Government Restricts Use of Visa Waiver Program to Enter the U.S.
Following are CBP’s FAQs about the changes.
The VWP permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. In return, those 38 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes.
Since its inception in 1986, the VWP has evolved into a comprehensive security partnership with many of America’s closest allies. The VWP, administered by the Department of Homeland Security (DHS), in consultation with the State Department, utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country’s participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States.
All prospective VWP travelers must obtain pre-travel authorization via U.S. Customs and Border Protection’s (CBP) Electronic System for Travel Authorization (ESTA) prior to boarding a plane or ship bound for the United States.
ESTA applications are available on CBP’s website:https://esta.cbp.dhs.gov/esta/.ESTA is used to determine eligibility to travel without a visa to the United States under the VWP.Travelers who do not receive an approved ESTA must apply for a U.S. visa at the nearest U.S. Embassy or Consulate prior to travel to the United States. Travelers should check their ESTA status prior to travel on CBP’s website.
The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the “Act”), signed into law on December 18, 2015, established new eligibility requirements for travel under the VWP, to include travel restrictions. These restrictions do not bar travel to the United States, but they do require a traveler covered by the restrictions in the law to obtain a U.S. visa, which generally includes an in-person interview with a U.S. consular officer. The Act also requires all VWP travelers to have an electronic passport for travel to the United States by April 1, 2016. And finally, the Act codifies many of the enhanced security measures announced by DHS in August 2015.
Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:
- Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
These restrictions do not apply to VWP travelers whose presence in Iraq, Syria, Iran, or Sudan was to perform military service in the armed forces of a program country, or in order to carry out official duties as a full-time employee of the government of a program country.These military and official government services exceptions, however, do not apply to the dual national restriction.
Travelers who are known to fall into the dual national category noted above will receive notice via email on or about January 21, 2016 that their current ESTA is no longer valid.
The Act also requires that all VWP travelers use an electronic passport for travel to the United States by April 1, 2016.Finally, the Act includes other changes to the VWP to promote enhanced information sharing of terrorism and criminal data, and use of INTERPOL databases and notices for border screening purposes.
The vast majority of VWP eligible travelers will not be affected by the legislation.
CBP is working on implementing that as soon as possible, and will notify those affected directly.
Travelers who have their ESTAs revoked will be contacted via the email address they provided as part of the ESTA application. Any traveler who receives notification that they are no longer eligible to participate in the VWP may still travel to the United States with a valid nonimmigrant visa issued by a U.S. Embassy or Consulate. The new law does not ban travel or admission to the United States with a valid visa.
No, CBP will only revoke ESTAs for a relatively small number of individuals who are known to no longer be eligible for travel under the VWP due to the new restrictions. Restrictions for travel under the VWP will still apply to those with travel 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 there is no immediate action that needs to take place. We recommend that affected travelers apply for a U.S. nonimmigrant visa well in advance of desired travel to minimize the chance of delays.For those with imminent travel plans, U.S. Embassies and Consulates are prepared to process nonimmigrant visa applications, as well as expedite visa interview appointments for those with urgent business, medical, or humanitarian travel.
We recommend that affected travelers apply for a U.S. nonimmigrant visa well in advance of desired travel to minimize the chance of delays.
The Department of State 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 U.S. Embassies and Consulates in VWP partners and worldwide have short wait times for visa interviews. Please visit travel.state.gov for general visa information orusembassy.gov to find the website of the Embassy that has jurisdiction over your residence.
The Act provides for limited exceptions to the travel/physical presence-related bar. To qualify, the otherwise barred individual must establish that the purpose of the travel to Iraq, Iran, Syria, or Sudan was to perform military service in the armed forces of a VWP program country or to carry out official duties as a full-time employee of the government of a VWP 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 who are subject to these exceptions should carry with them proof of their military or government service with them on their trip to the United States.
If an individual has his or her ESTA denied or revoked, and has urgent travel prior to late February, the individual may go to the CBP website,www.cbp.gov. If a traveler needs to speak to someone immediately, they may contact the CBP information Center, https://www.cbp.gov/contact. The traveler may also apply for a nonimmigrant visa from a U.S. Embassy or Consulate. The individual should mention that an ESTA was denied dueto the new law and attach a copy of the ESTA denial email in the request for an expedited visa interview.The person should also mention reasons they believe the travel barring ESTA approval was to perform military services in the armed services of a program country, or in order to carry out official duties as a full-time employee of the government of a program country. Further information can be found at travel.state.gov.
Once the new ESTA application is available, those who do not have imminent travel, but believe they are eligible for the exception will need to contact CBP. Additional information on this process is forthcoming.
Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include:
- Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of an international organizations, regional organizations, and sub-national governments on official duty;
- Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty; and
- Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
- Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
- Individuals who have traveled to Iraq for legitimate business-related purposes.
Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.
If a traveler has a revoked ESTA, and he/she is outside the United States, he/she will not be allowed to board a conveyance to the United States. The U.S. Government intends to conduct outreach with travel agents, airlines, cruise lines and other stakeholders to reach travelers who may not yet have heard about this new change in VWP eligibility. CBP recommends that any traveler check his or her ESTA approval prior to making any travel reservations to the United States at https://esta.cbp.dhs.gov.
An ESTA only needs to be valid upon admission to the United States. An ESTA is an authorization to travel to the United States and admission to the United States is determined upon arrival at the port of entry. The admission is not affected. However, if a traveler who was admitted under the VWP leaves the United States to another country, like Canada, Mexico or a Caribbean country, and tries to return, he/she may not be eligible to re-enter the United States.
Yes, airlines have been notified and briefed about the changes. They also will be provided with information to place on their websites regarding the changes,
By Morris Deutsch | Published January 25, 2016 | |