This past December, in the wake of the tragic terrorist events in Paris and San Bernardino, Calif., Congress passed new security enhancements to the Visa Waiver Program (VWP) via the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. While the Act’s key objective is to implement important security enhancements to business or tourist travel, this legislation also places new restrictions on a number of legitimate business travelers. Global organizations with significant business activity in certain “countries of concern” will be particularly impacted. Notably, non-U.S. employees who are citizens of, or who have recently travelled to, Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen may no longer be eligible to utilize the VWP and may now require a visa to enter the U.S.
The VWP was created in 1986 to facilitate short-term business and tourist travel between the U.S. and low-security-risk countries, especially those countries whose nationals typically left the U.S. on time and did not overstay. Currently there are 38 member countries whose citizens, after registering with the Electronic System for Travel Authorization (ESTA), are eligible to travel to the U.S. and seek entry for up to 90 days without possessing a visa to do so. The VWP is heavily used; in fact, in fiscal year 2013 over 21 million VWP entries alone were made, compared with over 33 million tourist and business visa entries made by B-1, B-2 or Border Crossing Card travelers. However, effective January 21, 2016, the Act imposes new, more restrictive security limitations, which may impact thousands of foreign nationals.
The Act primarily amends the VWP in three ways. First, effective April 1, 2016, VWP applicants will now need to present a machine-readable, electronic passport (e-Passport), which includes an integrated computer chip to enhance security processing. Second, VWP member countries will need to adhere to stricter reporting and screening requirements. Finally, and potentially most impactful, the Act excludes otherwise eligible travelers from the VWP if they have dual citizenship with Iran, Iraq, Syria or Sudan or have traveled to these countries or Libya, Somalia or Yemen since March 1, 2011. These measures will effectively revoke the ESTA registration and VWP eligibility of approximately 16,000 foreign nationals with ties to these seven (for the time being) countries of concern.
The Department of Homeland Security (DHS) has indicated that several exemptions to the new VWP travel restrictions will exist, namely for individuals who have traveled to a country of concern in a unique capacity, such as a journalist for reporting purposes or an individual on behalf of an international, regional, subnational or humanitarian nongovernmental organization on official duty. Exemptions will also exist for those who have travelled to Iraq or Iran (after July 14, 2015) for legitimate business-related purposes. Further guidance regarding how to apply for these exemptions is expected later this month.
In the face of these new provisions, a question arises: What steps should foreign travelers take to determine whether they are impacted? First, all travelers who plan to utilize the VWP should verify that they possess the soon-to-be-required (as of April 1, 2016) e-Passport. In addition, dual nationals of Iran, Iraq, Sudan or Syria, or those who have travelled to these countries or Libya, Somalia or Yemen in the past five years, should closely monitor their ESTA registrations. Until more guidance is provided regarding exemptions to the Act, foreign nationals who believe they could be impacted may want to consider proactively applying for a B-1 or B-2 visa to avoid being turned away at the airport on an attempted VWP entry. B-1 visas are reserved for foreign nationals engaging in short-term business visitor activities in the U.S.; periods of stay are usually determined by the length of business activity predicted but in no event for a period exceeding six months. It is important to note that applying for a B-1 visa does not preclude a traveler from later utilizing the VWP if they ultimately secure a VWP exemption.
B-1 applicants, and any dependents, must apply for a visa at a U.S. consulate abroad. Applicants should check specific consular websites for processing times, specific requirements and fees, as these vary depending on consular posts and country-specific reciprocity provisions. Given the new VWP requirements, there is likely to be an increase in B-1 and B-2 visa applications and processing delays, so planning is crucial. Further, for applicants with ties to countries of concern, more extensive security clearances lasting a few weeks to several months may be required. As such, to ensure travel readiness, applicants should submit their B-1 or B-2 application far in advance of any planned travel. B-1 and B-2 visas are often valid for a period of several years (depending upon visa reciprocity), and travelers can generally leverage their B-1 or B-2 visas for numerous U.S. trips.
While business visitor travel has traditionally not been heavily scrutinized, it is clear that DHS is now directing much more time and resources to increased security screening for these travelers, including conducting annual reviews of VWP member countries to ensure compliance with the new security standards. Moreover, it is highly likely that changes made to the VWP will also ultimately impact U.S. citizens traveling to VWP member countries. Pursuant to the well-established principles of international travel reciprocity, it is common for countries to impose on U.S. citizens the same travel restrictions that the U.S. imposes on their citizens. As such, U.S. citizens who are dual nationals of a country of concern, or who may be planning to travel to such a country, should remain on alert regarding potential future restrictions on their ability to travel visa-free to a VWP member country.
Michael D. Patrick, Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. firstname.lastname@example.org
Nathalie Pascarella, associate; Brian Idehen, law clerk; and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, visit http://www.fragomen.com.
Published March 3, 2016.