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Congress placed new restrictions on access to the US Visa Waiver Program on December 18, 2015. Dual nationals of Iran, Iraq, Syria or Sudan may no longer use the Visa Wavier Program. Nor can individuals who have traveled to one of those countries since March 1, 2011 use the VWP.
Those in the above categories must obtain a B-1 or B-2 visitor visa at a US consulate before travel to the US. On February 18, 2016, DHS added Libya, Somalia, and Yemen to the list of “countries of concern.” Those who have traveled to Libya, Somalia or Yemen since March 1, 2011, may no longer travel to the US on 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 pre-approved countries to enter the US for up to 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. This benefits both foreign nationals and the US economy. It 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.
All Visa Waiver Program applicants must have machine-readable passports beginning April 1, 2016. Passports must be electronic and fraud resistant. They must also contain certain biographic and biometric information. Governments of WVP countries must certify compliance with these requirements by April 1, 2016. By October 1, 2016, participating countries must certify that they require such passports for entry into their own countries.
Any dual citizen of Iran, Iraq, Sudan (not including South Sudan), or Syria, or anyone who has visited those countries since March 1, 2011, is now ineligible for Visa Waiver. DHS or 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 such countries.
Although Syria, Iraq, Iran and Sudan as Visa Waiver Program (VWP) countries were never Visa Waiver 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 haven’t traveled to a restricted country since 2011. 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.” This restricted VWP travel to the US for those 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 include members of the military of a participating VWP country. Full-time employees of a Visa Waiver country government who’ve traveled to a restricted country on official orders are also exempt from these restrictions.
CBP will only revoke existing ESTAs for a small number of individuals known to be ineligible under VWP’s 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.
Those without imminent travel plans to the US need take no immediate action. However, CBP recommends that affected travelers apply for a US nonimmigrant visa well in advance of travel to the US. For those with imminent travel plans, US Embassies and Consulates are prepared to process nonimmigrant visa applications. US posts will expedite US visa interviews for those with urgent business, medical or humanitarian travel.
DoS will provide additional staff should volume increase at US posts. They will also 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 new restrictions. One exception is for travel to a restricted country for military service or official duties as a full-time VWP government employee.
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 February 2016 to address exceptions. But travelers falling under the exceptions should carry proof of military or government service.
Individuals whose ESTA applications are denied may apply for a nonimmigrant visa from a US Embassy or Consulate. They should mention the ESTA denial due to the new legislation. They should also attach a copy of the denial email in any request for an expedited visa interview. If appropriate, applicant should also mention why travel barring ESTA approval was to perform military services for a VWP country, or travel was required for official duties as a VWP country government employee.
An ESTA need only be valid upon admission to the US. ESTA is an authorization to travel to the US. An officer determines admission to the US upon arrival at a port of entry. So the new legislation does not affect admissions during an ESTA validity period. But a VWP traveler who visits another country such as Canada may be unable to re-enter after the ESTA admission period.
Finally, Canadian citizens are visa exempt. They are not participants in the Visa Waiver Program. Therefore, the new restrictions do not apply to Canadian citizens with dual nationality in one of the prohibited countries.
See CBP FAQ, Terrorist Travel Prevention and Visa Waiver Program Reform.