[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]









   THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM

=======================================================================

                             JOINT HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON NATIONAL SECURITY

                                AND THE

                 SUBCOMMITTEE ON GOVERNMENT OPERATIONS

                                 OF THE

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 10, 2016

                               __________

                           Serial No. 114-104

                               __________

Printed for the use of the Committee on Oversight and Government Reform




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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                     JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida                ELIJAH E. CUMMINGS, Maryland, 
MICHAEL R. TURNER, Ohio                  Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee       CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio                     ELEANOR HOLMES NORTON, District of 
TIM WALBERG, Michigan                    Columbia
JUSTIN AMASH, Michigan               WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona               STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee          JIM COOPER, Tennessee
TREY GOWDY, South Carolina           GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas              MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming           TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky              ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina         BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida                TED LIEU, California
MICK MULVANEY, South Carolina        BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado                   STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina          MARK DeSAULNIER, California
ROD BLUM, Iowa                       BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia                PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma              MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama

                   Jennifer Hemingway, Staff Director
                 David Rapallo, Minority Staff Director
      Art Arthur, Subcommittee on National Security Staff Director
                           Willie Marx, Clerk
                   Subcommittee on National Security

                    RON DESANTIS, Florida, Chairman
JOHN L. MICA, Florida                STEPHEN F. LYNCH, Massachusetts, 
JOHN J. DUNCAN, JR., Tennessee           Ranking Member
JODY B. HICE, Georgia                ROBIN KELLY, Illinois
STEVE RUSSELL, Oklahoma, Vice Chair  BRENDA L. LAWRENCE, Michigan
WILL HURD, Texas                     TED LIEU, California

                                 ------                                

                 Subcommittee on Government Operations

                 MARK MEADOWS, North Carolina, Chairman
JIM JORDAN, Ohio                     GERALD E. CONNOLLY, Virginia, 
TIM WALBERG, Michigan, Vice Chair        Ranking Minority Member
TREY GOWDY, South Carolina           CAROLYN B. MALONEY, New York
THOMAS MASSIE, Kentucky              ELEANOR HOLMES NORTON, District of 
MICK MULVANEY, South Carolina            Columbia
KEN BUCK, Colorado                   WM. LACY CLAY, Missouri
EARL L. ``BUDDY'' CARTER, Georgia    STACEY E. PLASKETT, Virgin Islands
GLENN GROTHMAN, Wisconsin            STEPHEN F. LYNCH, Massachusetts























                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on February 10, 2016................................     1

                               WITNESSES

Mr. Gil Kerlikowske, Commissioner, Customs and Border Protection, 
  U.S. Department of Homeland Security
    Oral Statement...............................................     9
    Written Statement............................................    11
Ms. Hillary Batjer Johnson, Deputy Coordinator for Homeland 
  Security, Screening, and Designations, Bureau of 
  Counterterrorism, U.S. Department of State
    Oral Statement...............................................    18
    Written Statement............................................    21
Ms. Jessica Vaughan, Director of Policy Studies, Center for 
  Immigration Studies
    Oral Statement...............................................    34
    Written Statement............................................    36
Mr. Emanuele Ottolenghi, Senior Fellow, Foundation for Defense of 
  Democracies
    Oral Statement...............................................    46
    Written Statement............................................    48
Mr. Stephen Heifetz, Partner, Steptoe and Johnson, LLP
    Oral Statement...............................................    69
    Written Statement............................................    71

                                APPENDIX

A letter from Karin Johnson, Director, Washington Legislative 
  Office and Joanne Lin, Legislative Counsel at the American 
  Civil Liberties Union to Rep. Mark Meadows, Rep. Ron DeSantis, 
  Rep. Gerald Connolly, and Rep. Stephen Lynch--in support of Hr 
  4380-the Equal Protection and Travel Act of 2016, submitted by 
  Rep. Thomas Massie.............................................   102
A letter from 65 Separate Organizations in Support of HR 4380-The 
  Equal Protection and Travel Act of 2016, Submitted by Rep. 
  Thomas Massie..................................................   107
Responses to questions for the record by the U.S. Department of 
  Homeland Security, submitted by Chairman DeSantis..............   110
Responses to questions from the U.S. Department of State, 
  submitted by Chairman DeSantis.................................   119
A letter from Secretary of State John Kerry to Foreign Minister 
  Javad Zarif, submitted by Rep. Jody Hice. The text of the 
  letter can be found online here: https://www.niacouncil.org/
  text-sec-kerry-letter-to-zarif-regarding-visa-waiver-reform/

 
   THE PRESIDENT'S WAIVER OF RESTRICTIONS ON THE VISA WAIVER PROGRAM

                              ----------                              


                      Wednesday, February 10, 2016

                  House of Representatives,
 Subcommittee on National Security, joint with the 
             Subcommittee on Government Operations,
              Committee on Oversight and Government Reform,
                                                   Washington, D.C.
    The subcommittees met, pursuant to call, at 3:00 p.m., in 
Room 2154, Rayburn House Office Building, Hon. Ron DeSantis 
[chairman of the Subcommittee on National Security] presiding.
    Present from Subcommittee on National Security: 
Representatives DeSantis, Mica, Duncan, Hice, Russell, Hurd, 
and Lynch.
    Present from Subcommittee on Government Operations: 
Representatives Meadows, Jordan, Walberg, Massie, Mulvaney, 
Buck, Carter, Grothman, Connolly, Maloney, Norton, Plaskett, 
and Lynch.
    Mr. DeSantis. The Subcommittee on National Security and the 
Subcommittee on Government Operations will come to order. 
Without objection, the chair is authorized to declare a recess 
at any time.
    The United States faces clear and present dangers from 
Islamic jihadists both at home and abroad. From the attacks in 
Paris to the massacre in San Bernardino, it is clear that 
militant Islamists are on the march. Identifying terrorists and 
stopping them before they can strike must be a priority for the 
United States and its allies. Certainly, the Federal Government 
has a duty to prevent terrorists and those sympathetic to their 
aims from entering the United States, a duty that it is not 
currently satisfying.
    Almost 12 years ago, the bipartisan 9/11 Commission 
provided a roadmap for the government to follow in fulfilling 
these crucial responsibilities. It stated, ``Targeting travel 
is at least as powerful a weapon against terrorists as 
targeting their money. The United States should combine 
terrorist travel intelligence operations and law enforcement 
and a strategy to intercept terrorists, find terrorist travel 
facilitators, and constrain terrorist mobility.''
    Our consular officers abroad and the inspectors at our 
ports of entry are on the first line of defense in this 
strategy. Most foreign nationals who seek to enter the United 
States must apply to the State Department and meet with one of 
those consular officers to obtain a visa. Those officers are 
trained to separate bona fide travelers from those with 
malevolent intentions. Yet, as we have seen with the visa 
issued to San Bernardino terrorist Tashfeen Malik, these 
officers have not always been successful at weeding out 
militant Islamists.
    An exception to the rule that an individual who seeks entry 
to the United States must apply for and receive a visa before 
entering this country is the Visa Waiver Program. The Visa 
Waiver Program allows foreign nationals of 38 countries, mostly 
in Europe, to enter the United States as nonimmigrant visas for 
up to 90 days without having to obtain a visa or undergo an in-
person interview at a U.S. consulate. Approximately 20 million 
foreign nationals enter each year under the program, 
constituting 37 percent of all visitors from overseas. And as 
this committee has shown in testimony, many have overstayed 
that 90 days without consequence.
    The November 13, 2015, terrorist attacks in Paris made 
clear that there were vulnerabilities in the Visa Waiver 
Program. The terrorists in that massacre killed 130 people and 
caused over 350 injuries, and at least five of the attackers 
were French nationals, two of whom are living in Belgium, and 
one was a Belgian national. And nationals of both France and 
Belgium are able to enter the United States under the Visa 
Waiver Program. Accordingly, at least six of the Paris 
attackers could have attempted to enter this country under the 
Visa Waiver Program. All they would have needed was a plane 
ticket.
    Those attacks highlight the fact that even within the 
borders of our closest international partners, there are 
insular communities sheltering militant Islamists bent on 
destroying our way of life. Many Islamic jihadists in places 
such as Syria are Western passport holders or dual nationals 
who could take advantage of the Visa Waiver Program. This 
exposes the American people to the possibility that these 
militants, after being trained and further radicalized in Syria 
and Iraq, could exploit the Visa Waiver Program to enter this 
country.
    These concerns and others were understood by this committee 
in two hearings that we held in early December. In the first, 
we identified flaws in the Visa Waiver Program that could be 
exploited by terrorists and criminals. In the second hearing, 
which followed from the findings of the first, the full 
committee looked at potential defects in our nation's terrorist 
screening scheme as a whole.
    In response to these concerns and others, Congress crafted 
a bipartisan measure that included several changes to the Visa 
Waiver Program intended to prevent terrorists from exploiting 
the program and to address other national security concerns, 
and those changes took effect or signed into law in December.
    The bill responded to concerns that were raised about the 
risks related to visa-free travel by foreign nationals who 
carry both passports, a visa waiver of countries, and of other 
countries that are not friendly to the United States, as well 
as individuals who have traveled to countries of concern and 
state sponsors of terrorism, including Syria, Iraq, Iran, and 
Sudan. It did not prevent those individuals from entering our 
country, but it did require them to obtain a visa before coming 
to the United States. It gave the Secretary of State the 
authority to designate additional countries of concern. And 
finally, the bill gave the Secretary of Homeland Security very 
limited authority to waive these provisions for specific and 
targeted national security or law enforcement purposes.
    As it has done in the past, however, this administration 
refused to abide by the limits placed on it by Congress. After 
these changes were signed into law, the Iranian Government 
objected that the restrictions would violate the nuclear 
agreement, the so-called Joint Comprehensive Plan of Action, 
which was adopted in October of 2015. The Iranians claimed that 
the JCPOA obliges the United States not to take any actions 
that will ``adversely affect the normalization of trade and 
economic relations with Iran.''
    In response, the administration moved to placate Iran. In a 
letter to the Iranian Foreign Minister dated one day after the 
President signed the visa waiver bill into law, the Secretary 
of State made clear that the administration would find ways to 
ensure that changes to Visa Waiver Program would not interfere 
with Iran's ``legitimate business interests.''
    Subsequently, on January 21, 2016, the administration 
announced that it would use what was intended to be a limited 
law enforcement exception to allow foreign nationals who have 
traveled to Iran, Iraq, Sudan, and Syria as journalists, aid 
workers, military or government workers, or for unspecified 
legitimate business-related purposes to be issued waivers to 
the restrictions contained in the bill.
    Travel for purported legitimate business-related purpose 
was exactly the type of travel that Congress sought to 
restrict. In the real world, espionage is as likely to involve 
transfer of restricted goods and technology by intermediaries 
who are putatively citizens of friendlier neutral nations as it 
is to be carried out in secret by foreign intelligence 
officers.
    I am concerned about these actions both as chairman of the 
National Security Subcommittee and as a member of the House 
Judiciary Committee. The Judiciary Committee chairman Bob 
Goodlatte told the House Judiciary Committee that the 
administration's decision to abuse their limited waiver 
authority and allow scores of people who have traveled to or 
are dual nationals of countries like Iraq and Syria flies in 
the face of the reason and congressional intent. The Obama 
administration, he says, ``is essentially rewriting the law by 
blowing wide open a small window of discretion that Congress 
gave it for law enforcement and national security reasons. In 
fact, the categories of people that the Obama administration is 
exempting from the law were expressly rejected by Congress.''
    This administration takes these actions in clear violation 
of the law and does so to favor a known state sponsor of 
terrorism. And I would add, businesses in Iran, many of them 
are controlled by the Revolutionary Guard Corps, which is a 
designated terrorist organization.
    So I thank our witnesses for their testimony today, and I 
look forward to examining issues related to the impact of this 
executive action on the Visa Waiver Program.
    Mr. DeSantis. I now recognize the ranking member of the 
Subcommittee on National Security, Mr. Lynch, for his opening 
statement.
    Mr. Lynch. Thank you very much, Mr. Chairman. I want to 
thank you and also Chairman Meadows for their good work and 
Ranking Member Connolly for holding this hearing to examine the 
implementation of the Visa Waiver Program. And I would also 
like to thank in advance our witnesses today for your 
willingness to help the committee with this work.
    In December of 2015, Congress enacted and President Obama 
signed the Visa Waiver Program Improvement and Terrorist Travel 
Prevention Act as part of the recent omnibus appropriations 
bill. This bipartisan legislation to strengthen the Visa Waiver 
Program became law in the wake of the devastating terrorist 
attacks in Paris, France, in November of 2015, perpetrated by 
several attackers who were citizens of so-called Visa Waiver 
Program countries, including France and Belgium, and also 
followed the tragic mass shooting in San Bernardino, 
California, in December of 2015. That also evidenced the real 
and continued threat of a terrorist attack committed on U.S. 
soil.
    The new act, which I voted for, generally provides that 
even if you are a citizen of one of the 38 allied nations that 
participated in the Visa Waiver Program, you are no longer 
eligible for temporary visa-free entry to the United States if 
you travel to Syria, Iraq, Sudan, or Iran since March 1, 2011. 
Similarly, dual nationals of any of these four countries are 
prohibited from Visa Waiver Program eligibility.
    The act also recognizes that, in select cases, the 
application of these new program restrictions could 
intentionally run contrary to national security interests by, 
for example, excluding U.N. personnel, inspectors with the 
IAEA, or humanitarian relief workers who have visited one of 
these countries of concern from the Visa Waiver Program.
    In order to better ensure that such individuals are able to 
do their jobs, the act provides that the Secretary of Homeland 
Security may in some instances grant a waiver to a foreign 
national ``if the Secretary determines that such a waiver is 
consistent with the law enforcement or national security 
interests of the United States.'' It also requires the 
Secretary to submit to Congress an annual report on each 
instance in which the Secretary exercises that waiver 
authority.
    Last month, the Department of Homeland Security explained 
the limited circumstances under which the Secretary may 
consider granting a national security waiver. In particular, 
the agency underscored that such waivers ``will be granted only 
on a case-by-case basis.'' The Department also noted that 
waiver eligibility travelers may include representatives of 
international and humanitarian organizations, as well as 
journalists who travel to Iran, Iraq, Sudan, or Syria in 
performance of their job duties. They may also include 
individuals who travel to Iraq and Iran for legitimate 
business-related purposes.
    I strongly agree that we must conduct meaningful oversight 
of the implementation of this national security waiver 
authority. However, in analyzing the effectiveness of this 
provision, we must be mindful that our shared interest in 
national security does not exclude the goals of promoting 
humanitarian assistance, accountability, and economic stability 
in the four countries of concern. Quite the contrary, they can 
go hand-in-hand.
    Last month, Chairman Chaffetz authorized Representative 
Steve Russell and myself to lead an oversight delegation to the 
Zaatari refugee camp on the Jordanian/Syrian border and the 
Oncunipar refugee camp in Kilis Province on the Turkish/Syrian 
border. We met with representatives from several international 
and humanitarian organizations, including the Office of the 
United Nations High Commissioner on Refugees, the World Food 
Program, and Save the Children, and local humanitarian and 
relief health care groups. These officials repeatedly noted 
that humanitarian aid does not only provide dignified living 
for people in need it but also makes us all safer by de-
incentivizing desperate populations from making desperate 
choices. This humanitarian aid keeps refugees near their home 
country, albeit on the other side of the border.
    Similarly, conflict reporting by journalists in places like 
Aleppo, Syria, has proven critical to informing U.S. officials 
and the American public about the security and humanitarian 
facts on the ground. As noted by Professor Ellen Shearer, Co-
Director of the National Security Journalism Initiative at 
Northwestern University, ``The cost of getting the truth could 
be high, but the cost in not getting the full story is very 
real, too.''
    In Iraq, U.S.-led efforts to combat the Islamic State will 
only be complicated if the country cannot conduct legitimate 
business and dive deeper into the economic crisis and the 
social unrest caused by falling oil prices.
    And in Iran, international efforts to ensure compliance 
with the robust nuclear inspection regime set forth in the Iran 
nuclear agreement would be undermined if an Iranian economy 
that is unable to refurbish a deteriorating domestic plane 
fleet used by IAEA inspectors, the International Atomic Energy 
Agency inspectors, to travel between inspection sites. And a 
number of those inspectors have indicated that that is probably 
the most dangerous thing they do in Iran is fly from city to 
city on the Iran Air because of the terrible condition of their 
air fleet. So we are going to have to consider that.
    Again, now, I voted for tighter restrictions in the Visa 
Waiver Program, given the evidence that the Islamic State has 
adopted a tactic of feeding militant extremists into the stream 
of legitimate refugees and the wider diaspora created by the 
wars in Iraq and Syria. I do believe, though, that in affording 
the Secretary of Department of Homeland Security flexibility 
that he has been granted by statute, it should be prudently and 
rarely exercised.
    Mr. Chairman, I look forward to further discussing these 
and other issues relating to the Visa Waiver Program with 
today's witnesses, and I yield back the balance of my time. And 
thank you for your indulgence.
    Mr. DeSantis. I thank the gentleman.
    The chair now recognizes the chairman of the Subcommittee 
on Government Operations, Mr. Meadows, for his opening 
statement.
    Mr. Meadows. Thank you, Mr. Chairman, and thank you, Mr. 
Lynch, for your accurate remarks. I certainly look forward to 
working with both of you on this particular issue.
    It seems that every time we turn around, on the televisions 
we see unspeakable atrocities that are being committed by ISIS. 
You know, it has come now into the bedrooms and homes of many 
of us where we have to deal with this reality. The increased 
presence of ISIS in countries like Iraq and Syria highlight the 
concerns over the reports of thousands of citizens in Western 
countries traveling to places like Iraq and Syria and then 
training with these terrorist groups and then returning home.
    Even late last year, obviously, the people of Paris saw 
this practice manifest in a just horrific tragedy. Individuals 
with dual citizenship traveled to Syria and trained with these 
so-called fighters that fight against innocent civilians going 
about their everyday life, but it is really not a fight. This 
was an attack, an attack against fathers and mothers, daughters 
and sons. And these monsters who carried out this attack took 
advantage of rights granted to them as nationals of France and 
nationals of Belgium.
    In an effort to help prevent individuals from similarly 
exploiting the advantages afforded to them by having a 
citizenship of those countries covered by the Visa Waiver 
Program, Congress, as Mr. Lynch put forth, passed a piece of 
legislation late last year that would require those individuals 
who travel to certain countries of concern, or who hold dual 
citizenship with those countries, to go through a more rigorous 
review before being admitted into the United States, a 
commonsense approach.
    But since the President has signed that bill into law, it 
seems like the administration is starting to backpedal on some 
of those changes to expand that narrow exception for national 
security afforded to them by Congress. The administration's 
disregard for the congressional intent is intolerable, 
especially when we look at the action being done to appease a 
country like Iran. It is troubling.
    I understand that there are many people affected by 
Congress's changes to the Visa Waiver Program that mean no harm 
to the United States. It is very obvious. What is important to 
understand is that being excluded from the Visa Waiver Program 
does not keep these people from coming to the United States. It 
just means that they have to apply for a visa like all other 
people around the world that are not included in that program. 
Somehow, we think that it is keeping them from coming to the 
United States.
    That being said, we need to make sure that our visa 
screening process is effective, and I have been pressuring DHS 
for months, including in a hearing in December, to report to 
Congress on the number of individuals who have overstayed their 
visas.
    While DHS finally released a report about 3 weeks ago, the 
report left much to be desired. For instance, the figure 
included only a couple of subsections of admissions, leaving 
incomplete the picture of visa overstays. DHS reports that only 
1 percent of admissions overstayed their permissible period. 
However, when you start to look at this, the administration 
only counted the travelers each time they entered the country 
as a unique admission. Now, what I am saying there is, thereby, 
it lowers the overall numbers to suggest that we are doing a 
better job than we really are.
    That figure that was reported by DHS suggested that there 
was some 500,000 foreign travelers who had overstayed their 
visas and remained in the United States illegally. As of 
January 4, that number had been brought down to 416,000 of 
these who had not left the country. As I said, this number does 
not give the full picture either. It does not include those who 
enter by land or those who have entered for other reasons other 
than business or pleasure such as students, guest workers, 
exchange visitors. In fact, of the over 70 specific types of 
nonimmigrant visas, DHS's report only covers 2, 2 out of 70. 
This report is supposed to inform Congress. Not only is it 
missing critical information, the DHS will not even provide 
Congress with the background memos used to compile the report.
    We have a DHS official here today, so I hope that hopefully 
you can answer some of these questions for us and start to 
illuminate both members of the majority and the minority. I 
also hope that you can help us understand the significance of a 
biometric exit system and actually putting that in so that we 
can start to track this system and have proper reporting for 
visa overstays because it is a critical function for our 
national security.
    And I can tell you that I imagine everyone in this room 
agrees with this. I don't want to have an incident that happens 
here that could have been prevented by implementing the proper 
procedures to look at this. Far too often we look backwards. We 
say only if this had happened or only if that had happened, 
maybe this disaster could have been prevented. I know one thing 
for sure. We must get it right. We must get it right right 
away.
    And I thank the chairman for his patience and his direction 
and his leadership on this, and I yield back.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes Mr. Connolly, the ranking member 
of the Subcommittee on Government Operations, for his opening 
statement.
    Mr. Connelly. I thank the chair, and welcome to our 
panelists.
    Last December, in light of the tragedies of San Bernardino 
and Paris, Congress came together and passed the Visa Waiver 
Program Improvement and Terrorist Travel Prevention Act of 
2015, passed as part of the omnibus spending bill. It will 
enhance VWP's information-sharing requirements to better assess 
travel's risk.
    It also requires covered travelers to use an e-passport 
containing technology that stores travel information, a digital 
photograph, biographical information, and biometric 
identifiers. Such passports also included security layers that 
make it more difficult to alter or duplicate them compared to 
other forms of travel identification.
    The bill also tightens eligibility restrictions for VWP 
participation but does not block international travel using the 
normal visa process. It would prohibit participation in that 
process, the VWP process, by anyone who has traveled to Syria, 
Iraq, Iran, Sudan, and other designated areas of concern within 
the past 5 years, and dual nationals of those countries.
    It also empowers the Department of Homeland Security with 
the authority to waive these restrictions to support ``the law 
enforcement and national security interests of the United 
States.'' The Department of Homeland Security recently 
announced that it would implement those waivers on a limited 
case-by-case basis, certain categories of individuals, 
including those who have traveled to Iran or Iraq for 
legitimate business, professional, and humanitarian purposes.
    Of course, individuals who may fall into one of those 
accepted categories are not automatically allowed to enter via 
the program. They must undergo the same rigorous screening 
process as any other traveler prior to receiving approval to 
travel under that program.
    Some of my colleagues, critics of the administration, claim 
that the Department's implementation is contrary to 
congressional intent and represents an overreach of executive 
authority as the legislative language did not expressly provide 
exceptions.
    However, I believe the Department is taking a commonsense 
approach to implementing the waiver authority we granted them, 
and that it is not inconsistent with the requirements of the 
law. In fact, some argue that permitting individuals from 
waiver countries to travel to Iran or Iraq for legitimate 
business, professional, and humanitarian purposes serves to 
promote rather than undermine the law enforcement and national 
security interests of our country.
    There is concern that this waiver was provided in the 
interest of reserving the JCPOA in a manner inconsistent with 
the commitments the U.S. made in the deal. That is the nuclear 
deal with the Iran. For one, the waiver specifies travel after 
the date the agreement was signed. Additionally, the only 
reason Iran is subjected to these reforms is its designation as 
a state sponsor of terror. We were assured that Iran's support 
for terrorism was firewalled--if one can make a verb out of 
that--from the JCPOA negotiations, and for good reason, as we 
do not want to re-litigate the nuclear issue every time we take 
up one of the myriad challenges Iran poses to regional and U.S. 
security.
    In providing this waiver, the administration must answer 
these challenges and make crystal clear to Congress that it was 
not provided in the interest of addressing perceptions in 
Tehran. The grounds for this waiver must rest solely on a 
sincere interest to preserve the integrity of the Visa Waiver 
Program and its ability to serve as an incentive for 
implementing border security and surveillance best practices.
    I certainly look forward, Mr. Chairman, to hearing from our 
witnesses as to whether they believe that allowing, in limited 
circumstances, Europeans who have traveled to Iran for 
legitimate business to participate in the Visa Waiver Program 
and whether that creates a security risk or actually enhances 
national security.
    I look forward to hearing from our witnesses, Mr. Chairman, 
and I thank you for holding this hearing.
    Mr. DeSantis. Thank you. I will hold the record open for 5 
legislative days for any members who would like to submit a 
written statement.
    I will now recognize our panel of witnesses. I am pleased 
to welcome the Honorable Gil Kerlikowske, Commissioner of 
Customs and Border Protection at the U.S. Department of 
Homeland Security; Ms. Hillary Batjer Johnson, Deputy 
Coordinator for Homeland Security, Screening, and Designations 
at the Bureau of Counterterrorism at the Department of State. 
Ms. Johnson is accompanied by Mr. Edward Ramotowski, Deputy 
Assistant Secretary for Consular Affairs at the U.S. Department 
of State, whose expertise may be needed during the questioning.
    Ms. Jessica Vaughan, Director of Policy Studies at the 
Center for Immigration Studies; Mr. Emanuele Ottolenghi, Senior 
Fellow at the Foundation for Defense of Democracies; and Mr. 
Stephen Heifetz, partner at Steptoe and Johnson, LLP. Welcome 
all.
    Pursuant to committee rules, all witnesses will be sworn in 
before they testified. We will also swear in Mr. Ramotowski. So 
if you can please rise and raise your right hand.
    [Witnesses sworn.]
    Mr. DeSantis. Thank you. Please be seated.
    All witnesses answered in the affirmative.
    In order to allow time for discussion, please limit your 
oral testimony to 5 minutes. Your entire written statement will 
be made part of the record.
    Now, my pleasure, Mr. Kerlikowske, you are up.

                       WITNESS STATEMENTS

                  STATEMENT OF GIL KERLIKOWSKE

    Mr. Kerlikowske. Chairman DeSantis, Chairman Meadows, 
Ranking Member Lynch and Ranking Member Connolly, and 
distinguished members of the subcommittees, I returned on 
Sunday morning from California where CBP had an integral role 
in safeguarding the Super Bowl. I witnessed the aspects of 
CBP's very broad and complex mission all in one place, 
providing security, surveillance on the ground, surveillance 
from the air, screening cargo and deliveries for weapons and 
dangerous items.
    Well, Customs and Border Protection has a critical role in 
securing international travel against the threat of the 
terrorists and their supporters, while facilitating lawful 
travel and tourism. Every day, we process 1 million travelers. 
And as you know, when boarding a U.S.-bound flight, most 
foreign nationals must obtain a nonimmigrant visa issued by a 
United States Embassy or consulate, or the traveler must apply 
for a travel authorization through CBP's Electronic System for 
Travel Authorization, or ESTA.
    Through ESTA, CBP conducts enhanced vetting of these 
applicants in order to assess whether they are eligible to 
travel and whether they pose a potential risk to the United 
States. And over the past 15 months, CBP has worked with DHS to 
strengthen the security of the program through enhancements to 
ESTA in order to identify those who may pose a threat to the 
United States.
    And we have introduced additional ESTA data fields that 
have increased the ability of CBP and the National 
Counterterrorism Center to identify applicants with potential 
connections to terrorism.
    In addition to these enhancements, this past August, 
Secretary Johnson announced further security measures for the 
Visa Waiver Program countries, including increased traveler 
data collection, analysis, and reporting, and require the use 
of INTERPOL's Stolen and Lost Travel Document database and the 
required use of electronic passports, which contain additional 
security features.
    And on December 18, the President signed into law the 
Consolidated Appropriations Act of 2016, which includes the 
Visa Waiver Program Improvement and Terrorist Travel Prevention 
Act of 2015. And with some exceptions for official military and 
government travel, the law prohibits VWP travel for individuals 
who have been present at any time on or after March 1, 2011, in 
Iraq, Syria, or countries designated as state sponsors of 
terrorism, which includes Iran and Sudan. It also prohibits VWP 
travel for individuals who are dual nationals of one of these 
countries and a VWP country.
    CBP quickly began implementing some of the changes required 
by the new law. For example, we revoked 17,000 ESTA travel 
authorizations. We established, in conjunction with our 
interagency partners, a terrorist travel prevention cell in our 
National Targeting Center, and the cell will enhance the 
Department's efforts to identify and prevent foreign 
terrorists' fighter travel, and a subset of the cell's mission 
will be to scrutinize individual waiver requests permitted by 
the new law.
    Additionally, CBP will add new fields to the ESTA 
application by the end of this month that will ask additional 
questions to further improve our ability to vet individual 
travelers and make decisions about their eligibility in 
accordance with the recent changes.
    Well, as terrorists change their methods and tactics, DHS 
will continue to work our Federal and international partners to 
counter foreign fighter threats to the homeland. We'll continue 
to strengthen our travel security programs and systems and 
enhance our capabilities to secure international air travel 
against terrorists and others who threaten the safety of the 
traveling public and the security of our nation.
    Chairman DeSantis, Chairman Meadows, Ranking Member Lynch, 
Ranking Member Connolly, and members of the subcommittees, 
thank you for the opportunity to testify. Let me clarify that I 
came back before the Super Bowl. I did not stay for the Super 
Bowl.
    [Prepared statement of Mr. Kerlikowske follows:]
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    Mr. DeSantis. Thank you. Ms. Johnson, you are up for 5 
minutes.

              STATEMENT OF HILLARY BATJER JOHNSON

    Ms. Johnson. Thank you. Good afternoon, Chairman Meadows, 
Chairman DeSantis, Ranking Member Connolly and Ranking Member 
Lynch, and distinguished members of the committee. I did not go 
to the Super Bowl either.
    Thank you for this opportunity to testify today on 
implementation of the Visa Waiver Program Improvement and 
Terrorist Travel Prevention Act of 2015. It's a pleasure to be 
here today with Commissioner Kerlikowske.
    My written statement describes how the Department of State 
has worked closely with the Department of Homeland Security to 
implement this new law, while ensuring our top priority remains 
the protection of the U.S. homeland. As a deputy coordinator 
for Homeland Security in State's Counterterrorism Bureau, the 
security of the homeland and the safety of our citizens is my 
constant focus.
    I welcome this legislation to strengthen the Visa Waiver 
Program. The VWP is a key counterterrorism tool that helps 
protect our homeland every single day. Our VWP partners must 
uphold strict security standards such as sharing information on 
known and suspected terrorists and criminals, and reporting 
lost and stolen passports to INTERPOL. We use VWP benefits to 
encourage greater information-sharing and more systemic 
screening by our allies. VWP requirements give our partners the 
impetus to tighten securities in ways that can be politically 
challenging for them.
    The U.S. Government assesses each VWP country's compliance 
at least once every 2 years, inspecting airports, seaports, 
land borders, and passport production and issuance facilities. 
No other program enables the U.S. Government to conduct such 
broad and consequential assessments of foreign partners' 
security operations.
    I'd also like to underscore that the VWP is not a free pass 
to travel to the United States. All travelers coming to the 
United States undergo checks for ties to terrorism and are 
subject to multiple layers of security, regardless of whether 
they have a visa or they enter under the VWP.
    As the Commissioner has noted, citizens of VWP countries 
apply to the United States via the ESTA, and CBP checks ESTA 
forms against U.S. terrorist and criminal databases before 
travelers are allowed to travel under the VWP. And that 
information our partners provide us as part of the VWP is a 
vital component of our terrorist and criminal databases.
    The layered security continues beyond this step. All 
travelers are screened by CBP's National Targeting Center 
before they board an airplane and after they're admitted into 
the U.S. And ESTAs are continuously reviewed and revoked 
immediately if new intelligence comes to light.
    Watch listing and screening and intelligence gathering are 
some of our best tools for countering terrorist travel. These 
tools are most effective when we're working in collaboration 
with our VWP partners, and that's an important counterterrorism 
partnership, the VWP.
    The 38 countries that are part of the VWP include many of 
our closest allies, and they're proud of their status. VWP 
membership is so prized that many countries not in the VWP 
complete program requirements in the hope of joining the 
program.
    I'd like to speak to the national security waivers 
authorized under the law. Under the new law, the Secretary of 
Homeland Security has the authority to waive restrictions if he 
determines that such a waiver is in the law enforcement or 
national security interests of the United States. We understand 
that Congress did not want to create blanket exemptions to the 
law, and that is why these waivers will be implemented on a 
case-by-case basis.
    After consulting with the Secretary of State, the Secretary 
of Homeland Security has determined that, as a general matter, 
it is in the national security interests of the United States 
to administer waivers on a case-by-case basis for certain types 
of ESTA applicants. I want to stress again that these are not 
blanket waivers. Again, the waivers would be administered on a 
case-by-case basis and are narrowly tailored to specific 
national security interests.
    We publicly outline these categories in which a waiver 
might apply to provide guidance to citizens of VWP countries. 
There's a lot of confusion about this law among some of our 
closest allies and trading partners. We need to let them know 
which of their citizens might receive a waiver and how that 
process would work. We noted in our guidance that each ESTA 
applicants would be considered on a case-by-case basis. In no 
instance is travel guaranteed under the VWP if a person falls 
into one of these identified categories.
    I'd like to share quickly some examples of why we think 
these narrowly tailored waivers are in our national security 
interests. For instance, we rely on employees at the 
International Atomic Energy Agency for the technical expertise 
to fight the spread of nuclear weapons around the world. Yet 
without a waiver, IAEA employees who went to Iran to pursue our 
national security objective of preventing Iran from obtaining a 
nuclear weapon will be considered security risks.
    Without waivers, UNHCR and World Food Program staff who do 
critical work helping refugees in Iraq or feeding starving 
children in Darfur, Sudan, would be unable to travel to the 
United States under the VWP.
    The European Union is an essential partner to us around the 
world, but without a waiver, representatives from the E.U., 
including E.U. parliamentarians, would be ineligible to travel 
to the U.S. under the VWP.
    Additionally, we work closely with officials of the E.U. 
Counterterrorism Coordinator's Office, who travel frequently to 
Iraq. Without waivers, they would be denied ESTAs. And these 
waivers would allow us to maintain and build our relationships 
and cooperations with these institutions to work shared 
counterterrorism goals.
    Business representatives or NGO employees who have traveled 
to Iraq to help with schools, roads, and hospitals would be 
denied travel under VWP even though they're only doing work we 
have encouraged to help stabilize and rebuild that country's 
economy.
    In Syria, the world relies on journalists facing great 
danger to report human rights violations, allegations of 
chemical weapon use, and brutality of that ongoing conflict 
that we might otherwise not know about. Yet without waivers, 
they, too, would be denied travel under the VWP.
    I recognize that participating in the VWP is a privilege 
and not a right, but denying VWP participation to citizens of 
member countries who are doing work we promote and support is 
counter to our national security interests.
    I want to stress again that every VWP traveler considered 
for a waiver will be closely examined to see if they meet the 
stringent requirements to travel under the VWP. A case-by-case 
application of waivers in these narrow instances allows us to 
advance our national security interests and direct our 
resources to higher-risk threats.
    As I've discussed, we believe there are significant 
national security interests for the United States to utilize 
its waiver authority, and we can do so without compromising the 
safety of our fellow citizens at home and overseas and the 
security of the traveling public.
    Mr. Chairman, Ranking Member DeSantis, Ranking Member 
Connelly, and Ranking Member Lynch and distinguished members of 
the committee, thank you for your time. I look forward to your 
questions.
    [Prepared statement of Ms. Johnson follows:]
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    Mr. DeSantis. Thank you.
    The chair now recognizes Ms. Vaughan for 5 minutes.

                STATEMENT OF JESSICA M. VAUGHAN

    Ms. Vaughan. Thank you for the opportunity to testify 
today.
    Last year, Congress passed the first meaningful 
improvements to the Visa Waiver Program in some time, an 
acknowledgment of the elevated threat we face now from 
terrorism, espionage, and the inappropriate transfer of 
technology. These sensible and modest changes will allow for 
more scrutiny of certain travelers coming from Visa Waiver 
Program countries based on their dual nationality or their 
travel history by requiring them to get a visa.
    This is important because the visa application process is 
not overly burdensome, but it does offer the opportunity for 
much more review than is possible under the Visa Waiver Program 
for several reasons because the visa process gives the 
government the time and the opportunity to ask questions and to 
ascertain more about the applicant's credibility and purpose 
for travel. The ESTA on the other hand is filled out online and 
people can submit it just hours before departure. The 
opportunity is for other agencies to help review these 
applications if needed, whether it's through the security 
advisory opinion process or other consultation with experts at 
post in which DHS, FBI, intelligence agencies, Treasury 
officials, Department of Commerce, and others can review the 
applications if the consular department feels it needs that 
additional consultation.
    The ink from the President's signature on the law was 
barely dry when the Obama administration significantly 
undermined these reforms by unilaterally offering waivers that 
were not explicitly authorized in the law. This is a problem 
not only because it is a flagrant abuse of executive authority 
and a breach of the agreement with Congress, but because the 
administration's plan will expose our nation to real threats.
    One of the categories of travelers the administration has 
carved out for waivers, dual nationals traveling to Iran and 
Iraq for business purposes, is precisely the category of 
travelers that needs to be scrutinized more closely because of 
past cases of espionage and illegal technology transfer.
    The risks inherent in the Visa Waiver Program are 
compounded by the President's tendency to allow the admission 
of increasing number of foreign visitors, to gloss over the 
threats, to oversell his agency's ability to screen out risks, 
and to suppress the enforcement of immigration laws in the 
Interior.
    I believe there were sound reasons to impose these 
restrictions. The immigration systems of Europe and the United 
States have already been exploited by terrorists with European 
citizenship and other dual nationalities linked to terrorism 
and other illicit activity that threatens national security.
    Congressional leaders are rightfully angry about this move. 
The law provided the executive branch with the authority to 
issue waivers only for those dual nationals who were serving in 
military or civilian government jobs, not for journalists, aid 
workers, or business travelers necessarily.
    One of my main concerns is that the Visa Waiver Program is 
already a major national security vulnerability that needs to 
be addressed. There are thousands of individuals who were 
involved with or sympathetic to terror groups and countries 
that sponsor terror who also hold passports of countries that 
participate in the Visa Waiver Program who can travel to the 
U.S. without undergoing the scrutiny of a visa interview.
    Since 2014, there have been more than 100 foreign-born 
individuals who've been arrested for involvement in a terror 
operation after being admitted to the U.S. And DHS has yet to 
disclose the manner of entry for most of them, but we do know 
that terrorists have used the VWP to enter in the past.
    My organization has identified more than 50 naturalized 
U.S. citizens who have been charged with serious national 
security-related offenses such as terrorism, spying, and theft 
of sensitive information and technology. Many were already 
associated with terror groups or foreign intelligence when they 
naturalized. Eight were born in Iran, and their crimes included 
exporting sensitive equipment, military equipment, satellite 
technology, and so on. So, clearly, dual nationality is a vital 
and frequently used tool for terror and espionage operations.
    The number of Visa Waiver Program entries has been rising 
significantly. In 2014, more than 20 million visitors were 
admitted under that program, which is a 24 percent increase 
since 2008, and that means many more people who need to be 
vetted by our screening systems and by CBP inspectors.
    We know that the Visa Waiver Program is frequently abused. 
In fact, visa waiver overstays make up 29 percent of the total 
number of overstays by visitors who were admitted under the 
short-term B-1/B-2 category in 2015. The total number of Visa 
Waiver Program overstays just in 2015 was more than 150,000, 
and these overstayers, we also know, are not a high priority 
for ICE. Only about 1 percent are ever investigated, and few 
are deported.
    The other main concern I have is that one of the categories 
of travelers carved out for waivers is dual nationals traveling 
to Iran and Iraq for business purposes, and that's a category 
of travelers that present a significant national security risk 
because Iran has a comprehensive, effective, and aggressive 
intelligence program that expends substantial time and 
resources targeting U.S. military equipment, plans, and 
programs, as well as dual-use technology.
    It's not just reasonable but urgent that our government 
take the steps to address this vulnerability, and Congress has 
come up with a tool that, if anything, should be expanded, not 
scaled back.
    Thank you.
    [Prepared statement of Ms. Vaughan follows:]
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    Mr. DeSantis. Thank you.
    The chair now recognizes Mr. Ottolenghi for 5 minutes.

                STATEMENT OF EMANUELE OTTOLENGHI

    Mr. Ottolenghi. Chairmen DeSantis and Meadows, Ranking 
Members Lynch and Connolly, members of the committee, on behalf 
of the Foundation for Defense of Democracies, thank you for the 
opportunity to testify.
    Entry into the United States under the Visa Waiver Program 
is a privilege, not a right, bestowed on a select group of 
countries. Today, we discuss whether it is reasonable to 
require greater due diligence for a select group of visitors 
from visa waiver countries on the basis that they are dual 
nationals of Iran or a handful of other countries.
    Greater due diligence is, in my view, a sound and not 
unduly burdensome measure. Dual nationals can continue to 
travel to the United States provided they first apply in person 
and receive a visa. Many of us in this room have had to apply 
for visas to travel to other countries. While an annoyance, it 
is not an overly onerous exercise.
    In the case of Iranian dual nationals, this added layer of 
due diligence is critical to the national security of the 
United States. Tehran has long relied on dual nationals to 
pursue illegal activities. Clearly, not every dual national is 
a government agent, but virtually all agents of the Iranian 
regime who are involved in conspiracies to commit acts of 
terrorism or nuclear and ballistic procurement were dual 
passport holders.
    With effective enforcement, the visa waiver exception will 
make it more difficult for them to engage in criminal 
activities on American soil. Tehran relies on dual nationals 
because a non-Iranian passport generally draws less scrutiny at 
border crossings. It also makes it easier to open foreign bank 
accounts and corporate companies and conduct financial 
operations overseas.
    My written testimony provides five recent examples of dual 
nationals' critical role in Iran's terror plots. Here are 
examples of cases in which Tehran relied on dual nationals for 
other illicit activities and to obscure the Iranian ownership 
of companies.
    Slide 2, please.
    [Slide.]
    Mr. Ottolenghi. MCS Systems was a German gas-cylinder 
factory owned by EIKO, the supreme leader's holding company, 
which the U.S. Treasury sanctioned in 2013. EIKO obfuscated its 
ownership by transferring it to two Iranian-Canadian dual 
nationals who then reported directly to EIKO, the goal, to 
attempt and evade sanctions.
    In 2010, Treasury sanctioned IFIC Holding, the German-based 
subsidiary of Iran's Foreign Investment Company. Commercial 
extracts for SWIFIC Holding, its Swiss branch, show its owners 
were Canadian and a German dual national. The goal again, avoid 
sanctions.
    Iran's airline Mahan Air provides more evidence of the role 
of dual nationals. Treasury designated Mahan Air in 2011 ``for 
providing financial material and technological support to the 
Quds Force, including transporting personnel and weapons to 
Syria's regime. Mahan relies on dual nationals to run its front 
companies in Europe while continuing to facilitate ethnic 
cleansing and other crimes against humanity in Syria.
    In most waiver countries, obtaining citizenship is a 
lengthy process with stringent requirements. Some countries, 
however, are making their citizenship readily available through 
investment. Iranian nationals, among others, are exploiting 
this. In 2014, the U.S. Treasury issued an advisory that 
certain individuals were abusing the Citizenship-by-Investment 
program of St. Kitts and Nevis to obtain passports for the 
purpose of engaging in illicit financial activity. The advisory 
made particular reference to Iranian nationals.
    Three Iranian businessmen with quickly obtained St. Kitts 
citizenship built a complex financial sanctions evasion network 
spanning the globe, including the United States. Despite 
Treasury sanctions, they moved across borders easily and 
reconstituted sanctioned companies under new names thanks to 
their St. Kitts passport, and for one of them, a Canadian 
permanent residency.
    This is not an isolated case. New programs from visa waiver 
countries are now available to wealthy investors, including 
Iranians in search for a second passport. Such programs may 
become a gateway to a visa-free entry into the United States 
for Iranian procurement agents. The lifting of sanctions 
against Iran may actually increase the number of regime agents 
trying to enter the U.S.
    The steps Congress now takes must ensure that actors 
involved in facilitating proliferation and other illicit 
activities abroad do not benefit from free access to the United 
States. The United States should explain to all visa waiver 
countries offering or considering citizenship and permanent 
residency by investment that the due diligence and stringency 
of the requirements of their programs may affect their status. 
Their programs should not become a shortcut to entering the 
United States.
    The suspension of the Visa Waiver Program for dual 
nationals of Iran is the direct result of the regime's close 
association with terrorism and other illicit activities. The 
dangerous exploitation of foreign passports for illicit 
purposes justifies the inconvenience posed to the relatively 
few who will now have to obtain a visa in person. The singling 
out of Iranian dual nationals is thus not only appropriate but 
should be a vital component of homeland security policy.
    My written testimony provides additional recommendations. 
Thank you for the opportunity to testify, and I look forward to 
your questions.
    [Prepared statement of Mr. Ottolenghi follows:]
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    Mr. DeSantis. Thank you.
    The chair now recognizes Mr. Heifetz for 5 minutes.

                  STATEMENT OF STEPHEN HEIFETZ

    Mr. Heifetz. Thank you, Chairman DeSantis, Ranking Member 
Lynch, Chairman Meadows, and Ranking Member Connolly. Thank you 
to all of the distinguished members of the Subcommittees on 
National Security and on Government Operations. I appreciate 
the opportunity to participate in this hearing about the Visa 
Waiver Program.
    My name is Stephen Heifetz. I'm a partner at Steptoe and 
Johnson, an international law firm. And prior to joining 
Steptoe, I served from 2006 to 2010 in several positions at the 
Department of Homeland Security, including as deputy assistant 
secretary for policy development, where I had oversight 
responsibility for the VWP.
    Under the VWP, DHS waives the B non-immigrant visa 
requirement for aliens traveling from 38 approved countries, 
all U.S. allies, to permit stays of up to 90 days for business 
or tourism. The effect of the waiver is that the standard visa 
interview by a U.S. consular officer, which generally requires 
the traveler to go to a consular office in person, is not 
required. This does not mean, however, that DHS waives security 
requirements for these travelers. In fact, under the VWP, DHS 
mandates additional more stringent security requirements for 
both the individual traveler and his or her home country.
    The 38 U.S. allies that are VWP members must meet high 
security standards to enter and maintain membership in the VWP, 
and substantial checks are conducted on every traveler. The 
result is a system that provides as much security against 
terrorist or criminal travelers as the visa system.
    Nevertheless, many in the media and elsewhere have labored 
under the misapprehension that security standards have been 
looser for VWP travelers than for those traveling with a visa 
and that this poses a threat to U.S. national security. At 
least since reforms implemented about a decade ago, that 
perception has been inaccurate. Security experts in both the 
Bush and Obama administrations have lauded the VWP as a good 
security program. But, like any successful security program, 
the VWP has continued to be closely reviewed over the years, 
undergoing further reform as new threats are perceived.
    The most recent VWP statutory reforms were enacted as part 
of the 2016 Consolidated Appropriations Act in December 2015. 
Among other things, the new law generally precludes travel 
under the VWP for dual nationals of Iran, Iraq, Syria, and 
Sudan, and further, the new law generally precludes travel 
under the VWP for those who have traveled to these countries.
    There are, however, exceptions for those who travel to 
perform military service or other official duties of a VWP 
member country. In addition, the new law provides that the DHS 
Secretary may, with respect to any particular traveler, waive 
the prohibitions with regard to Iran, Iraq, Syria, and Sudan if 
doing so is in the national security interests of the United 
States.
    Such a waiver would allow VWP travel to the U.S. by a 
citizen of a VWP member country notwithstanding dual 
nationality or travel involving the four countries of concern. 
For example, a Japanese businessperson who travels to Iraq for 
business or an Australian doctor who provides humanitarian aid 
in Syria generally would be ineligible for VWP travel under the 
new law, but that ineligibility can be waived by the DHS 
Secretary.
    This national security waiver authority is important. 
Here's one illustration why. The United States and other world 
powers recently signed a momentous deal with Iran that 
addresses Iran's nuclear weapons program. Under this deal, the 
Joint Comprehensive Plan of Action, JCPOA, European companies 
now will have regular business dealings with Iran. It's common 
and will become ever more common for a European businessperson 
to travel to Iran to conduct legitimate business. But if that 
European businessperson's travel will preclude further travel 
to the U.S. under the Visa Waiver Program, that might deter 
European business dealings with Iran. If you're a Londoner or 
Parisian sitting in London or Paris and considering traveling 
to Iran to scout a business deal, you might reconsider because 
of the potential loss of VWP privileges.
    As part of the JCPOA, though, the U.S. committed to refrain 
from creating new types of sanctions on Iran. More 
specifically, the U.S. agreed to refrain from, quoting from the 
JCPOA text, ``imposing exceptional or discriminatory regulatory 
and procedural requirements in lieu of the sanctions and 
restrictive measures covered by the JCPOA.''
    Some have argued that this commitment necessitates U.S. 
waivers to allow legitimate business travel to Iran without the 
loss of VWP privileges. Even if one thinks the JCPOA was a bad 
deal, the administration fairly can claim that it is in the 
national security interest of the United States to ensure JCPOA 
compliance by Iran. And ensuring compliance is made much more 
difficult if Iran can allege that the U.S. has breached its 
obligations by creating obstacles to Iranian travel. That is 
one reason the administration should be granted deference in 
determining how to utilize the waiver authority under the new 
VWP law.
    And there are other reasons. There is a great need for 
humanitarian intervention in some of the poor countries of 
concern, Syria and Iraq in particular. Without the exercise of 
waivers, the loss of VWP privileges may deter needed 
humanitarian travel to these countries. The Australian doctor 
who wants to offer medical services in Syria may reconsider if 
doing so will cause a loss of VWP privileges. Such thinking 
could, ironically, have adverse effects on U.S. security.
    More fundamentally, waivers that allow travel under the VWP 
should not cause undue concerns because the VWP fundamentally 
is a strong security program. I've alluded to that previously 
and discussed it in more detail in my formal written testimony.
    You have other witnesses today that can speak to the 
operational security of the VWP so I'll close my verbal 
testimony and would be happy to address questions.
    [Prepared statement of Mr. Heifetz follows:]
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    Mr. DeSantis. Thank you. The chair now recognizes himself 
for 5 minutes.
    Ms. Johnson, as a general matter, requiring a foreign 
national traveling to the United States to obtain a visa, how 
does that damage national security?
    Ms. Johnson. Thank you, sir. As I mentioned in my remarks, 
the VWP is a very important and significant counterterrorism 
tool. The security requirements under the VWP ----
    Mr. DeSantis. That is not my question. You are saying some 
people may be ineligible for the VWP, so my question is, okay, 
that means they would have to get a visa. So the requirement to 
get a visa, how does that damage national security?
    Ms. Johnson. So citizens of those VWP countries are very 
are suddenly treated as a heightened security risk. So what 
we've heard from our European colleagues in particular just 
even yesterday ----
    Mr. DeSantis. Well, wait--okay, yes, but why--I mean, you 
have some of these people in like Brussels and some of these 
jihadist-infested areas. I mean, why would we not want to treat 
them as a heightened security?
    Ms. Johnson. Well, again, I mean ----
    Mr. DeSantis. They are a heightened security risk, aren't 
they?
    Ms. Johnson. Well, these waivers are again very limited and 
very narrowly focused and would be done on a case-by-case 
basis. And again, of those categories of travelers we were 
looking at, it's not somebody who would just go to Syria to go 
visit perhaps and go attend a terrorist training camp. We're 
looking at, again, very limited and very focused waiver 
categories that's permissible under the law.
    Mr. DeSantis. Well, I think that the testimony alluded to--
so under the administration's action with respect to the visa 
waiver changes that were enacted by Congress, they would allow 
somebody who is a national of, say, Iran and a European country 
who qualified under Visa Waiver Program. If that Iranian 
national is traveling back to Iran to do business, even though 
the businesses may have connections with the Revolutionary 
Guard Corps, they would quality under the business exemption, 
correct?
    Ms. Johnson. No, that's not correct, sir.
    Mr. DeSantis. Why not?
    Ms. Johnson. So, again, these are limited case by case. 
They would be focused on being reviewed. And again, these 
individuals are going to be screened against all of our 
databases, again, with information provided by the VWP 
countries.
    Mr. DeSantis. Well, but I think that is the issue is that 
the reason why you want someone to obtain a visa, I mean, if we 
are confident that everyone is a threat is in the database, 
then you are right, there are certain things that could catch 
him at an airport. But the whole idea is, you know, you have 
someone like Tashfeen Malik. You know, she didn't pop on those 
databases. We were hoping that that visa process that she went 
through would have ferreted her out and would not have allowed 
her entry into the United States.
    And so let me just return just as a general--because I 
don't think I got a clear answer. You know, Israel, non-visa 
waiver country, Azerbaijan, Shiite Muslim ally of ours. Iran, 
they don't like that Shiite Muslim government. You know, they 
are not on the Visa Waiver Program. So how does it damage 
national security to require these travelers from those areas 
to get a visa?
    Ms. Johnson. I'm not sure I understand the linkage with 
Israel and Azerbaijan.
    Mr. DeSantis. Just there are different countries that we 
are allies with where their citizens have to get a visa in 
order to come here that are not under the Visa Waiver ----
    Ms. Johnson. I understand.
    Mr. DeSantis.--Program. So my question is is why not err on 
the side of caution? And if you require someone to get a visa, 
how does that fact damage our national security?
    Ms. Johnson. So again, these visa waiver partner countries, 
their citizens are being treated as a heightened security 
concern and we're looking at not damage--we're leveraging the 
program to get additional information-sharing requirements. We 
go and interview their--we, you know, examine their seaports, 
their land borders, their airports. We're getting more out of 
the Visa Waiver Program as a counterterrorism tool than perhaps 
what we would be doing with a non-VWP partner.
    So again, I think that we're looking at the fact that we're 
treating these individuals as heightened security risks and 
we're utilizing this waiver ----
    Mr. DeSantis. Okay. So ----
    Ms. Johnson.--to look at a narrow group ----
    Mr. DeSantis. But I ----
    Ms. Johnson. And those countries may not cooperate with us 
as a counterterrorism matter if there's ----
    Mr. DeSantis. Which countries ----
    Ms. Johnson.--a consideration ----
    Mr. DeSantis.--have indicated that?
    Ms. Johnson. Well, we've had a number who have been very 
concerned. Again, yesterday ----
    Mr. DeSantis. Which ones?
    Ms. Johnson. We've met--I've met with the Swiss, I've met 
with the French, I've met with the E.U., I've met with Japan. 
They've all expressed concerns. And as Mr. Steifletz--or 
Heifetz has mentioned that they may actually choose not to come 
to the United States because they're concerned--or not got to 
Iran or they might not go to Iraq, participate in a 
humanitarian mission because they're concerned about this, that 
they're being treated--their citizens are being treated as a 
heightened security risk.
    Our VWP program is going under--every traveler under the 
VWP program is going under heightened security screening just 
like they will with visas. So I take issue that the fact that 
they don't get an SAO review, they do. They don't get an 
automatic ESTA just because they've applied and answered 
questions. Every one of those individuals are completely 
scrubbed against our screening databases before being issued an 
ESTA, and then those ESTAs are reviewed continually.
    Mr. DeSantis. So, yes, they are traveling to Iran, some of 
them are doing business with Iran. Iran is the number one state 
sponsor of terrorism in the world. The State Department 
considers the government of Iran to be a state sponsor of 
terrorism. The Revolutionary Guard Corps is a designated 
terrorist group.
    So yes, they would be treated differently, but aren't there 
legitimate reasons why they should be treated differently given 
the circumstances? I mean, if a Japanese citizen is going to 
Taiwan to do business, you know, the idea that that was going 
to affect the visa waiver status, I mean, I get that, but you 
are traveling to Iran, given the circumstances, how is it 
unreasonable to think that that would be something that we 
would be concerned about?
    Ms. Johnson. Again, individuals from the VWP countries 
going and conducting legitimate business in Iran that's 
permissible under the JCPOA shouldn't be penalized or shouldn't 
be considered a heightened risk. Of course, again, we would do 
all of the routine screening on each individual ----
    Mr. DeSantis. So ----
    Ms. Johnson.--to ensure that they are not a threat to the 
United States.
    Mr. DeSantis. So you are worried about penalizing someone 
going to Iran to do business even though that could potentially 
expose the American people to more danger? And I get like the 
visa waiver--you know, the sharing of intelligence. I think 
that is good. But the bottom line is it is easier to come here 
if you qualify for a visa waiver. And if you are not in the 
database, you know, I don't think that you are going to be able 
to be found out.
    My time is up. I am going to recognize Mr. Lynch for 5 
minutes.
    Mr. Lynch. Thank you, Mr. Chairman.
    Let's stay on that, Ms. Johnson. So a number of my 
colleagues have expressed concern that waivers could be granted 
to individuals for reasons that might run contrary to our 
national security interests as required under the law. What is 
the countermeasure against that within the system? How do we 
make sure--and, look, I am sort of the devil's advocate here. I 
spent a lot of--a lot of members on this committee spent a lot 
of time in the Middle East so we--but just came back again from 
visiting all these refugee camps, been to Sudan so I know--and 
that is on the list here, too, certainly understand all the--
the huge number of NGOs that we have working on these countries 
on behalf of the American people, which the goal is to keep the 
refugees from flooding into Europe and elsewhere, this huge 
diaspora that has been created because of the war in Iraq and 
Syria. They are trying to keep them stable and in safe 
conditions on the border.
    So as a result, we have got a lot of people--USCIS does 
great work on our behalf. We have got a bunch of different--the 
World Food Program did great work. But we do have a lot of 
people that end up especially in Iraq. We have got tons of 
contractors that are going in and out of Iraq on a regular 
basis. How do we create a countermeasure within--and, Mr. 
Heifetz, you might want to join in on this because your 
testimony speaks to this issue as well. How do we rest assured 
that someone is not breaching the Visa Waiver Program with 
nefarious intent, that someone gets a waiver from the Secretary 
of DHS and, you know, does what, you know, these folks in Paris 
did or San Bernardino did?
    Ms. Johnson. Yes, so again, the Visa Waiver Program 
requires much more strict security standards, so all of the 
countries have to meet those strict security standards. 
Countries that don't issue--don't have to have to have their 
citizens come get visas do not necessarily have those--I mean, 
they certainly don't have those standards that they're required 
to meet. So that's on the front end. And then we're inspecting 
those on a regular basis.
    It's important to stress that the information-sharing that 
we get from them, the known and suspected terrorist information 
we receive from those VWP countries again enhances our 
screening databases. So we're getting more information through 
the VWP partnership than we would any other country 
relationship that we have outside the VWP.
    Then we have the additional layered security, so an 
individual who might be a humanitarian worker applying for an 
ESTA because they want to utilize this waiver, it should be 
important to note that they're not applying for the waiver. 
They're applying for the ESTA. So the ESTA then has more 
stringent questions. I would be frank in, you know, that we 
have only a couple minutes in a visa window. You're asking a 
number of questions through the ESTA process, which we then 
look--work really hard to verify. We also screen against all of 
our databases, both terrorism and criminal. And then for all 
travelers, whether they're visa or--traveling under the visa or 
the VWP, we have layered security portions again to ensure 
we're not entering--having people enter the United States that 
should do us harm.
    Mr. Lynch. Okay. So in the past--and I want to ask you 
about the lists--we had a situation where there were some 
workers, I believe about 72 workers that went through DHS 
screening and were able to obtain security badges to work in 
secure areas of our airports, yet they were on the TIDE list. 
They were on one of our terrorist lists. Has that been 
straightened out? Because earlier on, DHS and people weren't 
sharing lists, and that was the root cause of that problem.
    Now, I have been reassured in other forums that that 
problem has been addressed and the lists are being shared so 
that is not going to happen anymore. Is that your 
understanding, Mr. Kerlikowske?
    Mr. Kerlikowske. So TSA runs that part of the program and 
Admiral Neffenger. And I know that they have just gone back 
under his direction and completely rescreened all of those 
individuals against all of these different databases. They've 
rescreened all of these individuals as a result of that. 
There's another group, of course, that works on the ports and 
the cargo crane and operators of other equipment. That is run 
through the United States Coast Guard, and as I understand it, 
they are also in that process.
    But within DHS and our partner government agencies under 
the--especially under the National Targeting Center, I would 
tell you that there is no database that cannot be shared and is 
not run against others.
    Mr. Lynch. Okay. I see my time is expired. I will yield 
back. Thank you.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes the gentleman from North Carolina, 
Mr. Meadows, for 5 minutes.
    Mr. Meadows. Ms. Johnson, you say you are going to do these 
waivers on a case-by-case basis, so I guess you have got a 
criteria set for how they get a waiver or not?
    Ms. Johnson. I think that would be more of a question for 
DHS in the process of how those waivers are administered.
    Mr. Meadows. So is there a criteria?
    Mr. Kerlikowske. There's a system that--by February 23 that 
will have all of these additional questions. For instance, if 
you were doing legitimate business in Iran, you would have to, 
of course, had an Iranian business passport with those numbers. 
So ----
    Mr. Meadows. What part of the law, I guess ----
    Mr. Kerlikowske.--there'd be a whole ----
    Mr. Meadows.--talked about business purposes having a 
waiver?
    Mr. Kerlikowske. So the protocol would be that if you were 
claiming that you wished under--and, by the way, no waiver has 
been granted and no waiver ----
    Mr. Meadows. Right, but it is a national security or law 
enforcement waiver. It was fairly clear, wasn't it, national 
security or law enforcement waiver, isn't that right, Ms. 
Johnson?
    Mr. Kerlikowske. It is correct.
    Mr. Meadows. Okay. So how can you quantify that a business 
purpose is a national security purpose?
    Mr. Kerlikowske. So I think there are ----
    Mr. Meadows. I am a business guy, so that means I am a 
national security risk.
    Mr. Kerlikowske. Or a national security benefit.
    Mr. Meadows. Because what I am hearing--and let me tell you 
what troubles me. It sounds like we have created a jobs program 
for Iran that we are concerned about their business activity at 
the expense of the national security of all freedom-loving 
Americans. Have we done that? Because that is what Mr. Heifetz 
indicated. It is important for their economy. So is that what 
we have done, Ms. Johnson? We have created a jobs program?
    Ms. Johnson. No, sir. This ----
    Mr. Meadows. Then why do we give an exception according to 
DHS--I guess the exception is for legitimate business purposes? 
And it is not just in Iran. It is in Iraq, and they are not 
part of the agreement in terms of the JCPOA. So why would we 
include Iraq and Syria and Sudan if it is not trying to help 
them get investors from Europe?
    Mr. Kerlikowske. Well, under the business it is only Iraq 
and Iran, and we certainly want to see Iraq's economy do ----
    Mr. Meadows. So it is a jobs program?
    Mr. Kerlikowske. Well, we certainly want to see Iraq's 
economy do better so that they can support their own defense --
--
    Mr. Meadows. But I can tell you that was nowhere in the 
deliberations between the minority or the majority when we were 
talking about this. It had nothing to do with business 
purposes. So how does the administration start to interpret 
this law as somehow being a jobs program? Ms. Johnson?
    Ms. Johnson. Again, it's not a jobs program. It's not 
about--it's not about Iran. It's about our national security. 
And I work in the Counterterrorism Bureau at the State 
Department, and so I'm very focused on the fact that the 
protection of the homeland--which the entire State Department 
is focused on--is one of our major priorities.
    Mr. Meadows. So wouldn't allowing more business travelers 
who travel from Belgium or France going to Iran potentially 
create a greater national security threat than if they never 
traveled there at all?
    Ms. Johnson. I don't think ----
    Mr. Meadows. I'm not talking about the Visa Waiver Program 
because I know you have been defaulting that. Could it not 
potentially create a greater national security threat?
    Ms. Johnson. I don't see the connection in the sense that 
these are--under the JCPOA, these countries can ----
    Mr. Meadows. No. One of them is. Not all those countries 
are under that. Am I confused? Or are they all under that? I 
thought only a few of those were, like one.
    Ms. Johnson. The program--the VWP partnership, again, for 
us with our partners under the VWP program ----
    Mr. Meadows. That is different ----
    Ms. Johnson.--they can go ----
    Mr. Meadows. That is different than what you just said, 
though. I understand. So if the VWP program is all great, why 
don't we expand it to all the countries if it actually 
increases our national security? Why don't we increase it to 
Israel?
    Ms. Johnson. I would think that, you know, they're--again 
----
    Mr. Meadows. Aren't they an ally?
    Ms. Johnson.--for those countries that want to be part ----
    Mr. Meadows. They are a closer ally than Iran, aren't they?
    Ms. Johnson. Well, there's requirements to get into the 
program, a number of factors ----
    Mr. Meadows. But Iran hasn't met those requirements, have 
they?
    Ms. Johnson. Well, it's--visas ----
    Mr. Meadows. But they are ----
    Ms. Johnson.--it's not about Iran.
    Mr. Meadows. But they are enjoying the benefit. Let me go 
on. I got a few minutes left.
    For DHS, the report that you sent only had 2 of 70 types of 
visas. Is there any reason why we excluded the other 68 types 
on that report?
    Mr. Kerlikowske. So we were given this mission by--the 
entry-exit mission by Congress in 2013.
    Mr. Meadows. Oh, no, no, no, no, no, no. There is a GAO 
report. You were given the mission back in the 1990s.
    Mr. Kerlikowske. I'm sorry. I'm speaking as the 
commissioner of Customs and Border Protection.
    Mr. Meadows. Okay. Your agency?
    Mr. Kerlikowske. Right. We were given that mission in 2013. 
And as you know, there had not been a visa waiver overstay 
report for many, many, many years.
    Mr. Meadows. Nineteen ninety-four.
    Mr. Kerlikowske. Right, until last year. It was very clear 
that there was a lot of ----
    Mr. Meadows. But there hasn't still been one. Let's be 
clear about that. We have had a partial report.
    Mr. Kerlikowske. I'll agree that the--certainly a partial 
report. It is certainly a step ahead and a step better than 
what had ever been issued before under many administrations.
    Mr. Meadows. Well, that is true because it hadn't been 
issued in 20 years, so I mean something is always better than 
nothing. I guess my--when are we going to get the full report?
    Mr. Kerlikowske. So the full report and the number of 
things--and we'd be happy to spend some time with you or your 
staff briefing you about all the things that DHS and Customs 
and Border Protection is doing to try to increase the quality 
of the data. You know that an overstay--if you leave the 
country one day after your visa expired, you're considered an 
overstay even though you have left the country and ----
    Mr. Meadows. Yes, but that is not the numbers we are 
talking about.
    Mr. Kerlikowske. Okay.
    Mr. Meadows. Let's don't give a false premise here ----
    Mr. Kerlikowske. Okay.
    Mr. Meadows.--and if the chair will indulge this last 
clarifying question. We have reason to believe that the number 
of overstays, if you include all the categories, is closer to 
3/4 of a million versus the 500,000 that has been indicated. 
Would you agree with that ----
    Mr. Kerlikowske. I ----
    Mr. Meadows.--estimate? Have you seen any estimate?
    Mr. Kerlikowske. I don't--no, I have not.
    Mr. Meadows. All right. I yield back.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes the gentleman from Virginia, Mr. 
Connolly, for 5 minutes.
    Mr. Connolly. Thank you so much.
    Just for the record, Mr. Kerlikowske, Ms. Johnson, you 
aren't in some secret conspiracy to allow terrorists to come 
into the United States, are you?
    Mr. Kerlikowske. No, sir.
    Ms. Johnson. No, sir.
    Mr. Connolly. And you are both under oath.
    Mr. Kerlikowske. Correct.
    Ms. Johnson. Yes.
    Mr. Connolly. Oh, good. Thank God. Okay. I just want to 
make sure because sometime in listening to some of the 
criticism, one would draw perhaps a strange conclusion.
    Mr. Heifetz, were you advocating for a jobs program through 
the use of this program in Iran?
    Mr. Heifetz. No, I was not.
    Mr. Connolly. What were you advocating or digressing about?
    Mr. Heifetz. Ensuring--that was suggesting that the 
administration needs deference in the exercise of the national 
security exemption, among other things, to ensure that all 
sides to the JCPOA are compliant.
    Mr. Connolly. Might there be unintended consequences with 
the law we passed in December? Could there be, you know, people 
caught up in it that we didn't intend to--or presumably didn't 
intend to be caught up in it?
    Mr. Heifetz. Yes.
    Mr. Connolly. Could an IAEA inspector, for example, 
critical to validating compliance with the JCPOA--that is to 
say the nuclear agreement with Iran--could they be caught up in 
the net unwittingly?
    Mr. Heifetz. Yes.
    Mr. Connolly. So we might want to make an exception there?
    Mr. Heifetz. For sure.
    Mr. Connolly. Mr. Lynch talked about going to refugee 
camps. So, for example, Medecins Sans Frontieres or Doctors 
Without Borders or U.N. officials who are doing humanitarian 
work, certainly something we would laud, we might want to give 
due deference to the administration in making sure they are not 
unwittingly caught up in this law and prevented from coming 
into the United States through the waiver program? Would that 
be a fair statement?
    Mr. Heifetz. That seems sensible.
    Mr. Connolly. Ms. Johnson, is that of concern to the State 
Department? Are there some unintended consequences from a law 
we passed that you are trying to address through 
implementation, as well as Mr. Kerlikowske at DHS?
    Ms. Johnson. Yes. Again, with our foreign partners who feel 
that those individuals are being considered a heightened 
security risk, yes.
    Mr. Connolly. Our foreign partners? That is to say they are 
concerned about this?
    Ms. Johnson. Yes. And we're ----
    Mr. Connolly. So there are foreign policy relations that 
could also be at risk because we have maybe passed a law with 
good intent and out of deep concern to protect the country, but 
there may be some unforeseen aspects of that law, consequence 
of that law that could affect our partners, our allies, and we 
need to address that. Otherwise, we are needlessly alienating 
friends and partners we need in other endeavors. Would that be 
a fair statement?
    Ms. Johnson. Yes, and for the national security of the 
United States. We rely on those partners to help protect the 
U.S. homeland.
    Mr. Connolly. Right. Are there any such partners who have 
publicly called for us to make adjustments because of those 
concerns?
    Ms. Johnson. I would have to get back to you, but I know 
the E.U. has themselves, I believe, sent a letter to the 
Speaker of the House.
    Mr. Connolly. Okay. So it is not an idle speculation. We 
actually have a record of concern by Europe, not a trivial 
partner or ally. Okay.
    The issue of dual nationals--and I know it has been 
addressed--but is there another side, either Mr. Kerlikowske or 
Ms. Johnson, to the debate on dual nationality? Because I can 
tell you my district, there are certain ethnic groups who are 
apoplectic about the application of this law because they feel 
they are unwitting victims and they are not terrorists, though 
they may be of a certain national background that would fall 
under the penumbra of this law.
    Is there some rationale--and I invite you, too, Mr. 
Heifetz. Is there some rationale for why we might want to make 
exception or dual nationals?
    Ms. Johnson. So we're reviewing that internally right now 
in consultation working closely with the Department of Homeland 
Security. I do know the Europeans have also expressively very 
concerned about that, feeling that the law was discriminatory. 
And I think--and CBP can--the commission can confirm. I think 
some of the biggest dual national populations come out of 
Britain, Australia, some of our key allies.
    Mr. Kerlikowske. We implemented the--that particular facet 
of the law almost immediately by canceling 17,000 dual 
nationals that we had information on, and we've also--any 
application that has come in since that also shows dual 
nationality has been denied. And of course our default position 
on all of this, whether it's with a potential waiver 
application or not, is that if there is any derogatory 
information, any concern or any--or anything that would violate 
the law that Congress passed and the President signed, the 
default position would be to ----
    Mr. Connolly. Deny?
    Mr. Kerlikowske.--deny them and send them ----
    Mr. Connolly. I think that is really important. My time is 
up and I thank the chair, but the default--when in doubt, we 
don't do it. We don't put the United States at risk. Okay. 
Thank you very much. Thank you, Mr. Chairman.
    Mr. DeSantis. The chair now recognizes the gentleman from 
Oklahoma, Mr. Russell, for 5 minutes.
    Mr. Russell. Thank you, Mr. Chairman. And thank you, all of 
you, for being here today.
    The difficulty that obviously a lot of us face on all sides 
of the immigration issue is not conflating refugee resettlement 
with visa waiver, with border security, with the larger 
immigration issue. I think many times we tend to get all of 
that confused.
    However, here, we are talking about specifically a 
vulnerability second only to the open border that we have and 
ways that people could infiltrate. The Visa Waiver Program 
constitutes probably the greatest threat for infiltration if 
you were trying to enter the United States to do nefarious 
activities. And a simple yes or no, would you disagree with 
that statement, Mr. Kerlikowske?
    Mr. Kerlikowske. I would not agree with it, no.
    Mr. Russell. Ms. Johnson?
    Ms. Johnson. I would not agree as well.
    Mr. Russell. Ms. Vaughan?
    Ms. Vaughan. Yes, I would agree with that.
    Mr. Russell. Mr. Ottolenghi?
    Mr. Ottolenghi. So would I.
    Mr. Russell. Mr. Heifetz?
    Mr. Heifetz. I disagree.
    Mr. Russell. Okay. And see, therein lies the problem 
because even in the refugee camps that we visited, even as we 
have traveled into some very dangerous places to look at a lot 
of different things, even they will build up their border so 
that we have a controlled entry. Now, visa waivers, we have 
control, and I hear cited here today that it is the ESTA that 
is far more stringent and is far more thorough, and therefore, 
we should have some reassurance.
    Ms. Johnson, how long is the ESTA legitimate for?
    Ms. Johnson. I believe it's 2 years. It's good for 3 and it 
can go down to 1.
    Mr. Russell. So 2 to 3 years. So do you think that maybe 
someone could be in a different viewpoint in terms of nefarious 
activity over a 2-year period?
    Ms. Johnson. Well, just like our visas, the ESTAs are 
recurrently vetted so they're--it's not a static moment in 
time. So just because you're issued an ESTA does not mean we 
don't continually look at you as ----
    Mr. Russell. Well, I understand that, but unless the 
information is volunteered such as the change of address or 
some other nature, the ESTA is good for 2 years. And, you know, 
whether or not I am coming here to visit Disneyland or coming 
here to commit an act of terror, we don't know. And see, here 
is part of the problem now. I am not conflating the refugee 
resettlement and some of those--look, we need to be a nation 
that welcomes immigrants. I just want to be on the record for 
that.
    However, what we are talking about here is a vulnerability 
to infiltration. And as someone who defended my country in 
uniform for more than two decades of my life, living among many 
of the places that we are talking about, by the way, which have 
very good people, we are vulnerable.
    And, Mr. Heifetz, let me see if I am correct here. You say, 
as part of the JCPOA, though, the United States committed to 
refrain from creating new types of sanctions on Iran. More 
specifically, the U.S. agreed to refrain from ``imposing 
exceptional or discriminatory regulatory and procedural 
requirements in lieu of the sanctions and restrictive measures 
cover by the JCPOA.''
    So am I hearing you correctly that modifications to the 
visa waiver should be avoided because it might curtail Iranian 
business? Yes or no?
    Mr. Heifetz. No, that's not what I was saying.
    Mr. Russell. But that's in multiple statements to include 
your recorded testimony. You do state that we should avoid that 
because it might be discriminatory or exceptional. Do you 
believe that it's discriminatory or exceptional to have an 
additional scrutiny on Iranian people conducting Iranian 
business?
    Mr. Heifetz. I believe that we have to be very careful 
about the exercise of VWP privileges and the withdrawal of 
those VWP privileges and that we need--that it is in the United 
States' national security interests to ensure compliance with 
the JCPOA.
    Mr. Russell. Well, okay, but that is a whole separate issue 
with the joint agreement.
    Mr. Heifetz. Well, it's ----
    Mr. Russell. In fact, let's talk about trading allies. Our 
top 20 allies, GDP, okay, China, Brazil, India, Saudi Arabia, 
Hong Kong, Malaysia, these are in the top 20 trading partners. 
We are talking a lot of money, hundreds of billions of dollars 
in trade to the United States. They are not on the Visa Waiver 
Program. Are you suggesting, sir, that Iran should be treated 
more favorably or those that do business with Iran, that, say, 
if I were a Londoner and I visited Malaysia ----
    Mr. Heifetz. No.
    Mr. Russell.--are you suggesting that I ought to get 
favorable attention because I am going to Iran as opposed to 
our allies that we trade hundreds of billions of dollars with?
    Mr. Heifetz. The U.S. security depends in large part on 
cooperation from, among others, European allies. And when we--
if we threaten withdrawal of VWP privileges from citizens of 
those countries, that's something that has to be factored into 
the calculation.
    Mr. Russell. Well, I agree, and I understand a little bit 
about security and providing security to the United States 
having nearly lost my life in defense of the country. How would 
requiring additional screening on a visa application for those 
conducting business in Iran be any different than, say, 
exceptions to conduct business with Saudi Arabia? Do you favor 
Iran over Saudi Arabia?
    Mr. Heifetz. I'm not taken any position on that ----
    Mr. Russell. Well, I think you are, sir. I think you are 
taking a position here ----
    Mr. Heifetz. No.
    Mr. Russell.--with your testimony. And this is the point 
that I am making--and thank you, Mr. Chairman, for your 
indulgence--but we have to be very careful here. We have 
vulnerabilities. We want to be a nation that is welcoming. We 
have vulnerabilities. But as Mr. Ottolenghi correctly stated, 
this is not an additional burden. It is not so bad that we 
can't do it. And I think we need to be very careful before we 
open ourselves up to real danger and real vulnerability.
    And with that, Mr. Chairman, I yield back.
    Mr. DeSantis. The gentleman yields back.
    The chair now recognizes the gentleman from Ohio, Mr. 
Jordan, for 5 minutes.
    Mr. Jordan. I thank the chairman, and thank you, you and 
Mr. Meadows, for putting this hearing together.
    Mr. Kerlikowske, a couple months ago we had an individual 
from DHS here, and we asked her a number of questions, and she 
wasn't able to give us any answers. Some of them didn't deal 
directly--I am going to ask you some of the same questions. 
They didn't deal directly with the Visa Waiver Program, but 
information I think the American public is interested in 
knowing. So I am going to ask you some of the same ones and see 
if you have the answers.
    Do you know how many Americans have traveled to Syria in 
the past 2 years?
    Mr. Kerlikowske. I do not.
    Mr. Jordan. And who would have that information?
    Mr. Kerlikowske. Within DHS headquarters, there is a visa 
waiver office, and they're also--they would work with the 
Department of State on that information. We have a fairly 
narrow mission ----
    Mr. Jordan. I am talking about just Americans ----
    Mr. Kerlikowske.--customs and border protection ----
    Mr. Jordan.--who have traveled to Syria, people who have 
left our country and travel to--do we know that number?
    Mr. Kerlikowske. Well, if you're also ----
    Mr. Jordan. Not necessarily Visa Waiver Program folks, but 
just anyone.
    Ms. Johnson. I think you can get the numbers from the FBI 
and the National Counterterrorism Center. I know last year. So 
it was over 100. I don't know what the numbers are today.
    Mr. Jordan. Okay. So over 100. And of those who--do we know 
how many of those 100 who have traveled there who have then 
come back?
    Mr. Kerlikowske. If you are talking about those that may do 
harm and we are concerned about it may come back, I think 
whether it is the DNI or others, I think we would be much more 
comfortable in a closed setting giving you that information. 
But ----
    Mr. Jordan. I am not asking whether they are going to do 
harm or not. I am just asking do we know Americans who have 
traveled to Syria, Iraq and then have come back? Do we know 
that number?
    Mr. Kerlikowske. We do know that number.
    Mr. Jordan. Okay. But you don't think we should give that 
in a ----
    Mr. Kerlikowske. I would not because ----
    Mr. Jordan.--non-classified ----
    Mr. Kerlikowske.--I would tell you that I think that there 
is a significant heightened risk ----
    Mr. Jordan. Okay.
    Mr. Kerlikowske.--unless there is particular information 
that they went over as a medical worker, et cetera.
    Mr. Jordan. I understand.
    Mr. Kerlikowske. So we'd be more comfortable telling you 
that ----
    Mr. Jordan. Okay.
    Mr. Kerlikowske.--in a closed setting.
    Mr. Jordan. So let's go to--do we know how many Syrian 
refugees are in the country today? Again, not the Visa Waiver 
Program, I am talking about Syrian refugees. And Ms. Johnson or 
whoever can--either one.
    Mr. Kerlikowske. And I think that USCIS, the director Leon 
Rodriguez, that is something that would be within his 
portfolio, not Customs and Border Protection.
    Mr. Jordan. Okay. All right. Well, let's go to Visa Waiver 
Program. How many Visa Waiver Program overstays are there 
currently in the United States?
    Mr. Kerlikowske. The number of overseas was estimated in 
the last reports, and as Chairman Meadows mentioned ----
    Mr. Jordan. This is the most recent report that you guys --
--
    Mr. Kerlikowske. Right. Exactly.
    Mr. Jordan.--just put together? Okay.
    Mr. Kerlikowske. Over ----
    Mr. Jordan. What was that number again?
    Mr. Kerlikowske. Over 500,000 overstays.
    Mr. Jordan. Over 500,000? And what is the average length of 
time they have overstayed?
    Mr. Kerlikowske. I don't have that.
    Mr. Jordan. Is it in the report?
    Mr. Kerlikowske. I believe it is.
    Mr. Jordan. Okay. And of those half-a-million overstays, do 
we know how many of those may have been to Syria or Iraq in the 
past couple years? I mean, do you know their travel history? So 
they are coming from largely, I mean, most likely a European 
country who are part of the Visa Waiver Program. Do we know, of 
those half-a-million who are here who have overstayed the time 
they were supposed to be here, do we know how many of those may 
have traveled to Syria or Iraq?
    Mr. Kerlikowske. If we have the information from an air 
manifest or a sea manifest as to whether or not they had 
traveled to another country, we would have that information, 
and I'd be happy to try and provide more detail. I wouldn't 
have that right in front of me.
    Mr. Jordan. But you do think you could get me that 
information?
    Mr. Kerlikowske. I could get you much more specifics to 
what you're asking than what I can tell you right now.
    Mr. Jordan. Well, I think that is an important question --
--
    Mr. Kerlikowske. Right.
    Mr. Jordan.--I mean, because if you have got half-a-million 
people who are overstaying the time that they are supposed to 
be here, we want to know where they came from. We want to know 
where they have traveled. I mean, the whole idea is that this 
Visa Waiver Program could be exploited by terrorists. It would 
be interesting to know if some of the people who are currently 
here who have overstayed have already violated what the 
agreement is, what the law is if they had been to places in the 
Middle East prior to coming to the United States.
    Mr. Kerlikowske. And we also know that in order for a 
country to remain in the Visa Waiver Program, there has to be a 
percentage, an overstay percentage I believe--is it below 3 
percent?
    Ms. Johnson. The visa, yes.
    Mr. Jordan. Wait. Say that again.
    Mr. Kerlikowske. So all these countries that are in the 
Visa Waiver Program do a whole host of things that they share 
information ----
    Mr. Jordan. Right.
    Mr. Kerlikowske.--whether it's lost or stolen passports --
--
    Mr. Jordan. I understand.
    Mr. Kerlikowske.--on and on. They also have to abide by a 
reduced amount of people that would be in an overstay capacity. 
That would be one of the criteria.
    Mr. Jordan. Okay. Well, that sort of raises the question, 
then, of these half-a-million people who are here who aren't 
supposed to be here, what kind of ramifications or consequences 
do the countries that they came from--what kind of consequences 
have happened?
    Mr. Kerlikowske. Well, I would tell you that ----
    Mr. Jordan. It is one thing to say there are going to be 
consequences. We want to know, for the half-a-million who are 
here who aren't supposed to be here, have there been any 
consequences?
    Mr. Kerlikowske. Well, I would tell you that the half-a-
million people includes the people that got on the plane and 
left the day after their overstay. And I think as Chairman 
Meadows mentioned that there's a lot of gaps in the data. I 
mean, that's why I think it took so many years for people to 
try and gather and put it together. That's why I was very 
pleased that Secretary Johnson, working with us and other parts 
of the DHS headquarters, were able to put together a report. 
And as I think all of us have clearly mentioned, there are gaps 
in the report. The data-gathering needs to be better, and the 
information needs to be supplied not just to the Members of 
Congress but also to the American public. None of us disagree 
with that.
    Mr. Jordan. Okay. I am over time. Thank you, Mr. Chairman.
    Mr. DeSantis. The chair now recognizes Mr. Hice for 5 
minutes.
    Mr. Connolly. Mr. Chairman?
    Mr. DeSantis. Yes?
    Mr. Connolly. Would you allow just a quick clarification?
    Mr. DeSantis. Sure.
    Mr. Connolly. I thank the chair.
    It would be helpful, Mr. Kerlikowske, if we had some 
specified data on overstays. So your point is some people are 
classified overstays technically because a few hours lapsed 
between the expiration of the visa and their getting on an 
airplane and leaving. I think it would be helpful to the 
committee if we actually had a breakdown of that data. So 
otherwise we are dealing with the raw data of a half-a-million, 
which is not accurate. But what is accurate? And I think that 
is where Mr. Jordan was going.
    Mr. Jordan. If I could, Mr. Chairman?
    Mr. DeSantis. Yes.
    Mr. Jordan. Yes, great point. We would like to break down 
that, but I think it is also important for the committee to 
understand--my understanding is that half-a-million is only the 
tourists and business, right? There are all kinds of other 
people here on visas who overstay. They may not be in the Visa 
Waiver Program, but there are all kinds of others. So that 
number is just with those two programs, and we can't even get 
the exact information where they have traveled before, what may 
have transpired there.
    Mr. Kerlikowske. You're absolutely correct, Congressman, 
for instance, student visas, but student visas aren't for 90 
days. Student visas are for the completion of the educational 
requirement. As we know, any of us who have sent our kids to 
college know they don't graduate in 4 years. So we have--so 
there are significant--you know, there's significant greater 
difficulties. All of us at DHS and certainly ----
    Mr. Jordan. That is a good point. They may not graduate in 
4 years, but our kids aren't breaking the law if they would 
stay longer than 4 years. That is the point, right?
    Mr. Kerlikowske. Well, actually ----
    Mr. Jordan. They are breaking our wallet but not breaking 
the law.
    Mr. Kerlikowske. They're not breaking the law because--
they're not breaking the law if they stay 4-1/2 years to get 
that college education because the--it's--at the end of the 
term, at the end of the--that you can see the difficulty of 
trying to track somebody for 4-1/2 years. So that's why the B-
1/B-2 visa I think was easier ----
    Mr. Jordan. I am not saying it is not difficult. All I am 
saying is we want the numbers, and frankly, that is your job to 
know what is going on and know those who are overstaying their 
time.
    Mr. DeSantis. And, though, I think of the 500,000 
identified, I think you have the vast majority, like 416,000, 
are still in the country overstaying. And there is only a very 
small fraction that were investigated by ICE for overstaying. 
So I think that there is--I mean, we need the data, I agree, 
but there are a lot more questions that haven't been answered.
    So, Mr. Hice, you are recognized for 5 minutes.
    Mr. Hice. Thank you, Mr. Chairman.
    Okay. We have, by Congress, given some restrictions to the 
Visa Waiver Program. Ms. Johnson, let me ask you this. Did the 
administration discuss the exceptions to these restrictions 
with the government of Iran before announcing those exceptions 
to Congress and the American people?
    Ms. Johnson. Are you referring to a conversation between--
or a letter between Secretary Kerry and Foreign Minister Zarif?
    Mr. Hice. I am referring to any communication with the 
Iranian Government about the exceptions.
    Ms. Johnson. So I know that Secretary Kerry did send a 
letter to Foreign Minister Zarif after the Iranians publicly 
claimed that this law violated the JCPOA commitments. In that 
letter, Secretary Kerry defended the law, telling him that it 
was not a violation of the JCPOA commitments. He also outlined 
the fact--what the law was, again, defending the law but also 
outlined why it was not in violation of those commitments 
because it is possible for Europeans to travel to Iran and 
conduct legitimate business.
    Mr. Hice. So there was communication. Can we have a copy of 
that letter if we don't already have it, Mr. Chairman, that it 
be entered in the record?
    Ms. Johnson. And these are letters--I mean, we've gotten 
similar letters from our VWP--or similar inquiries. Again, I've 
met with ----
    Mr. Hice. Okay. It is concerning to me that Congress passes 
restrictions and then the administration has conversations with 
the Iranian Government and makes exceptions to the restrictions 
that were imposed by law, by Congress. I would like to have a 
copy of that.
    You mentioned also a little while ago the legitimate 
business-related purposes. I have absolutely no idea what that 
means. What is the definition? How is that defined?
    Ms. Johnson. Well, obviously, legitimate business, we are 
working through how we would process it in the context of the 
waivers, but obviously, in the case of Iran, it would not be 
sanctionable--things that are sanctionable under both U.S. law 
and regulations, U.N. Security Council resolutions, things of 
those natures. That would be our basis for starting out ----
    Mr. Hice. So you are saying you don't have a real firm 
definition either?
    Ms. Johnson. We definitely--from the sanctionable side 
obviously, and then what would be looking at how we could also 
narrowed down review of those individual case-by-case waivers 
to determine legitimate business.
    Mr. Hice. I just don't understand how someone with a so-
called legitimate business-related purpose, how that business, 
someone traveling to Iran or Iraq or wherever it may be, 
somehow falls under a national security exemption. And can you 
explain that?
    Ms. Johnson. For both Iraq and Iran or ----
    Mr. Hice. Sure.
    Ms. Johnson. Yes. So obviously, in the case of Iraq we have 
been encouraging governments from VWP countries but more 
broadly, more globally, to engage in business with Iraq to help 
stabilize their economy. That's in our national security 
interests. For Iran, the same thing. We are looking at these 
foreign partners and particularly the VWP countries to engage 
in--they've got legitimate business interests and permissible 
under the JCPOA. Again, that's why we have a deadline of July 
14 when it was concluded, not before. And those are 
international security interests, so those partners to be able 
to participate in that activity.
    These are partners, again, who are contributing to our 
national security. By participating in the VWP program, they're 
providing us with additional information on known and suspected 
terrorists. We also have information on how they do border 
controls both at their sea and land and airports. And again, we 
are constantly monitoring our partnerships with those countries 
to make sure that it's a securing the homeland and it's not --
--
    Mr. Hice. Okay. Let me go to----
    Ms. Johnson.--undermining our security.
    Mr. Hice. Thank you. Let me go to Mr. Kerlikowske. The 
Department of Homeland Security, are they currently monitoring 
individuals who have traveled to countries like Syria, Iraq, 
some of these other countries, where there is known 
radicalization and training efforts that are ongoing in those 
countries? Are those individuals being monitored?
    Mr. Kerlikowske. We would not do that. The Department of 
Justice and the Federal Bureau of Investigation would be in a 
much better position to answer that. We do share ----
    Mr. Hice. Is there anyone on the panel that can answer 
that?
    So we have experts here and we don't know whether these 
people traveling these countries where there is radicalization 
taking place, we don't know if they are being monitored?
    Mr. Kerlikowske. Well, actually, the Department of Justice 
could answer it in a closed session with probably far more 
specificity ----
    Mr. Hice. But none of you can answer it, so that is not 
public knowledge. We don't know. Is that ----
    Mr. Kerlikowske. We would not want to release information 
or talk about the number of people or who is being monitored 
who may pose a threat to people of this country in a ----
    Mr. Hice. All right. My time is almost gone.
    Mr. Kerlikowske.--in an open setting.
    Mr. Hice. Since you can't answer that, let me ask it this 
way. Is there any way for the U.S. Government to prevent 
individuals from visa waiver countries where there is 
radicalization and training, terroristic training taking place, 
is there any way to ensure that these individuals cannot enter 
the United States under the Visa Waiver Program?
    Mr. Kerlikowske. You know, as a police chief of two of the 
largest cities in the country, I was never held accountable for 
having Seattle not having any crime. We did the very best we 
could. I would tell you that it might be very much similar to 
what we do now. Every day, Customs and Border Protection 
personnel deny admissibility in this country to 241 people that 
are either stopped at preclearance, they're stopped at a port 
of entry, or their arrested or apprehended. It happens every 
single day.
    Mr. Hice. But we are giving exceptions to a Visa Waiver 
Program that, as you just have mentioned, as you just declared, 
has no real security. We don't know if we are preventing people 
from radicalized countries from coming into the United States 
under the Visa Waiver Program.
    Mr. Kerlikowske. And I didn't say that. It--I wouldn't say 
that it has no--I'd say it has greater security than many of 
the systems in place.
    Mr. Hice. My time is up, Mr. Chairman. Thank you.
    Mr. DeSantis. The gentleman's time is expired. The chair 
now recognizes the gentleman from Kentucky, Mr. Massie, for 5 
minutes.
    Mr. Massie. Thank you, Mr. Chairman.
    I would like to take my time to discuss what I hope is an 
unintended consequence of some hasty changes to this 
legislation before it passed. As a result of this legislation, 
citizens of Visa Waiver Program countries can no longer travel 
to the United States visa-free if they are dual nationals of 
Iran, Iraq, Sudan, or Syria solely due to their ancestry.
    And let that sink in. I mean, this feels like 
discrimination to me because if the citizens of those countries 
we are excluding, if those countries in the Visa Waiver Program 
decide to reciprocate, there is a category of millions of 
Americans, freedom-loving Americans that could be exposed to 
discrimination as a result merely of who their parents were.
    And by this I mean you could be swept into this program of 
discrimination even if you have never been to one of these four 
countries if you are solely the progeny of somebody from one of 
these countries because three of the countries consider you to 
be a citizen of that country even if you weren't born there so 
long as your father was a citizen of that country. This is a 
great concern to me.
    There is a piece of legislation that I have introduced. The 
primary sponsor is Justin Amash. It is H.R. 4380. It is called 
the Equal Protection and Travel Act of 2016 that would remedy 
this problem.
    And, Mr. Chairman, I ask unanimous consent to enter into 
the record two letters in support of H.R. 4380, the Equal 
Protection and Travel Act of 2016. The first letter is from the 
American Civil Liberties Union and the second letter is signed 
by 65 separate groups representing a wide range of viewpoints 
and membership.
    Mr. DeSantis. Without objection.
    Mr. Massie. So while we have got the witnesses here who are 
obviously experts on the Visa Waiver Program, I want to ask, 
for instance, Mr. Heifetz--and anybody is welcome to answer 
this--of what national security advantage would there be to 
excluding people from this program merely because their parents 
were citizens of one of these countries, Mr. Heifetz?
    Mr. Heifetz. None that are apparent.
    Mr. Massie. Please elaborate.
    Mr. Heifetz. Well, I think a couple things are worth 
noting. First, the most significant expansion of the Visa 
Waiver Program occurred in the Bush administration. This was a 
security program, properly viewed as one. Secretary Chertoff 
has spoken on numerous occasions about Visa Waiver Program 
enhancing U.S. security. And the reason for that is the 
tradeoff is one between a short--what is typically a short 
interview by a consular officer. In exchange, rather than 
having that, we get heightened security standards by our Visa 
Waiver Program partners, particularly including lots of data to 
some of the questions that have come up--lots of data about who 
it is who intends to travel here, data that we wouldn't 
otherwise have access to.
    So I think part of the points--part of what--the point that 
has been made several times is that when we begin--if we chip 
away at the advantages to the member states--to the VWP member 
states, we risk the security that comes with the additional 
information about who those people are and the heightened 
security standards that our VWP members provide.
    Mr. Massie. Well, let me elaborate about this category of 
individuals that is going to be discriminated against and then 
ask another question. So this category includes people who may 
have fled here from those countries, for instance, in the '70s 
from Iran, who were seeking relief from that regime and have 
never gone back, never returned to that country.
    Do we have any evidence--is there a single example of 
somebody who came to this country and is a dual citizen of one 
of these countries that presented a terrorist threat, you know, 
with credible evidence? And I am talking about people who were 
either born in the United States and became, by virtue of their 
parentage, a citizen of one of these countries, or fled here 
and never went back. Is there a single example?
    Mr. Ottolenghi. Yes, sir. Manssor Arbabsiar, involved in a 
plot to try and murder the Saudi Ambassador to the United 
States in October 2011, Iranian American national living in 
Texas instructed and abetted by the cousin from Iran involved 
in the--Iran's Revolutionary Guard Corps forces.
    Mr. Massie. And ----
    Mr. Ottolenghi. So that's one example.
    Mr. Massie. And ----
    Mr. Ottolenghi. The second example, sir, is the seven 
recent pardons by the President ----
    Mr. Massie. Let me ask you about that example.
    Mr. Ottolenghi.--of Iranian Americans ----
    Mr. Massie. That individual had never traveled to Iran.
    Mr. Ottolenghi. Sir, you are raising the point about dual 
nationals who are citizens ----
    Mr. Massie. Right. And ----
    Mr. Ottolenghi.--of the United States and citizens of Iran. 
The point being made ----
    Mr. Massie. My point, the question was for people who have 
not returned to the country or people that were born here.
    Mr. Ottolenghi. I am not familiar with the travel patterns 
of Mr. Arbabsiar ----
    Mr. Massie. Okay. Well, my ----
    Mr. Ottolenghi.--but certainly he was ----
    Mr. Massie.--time is expired.
    Mr. Ottolenghi.--a dual national.
    Mr. Massie. My time is expired. So here is the point I am 
making. I think it is fair to discriminate against someone 
based on their activity, their actions, or their travel 
patterns but not on their parentage. And I think the 
legislation runs the risk of disenfranchising millions of 
freedom-loving Americans. And I hope people will consider H.R. 
4380 to remedy this.
    And I yield back my time.
    Mr. DeSantis. The gentleman's time is expired.
    The chair now recognizes the gentleman from South Carolina 
for 5 minutes.
    Mr. Mulvaney. Thank you, Mr. Chairman. I thank the panel. I 
have just got a couple of clean-up questions for a couple 
different folks as we come to the end of this first round.
    Mr. Heifetz, we will start with you. You have been asked a 
couple times by a couple different people how is it--and in 
fact several folks have been asked how could it be possible 
that somebody going someplace on business could be a national 
security interest or national security threat? But I don't 
think that is your point.
    Let me see if I am correctly articulating your point, and I 
think Ms. Johnson may have made a similar point, which is that 
if we interfere with the free travel of, say, a European 
businessman or woman who has gone to Iran, then gone back, and 
then comes into this country, we deny that person the Visa 
Waiver Program, then that may discourage trade or travel to and 
from Iran, which would be a violation of the agreement we just 
signed with Iran a couple weeks ago. Is that your argument, 
sir?
    Mr. Heifetz. That is an argument as to why discretion with 
respect to the waiver is important.
    Mr. Mulvaney. I will take that as a yes, as lawyers tend to 
do, but I will take that as a yes unless you are telling me it 
is no, that what you are saying is that because that 
interpretation of the statute would potentially or likely 
violate the agreement with Iran, that it is in the national 
security interest of the United States to do something else, 
because breaching the agreement with Iran is against the 
national security interest of the United States?
    Mr. Heifetz. That's--yes.
    Mr. Mulvaney. Okay. Let me ask you this. What if the bill--
what if the law, by the way, signed by the--I mean passed by 
the House and the Senate and signed by the President required 
the President to do something in violation of the JCPOA? Would 
it still qualify as a national security waiver under this law? 
Could the President break the law in order to not break the 
JCPOA?
    Mr. Heifetz. I have a hard time envisioning the scenario 
that perhaps you're envisioning. The ----
    Mr. Mulvaney. We passed a bill today that says that it is 
illegal for anybody who has traveled to Iran to come into the 
United States for a year. We pass that law today ----
    Mr. Heifetz. And ----
    Mr. Mulvaney.--and the President waived that law under 
subsection C in the name of the national security interest of 
the United States.
    Mr. Heifetz. If there's a--an--if there's a waiver 
authority for national security and the administration 
determines that it's in the national security interest to waive 
it, then it's not a violation of the law.
    Mr. Mulvaney. No, but it is a violation of the separate law 
that we may have passed. Again, take by example we passed a 
bill today, we go in the House, Senate, President signs it and 
says if you go to Iran, you can't come here for a year, could 
the President waive that law under subsection C in your mind?
    Mr. Heifetz. If the administration determines that it's in 
the national security interest of the United States, then yes.
    Mr. Mulvaney. And I think that is right. I think that is 
consistent with your position. But my point is I start to get--
the hair on the back of my neck stands up when we say it is 
okay for the President to break the law in order to accomplish 
something. But anyway, again, I think we are just clarifying a 
couple questions that were asked before.
    A question about process, if I am that Iranian businessman 
and I go to Iran and I come back--excuse me, I am a British 
business person, I go to Iran and I come back and then I want 
to come to the United States. How do we know that I have been 
to Iran?
    Mr. Heifetz. This is probably a better question for ----
    Mr. Mulvaney. Okay. Anybody ----
    Mr. Heifetz.--some of the others, but I--my understanding 
is that they're--that the fields are expanding--the ESTA fields 
are expanding to ask that ----
    Mr. Mulvaney. Okay.
    Mr. Heifetz.--to get at that issue.
    Mr. Mulvaney. That is one possible answer. It is not the 
best answer. The best answer would be that the computer systems 
would know that we are sharing information with the British, 
because if I lie on the ESTA or however you pronounce it, then 
am I going to get caught? Do we share information with the 
British on that?
    Mr. Kerlikowske. We do and ----
    Mr. Mulvaney. Okay.
    Mr. Kerlikowske.--it's in the travel records and it's in 
the either the name information or the advanced data. But then, 
of course, there's another way, and that is if you then enter 
the United States or you happen to be trying to enter the 
United States through Dublin or Abu Dhabi, you would show to a 
United States Customs and Border Protection officer a passport, 
who would go through the pages of that passport and see the 
stamp or see the information that you had been to one of those 
four countries. And that's what we did during the Ebola issue 
of those impacted countries.
    Mr. Mulvaney. Okay. And then I am stopped at the border if 
that is the case?
    Mr. Kerlikowske. You're denied entry because you have 
traveled within--after 2011.
    Mr. Mulvaney. Thank you. Now, to another point--and I am 
going to ask Ms. Vaughan a question and then I promise, Mr. 
Chairman, I will wrap up--because we talked about this 
hypothetical businessperson, we have talked to--I think Mr. 
Heifetz in his testimony mentions a couple different folks.
    Mr. Heifetz, I will read from yours. It says, ``It is 
common and will become ever more common for a European 
businessperson to travel to Iran to conduct legitimate 
business''--I think we all agree with that--``but if that 
European businessperson's travel will preclude further travel 
to the United States, under the VWP, that might deter European 
business dealings with Iran.'' You then go on to talk about the 
Australian doctor who might also be deterred from going to the 
Middle East in order to provide services.
    Ms. Vaughan--and someone told me before you used to work in 
the Foreign Service.
    Ms. Vaughan. That's right.
    Mr. Mulvaney. Okay. I will ask you first and then I will 
ask anybody. Does anybody really believe that the possibility 
of getting kicked out of the Visa Waiver Program is going to 
deter a doctor from going to work in the Middle East?
    Ms. Vaughan. I do not think so. And certainly not with 
respect to business ----
    Mr. Mulvaney. If I have a doctor ask that--if I go to this 
country, can I still get in ----
    Ms. Vaughan. Right, like, oh, I can't ----
    Mr. Mulvaney. Yes.
    Ms. Vaughan. Yes, I can't go to Disneyland or something.
    Mr. Mulvaney. Right.
    Ms. Vaughan. I don't think that would deter them. I don't 
think it would deter a businessperson. If they're pursuing a 
lucrative business opportunity in Iran or Iraq, $160 and the 
time of a visa interview is not going to be too much of a cost 
of business to go take care of that. I think it's a mistake to 
think of these people as victims.
    Mr. Mulvaney. Well, I am not going to get into 
victimization, but I tend to agree it doesn't discourage them. 
If anybody else disagrees--I'm going to let Mr. Heifetz 
disagree with that because it was his testimony. Does anybody 
else disagree? Does anybody really think that is a deterrent to 
travel?
    Okay. Let the record reflect nobody said no.
    Mr. Heifetz, it is your testimony. Why do you think it is a 
deterrent to travel?
    Mr. Heifetz. We ----
    Mr. Mulvaney. Do you have personal experience with that?
    Mr. Heifetz. Yes, we have clients who--it is--to address 
another point that arose, I think it is common knowledge that 
travel history--an individual traveler's travel history is a 
factor that's taken into account as to whether to grant an ESTA 
and whether to grant entry to the United States, and properly 
so.
    We have been asked with some frequency whether travel to a 
particular location will cause difficulties entering the United 
States, and the answer to that is it might. And there have been 
instances in which people have foregone travel because of that 
concern. So I would expect that there would be instances in 
which people decline the type of travel that we've been 
discussing if VWP privileges were at risk.
    Mr. Mulvaney. Thank you, Mr. Heifetz. Thank you to the 
whole panel ----
    Mr. DeSantis. The gentleman's time is expired.
    Mr. Mulvaney.--and thank you, Mr. Chairman.
    Mr. DeSantis. We are going to wrap up. We have votes. So I 
am just going to recognize the chairman of the Government 
Operations Subcommittee, Mr. Meadows, for a minute.
    Mr. Meadows. Thank you, Mr. Chairman.
    Mr. Kerlikowske, on the report that has been done for the 
visa overstays--and we are not talking about visa waiver; we 
are talking about all visa overstays--are we expecting another 
report? Because, as you and I agree, that is not complete. So 
we are expecting a final report from DHS?
    Mr. Kerlikowske. We are expecting a subsequent report in 
which we would have greater detail and more information. 
Whether or not that is for this coming year, I--because the 
visa waiver ----
    Mr. Meadows. Because we have had other testimony that would 
suggest that we would get that within 6 months. I guess what I 
am saying is, is the report we got is not viewed by DHS as 
agreeing to the sworn testimony we have already had before this 
committee, is that correct?
    Mr. Kerlikowske. You know, I don't know, but I'd be happy 
to ----
    Mr. Meadows. Okay.
    Mr. Kerlikowske.--get back to you with an answer.
    Mr. Meadows. In the 13 seconds ----
    Mr. Kerlikowske. Yes.
    Mr. Meadows.--I have remaining, let me tell you my concern. 
We continue to get stonewalled with regards to the visa 
overstayed numbers. I know that there was a report done in 2013 
that has failed to be released. It is time. It is time you get 
it back to this committee, and we are going to continue to 
bring you back until we get a report, okay?
    Mr. Kerlikowske. Okay.
    Mr. Meadows. I will yield back.
    Mr. Connolly. Mr. Chairman?
    Mr. DeSantis. The gentleman yields back.
    I want to thank the ----
    Mr. Connolly. Mr. Chairman?
    Mr. DeSantis.--witness--yes?
    Mr. Connolly. Would you just yield me the same amount of 
time?
    Mr. DeSantis. One minute.
    Mr. Connolly. Thank you very much.
    Just a statement for the record, it seemed to be suggested 
in Mr. Mulvaney's questioning that the President of the United 
States had violated the law. There is no evidence of the 
President of the United States violating the law. That is a 
very grave charge. It is one any one of us at this dais would 
take exception to if somebody threw that at us. And it is no 
less significant when you do it with the President of the 
United States.
    He is taking advantage of a provision provided in the law. 
If we don't like it, we can change the law. And it is no 
different than a waiver authority that has been provided in 1 
million pieces of legislation to myriad Presidents of the 
United States. I am old enough to remember Ronald Reagan using 
waiver authorities with impunity, and he wasn't violating the 
law even though I didn't always like it.
    Thank you.
    Mr. DeSantis. Well, I think Mulvaney was talking about a 
hypothetical case, but I think we do on this side of the 
aisle--at least I do--you know, consider the national security 
waiver to be narrow, and in this instance, when you are 
expanding it to Iranian business travel, I think a lot of us 
think that that is not consistent with Congress's intent.
    But I would like to thank our witnesses for taking the time 
to appear before us today.
    If there is no further business, without objection, the 
subcommittee will stand adjourned.
    [Whereupon, at 4:53 p.m., the subcommittees were 
adjourned.]


                                APPENDIX

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