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Immigration Law Blog

Friday, January 22, 2016

Changes to Visa Waiver Program starting January 21, 2016 affecting Dual Nationals of Iraq, Iran, Syria, or Sudan and anyone who has traveled to one of these countries since March 1, 2011

On January 21, 2016, the United States commenced implementation of changes to the Visa Waiver Program ("VWP") pursuant to the "Terrorist Travel Prevention and Visa Waiver Program Reform" section of the omnibus spending bill (H.R. 2029) passed by Congress on December 18, 2015.

These changes will affect the ability of certain foreign nationals to travel to the United States using the VWP. The VWP is currently open to nationals of thirty-eight countries (https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html) and is administered through the ESTA portal which allows travelers to seek advance approval to enter the U.S. from Customs and Border Protection.

Starting January 21, 2016, the following changes will apply to the VWP:

  1. All VWP applicants must now have machine readable passports which are electronic and fraud resistant and which contain relevant biographic and biometric information. By April 1, 2016, governments of VWP countries must now certify that they meet these requirements. By October 1, 2016, they must certify that they require these passports for entry to their own countries;
  2. Any individual who is either (a) a dual citizen of a VWP country and Iraq, Iran, Syria, or Sudan (not including South Sudan) or (b) who has visited any of these countries since March 1, 2011 is no longer eligible for the VWP. There are currently no waivers available for dual citizens. However, waivers may be available for those who are not dual citizens but who have traveled to Iran, Iraq, Syria, or Sudan for the following reasons:
  • as a member of the military or full-time government employee for a VWP country acting on official orders;
  • on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • on behalf of a humanitarian NGO on official duty;
  • as a journalist for reporting purposes;
  • to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); or
  • to Iraq for legitimate business-related purposes.

A new ESTA application will be released in mid-February which will include questions that address the above waivers. However, travelers who are eligible for one of these waivers should carry proof of their eligibility with them when they travel.

As of January 21, 2016, the U.S. will begin revoking ESTA authorizations for those known to be ineligible for travel under the VWP. Those who are now ineligible will have to apply for a valid nonimmigrant visa at a United States Embassy or Consulate in order the travel to the U.S. The Department of State has indicated that it is prepared to provide additional staff if the volume of applicants at Embassies and Consulates increases and that it will expedite visa interview appointments for those with urgent business, medical, or humanitarian travel needs. However, it is recommended that travelers apply for visas as early as possible to avoid delays.

Should an individual who has had their ESTA application denied or revoked have urgent business or travel needs prior to late February, the individual should go to the CBP website at www.cbp.gov or contact the CBP Information Center at http://www.cbp.gov/contact. Individuals in this situation may also apply for a nonimmigrant visa at a U.S. Embassy or Consulate and should mention that their ESTA application was denied as a result of the new law. They should also attach a copy of the ESTA denial email in the request for an expedited visa interview and mention any grounds upon which they believe they may be eligible for a waiver.

Please note that the above does not apply to Canadian citizens as they are visa exempt.

Additional information on these changes to the VWP can be found on the Department of Homeland Security website at: https://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program.

If you have any questions regarding the above information, please feel free to contact our office.


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