In the wake of the Paris terrorist attacks, the U.S. House of Representatives passed a bill on Tuesday, December 8, 2015, to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP). The VWP permits citizens of 38 designated countries, mostly in Europe, to travel to the United States for business or tourism for 90 days or less without a visa. The bill, which passed in the House by a vote of 407 to 19, would prohibit anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program; require the U.S. Department of Homeland Security to terminate a country’s participation in the program if the country fails to share counterterrorism information; require all VWP countries to use electronic passports with chips that contain biometric information; and mandate that participating countries more thoroughly screen travelers against international counterterrorism databases. The bill is expected to be included in a spending bill later this week and could become law by the end of the year.
The bill’s passage is one major step in recent efforts by the U.S. government to tighten the security of the VWP in the wake of the Paris terrorist attacks. Though the waiver program was unrelated to the attacks, several of the suspected attackers were citizens of France and Belgium, countries that are both participants in the Visa Waiver Program. Government officials have thus expressed concerns that potential terrorists who hold citizenship from one of the designated VWP countries could potentially access the United States through the Visa Waiver Program. For this reason, they have taken steps to strengthen the program to prevent terrorists and potentially dangerous individuals from entering the United States through the program.
In the U.S. Senate, a bipartisan group of senators introduced legislation last week that would require individuals who have traveled to Syria or Iraq in the past five years to first obtain visa stamps in their passports from a U.S. embassy or consulate overseas before traveling to the United States. The Senate bill also would require VWP travelers to submit biometric information, in the form of fingerprints and a photograph, prior to traveling to the United States (currently this data is captured upon arrival in the United States); require all visa waiver travelers to use an electronic passport, which is deemed to be more secure and tamper-resistant; and require increased intelligence sharing between participating countries and the United States. The Senate has not yet scheduled a vote on this bill.
Last week, in line with these measures, the White House announced several security enhancements that it is taking to strengthen the Visa waiver program. One of the new security measures includes modifying the Electronic System for Travel Authorization (ESTA) application to capture information from VWP travelers about any past travel to countries that constitute a “terrorist safe haven.” The administration also seeks to expand the preclearance program in airports overseas to allow U.S. officials to collect and screen biometric information of visa waiver travelers before they board planes to the United States.
Although the House and Senate bills are still in the rulemaking process, in light of recent developments and increased security concerns surrounding the VWP, business visitors and travelers who intend to enter the United States under the VWP should be prepared for increased security screenings and potential delays, and should plan accordingly. Individuals who have traveled recently to Iraq, Syria, Iran, or Sudan should anticipate having to disclose this information on the ESTA application and should be prepared for additional screenings, which could include an interview at a U.S. consulate overseas prior to traveling to the United States.
Ogletree Deakins will continue to monitor developments on this issue and will report on any significant changes to the VWP.