence agencies, and in consultation with Congress, to develop and certify a technology standard, including appropriate biometric identifier standards, that can be used to verify the identity of visa applicants and persons seeking to enter the United States pursuant to a visa and to do background checks on such aliens. In developing the entry exit system required by DMIA, section 414(b) of the USA PATRIOT Act directed the Attorney General and the Secretary of State to “particularly focus on the utilization of biometric technology; and the development of tamper-resistant documents readable at ports of entry.” 8 U.S.C. § 1365a note.⁵

5. Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSVERA), PL 107-173 (HR 3525), 116 Stat. 553, codified in scattered sections of 8 U.S.C., (May 14, 2002). The legislative requirements for biometric identifiers to be utilized in the context of the entry exit system were significantly strengthened with passage of the Enhanced Border Security and Visa Entry Reform Act of 2002 (“Border Security Act” or EBSVERA). Section 302(a)(1) of the Border Security Act states that the entry exit system must use the technology and biometric standards required to be certified by section 403(c) of the USA PATRIOT Act. Section 303(b)(1) requires that “[n]o later than October 26, 2004,” only machine-readable, tamper-resistant visas and other travel and entry documents that use biometric identifiers may be issued to aliens by DHS and DOS. 8 U.S.C. § 1732(b)(1). This section, however, does not invalidate unexpired travel documents that have been issued by the U.S. government that do not use biometrics. Section 303(b)(1) further states that the Secretaries of Homeland Security and State must jointly establish document authentication and biometric identifier standards for alien travel documents from among those recognized by domestic and international standards organizations.

Section 303(b)(2) requires that “[n]o later than October 26, 2004,” all ports of entry must have equipment and software installed “to allow biometric comparison and authentication of all United States visas and other travel and entry documents issued to aliens, and passports” that are required to be issued by VWP countries. 8 U.S.C. § 1732(b)(2).⁶

The entry-exit system includes a database that contains alien arrival and departure data from the machine-readable visas, passports, and other travel and entry documents. EBSVERA section 302(a)(2), 8 U.S.C. § 1731(a)(2). In developing the entry-exit system, EBSVERA provided that the Secretaries of Homeland Security and State make interoperable all security databases relevant to making determinations of alien admissibility. EBSVERA section 302(a)(2), 8 U.S.C. § 1731(a)(3). In addition, EBSVERA provided that the entry-exit system share information with other systems required by EBSVERA. Section 202 of EBSVERA addresses requirements for an interoperable law enforcement and intelligence data system and requires the integration of all databases and data systems that process or contain information on aliens. 8 U.S.C. § 1722.

6. Section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law No. 108-458, 118 Stat. 3638, 3817 (Dec. 17, 2004), 8 U.S.C. 1365b, provides for DHS to collect biometric exit data for all categories of aliens who are required to provide biometric entry data. IRTPA requires that the system contain, as an interoperable component, the fully integrated databases and data systems maintained by DHS, DOS and the Department of Justice (DOJ) that process or contain information on aliens. IRPTA also requires current and immediate access to information in the databases of Federal law enforcement agencies and the intelligence community, which is relevant in determining whether to issue a visa or the admissibility or deportability of an alien. Section 7208 also provided a complete list of entry-exit system goals, which include, among other things, screening aliens efficiently.

7. Finally, section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, (9/11 Recommendations Act), Pub. L. 110-53 (August 3, 2007) directs the Secretary of Homeland Security, within one year of enactment, to “establish an exit system that records the departure on a flight leaving the United States of every alien participating in the visa waiver program[.]” INA section 217(i), 8 U.S.C. § 1187(i). This air exit system must match the biometric information of aliens against relevant watch lists and immigration information and compare such biometric information against manifest information collected by air carriers on passengers departing the country. Id. In addition, subsection (c) of the 9/11 Recommendations Act permits the Secretary of Homeland Security to waive the applicability of INA section 217(c)(2)(A), 8 U.S.C. § 1187(c)(2)(A), which restricts eligibility for designation into the VWP to countries that have a low nonimmigrant visa refusal rate, subject to a determination that certain security-related measures are met. Specifically, DHS must certify the following to exercise the waiver authority: (1) An air exit system is in place that can verify the departure of not less than 97% of foreign nationals who exit through airports of the United States, and (2) an electronic travel authorization system to collect biographic and other information in advance of travel to the United States (as required under 9/11 Recommendations Act) subsection (d)(1)(E), adding INA section 217(h)(3), 8 U.S.C. § 1187(h)(3), is fully operational. The VWP waiver authority suspends on July 1, 2009, unless the Secretary of Homeland Security provides notification that the air exit system fully satisfies the biometric requirements of INA section 217(i), 8 U.S.C. § 1187(i).

Federal Register Notices

1. 69 Fed. Reg. 468, Implementation of the United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Biometric Requirements, Jan. 5, 2004, Interim final rule with request for comments.

SUMMARY: The Department of Homeland Security (Department or DHS) has established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) in accordance with several Congressional mandates requiring that the Department create an integrated, automated entry exit system that records the arrival and departure of aliens; that equipment be deployed at all ports of entry to allow for the verification of aliens' identities and the authentication of their travel documents through the comparison of biometric identifiers; and that the entry exit system record alien arrival and departure information from these biometrically authenticated documents. This rule provides that the Secretary of Homeland Security or his delegate may require aliens to provide fingerprints, photographs or other biometric identifiers upon arrival in or departure from the United States. The arrival and departure provisions are authorized by sections 214, 215 and 235 of the Immigration and Nationality Act (INA). The Department will apply this rule's requirements only to aliens seeking to be admitted pursuant to a nonimmigrant visa who travel through designated air and sea ports.. . .

2. 69 Fed. Reg. 482, Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and Immigrant Status Indicator Technology System, Jan. 5, 2004, Notice.

SUMMARY: This notice states the requirements for the first phase of the US-VISIT program, implemented pursuant to a Department of Homeland Security (Department) interim rule (see Department interim rule published elsewhere in this issue of the Federal Register). This notice requires certain nonimmigrant aliens to provide fingerprints, photographs or other biometric identifiers if arriving in or departing from the United States through designated air or sea ports of entry on or after January 5, 2004. This Notice applies to aliens applying for admission or admitted pursuant to a nonimmigrant visa who arrive in or depart from an air or sea port of entry designated in this Notice. The requirements and exemptions are specified in this Notice.

3. 69 Fed. Reg. 53318 United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Authority to Collect Biometric Data From Additional Travelers and Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry, Aug. 31, 2004, Interim rule with request for comments.

SUMMARY: The Department of Homeland Security (DHS) has established the United States Visitor and Immigrant Status Technology Program (US-VISIT), an integrated, automated entry-exit system that records the arrival and departure of aliens; verifies aliens' identities; and authenticates aliens' travel documents through comparison of biometric identifiers. On January 5, 2004, DHS implemented the first phase of US-VISIT by publishing an interim rule in the Federal Register at 69 FR 468. The January 5, 2004 interim rule authorized DHS to require aliens seeking to be admitted to the United States pursuant to nonimmigrant visas to provide fingerprints, photographs, or other biometric identifiers upon arrival in, or departure from, the United States at air and sea ports of entry. This interim rule expands the US-VISIT program to the 50 most highly trafficked land border ports of entry in the United States. These 50 land borders will be integrated into the US-VISIT program following identification in Notices published in the Federal Register, with all 50 ports of entry to be identified no later than December 31, 2004.

This interim rule also further defines the population of aliens who are required to provide biometric identifiers and other identifying information under the US-VISIT program. First, DHS may require biometric data collection from nonimmigrant aliens who are visa exempt under the Visa Waiver Program (VWP). While this interim rule provides that DHS has the authority to require Mexican nationals who present a Border Crossing Card to provide biometric data upon arrival in, or departure from, the United States, the Secretaries of DHS and the Department of State (DOS) have jointly determined that BCC travelers who are not required to be issued a Form I-94 Arrival/Departure Record at the time of admission are exempt from the US-VISIT biometric data collection requirements. Second, certain officials of the Taipei Economic and Cultural Representative Office are exempt from the US-VISIT biometric data collection requirements. Third, crewmembers applying for landing privileges may be required to provide biometric data under US-VISIT.

4. 70 Fed. Reg. 44934, United States Visitor and Immigrant Status Indicator Technology Program; Notice on Automatic Identification of Certain Nonimmigrants Exiting the United States at Select Land Border Ports-of-Entry, Aug. 4, 2005, Notice with request for comments.

SUMMARY: The Department of Homeland Security has established the United States Visitor and Immigrant Status Indicator Technology Program, an integrated, automated entry-exit system that records the arrival and departure of aliens; verifies aliens' identities; and authenticates aliens' travel documents through comparison of biometric identifiers. On August 31, 2004, the Department of Homeland Security implemented the second phase of the United States Visitor and Immigrant Status Indicator Technology Program by publishing an interim rule in the Federal Register authorizing collection of biometric data from travelers upon admission at the 50 most highly trafficked land border ports-of-entry. This Notice informs the public of the further expansion of the second phase of the program by establishing a limited testing or proof of concept protocol for automatically documenting the exits and any subsequent re-entries of nonimmigrant travelers at five United States land border ports-of-entry crossings utilizing radio frequency identification (RFID) technology. The purpose of this testing is to determine if RFID technology can improve the efficiency of processing individuals who seek to enter or exit the United States at a land border port-of-entry. This program of testing will last approximately one year.

5. 73 Fed. Reg. 22065 Collection of Alien Biometric Data Upon Exit From the United States at Air and Sea Ports of Departure; United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"), April 24, 2008, Notice of proposed rulemaking.

SUMMARY: The Department of Homeland Security (DHS) proposes to establish an exit program at all air and sea ports of departure in the United States. This proposed rule would require aliens who are subject to United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) biometric requirements upon entering the United States to provide biometric information to commercial air and vessel carriers before departing from the United States at air and sea ports of entry. This rule proposes a performance standard for commercial air and vessel carriers to collect the biometric information and to submit this information to DHS no later than 24 hours after air carrier staff secure the aircraft doors on an international departure, or for sea travel, no later than 24 hours after the vessel's departure from a U.S. port. DHS does not propose to apply these requirements to persons departing the United States on certain private carriers or small carriers as defined herein.

The exit system proposed under this rule meets the recommendations of the 9-11 Commission Report and the requirements of section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007. Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-52, 121 Stat. 266 (Aug. 3, 2007).

6. 73 Fed. Reg. 77473, United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Enrollment of Additional Aliens in US-VISIT; Authority To Collect Biometric Data From Additional Travelers and Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry, Dec. 19, 2008, Final rule.

SUMMARY: The Department of Homeland Security (DHS) established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) in 2003 to verify the identities and travel documents of aliens. Aliens subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at the United States. Currently, aliens arriving at a United States port of entry with a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements with certain limited exceptions. This final rule expands the population of aliens who will be subject to US-VISIT requirements to nearly all aliens, including lawful permanent residents. Exceptions include Canadian citizens seeking short-term admission for business or pleasure under B visas and individuals traveling on A and G visas, among others.

7. 74 Fed. Reg. 2837, United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Enrollment of Additional Aliens in US-VISIT; Authority To Collect Biometric Data from Additional Travelers and Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry, Jan. 16, 2009, Final rule; correction.

SUMMARY: This document contains corrections to the final rule which was published in the Federal Register on December 19, 2008. 73 FR 77473. The pertinent regulations relate to the collection of biometric identifiers during the inspection of aliens at United States ports of entry.

1 See authority cited in Implementation of the United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Biometric Requirements, 69 FR 468, 468 (Jan. 5, 2004).

2 << 8 USCA § 1221 NOTE >> SEC. 110. AUTOMATED ENTRY-EXIT CONTROL SYSTEM.
(a) SYSTEM.--Not later than 2 years after the date of the enactment of this Act, the Attorney General shall develop an automated entry and exit control system that will--
(1) collect a record of departure for every alien departing the United States and match the records of departure with the record of the alien's arrival in the United States; and
(2) enable the Attorney General to identify, through on-line searching procedures, lawfully admitted nonimmigrants who remain in the United States beyond the period authorized by the Attorney General.
(b) REPORT.--
(1) DEADLINE.--Not later than December 31 of each year following the development of the system under subsection (a), the Attorney General shall submit an annual report to the Committees on the Judiciary of the House of Representatives and of the Senate on such system.
(2) INFORMATION.--The report shall include the following information:
(A) The number of departure records collected, with an accounting by country of nationality of the departing alien.
(B) The number of departure records that were successfully matched to records of the alien's prior arrival in the United States, with an accounting by the alien's country of nationality and by the alien's classification as an immigrant or nonimmigrant.
*3009-559 (C) The number of aliens who arrived as nonimmigrants, or as a visitor under the visa waiver program under section 217 of the Immigration and Nationality Act, for whom no matching departure record has been obtained through the system or through other means as of the end of the alien's authorized period of stay, with an accounting by the alien's country of nationality and date of arrival in the United States.
(c) USE OF INFORMATION ON OVERSTAYS.--Information regarding aliens who have remained in the United States beyond their authorized period of stay identified through the system shall be integrated into appropriate data bases of the Immigration and Naturalization Service and the Department of State, including those used at ports of entry and at consular offices.

3 SEC. 2. AMENDMENT TO SECTION 110 OF IIRIRA.<< 8 USCA § 1221 NOTE >>
(a) IN GENERAL.--Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1221 note) is amended to read as follows:
"SEC. 110. INTEGRATED ENTRY AND EXIT DATA SYSTEM.
"(a) REQUIREMENT.--The Attorney General shall implement an integrated entry and exit data system.

4 SEC. 205. USE OF INFORMATION TECHNOLOGY SYSTEMS. << 8 USCA § 1187 >>
(a) IN GENERAL.--Section 217 of the Immigration and Nationality Act (8 U.S.C. 1187), as amended by section 203(b), is further amended by adding at the end the following:
"(h) USE OF INFORMATION TECHNOLOGY SYSTEMS.--
"(1) AUTOMATED ENTRY-EXIT CONTROL SYSTEM.--
"(A) SYSTEM.--Not later than October 1, 2001, the Attorney General shall develop and implement a fully automated entry and exit control system that will collect a record of arrival and departure for every alien who arrives and departs by sea or air at a port of entry into the United States and is provided a waiver under the program.

5 TITLE IV--PROTECTING THE BORDER, Subtitle A--Protecting the Northern Border

SEC. 403. ACCESS BY THE DEPARTMENT OF STATE AND THE INS TO CERTAIN IDENTIFYING INFORMATION IN THE CRIMINAL HISTORY RECORDS OF VISA APPLICANTS AND APPLICANTS FOR ADMISSION TO THE UNITED STATES.
<< 8 USCA § 1379 >>
(c) TECHNOLOGY STANDARD TO CONFIRM IDENTITY.--
(1) IN GENERAL.--The Attorney General and the Secretary of State jointly, through the National Institute of Standards and Technology (NIST), and in consultation with the Secretary of the Treasury and other Federal law enforcement and intelligence agencies the Attorney General or Secretary of State deems appropriate and in consultation with Congress, shall within 2 years after the date of the enactment of this section, develop and certify a technology standard that can be used to verify the identity of persons applying for a United States visa or such persons seeking to enter the United States pursuant to a visa for the purposes of conducting background checks, confirming identity, and ensuring that a person has not received a visa under a different name or such person seeking to enter the United States pursuant to a visa.
(2) INTEGRATED.--The technology standard developed pursuant to paragraph (1), shall be the technological basis for a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share law enforcement and intelligence information necessary to confirm the identity of such persons applying for a United States visa or such person seeking to enter the United States pursuant to a visa.
(3) ACCESSIBLE.--The electronic system described in paragraph (2), once implemented, shall be readily and easily accessible to--
(A) all consular officers responsible for the issuance of visas;
(B) all Federal inspection agents at all United States border inspection points; and
(C) all law enforcement and intelligence officers as determined by regulation to be responsible for investigation or identification of aliens admitted to the United States pursuant to a visa.
(4) REPORT.--Not later than 18 months after the date of the enactment of this Act, and every 2 years thereafter, the Attorney General and the Secretary of State shall jointly, in consultation with the Secretary of Treasury, report to Congress describing the development, implementation, efficacy, and privacy implications of the technology standard and electronic database system described in this subsection.
(5) FUNDING.--There is authorized to be appropriated to the Secretary of State, the Attorney General, and the Director *345 of the National Institute of Standards and Technology such sums as may be necessary to carry out the provisions of this subsection.

6 << 8 USCA § 1731 >>

SEC. 302. IMPLEMENTATION OF AN INTEGRATED ENTRY AND EXIT DATA SYSTEM.
(a) DEVELOPMENT OF SYSTEM.--In developing the integrated entry and exit data system for the ports of entry, as required by the Immigration and Naturalization Service Data Management Improvement Act of 2000 (Public Law 106- 215), the Attorney General and the Secretary of State shall--
(1) implement, fund, and use a technology standard under section 403(c) of the USA PATRIOT Act (as amended by sections 201(c)(5) and 202(a)(4)(B)) at United States ports of entry and at consular posts abroad;
(2) establish a database containing the arrival and departure data from machine-readable visas, passports, and other travel and entry documents possessed by aliens; and
(3) make interoperable all security databases relevant to making determinations of admissibility under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182).
(b) IMPLEMENTATION.--In implementing the provisions of subsection (a), the Immigration and Naturalization Service and the Department of State shall--
*553 (1) utilize technologies that facilitate the lawful and efficient cross-border movement of commerce and persons without compromising the safety and security of the United States; and
(2) consider implementing the North American National Security Program described in section 401.

<< 8 USCA § 1732 >>
SEC. 303. MACHINE-READABLE, TAMPER-RESISTANT ENTRY AND EXIT DOCUMENTS.
(a) REPORT.--
(1) IN GENERAL.--Not later than 180 days after the date of enactment of this Act, the Attorney General, the Secretary of State, and the National Institute of Standards and Technology (NIST), acting jointly, shall submit to the appropriate committees of Congress a comprehensive report assessing the actions that will be necessary, and the considerations to be taken into account, to achieve fully, not later than October 26, 2004--
(A) implementation of the requirements of subsections (b) and (c); and
(B) deployment of the equipment and software to allow biometric comparison and authentication of the documents described in subsections (b) and (c).
(2) ESTIMATES.--In addition to the assessment required by paragraph (1), the report required by that paragraph shall include an estimate of the costs to be incurred, and the personnel, man-hours, and other support required, by the Department of Justice, the Department of State, and NIST to achieve the objectives of subparagraphs (A) and (B) of paragraph (1).
(b) REQUIREMENTS.--
(1) IN GENERAL.--Not later than October 26, 2004, the Attorney General and the Secretary of State shall issue to aliens only machine-readable, tamper-resistant visas and other travel and entry documents that use biometric identifiers. The Attorney General and the Secretary of State shall jointly establish document authentication standards and biometric identifiers standards to be employed on such visas and other travel and entry documents from among those biometric identifiers recognized by domestic and international standards organizations.
(2) READERS AND SCANNERS AT PORTS OF ENTRY.--
(A) IN GENERAL.--Not later than October 26, 2004, the Attorney General, in consultation with the Secretary of State, shall install at all ports of entry of the United States equipment and software to allow biometric comparison and authentication of all United States visas and other travel and entry documents issued to aliens, and passports issued pursuant to subsection (c)(1).
(B) USE OF READERS AND SCANNERS.--The Attorney General, in consultation with the Secretary of State, shall utilize biometric data readers and scanners that--
(i) domestic and international standards organizations determine to be highly accurate when used to verify identity;
(ii) can read the biometric identifiers utilized under subsections (b)(1) and (c)(1); and
*554 (iii) can authenticate the document presented to verify identity.
(3) USE OF TECHNOLOGY STANDARD.--The systems employed to implement paragraphs (1) and (2) shall utilize the technology standard established pursuant to section 403(c) of the USA PATRIOT Act, as amended by section 201(c)(5) and 202(a)(4)(B).
(c) TECHNOLOGY STANDARD FOR VISA WAIVER PARTICIPANTS.--
(1) CERTIFICATION REQUIREMENT.--Not later than October 26, 2004, the government of each country that is designated to participate in the visa waiver program established under section 217 of the Immigration and Nationality Act shall certify, as a condition for designation or continuation of that designation, that it has a program to issue to its nationals machine-readable passports that are tamper-resistant and incorporate biometric and document authentication identifiers that comply with applicable biometric and document identifying standards established by the International Civil Aviation Organization. This paragraph shall not be construed to rescind the requirement of section 217(a)(3) of the Immigration and Nationality Act.
(2) USE OF TECHNOLOGY STANDARD.--On and after October 26, 2004, any alien applying for admission under the visa waiver program under section 217 of the Immigration and Nationality Act shall present a passport that meets the requirements of paragraph (1) unless the alien's passport was issued prior to that date.
(d) AUTHORIZATION OF APPROPRIATIONS.--There are authorized to be appropriated such sums as may be necessary to carry out this section, including reimbursement to international and domestic standards organizations.

3

Vicki J. Ray, Attorney Advisor September 2009

DHS Office of the General Counsel