T
he United States has now begun implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):
- Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
These individuals will still be able to apply for a visa using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis, according to the Department of State.
The Department of Homeland Security (DHS) or Department of State (DOS) 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.
Accordingly,
beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and
who have previously indicated on their ESTA applications that they hold dual nationality with one of the four countries listed above
will have their current ESTAs revoked.
The Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will 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 sub-national 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 business-related purposes.
Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, DHS and Customs and Border Protection (CBP) will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.
Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a
valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.
The new law does not ban travel to the United States, or admission into the United States. Furthermore,
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.
An updated ESTA application with additional questions is scheduled to be released in
late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.
Please note, the Act also implemented the following change:
Beginning on
April 1st, 2016, the Act 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 1st, 2016 that they require these passports for entry into their countries.
It remains to be seen how many travelers will actually be affected by these changes and if the U.S. Consulates and Embassies will be able to meet the potential increased volume in visa applications or be able to timely issue visas for those who have
urgent business, medical, or humanitarian travel. Therefore, it is important to assess travel plans as far in advance as possible.
Please contact us with any questions or if you believe you may be affected by these provisions.
