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.
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.
The new Visa Waiver restrictions include:
In addition to the above, please note:
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.
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.
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.
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.