Major Changes to the Visa Waiver Program

In the wake of the horrific Paris attacks, Congress passed legislation to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP), which were recently implemented.

As background, the VWP permits visa free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP visitors are admitted to the US as tourists or business visitors for 90 days. VWP countries include those in Western Europe, Australia, Chile, Japan, New Zealand, Singapore, South Korea and Taiwan. A full list of VWP countries can be found here.

VWP Process

Before departing for the United States, every prospective VWP traveler must receive approval through DHS’ Electronic System for Travel Authorization (ESTA). ESTA is an automated system that determines whether an individual is eligible to travel under the VWP. More information on ESTA and the ESTA application can be found here.

New Law Changes Passport Requirements for VWP Applicants

As of December 18, 2015, all VWP applicants must be in possession of machine-readable passports and beginning on April 1, 2016, all VWP applicants must be in possession of an electronic passport that is fraud resistant and contains relevant biographic and biometrics information.

Certain Individuals Are No Longer Eligible for VWP Under New Law

Under the new law, travelers in the following two (2) categories are no longer eligible to travel or be admitted to the United Sates under the VWP:

  1. Nationals of VWP countries who have traveled to or been present in Syria or Iraq, any country designated as a state sponsor of terrorism (such as Sudan or Iran), or any other country that is an “area of concern” designated by DHS at any time on or after March 1, 2011.
    • Unless the travel was in the course of military or government service on behalf of a VWP country
  2. Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria
  3. Notably, the VWP excludes dual nationals of those countries even if they have NOT traveled to the country – this is significant because some countries consider a person a national of their country even if they have not taken any steps to retain such nationality.

Understanding How the New Law Applies to Dual Nationals of VWP Countries and Iran, Iraq, Sudan or Syria

We understand that the concept of dual national can be confusing and the following examples should help you understand what this new rule means.

Example 1: A person who was born in Iraq and later became a citizen of Germany (a VWP country) would no longer be eligible for the VWP.

Example 2: A French national who traveled to Iraq after March 1, 2011 would no longer be eligible for the VWP (unless exemption applies).

It is worth noting that the changes to the VWP would not affect dual nationals of Canada and Iraq (or Syria, Sudan, Iran, etc.) since citizens of Canada are visa exempt (except for certain categories, not applicable here).

Not Eligible for VWP – Now What?

Individuals who are no longer eligible for the VWP program are NOT barred from traveling to the U.S. all together.

If you are not eligible for the VWP and you wish to travel to the U.S., you must apply for a visa through a U.S. Consulate abroad and appear for an in-person interview with a consular officer before being issued a U.S visa.

If you have any questions regarding how the changes to the VWP may affect your ability to travel to the U.S., please feel free to call our office to set up a consultation to speak with us.