USA: What travellers need to know about the new Visa Waiver Program rules

The FY 2016 appropriations legislation enacted last week contains significant revisions to the Visa Waiver Program (VWP).  The new law (1) prohibits citizens of VWP member countries from entering under the program – i.e., visa-free – if they have visited or have dual nationality with certain countries of concern; and (2) imposes more stringent passport requirements on VWP travellers.  

Though several key provisions of the new law took effect when the law was passed on December 18, the Departments of Homeland Security and State have not yet provided guidance on how they will be implemented.  Therefore, many questions about the impact of the new law – particularly the travel restrictions – remain unanswered for now.

The following are Fragomen’s preliminary responses to frequently asked questions about the new VWP passport requirements, travel restrictions and the potential impact of the new law on U.S. citizens travelling to VWP partner countries.  These FAQs will be updated as the government provides more clarity about the revised rules. 

 

VISA WAIVER PROGRAM BASICS

1. What is the Visa Waiver Program and who is eligible to participate?

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, travellers must obtain Electronic System for Travel Authorization (ESTA) clearance.  

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. 

 

COMPLYING WITH THE NEW VWP PASSPORT REQUIREMENTS

2. What are the new passport requirements for travel under the Visa Waiver Program?  How do they differ from previous VWP requirements?

Starting April 1, 2016, all VWP travellers (including infants and children) must present an e-Passport – i.e., a travel document that is machine-readable and contains an electronic chip – when travelling to the United States.   

Most VWP travellers have been required to present an e-Passport when entering the United States for some time. However, some nationals of long-time 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.

After March 31, 2016, all VWP travellers must present an e-Passport.   E-Passports contain an integrated computer chip that stores the passports 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 traveller to the passport.  

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

3. How can I tell if my passport is an e-Passport?

If your passport is an e-Passport, it will bear an international symbol on the cover. 

Additional information about machine-readable and e-Passports can be found on the websites of the State Department and the Department of Homeland Security.  

4. What should I do if my passport does not comply with the new requirements?

If your passport is not an e-Passport, you must renew it and obtain an e-Passport before April 1, 2016 in order to use the VWP on or after that date.  If you have a current ESTA clearance, you must reapply once your passport has been renewed. (Keep in mind that while ESTA determinations are typically made within 72 hours, given recent world events, U.S. Customs and Border Protection could take additional time to screen your application.)  

Foreign nationals whose passports do not meet the new standards by April 1 will be required to obtain a B-1/B-2 visa for tourist or business travel to the United States on or after that date. 

 

VISA WAIVER PROGRAM TRAVEL RESTRICTIONS

5. Who is prohibited from traveling under the Visa Waiver Program by the new law?  Are there any exceptions or waivers from the restrictions?

The new VWP travel restrictions apply to:

  • Nationals of VWP countries who, since March 1, 2011, have travelled to Iran, Iraq, Sudan, Syria or any other country of concern designated by the Department of Homeland Security; and
  • Dual nationals of a VWP country and Iran, Iraq, Sudan, Syria or any other country of concern designated by the Department of Homeland Security.

If you have travelled to a country of concern since March 1, 2011, you are prohibited from travelling under the VWP.  An exception to this bar will be available if you travelled to one of the aforementioned 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 exception does not apply to those who have travelled to these countries to perform services for a multinational company or an international organization, such as a non-governmental organization or humanitarian organization.  

If you are a dual national of a VWP country and Iran, Iraq, Sudan, Syria or any other country or area deemed to be of concern by the Secretary of Homeland Security, you are prohibited from travelling under the VWP.  There is no exception to this prohibition.

The law does, however, permit the Department of Homeland of Security to grant a waiver of either VWP travel bar if DHS determines that a waiver is in the interest of law enforcement or national security.  

If you are barred from the VWP travel and do not qualify for an exception or a waiver, you must obtain a B-1/B-2 visa at a U.S. consulate before travelling to the United States for business or tourism.

6. I am subject to the VWP travel restrictions.  How can I establish that I qualify for an exception to the travel bar or apply for a waiver?

The Department of Homeland Security has not yet established processes for reviewing exceptions to the travel bar or accepting applications for waivers.  

7. I was born in one of the four listed countries of concern (Iraq, Syria, Iran, Sudan), but am now a citizen of a VWP country.  Will I be required to obtain a visa prior to travelling to the United States?

If you are a national of a country of concern, you are subject to the travel bar and will be required to obtain a B-1/B-2 visa at a U.S. consulate before travelling to the United States for business or tourism even if you are also a citizen of a VWP member country.  The United States looks to the laws of the foreign nation in order to determine whether a person is a national of that country.  If 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. 

Contact your immigration provider if you have questions about dual nationality and VWP travel.

8. How will CBP treat current ESTA registrants who have travelled to or are dual nationals with Iran, Iraq, Sudan, Syria or another country or area deemed to be of concern by the Secretary of Homeland Security?

CBP has not yet specified how it will address the travel restrictions with respect to current ESTA registrants, but those who have travelled to or are dual nationals with a country of concern should prepare for the possibility that their registration will be cancelled.  

In order to avoid being denied admission into the United States under the VWP, affected travellers are encouraged to apply for a B-1/B-2 visa now.

9. I am subject to one of the VWP travel bars.  How long will it take me to obtain a B-1/B-2 visa to travel to the United States?

Visa appointment and visa issuance wait times differ across U.S. consulates and can range from a few days to a few weeks.  But more time may be needed if, as is likely, the consulate requires you to undergo additional screening because of your past travel or your nationality.  Security checks are confidential and cannot be expedited.  Though some applications clear in a few weeks, security checks can take longer in some instances.  If you are affected by the travel bar and have an imminent need to travel to the United States, contact your immigration provider.

10. Could the U.S. government designate additional countries of concern for purposes of the VWP travel restrictions?  Could it terminate a country’s membership in the VWP?

Yes, the new law gives DHS the authority to designate other countries or areas of concern besides Iran, Iraq, Sudan and Syria.  This would mean that travellers to or nationals of those additional countries would also need to obtain a visa for travel to the United States, unless they qualify for an exception or a waiver.  

The new law also requires DHS to conduct an annual review of VWP member countries and authorizes the agency to terminate the membership of any country that does not comply with the security standards of the program.  If a country is terminated from the VWP, its citizens would be required to obtain a B-1/B-2 visa to travel to the United States for business or tourism.

If DHS designates additional countries of concern or terminates a VWP country’s membership, it is expected to make a public announcement. 

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

The new U.S. 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 has travelled to, or holds dual nationality or citizenship with Iraq, Syria, Iran, Sudan or any other country or area deemed to be of concern could be required to obtain a visa before travelling to a VWP country. 

Stuart Beaty

Celsium, Birmingham, UK