Democratic senator: Fixes to immigration system might already be on the books

Passengers at Charles de Gaulle Airport in Paris. A House lawmaker raises a concern about Europeans not needing a visa to fly to America. (Darren Kulp)
Passengers at Charles de Gaulle Airport in Paris. A House lawmaker raises a concern about Europeans not needing a visa to fly to America. (Darren Kulp)

President-elect Donald Trump has vowed to impose stricter immigration policies to prevent people from crossing our borders. But a Democratic senator suggested recently that the visa waiver program is what may need closer attention.

Sen. Claire McCaskill, D-Mo., claimed during a confirmation hearing for Trump’s pick to lead the Department of Homeland Security, Gen. John Kelly, that existing rules are stopping people that might do us harm and asked Kelly if he would expand security programs.

McCaskill said enhancements to the Electronic System for Travel Authorization (ESTA) allowed immigration officials to prevent someone from coming into the country who had planned "doing us harm."

"In fact, since February of 2016, 40,000 individuals have been denied visa-free travel due to the enhancements that have been put in place," McCaskill said Jan. 10, 2017.

We sought out to fact-check McCaskill’s 40,000 figure but could not verify it.

McCaskill’s team said the number came from a Jan. 4 meeting with outgoing Secretary of Homeland Security Jeh Johnson. Her office emailed us a PDF document from a DHS slideshow citing the 40,000 figure. The Department of Homeland Security, meanwhile, did not respond to our inquiry about the 40,000 "visa-free travel" denials.

Immigration experts told us that statistic may not be publicly published as of yet. While we could not independently verify the number, we decided to examine the travel security enhancements mentioned by McCaskill and how they fit into the broader homeland security discussion.

Here’s what we found out.

Visa Waiver Program

The Visa Waiver Program allows citizens from 38 countries to travel to the United States for up to 90 days without a visa, for business or tourism. Countries part of the program include Germany, Chile and South Korea.

Nations participating in the program are expected to also allow U.S. citizens to travel to their countries for business or pleasure for similar lengths of time.

The visa waiver program was created as a pilot through the Immigration Reform and Control Act of 1986 and was initially capped to eight countries, said a 2015 Congressional Research Service report. Congress since then has passed legislation amending qualifying criteria and allowing more countries to participate. It became a permanent program in 2000.

Individuals traveling to the United States under the visa waiver program must be checked via the Electronic System for Travel Authorization, which runs searches on law enforcement databases.

If someone is denied travel through the electronic system, they can still apply for a visa.

"An ESTA denial is not a denial of admission, but it is a denial of the visa waiver, and the individual is required to apply for and obtain a visa before traveling to the United States," said Theresa Cardinal Brown, director of immigration policy at Bipartisan Policy Center. "This gives the government other opportunity to vet the individual and in some cases, overcome any concerns."

The electronic system application notes that people admitted to the United States under the visa waiver program may not apply for a change of nonimmigrant status, travel extension or adjustment of status to temporary or permanent resident -- unless eligible under a provision of immigration law.

Security enhancements

In response to terrorism threats, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, included in the Consolidated Appropriations Act 2016, set new rules preventing certain groups of people from coming to the United States via the Visa Waiver Program.

Among those no longer permitted to travel through the program:

- Nationals of participating countries who had been in Iran, Iraq, Sudan, Syria, Yemen, Libya or Somalia on or after March 1, 2011 (with exceptions for diplomatic or military purposes)

- Nationals of participating countries who are also nationals of Iran, Iraq, Sudan, or Syria

As of April 1, 2016, people traveling under the visa waiver program must also have an e-passport, a passport with an embedded electronic chip storing biographical information.

Security experts have also told us that among lists and databases the United States uses to track suspicious individuals is the Passenger Name Record, which includes information on how flight reservations are paid for, traveler’s seat number, check-in status, baggage information and more.

Trump, set to take office Jan. 20, has widely spoken about extreme vetting for people coming into the country, including refugees.

Our conclusion

McCaskill said 40,000 individuals have been denied visa-free travel due to security enhancements.

McCaskill’s office said the figure comes from a private meeting with the outgoing secretary of Homeland Security. The department did not verify that number.

We’ll update this story when and if the information is made public.