On December 18, 2015, Congress passed H.R.2029, an omnibus spending bill, which included amendments to the Visa Waiver Program ("VWP"). The impetus for the changes, which restrict usage of the VWP, was the November 2015 terrorist attacks in Paris.
The Visa Waiver Program, created in 1986, permits individuals of certain pre-approved countries to enter the U.S. without first obtaining a visitor visa. Visa Waiver travel is limited to B-1 (Business Visitors) or B-2 (Visitors for Pleasure). Each trip to the U.S. on the VWP is limited to 90 days. While there are restrictions on the VWP, it is regarded as an extremely useful tool for quick trips to the US, as it avoids the wait time and stress of a visa interview.
Individuals who seek entry to the U.S. under the VWP must first apply for approval with U.S. Customs and Border Protection (CBP) through the Electronic System for Travel Authorizations (ESTA) portal. ESTA will usually inform the traveler within 1-2 days whether the application has been approved, after which the traveler may purchase a plane ticket and travel to the U.S. This allows people to travel to the U.S. without a great deal of advance planning, and thus benefits the U.S. economy because it encourages tourism and legitimate business travel.
Two significant changes to the VWP include:
- The Act created a new requirement that any individual who is a dual citizen of Iran, Iraq, Sudan (but not including South Sudan), or Syria, or who has visited any of those countries since March 1, 2011, is ineligible for VWP travel. Beginning January 21, 2016, travelers who currently have valid ESTAs and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked. In addition, the Department of Homeland Security or Department of State may designate additional countries as "areas of concern" or state sponsors of terrorism in the future, and if they do, similar restrictions will apply to individuals from those countries as well.
- All VWP applicants must be in possession of machine-readable passports. Beginning on April 1st, 2016, the Act also requires that all passports must be electronic and fraud resistant, and must contain relevant biographic and biometric information. Governments of participating VWP countries must certify that they meet these requirements by April 1, 2016, and must also certify by October 1, 2016 that they require these passports for entry into their countries.
It should be noted that Syria, Iraq, Iran and Sudan are not currently, nor have they ever been, designated as VWP participating countries. However, there are many individuals who possess dual citizenship in one of these countries as well as in a country that is listed as a VWP country. Under the new law, dual nationals of those countries are barred from using the Visa Waiver Program, even if they have not traveled to any of the listed countries since 2011.
One exception to the new rule applies to individuals who are either a member of the military of the VWP countries or are full-time employees of the federal government of one of the VWP
countries; and who has traveled to one of the excluded countries on official orders.
CBP will only revoke ESTAs for a relatively small number of individuals who are known to no longer be eligible for travel under the VWP due to the new restrictions.
If an affected individual does not have imminent travel plans to the United States there is no immediate action that needs to take place. CBP recommends that affected travelers apply for a
U.S. nonimmigrant visa well in advance of desired travel to minimize the chance of delays. There will likely be extensive background checks completed for these individuals, which could take weeks or even months.
For those with imminent travel plans, U.S. Embassies and Consulates are prepared to process nonimmigrant visa applications, as well as expedite visa interview appointments for those with urgent business, medical, or humanitarian travel.
The Department of State is prepared to provide additional staff if volumes at Embassies and Consulates increase, as well as expedite appointments for those who have imminent travel plans.
Most U.S. Embassies and Consulates in VWP partners and worldwide have short wait times for visa interviews.
If an individual has his or her ESTA denied or revoked, and has urgent travel in the near future, the individual may go to the CBP website, www.cbp.gov. If a traveler needs to speak to someone immediately, they may contact the CBP information Center,
http://www.cbp.gov/contact. The traveler may also apply for a nonimmigrant visa from a U.S. Embassy or Consulate. The individual should mention that an ESTA was denied due to the new law and attach a copy of the ESTA denial email in the request for an expedited visa interview.
The person should also mention reasons they believe the travel barring ESTA approval was to perform military services in the armed services of a program country, or in order to carry out
official duties as a full-time employee of the government of a program country. Further information can be found at travel.state.gov.
An ESTA only needs to be valid upon admission to the United States. An ESTA is an authorization to travel to the United States and admission to the United States is determined upon arrival at the port of entry.
Finally, it should be noted that Canadian citizens are visa exempt and are not participants in the Visa Waiver Program; thus the new restrictions do not apply to Canadian citizens who have dual nationality in one of the prohibited countries.
