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Visa Waiver Restrictions Imposed

Visa Waiver Program No Entry Visa Waiver Program No Entry

Visa Waiver Program No Entry

On December 18, 2015, Congress placed new restrictions on usage of the US Visa Waiver Program (“Terrorist Travel Prevention and Visa Waiver Program Reform”).

New visa waiver restrictions include: 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 (VWP). Rather, they 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 precludes individuals who have traveled to Libya, Somalia or Yemen since March 1, 2011, from using the VWP. However, VWP travel restrictions do not apply to dual nationals of Libya, Somalia or Yemen at this time.

What Is the Visa Waiver Program (VWP)?

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 VWP 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. This benefits both the foreign national and the US economy. The program also encourages business travel and tourism between the US and  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 of the status of applications within 1-2 days.

New Visa Waiver Program (VWP) Restrictions

The new Visa Waiver restrictions include:

  • All Visa Waiver Program 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 WVP countries must 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. If they do so, similar Visa Waiver travel restrictions will apply to individuals from the additional countries.
  • Although the US has never designated Syria, Iraq, Iran and Sudan as Visa Waiver Program (VWP) countries, many  have dual citizenship in one of these countries in addition to VWP countries. The 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, a dual citizen of Germany and Iran 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 VWP 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 restrictions include members of the military of a participating VWP country, or full-time employees of the federal government of one of the Visa Waiver countries, who have traveled to a restricted country 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 known to be ineligible for travel under the VWP due to the new restrictions. Visa Waiver travel restrictions will still apply to those who have traveled to Iran, Iraq, Syria and Sudan on or after March 1, 2011.

What Action Should Affected Individuals Take?

If an affected individual does not have imminent travel plans to the US, they need take no immediate action. 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) will provide additional staff should volume increase at US posts, and will expedite appointments for those with imminent travel plans. Most US Embassies and Consulates in VWP partner countries have short wait times for visa interviews.

Exceptions to the New Visa Waiver Program Restrictions

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

Military and official government service exceptions do not apply to the dual national restriction. The US will release a new ESTA application with additional questions in late February 2016 to address exceptions in the new law. But travelers subject to these exceptions should carry proof of military or government service.

Those whose ESTA applications are 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 are denied may also apply for a nonimmigrant visa from a US Embassy or Consulate. They should mention the ESTA denial due to the new legislation, and attach a copy of the denial email in any request for an expedited visa interview. If appropriate, the applicant should also mention reasons they believe the travel barring ESTA approval was to perform military services in the armed services of a VWP country, or that such travel was required to carry out official duties as a full-time employee of the government of a VWP country.

VWP Travelers in the US at the Time New Restrictions Took Effect?

An ESTA need only be valid upon admission to the US. Since ESTA is an authorization to travel to the US and an officer determines admission to the US upon arrival at a port of entry, the new legislation does not affect admissions during an ESTA validity period. However, if a traveler admitted under the VWP subsequently leaves the US to visit another country such as Canada, Mexico or a Caribbean country, and tries to return to the US after the ESTA admission period, he/she may not be eligible to re-enter the US.

VWP and Dual Citizens of Canada and Restricted Countries

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

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