Congressionally Mandated Changes to the Visa Waiver Program

Congressionally Mandated Changes to the Visa Waiver Program5

The Visa Waiver Program (“VWP”), created to allow individuals of certain pre-approved countries to enter the U.S. without first obtaining a visitor visa, was amended by Congress on December 18, 2015 as a part of the overall omnibus spending bill, H.R.2029. In response to the November 2015 terrorist attacks in Paris, a portion of the bill titled, “Terrorist Travel Prevention and Visa Waiver Program” includes changes restricting the use of the VWP.

Individuals who seek to enter the U.S. under the VWP must first apply for approval with U.S. Customs and Border Protection (“CBP”) through the ESTA portal. ESTA (“Electronic System for Travel Authorization”) will usually inform the traveler within 1 – 2 days whether his or her application has been approved, after which the applicant may purchase a ticket and travel to the U.S. Each trip to the U.S. on the VWP is limited to 90 days.

Two significant changes to the VWP include:

  1. All VWP applicants must be in possession of machine-readable passports. Beginning April 1st, 2016, all passports must be electronic, fraud resistant, and contain relevant biographic and biometric information. Governments of VWP countries must certify that they meet these requirements by April 1st, 2016.
  2. Any individual who is a dual citizen of Iran, Iraq, Sudan (not including South Sudan) Syria, OR who has visited any of these countries since March 1, 2011, is ineligible for VWP travel. 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 so, similar restrictions will apply to individuals from those countries as well.

Note: Syria, Iraq, Iran, and Sudan have never been designated as VWP participating countries, but 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, these dual nationals are barred from using the Visa Waiver Program, even if they have not traveled to any of the listed countries since 2011.

Military and Official Exceptions:

One exception to the new rule applies to individuals who are either a member of the military or a full-time employee of the federal government of one of the VWP countries, AND who have traveled to one of the excluded countries on official orders. (The individual must meet all three criteria).

The individual must establish that the purpose of travel to Iraq, Iran, Syria, or Sudan was to perform military service in the armed forces of a VWP country or to carry out official duties as a full time employee of a VWP country government. These military and official exceptions do not apply to the dual national restriction. Travelers who are subject to these exceptions should remember to carry with them proof of military or government service on their trip to the U.S.

If your ESTA is denied or revoked and you have urgent travel prior to late February:

You may apply for a nonimmigrant visa from a U.S. Embassy or Consulate and mention that an ESTA was denied due to the new law. Attach a copy of the ESTA denial email in the request for an expedited visa interview. You should also mention reasons you believe the travel barring ESTA approval was to perform military services in the armed service of a VWP country or in order to carry out official duties as a full-time employee of the government of a VWP country.

You may go to the CBP website here, or speak to someone immediately by contacting the CBP Information Center here, if you fall under the exception and have immediate travel plans.

Minimize Delays:

CBP recommends that travelers affected by these changes apply for a U.S. nonimmigrant visa well in advance of any desired travel to minimize the chance of delays. If travel plans are imminent, U.S. embassies and consulates are prepared to process nonimmigrant visa applications, as well as expedite visa interview appointments, for those with urgent business, medial, or humanitarian travel.

Note: If a traveler who was admitted under the VWP leaves the U.S. to another country, like Canada, Mexico, or a Caribbean country, and tries to return, he or she may not be eligible to re-enter the United States.

Canadian Citizens:

Canadian citizens are visa exempt and are not participants in the Visa Waiver Program. The new restrictions, therefore, do not apply to Canadian citizens who have dual nationality in one of the prohibited countries.

More Information:

Further information can be found at travel.state.gov and CBP is planning to post FAQs and a press release to their website as soon as possible.

If you are interested in obtaining a U.S. visa, please contact our office today!

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