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Visa Waiver Restrictions Imposed

Visa Waiver Program No Entry

On December 18, 2015, Congress passed PL 114-113, which places new restrictions on usage of the US Visa Waiver Program (“Terrorist Travel Prevention and Visa Waiver Program Reform”).

These visa waiver restrictions include the following. Dual nationals of Iran, Iraq, Syria or Sudan, and individuals who have traveled to one of those countries since March 1, 2011, can no longer use the Visa Waiver Program, and should obtain a B-1 or B-2 visitor visa at a US consulate abroad well in advance of travel to the US. On February 18, 2016, DHS added Libya, Somalia, and Yemen to the list of “countries of concern.” This addition precludes individuals who have traveled to Libya, Somalia or Yemen since March 1, 2011, from using the Visa Waiver Program. However, restrictions on Visa Waiver Program travel will not apply to dual nationals of Libya, Somalia or Yemen at this time.

What Is the Visa Waiver Program?

The Visa Waiver Program (VWP) enables nationals of certain pre-approved countries to enter the US for a maximum of 90 days without obtaining a visitor visa at a US consulate abroad. Generally, the Visa Waiver Program allows nationals of Visa Waiver countries to avoid the time, expense and inconvenience of obtaining a visitor visa at a US consulate before traveling to the US, benefiting both the foreign national and the US economy, and encouraging business travel and tourism between the US and the Visa Waiver countries.

Prior to using the Visa Waiver program, travelers with Visa Waiver nationality must apply for approval with US Customs and Border Protection through ESTA (Electronic System for Travel Approval). ESTA informs applicants within 1-2 days of whether their applications has been approved.

New Visa Waiver Restrictions

The new Visa Waiver restrictions in PL 114-113 (Terrorist Travel Prevention and Visa Waiver Program Reform) include the following:

  • All Visa Waiver applicants must have machine-readable passports. Beginning on April 1st, 2016, all passports must be electronic and fraud resistant, and  must contain certain biographic and biometric information. Governments of Visa Waiver Program countries must also certify that they meet these requirements by April 1, 2016; they must also certify by October 1st, 2016, that they require such passports for entry into their own countries.
  • Any dual citizen of Iran, Iraq, Sudan (but not including South Sudan), or Syria, or anyone who has visited any of those countries since March 1, 2011, is now ineligible for Visa Waiver travel to the US. In addition, the Department of Homeland Security (DHS) or Department of State (DoS) may later designate additional countries as “areas of concern” or state sponsors of terrorism; and if they do so, similar Visa Waiver travel restrictions will apply to individuals from those countries.
  • Although Syria, Iraq, Iran and Sudan have never been designated as Visa Waiver Program countries, many individuals have dual citizenship in one of these countries in addition to Visa Waiver Program countries. This new legislation bars dual nationals of Syria, Iraq, Iran or Sudan from using the Visa Waiver Program, even if they have not traveled to any of the restricted countries since 2011. That is, for example, if an individual is a citizen of Germany and a citizen of Iran, s/he may not come to the US without first obtaining a US visa from a US consulate overseas.
  • On February 18, 2016, DHS added Libya, Somalia, and Yemen to the list of “countries of concern,” restricting Visa Waiver Program travel for individuals who have traveled to these countries since March 1, 2011. At this time, the Visa Waiver restrictions on travel to the US will not apply to dual nationals of these three countries.
  • Exceptions to the new Visa Waiver restrictions have been made for those who are either a member of the military of a participating Visa Waiver Program country, or who are full-time employees of the federal government of one of the Visa Waiver countries, and who have traveled to one of the restricted countries on official orders. Note that it is not sufficient to ONLY be a member of the military or a federal government employee of a Visa Waiver country to be exempt from the new Visa Waiver restrictions; an individual must also have traveled to an excluded country on official orders from their Visa Waiver country government.

In addition to the above, please note:

  • Customs and Border Patrol (CBP) will only revoke existing ESTAs for a relatively small number of individuals who are known to no longer be eligible for travel under the Visa Waiver Program due to the new restrictions. Visa Waiver restrictions will still apply to those who have traveled to Iran, Iraq, Syria and Sudan on or after March 1, 2011.

If an affected individual does not have imminent travel plans to the United States, no immediate action need be taken. However, US Customs and Border Patrol (CBP) recommends that affected travelers apply for a US nonimmigrant visa well in advance of desired travel to the US to minimize the possibility of delays. For those with imminent travel plans, US Embassies and Consulates are prepared to process nonimmigrant visa applications, as well as to expedite US visa interview appointments for those with urgent business, medical or humanitarian travel.

The Department of State (DOS) is prepared to provide additional staff if volumes at Embassies and Consulates increase, as well as expedite appointments for those who have imminent travel plans. Most US Embassies and Consulates in Visa Waiver Program partner countries and worldwide have short wait times for visa interviews.

The new legislation provides for limited exceptions to the travel/physical presence-related bar. To qualify, the otherwise barred individual must establish that the purpose of their travel to Iraq, Iran, Syria, or Sudan was to perform military service in the armed forces of a Visa Waiver Program country or to carry out official duties as a full-time employee of the government of a Visa Waiver Program country.

These military and official government services exceptions, however, do not apply to the dual national restriction. A new ESTA application with additional questions will be released in late February that will address exceptions provided for in the new law, although travelers subject to these exceptions should carry with them proof of their military or government service.

Those whose ESTA applications have been denied or revoked, and who have urgent travel to the US prior to late February 2016, should go to the CBP website. To speak to someone immediately about this issue, contact the CBP information Center.

Individuals whose ESTA applications have been denied may also apply for a nonimmigrant visa from a US Embassy or Consulate so that they may travel to the US. Such persons should mention that an ESTA was denied due to the new legislation, and should attach a copy of the ESTA denial email in their request for an expedited visa interview. If applicable, the applicant should also mention reasons they believe the travel barring ESTA approval was to perform military services in the armed services of a Visa Waiver Program country, or that such travel was required to carry out official duties as a full-time employee of the government of a Visa Waiver Program country.

An ESTA need only be valid upon admission to the US. Since ESTA is an authorization to travel to the US and admission to the US is determined upon arrival at the port of entry, an admission during an ESTA validity period will not be affected. However, if a traveler who was admitted under the Visa Waiver Program subsequently leaves the US to visit another country such as Canada, Mexico or a Caribbean country, and tries to return to the US following the ESTA admission period, he/she may not be eligible to re-enter the US.

Finally, Canadian citizens are visa exempt and are not participants in the Visa Waiver Program. So the new Visa Waiver restrictions do not apply to Canadian citizens who have dual nationality in one of the prohibited countries.

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