• U.S. Government Implements New Visa Waiver Program Restrictions
  • May 23, 2016
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Updated February 19, 2016

    On January 21, 2016, the Department of Homeland Security and the Department of State began to implement recently enacted restrictions on travel under the Visa Waiver Program (VWP). Those who are no longer authorized to use the VWP will need to obtain a visa for future business or tourism travel to the United States, unless they qualify for an exemption or a waiver of the new VWP travel restrictions.

    The following are Fragomen’s updated answers to frequently asked questions about the new Visa Waiver Program travel rules. These FAQs will be further updated as DHS provides more information on the new restrictions and requirements.

    What is the Visa Waiver Program?

    The Visa Waiver Program permits eligible citizens of designated countries to travel to the United States for up to 90 days for business or pleasure without first having to obtain a visitor visa at a U.S. consulate. In order to use the VWP, travelers must obtain Electronic System for Travel Authorization (ESTA) clearance before boarding a carrier to the United States.

    Citizens of the following 38 countries are eligible to participate in the VWP: Andorra, Australia, Austria, Belgium, Brunei, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.

    Who is subject to the new VWP travel restrictions?

    With very limited exceptions, travelers in the following categories are no longer eligible to travel to the United States under the VWP, even if they have a valid ESTA registration:
    • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen on or after March 1, 2011; and
    • Dual nationals of a VWP member country and Iran, Iraq, Sudan or Syria.
    The United States looks to the laws of the foreign national in order to determine whether a person is a national of that country. If you were born in Iran, Iraq, Sudan or Syria and your country of birth considers you to still be a national in spite of gaining citizenship from another country, you will be subject to the travel bars.

    If you are subject to the travel restrictions, you will need a B-1/B-2 visa from a U.S. consulate in order to travel to the United States for business or tourism unless you qualify for an exemption or a waiver (discussed below).

    I am a Canadian citizen. Do the VWP travel restrictions apply to me?

    No. Canadian citizens are visa-exempt for travel to the United States, but do not participate in the Visa Waiver Program and are thus not subject to the VWP restrictions.

    I am a dual national of a VWP member country and one of the countries of concern. I have a valid ESTA registration and regularly visit the United States on business. How do the new rules affect me?

    If you have a current ESTA registration and are a dual national of a VWP member country and Iran, Iraq, Sudan or Syria, you can no longer use the VWP. You may receive an email from U.S. Customs and Border Protection revoking your registration and terminating your ability to travel under the Visa Waiver Program, but even if you do not receive such an email, you may no longer travel under the VWP.

    You will be required to obtain a B-1/B-2 visa from a U.S. consulate to visit the United States for business or tourism. During the visa application process, you should expect additional security checks and processing delays because of your dual nationality.

    If you have an urgent need to travel to the United States, please contact your designated Fragomen professional for assistance.

    I am a dual national currently in the United States on VWP travel. What happens if my ESTA registration is revoked while I am in the United States?

    Your ESTA registration need only be valid at the time you are admitted to the United States. If your registration is revoked while you are in the United States, you may remain through the date you were admitted. But on your next trip, you will need a valid U.S. visa.

    I have a valid ESTA registration and have traveled to a country of concern since March 1, 2011. How am I affected?

    CBP does not plan to immediately revoke the ESTA registrations of individuals who have traveled to a country of concern, but is expected to notify those who are subject to a VWP restriction based on their travel history.

    If you are planning VWP travel, you should check the status of your ESTA registration before you leave. If it is no longer valid, you will not be permitted to board a carrier to the United States unless you hold a valid U.S. visa. If your ESTA registration remains valid and you decide to use the VWP without applying for a waiver or exemption in advance, you should expect close questioning by U.S. border officials. Your application may be denied and you may be refused entry based on your travel history.

    An exemption from the VWP travel restriction may be available if you traveled to a country of concern (1) to perform military service on behalf of a VWP country, or (2) to carry out official duties as a full-time employee of the government of a VWP country.

    If you are not exempt from the travel bar, you may be able to seek a waiver, discussed below. However, obtaining an exemptions or waiver is not guaranteed. Therefore, it may be prudent to apply for a B-1/B-2 visa to minimize the risk that you will be refused entry to the United States because of your past travel to a country of concern. Getting a visa now should not restrict your ability to apply for a waiver from or exemption to the VWP restrictions later on. Contact your designated Fragomen professional for more information.

    I am applying for ESTA registration but am subject to the new travel restrictions. How will my application be affected?

    If you are a dual national of a VWP member country and Iran, Iraq, Syria or Sudan, your application will be denied.

    If you have traveled to Iran, Iraq, Libya, Somalia, Syria, Sudan or Yemen, your application may be denied unless you can demonstrate that you qualify for an exemption or a waiver. CBP has not yet provided instructions on the procedures for obtaining a waiver or demonstrating an exemption during the ESTA application process, though it is expected to do so in the future.

    If your ESTA application is denied and you have an urgent need to travel to the United States, you may be able to request expected visa processing at a U.S. consulate by providing your ESTA denial letter, though this is rarely granted.

    Who is eligible for a waiver of the VWP travel restrictions?

    The new law authorizes the U.S. government to grant a waiver from the VWP travel restrictions in limited circumstances if the Department of Homeland Security determines that a waiver is in the interest of U.S. law enforcement or national security.

    If you are barred from the VWP because you traveled to a country of concern on or after March 1, 2011, you may be eligible for a waiver if:
    • You traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen on behalf of an international organization, a regional organization or a sub-national government on official duty;
    • You traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen on behalf of a humanitarian non-governmental organization (NGO) on official duty;
    • You traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen as a journalist for reporting purposes;
    • You traveled to Iran for legitimate business-related purposes after the Iran nuclear deal framework was concluded on July 14, 2015; or
    • You traveled to Iraq for legitimate business-related purposes.
    As discussed above, dual nationals of a VWP member country and Iran, Iraq, Sudan or Syria are not eligible for a waiver of the travel bar.

    How do I seek a waiver of the travel bar?

    CBP has not yet provided instructions on applying for a waiver, but is expected to do so in the future.

    If I am subject to the VWP travel restrictions, what should I expect when applying for a B-1/B-2 visa?

    Your travel history or dual nationality is likely to trigger additional security checks and cause processing delays. Furthermore, the rapid implementation of the new VWP restrictions is likely to result in a surge of new visa applications at U.S. consulates, which could further delay the issuance of your visa. If you have an urgent need to travel, expedited visa processing may be available but is not guaranteed. Please contact your Fragomen professional for assistance if you have an urgent need to travel to the United States.

    What about the new passport requirements of the VWP?

    Starting April 1, 2016, all eligible VWP travelers (including infants and children) must present an e-Passport - a passport that is machine-readable and contains an electronic chip - when traveling to the United States.

    Most VWP travelers have been required to present an e-Passport when entering the United States for some time. However, some nationals of longtime VWP member countries whose passports were issued before October 26, 2006 have been able to travel to the United States on the VWP even if they do not have an e-Passport. These individuals will need to obtain an e-Passport by April 1 to continue using the VWP.

    E-Passports contain an integrated computer chip that stores the passport holder's biographic data, a biometric identifier, a digital signature and a unique chip identification number. The data on the chip includes two lines of machine-readable data as well as facial recognition details. The chip can also be scanned to match the identity of the traveler to the passport.

    These passport requirements apply only to travelers under the Visa Waiver Program. Foreign nationals who have a U.S. visitor visa or another type of U.S. nonimmigrant visa stamped in their passport are not required to comply with these revised passport requirements.

    How do the VWP restrictions affect U.S. citizens? Will VWP member countries impose similar restrictions on U.S. citizen travelers?

    The new Visa Waiver Program law does not have a direct effect on U.S. citizens. However, VWP member countries could impose reciprocal rules on U.S. citizens. If this occurs, a U.S. citizen who holds dual nationality or citizenship with Iran, Iraq, Sudan or Syria or has traveled to a country of concern could be required to obtain a visa before travelling to a VWP country. Fragomen is monitoring this issue closely and will provide guidance to clients in the event that any VWP country imposes travel restrictions on U.S. citizens.