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.

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