USA: House of Representatives passes bill to tighten security of the Visa Waiver Program

The House of Representatives late Tuesday voted overwhelmingly to increase the security requirements of the Visa Waiver Program (VWP) through “The Visa Waiver Program Improvement and Terrorist Travel Prevention Act” (H.R. 158).  If enacted, the bill would require all VWP travellers to present an e-passport with a biometric-enabled chip by April 1, 2016.  It would also bar most travellers who have visited Iraq and Syria since March 2011 from entering the United States under the program, and instead require them to go through the formal visa process, which includes an in-person interview.  An exception to this bar would be available to those who travelled to these countries in order to perform military service on behalf of the VWP country or carry out official duties as a full-time employee of the government of the VWP country.

The VWP has been under scrutiny since the November 13 Paris terrorist attacks.  The program, which facilitates the travel of over 20 million people per year, enables tourists and business visitors from 38 countries to enter the United States for up to 90 days without first having to obtain a visa at a U.S. consulate.  Although VWP travellers undergo background screening through the Electronic System for Travel Authorization (ESTA), they are not required to appear in person for a visa interview, nor are they subject to a biometrics background check. Given that a number of the confirmed Paris terrorists were citizens of VWP partner countries, the Obama administration and Congress are working to strengthen the program’s security and screening mechanisms.  

In addition to enhanced passport requirements and travel restrictions, the House bill would require the Secretary of the Department of Homeland Security (DHS) to immediately suspend the VWP membership of any country that fails to meet its security obligations, including the mandates to share terrorism and foreign traveller data with the United States and to screen all passengers through Interpol's criminal and law enforcement databases. The bill also includes new reporting requirements for DHS, including an annual national security threat assessment of high-risk countries, which further gives the DHS Secretary the authority to suspend VWP membership to countries deemed high risk.  

The legislation has moved to the Senate for consideration where a similar bill, S. 2362, was introduced yesterday.  H.R. 158 and S. 2362 are expected to be attached to the omnibus appropriations bill Congress is working to pass in the  coming days to fund the government beyond December 11.

What the Legislation Means for VWP Travellers

If the House bill is enacted as written, VWP travellers would need to ensure that they have an e-passport with a biometric-enabled chip.  All VWP member countries currently issue compliant e-passports as a condition of program participation, but older travel documents may not contain the biometric chip, meaning that some travellers would need to apply for a new passport to make visa-free trips to the United States.  E-passports can be identified by a special symbol on the cover of the passport.  

ESTA registration will remain a requirement regardless of the legislation, and ESTA travellers are likely to be subject to heightened scrutiny in the current landscape.  As a reminder, ESTA registration is required for all those travelling to the United States under the VWP, and an approved ESTA application does not guarantee admission to the United States. 

Stuart Beaty

Celsium, Birmingham, UK