Changes to the Visa Waiver Program Become Law

On December 18, 2015, President Obama signed the “Consolidated Appropriations Act, 2016” (H.R. 2029) into law. The law includes several important changes to the Visa Waiver Program (VWP) that are fundamentally identical to the VWP changes that the U.S. House of Representatives passed last month. The VWP allows eligible citizens of specified countries to enter the United States for tourism or business and remain for 90 days or less without B-1 or B-2 visitor visas. (The House bill is covered in detail in our December 2015 article, “House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks.”)

The most critical provisions affecting the VWP are as follows:

1. Citizens of eligible VWP countries who have been present in Iraq, Syria, Iran, Sudan, or other countries or areas designated by the U.S. Department of Homeland Security (DHS) as supporting terrorism, or as being “of concern,” at any time on or after March 1, 2011 are not eligible to participate in the VWP. This provision exempts individuals performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government.
2. Citizens of eligible VWP countries who are also “nationals” of Iraq, Syria, Iran, or Sudan are not eligible to participate in the VWP.
3. New conditions, such as passport security requirements, screening protocols, and information sharing, have been imposed on VWP participating countries. Beginning April 1, 2016, VWP travelers must have an electronic passport (e-passport) that is fraud resistant and contains certain biographical and biometric information to be determined by DHS.
4. If a VWP country fails to comply with the provisions of the act (e.g., information sharing, screening, and other requirements), DHS may remove that country from the list of participating VWP countries. The law allows the designation to be restored when the issues are rectified.
5. DHS must update the Electronic System for Travel Authorization (ESTA) application to capture additional information regarding citizens’ travel to, or nationality of, the countries restricted by the legislation.

H.R. 2029 received overwhelming bipartisan support in Congress and was swiftly signed into law. It should be noted that the act only applies to VWP travelers. The act does not apply to foreign nationals with unexpired U.S. visas or to U.S. citizens or permanent residents who are also citizens of Iraq, Iran, Syria or Sudan. For those affected, the law does not prohibit travel to the United States. Rather, affected individuals must apply for nonimmigrant or immigrant visas to enter the United States.  

With that said, there are several unintended consequences found in the VWP prohibitions. For instance, the law provides no exception to foreign correspondents or members of nongovernmental organizations who have journalistic or humanitarian reasons for traveling to the restricted countries. Read broadly, the prohibitions could apply to weapons inspectors or United Nations officials overseeing refugee conditions. 

Furthermore, the law prohibits VWP travel for dual nationals of countries of concern, unrelated to the individuals’ travel history or ties to the restricted country. It should be noted that nationality typically depends on the laws of the designated country—so an individual may be considered a “national” of a particular country without ever having resided in that country or having had substantial ties (other than parentage). 

Perhaps most concerning is the possibility that VWP waiver countries will enact reciprocal measures for U.S. citizens who are also dual nationals of restricted countries. This may create new visa requirements for U.S. citizens traveling to Europe and VWP member countries in Asia.

At this point, it is unclear how DHS, the U.S. Department of State, and other federal agencies will implement and enforce the new restrictions. It is also unclear whether VWP travelers with unexpired ESTA registration will be required to reapply.

Travelers who are no longer able to use the VWP must plan for delays resulting from the necessity of applying for U.S. visas at U.S. consulates overseas.

Ogletree Deakins will continue monitoring this issue and report on significant developments accordingly.