As a result of the Paris and San Bernadino attacks, the United
States began closely scrutinizing its Visa Waiver Program
("VWP"). Of course, Ms. Tashfeen Malik (one of the
San Bernadino attackers) entered the United States under K-1
status, using an actual fiancee visa that she had obtained from a
United States consulate. Her husband, Syed Farook, was a
United States citizen. In other words, neither attacker had
actually used the VWP to enter the United States.
In any event, reforms to the VWP were included in the
Consolidated Appropriations Act, 2016 [Public Law 114-113]
(the "Act"), which President Obama signed into law on
December 18, 2015. The two most significant changes to the
VWP, as a result of the Act, are as follows:
It requires that all VWP applicants be in possession of
machine-readable passports. Beginning on April 1, 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.
More importantly, 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 travel to the United States under the VWP. In other
words, an Iranian citizen who also holds United Kingdom citizenship
will no longer be eligible to use the VWP. The Department of
Homeland Security or Department of State may also 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
A VWP prohibition also applies to any individual (regardless of
citizenship) who has visited Iran, Iraq, Sudan, or Syria since
March 1, 2011. However, an exception to this prohibition (but
not the dual national prohibition) applies to individuals who are
either a member of the military of a VWP country or a full-time
employee of the federal government of a VWP country, who has
traveled to one of the excluded countries on official orders.
In other words, it not sufficient to merely be a member of the
military or a federal government employee of a VWP country; the
individual must also have traveled to the excluded country on
On January 21, 2016, the Department of Homeland Security
("DHS") and Department of State ("DOS") issued
a joint statement addressing these changes (the "Joint
Statement"). In this Joint Statement, DHS/DOS stated
that (as of that date) travelers who currently had a valid
Electronic System for Travel Authorization ("ESTA") and
who had previously indicated on their ESTA application that they
held dual nationality with one of the four excluded countries would
have their current ESTAs revoked.
The Joint Statement also stated that, under the new law, the
Secretary of Homeland Security had the authority to waive these
restrictions, if he determined that such a waiver was in the law
enforcement or national security interests of the United States;
such waivers would be granted only on a case-by-case basis.
As a general matter, categories of travelers who may be eligible
for a waiver include:
Individuals who traveled to Iran, Iraq, Sudan or Syria on
behalf of international organizations, regional organizations, and
subnational governments on official duty;
Individuals who traveled to Iran, Iraq, Sudan or Syria on
behalf of a humanitarian NGO on official duty;
Individuals who traveled to Iran, Iraq, Sudan or Syria as a
journalist for reporting purposes;
Individuals who traveled to Iran for legitimate
business-related purposes following the conclusion of the
Joint Comprehensive Plan of Action (July 14, 2015); and
Individuals who have traveled to Iraq for legitimate
Whether ESTA applicants will receive a waiver will be determined
on a case-by-case basis, consistent with the terms of the law.
DHS/DOS will also continue to explore whether and how the waivers
can be used for dual nationals of Iraq, Syria, Iran and Sudan.
It should be mentioned that a dual national of one of the
excluded countries (Iran, Iraq, Sudan, or Syria) who also holds
Canadian citizenship will not be subject to any additional
restrictions since Canada is not a participant of the VWP.
Canadian citizens are visa exempt under 8 CFR
212.1(a); this visa exemption exists independently from the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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