The Uproar Over 2.0 U.S. Visa Programs, Explained

The “visa waiver” and the “fiancé visa” programs have come under intense scrutiny since recent terror attacks. Here’s why.

Widespread fear after the ISIS-led terrorist attack in Paris and the ISIS-inspired shooting in San Bernardino has caused U.S. lawmakers to scrutinize the paths through which refugees, new immigrants, and foreigners reach America. The most visible knee-jerk reaction has been against the U.S. refugee resettlement program, which is actually quite rigorous and conservative with the number of applicants it approves. But there are two lesser-known visa programs that are currently being examined by public officials, too. Here’s what you need to know about them.

1. The K-1 “fiancé visa” program

What is it?

The K-1 visa lets a foreign fiancé of an American citizen into the U.S. on the condition that the couple marry within three months of arrival. The visa category was created in 1970 to allow American soldiers who’d served in Vietnam to bring back their betrothed in a time when it was quite difficult to do so.

In 2014, around 35,000 of these visas were given out, making up only about 0.3 percent of the 10 million total visas issued that year by the U.S. government.

Why is this visa now under scrutiny?

Tashfeen Malik, the wife and accomplice of San Bernardino gunman Syez Rizwan Farook, came to the U.S. on a K-1 visa in 2014. Digging into the couple’s past after the tragic shooting, The New York Times has reported that the couple had been plotting violence as far back as 2013. Malik had expressed her extremist views on social media, but this information didn’t come up in the vetting process because social media messages of visa applicants is a civil liberties issue, a former DHS official told ABC News.

What’s happening with the K-1 now?

Following the San Bernardino shooting, the White House has asked for a review of the K-1 program. U.S. Citizenship and Immigration Services will also be looking into the other K-1 cases approved in the last two years to make sure they didn’t miss anything.

What effect will this review have on national security?

It’s unclear. Although the K-1 vetting process is not as strict as, say, the refugee vetting process, it’s still more rigorous than other non-immigrant visas, theCato Institute’s Alex Nowrasteh points out. K-1 is the smallest category of non-immigrant visas, and the only one that requires background checks, biometric screenings, and rounds of interviews (to weed out marriage fraud).

The majority of immigrants currently receiving these visas are also not arriving to the U.S. from regions around the world that U.S. politicians consider dangerous, such as like Syria and Iraq, writes Nowrasteh:

The top ten countries for sending fiancés are the Philippines (17.34 percent), China, Vietnam, Mexico, Colombia, Russia, Dominican Republic, United Kingdom, Thailand and Canada. These top 10 countries are responsible for 53 percent of all K-1 visas issued. Russia is the only country in the top 10 that [Rand Paul] considers a risk, and none of them are majority Muslim. You have to go all the way down to number 21, Iran, to find a majority Muslim country. Pakistan is 23rd.

If the K-1 program is, in fact, tightened in the future so that an applicant’s social media posts are fair game, perhaps cases like Malik’s would be caught. But that change might also open up a pandora’s box of profiling, Cyrus Mehta, a New York City-based immigration lawyer writes at his blog:

While comments relating to causing violence should be taken seriously in the visa application process, it is hoped that harmless comments made in the exercise of free speech in opposition to US policy or events, such as feeling disgust about Donald Trump’s statements regarding banning Muslims or criticizing US drone policy, should not be used as a basis to play “gotcha” during the security screening of a visa applicant.

2. The visa waiver program

What is this?

The U.S. Visa Waiver Program started in 1986. It gives citizens of friendly countries the ability to visit without a visa for up to three months, if and only if they pass an electronic authorization process that includes terrorism screening.Around 20 million applicants come to the U.S. every year on this visa for business or pleasure, mostly from Europe.

Here’s the list of the 38 participating countries, via the State Department website:

​So why is this program being tightened?

This program first came under scrutiny after 9/11, and then again after the latest attacks in Paris, when the identified perpetrators turned out to be E.U. nationals, who theoretically could have entered the U.S. on a visa waiver. (The Syrian passport that the unidentified attacker used was fake, so his identity is not yet known.) U.S. lawmakers cited this information in their call to strengthen the visa waiver program.

Here’s a recent tweet by California Senator Dianne Feinstein, who has vehemently opposed the program since after 9/11:

Visa Waiver Program is the soft underbelly of our national security. Terrorists with European passports could exploit it.

— Sen Dianne Feinstein (@SenFeinstein) November 19, 2015

On November 30, the White House announced it would be enhancing the security measures in the program’s electronic screening process. On the heels of this announcement, the House of Representatives passed a bill that restricts people who have traveled to countries like Iraq, Syria, Iran, and the Sudan within the past five years from obtaining this visa. The bill enjoys strong bipartisan support.

So this one will work, right?

Perhaps! Amping up the screening process (which experts have said is pretty tight already) is definitely one way to improve security, but it might come with drawbacks such as weakening security cooperation with partner countries in Europe. Here’s Edward Alden, senior fellow at the Council on Foreign Relation, on the Visa Waiver Program, via Politico:

The danger of congressional action to pare back the VWP — even a seemingly modest step such as requiring visas of any European who has traveled recently to Iraq or Syria — is that it would weaken the cooperation that has made the program such a success. Europe would likely resent any of its citizens being singled out in statute for special treatment. A far better approach would be to help Europe strengthen its own border security and entry procedures, so that better intelligence can be gathered on European citizens who are traveling to conflict zones. The United States cannot stop terrorist travel on its own. Whatever Congress may wish, no mixture of bans, pauses or new unilateral screening requirements will increase American security.