Saturday, June 8, 2013

Chile to Become Only Latin American Country on the US Visa Waiver Program

In 2014, Chile will likely become the only Latin American country to be part of the United States (US) Visa Waiver Program (VWP).  The VWP is one of the few exceptions to the Immigration and Nationality Act that requires all visitors to the US to have a visa.  This will mean that citizens of Chile who wish to visit the US for 90 days or less for tourism or business will not need to apply for a visa from a US consulate before their travel.   In 2011, over 18.3 million people visited the US as part of this program, representing over 40% of all overseas visitors.  Chile is not the first Latin American country to be included in the program.  Both Argentina and Uruguay were once listed, however, they were dropped from the program in 2002 and 2003 respectively because of US concerns over the fallout of the 2001 financial crisis in Argentina and the prospect of a surge in economic immigration to the US by visa overstays.  For Chileans, inclusion in the program will facilitate travel and tourism and help to strengthen bilateral relations.

Under the normal visa procedure, most tourists and short-term business visitors are required to apply for a B visa with the US consulate in Santiago.  This typically requires filling out an online visa application, paying a $160 processing fee and completing an interview at the consulate.  Part of the application requires applicants to demonstrate financial and family links to Chile, such as owning a house or car, having a job or family members living in Chile.  The interview process requires physically appearing at the US consulate and generally waiting in line.  The new procedure will be both shorter and cheaper.  Instead of filing for a visa, now travelers from Chile will file with the online Electronic System for Travel Authorization (ESTA).   There will no longer be a background check or a high degree of financial and personal details required of travelers as under the traditional B visa program.  As of 2010, a filing fee of $14 dollars attaches to the application, thus significantly reducing the fee for Chileans to seek authorization to travel to the US.  (An interesting side note will be how this affects the reciprocal visa fee that Chile imposes on US citizens, that is set to equal the fee levied on Chileans by the US government.)

While the ESTA system is less burdensome for individuals, it does entail greater obligations for the Chilean government and is not without restrictions.  ESTA does not allow an individual to adjust status while in the US (similar to the B visa it effectively replaces) and cannot be extended beyond 90 days without the showing of an emergency, and even then it can only be extended for 30 days.  ESTA status can be revoked at any time and at most is valid for two years before it must be updated and re-filed.  Like all other visas to the US, ESTA status does not guarantee admission into the country because the final determination of admissibility is made by Customs and Border Protection (CBP) officers at the port of entry.

Procuring inclusion in in the VWP is generally seen as a sign of close bilateral relations and mutual trust between countries.  A quick review of the current list of countries reflects the closest allies of the US (a full list is included below).  However, this list diverges from the largest US trading partners, notably excluding China and Mexico as well as Brazil.  Despite these important omissions, the VWP is seen as both a tool for public diplomacy and enhanced border security.  A 2007 study found that 74% of people who had visited the US were more likely to have a favorable view of the US, and 61% were more likely to support the US and its policies.  In 2009, the US government passed the Travel Promotion Act (as part of a police funding measure) which launched the BrandUSA program designed to stimulate tourist travel to the US.  Thanks in part to this tourism campaign and relaxed visa requirements, the US attracted 10% more tourists in 2012 than in the 2011.  According to the UN World Tourism Organization, world tourist arrivals reached 1.035 billion in 2012 and brought in total exports of US$ 1.3 trillion worldwide.  In the US, the VWP facilitated travel for 17 million visitors in 2010, who, according to the US Travel Association, spent over US$ 61 billion while in the US, accounting for US$9 billion in tax revenue and some 450,000 jobs. 

Beyond the economic incentives to promote access to the US, the VWP is also part of enhancing border security.  One of the primary functions of the VWP, and the ESTA program in particular, is the promotion of information sharing and the creation of common global security standards.  In order to qualify for the VWP program, countries must agree to share information about nationals traveling to the US who may be a threat to the security or welfare of the US.  Countries are required to issue tamper-proof machine-readable passports with biometric identifiers.  They must also agree to share information about lost or stolen passports with INTERPOL.  In effect, VWP promotes a common standard of documentation and control in exchange for easier access to the US.  The Department of State (DoS) favors the VWP because it streamlines the visa process for high-volume, low-risk countries allowing DoS to cut costs and focus limited resources on areas deemed to be high-risk.  However, the savings in time and work-hours at the consulate where visas were once issued has been shifted to the CBP and officers working at US ports of entry.  Additionally, there is a fear that due to the transnational nature of terrorism, classifying visa applicants by their country of origin is not an effective means of screening visitors to the US. 

The VWP is an important diplomatic tool which can both strengthen and undermine bilateral US relations.  Currently, 23 of the 27 European Union (EU) countries participate in the program, but this unequal treatment violates the solidarity clause of the EU charter which requires that all members be treated equally.  Additionally, these four excluded countries require a visa for their citizens to travel to the US, whereas US citizens traveling to their country, by virtue of being part of the EU, do not require a visa.  This imbalance violates the visa reciprocity clause of the EU charter and could be grounds for a formal complaint.  Political pressure within the EU has tamped down any such inclinations with Greece noticeably never filing a complaint despite the fact that it was only just added to the VWP in 2010 after 18 years as a member of the Schengen agreement for free mobility in the EU.  However, newer members of the EU have been more outspoken about their exclusion from the program.  In March 2013, two former secretaries of Homeland Security (Tom Ridge and Michael Chertoff) wrote to Congress urging them to expand the VWP and highlighted the negative impact the exclusion of Poland has had on this vital NATO ally.

To be included in the VPW, Chile must meet the statutory prerequisites set down in 8 U.S.C. § 1187, including a visa refusal rate under 3% of total visas for the past two fiscal years. The current DoS figures show that in fiscal year 2010 the refusal rate was 5%, in 2011 the rate was 3.4% and in 2012 the rate was 2.8%.  Therefore, if 2013’s figures keep in line with this trend, Chile will be eligible to participate in the waiver program.  After the DoS submits a formal nomination of Chile to the program, the Department of Homeland Security (DHS) will conduct a comprehensive review including an in-country inspection.  The DHS report will then be submitted to Congress for approval.  The timeline for these steps is not mandated, but Chile’s expected acceptance was mentioned in a recent meeting between President Piñera and President Obama.  Once accepted, Chile’s continued participation may be terminated at the discretion of the Secretary of DHS based on the occurrence of an “emergency” in the country.  An emergency is defined by the Immigration and Nationality Act section 217(c)(5)(B) as: (1) the overthrow of a democratically elected government; (2) war; (3) a severe breakdown in law and order in the country; (4) a severe economic collapse; and (5) any other extraordinary event in the program country where that country’s participation could threaten the law enforcement or security interests of the United States.

Additionally, countries are required to maintain a low visa rejection rate and may be placed in a probationary period if the data reflects an increase in visa rejections.  These figures reflect only visa applications submitted at U.S. embassies and consulates.  People travelling under the VWP are not taken into account.  Thus, VWP country refusal rates tend to be higher than they would without the VWP.  This is clearly reflected in the high number of adjusted visa refusals of such countries as Great Britain (20.6%), France (13.4%), Germany (16.4%) and Italy (13.3%).  Despite these high rejection rates, these countries continue to participate in the VWP. 

Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L.110-53)18 allows the Secretary of DHS to waive the refusal rate requirement based on other factors including: the totality of the security risk from the country, country’s cooperation with the US in counter-terrorism activities, passport and airport security and the overstay of its nationals once they are admitted into the US.  Given Chile’s close cooperation and trade agreements with the US, it stands to reason that once Chile enters the program it will not be terminated barring any extraordinary occurrences.  This means that Chilean nationals will enjoy much easier access to the United States.  This will further promote trade and travel between the two countries and marks yet another step for Chile in its social and economic growth.

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Current VWP Countries

Andorra, Austria, Australia, Belgium, Brunei, Czech Denmark, Estonia, Finland, France, Germany, Greece, Republic Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, United Kingdom 

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