United States: Visa Waiver Program Restrictions Coming Soon

Last Updated: December 30 2015
Article by Kathleen Campbell Walker, James G. Aldrich, Jr. and Heather Frayre

As a consequence of concerns over possible threats to U.S. security, in particular after the recent terrorist attacks in Paris in November, U.S. legislators have focused on potential changes to the Visa Waiver Program (VWP), which allows citizens of 38 countries to visit the U.S. for tourism or business visits without applying for a B-1/B-2 visa at a U.S. consular post abroad. Many of the VWP countries are in Europe and due to the Schengen agreement, citizens of Schengen countries are typically able to travel among participating countries without obtaining a visa. The VWP has facilitated tourism and business in the U.S. After the Paris attacks though, concerns are heightened that certain citizens of VWP countries are more likely to become radicalized. The Omnibus Spending bill passed by the House this week, and expected to be signed into law possibly this week by the President, contains a rider to make significant changes to the VWP, which will potentially redirect many potential U.S. visitors to U.S. consular posts to apply for visas.

The VWP is attractive because it does not require applicants for admission to the U.S. to obtain a U.S. visa, which entails electronic applications, appointments, fingerprint intake, support documentation, and a consular interview. Although the VWP only allows the applicant for entry to remain in the U.S. for 90 days, it is still a very useful benefit for international business travelers and tourists. Obtaining a B-1/B-2 visa can add weeks if not months to travel plans. In 2009, VWP security was enhanced with the implementation of the Electronic System for Travel Authorization (ESTA) registration process directed by U.S. Customs and Border Protection (CBP). The ESTA process does provide additional pre-screening data regarding dual nationality, passport information, and certain security related questions, but of course, the applicant is providing this information voluntarily. One of the questions asked in the ESTA form includes whether the applicant seeks to engage or has engaged in "terrorist activities." While no one expects an applicant who is a potential terrorist to check this box truthfully, the benefit of the ESTA process is to provide additional data for review prior to admission to the U.S.

The Omnibus bill is expected to take effect upon enactment (possibly before December 20). The immediate impact appears to apply to both current ESTA registered and future VWP travelers. So, even a VWP traveler with a current ESTA registration could be forced to apply for a B-1/B-2 visa before admission to the U.S.

What VWP travelers may be subject to this change upon enactment? At present, it appears that VWP travel will not be possible for:

  • Those who have been present in Iraq, Syria, Iran, or the Sudan at any time on or after March 1, 2011. There are no exemptions for children or aide workers, for example, serving in these countries or those who traveled to these countries for professional or educational purposes. Exemptions are stated for those performing military service in the armed forces of a VWP country or to carry out official duties as a full-time employee of the government of a VWP country.
  • Dual nationals of VWP countries and the countries of interest would be excluded from using the VWP. It makes no difference if the dual national never resided in the country of interest. Note that birth within Syria, Iran, and the Sudan does not automatically confer citizenship. Citizenship is instead conveyed by naturalization, descent, or marriage.

How might this new requirement be implemented? CBP will not necessarily know if someone boarding a flight to the U.S. under the VWP has traveled to these countries of interest since March of 2011 upon enactment. We should expect CBP to announce a transition period to implement this change, but we do not know what is being discussed at present as a realistic time frame. ESTA questions will have to be revised to request this travel information, and of course, applicants may not be truthful.

  • Companies using the VWP for business visits should consider screening their employees for such travel in order to prepare for and schedule consular interviews for the employees in anticipation of future travel to the U.S.
  • Companies should also screen for dual nationals of VWP countries and the countries of interest to prepare for the U.S. visa application process.
  • VWP citizens who currently have ESTA registrations should be on alert for potential notices from CBP to re-register using a revised ESTA intake process with additional questions.
  • For those applying for visas to the U.S., some consular posts are already asking for additional information regarding travel to the stated countries of interest.
  • No later than 60 days after enactment of this new law, the Secretary of Homeland Security is supposed to determine if travel to other countries will be added to the current list.

There are also new requirements that might cause a revocation of a countries' VWP participation status. For example, no later than 270 days after enactment, each VWP country (except those in the Schengen zone) with an international airport must certify that it is screening each foreign national admitted to or departing from the country for unlawful activities using relevant INTERPOL databases or other means designated by the Secretary of Homeland Security or risk termination from the VWP. It is doubtful that many countries have this review process in place. Even the U.S. does not screen all individuals departing the U.S. For example, the U.S. does not screen those departing the U.S. at our land borders. We will just have to wait and see how the agencies plan to implement these less than well thought out VWP changes.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.