February 02, 2016

Update to New U.S. Visa Waiver Program Changes

Further details have emerged regarding new U.S. rules restricting use of the Visa Waiver Program (VWP) for dual nationals of Iran, Iraq, Syria and Sudan, as well as individuals who have traveled to these countries within the past five years. In addition, the European Union indicates that reciprocity mechanisms could affect visa-free travel for all U.S. citizens traveling to Europe.

Speculative Effect on U.S. Citizens Traveling to Europe

According to a January 27, 2016, letter from the Deputy Chief of Mission of the European Union Delegation to the U.S. to the Executive Director of the National Iranian American Council, the EU could respond reciprocally to the changes in the U.S. VWP if the changes are not lifted by April of this year. The letter notes that the EU’s reciprocity mechanism could mean suspension of visa-free travel for all U.S. travelers to EU countries. The ultimate decision to enact this response lies with the European Parliament, so any changes are purely speculative.

If this particular approach is enacted, however, thousands of U.S. travelers will be impacted, requiring business travelers and tourists to obtain visas from European consulates or embassies in the U.S. before traveling to Europe. It remains to be seen whether the EU Commission will adopt such an act and whether the European Parliament would ultimately enact the legislation.

Changes to VWP for Dual Nationals and Travelers to Iran, Iraq, Sudan and Syria

As noted in a recent Faegre Baker Daniels legal update, the U.S. began implementing restrictions to the VWP on January 21, 2016. The change has affected individuals from VWP member countries (including most Europeans) who hold dual nationality with Iran, Iraq, Sudan or Syria, as well as any VWP member country national who has traveled to or been present in one of these countries within the last five years (except those who have traveled for diplomatic or military purposes in the service of a VWP country).

Travelers who are dual nationals with active ESTA approvals have already been notified that their ESTA approvals have been revoked. These travelers will need to obtain a visa from a U.S. consulate or embassy in order to travel to the U.S. Expedited appointments may be available for individuals with urgent travel needs who have had their ESTA approvals revoked.

U.S. Customs and Border Protection (CBP) urges travelers to check their ESTA status on the Department of Homeland Security website prior to making any travel reservations or travelling to the United States.

Waivers of Restriction

The U.S. Department of Homeland Security (DHS) signaled that certain categories of travelers may be eligible for waivers of ESTA revocation on a case-by-case basis. Secretary of State John Kerry directly assured Iran that the administration could exercise executive authority to waive the VWP limitation for visitors to Iran.

The Department of State notes that the Secretary of DHS may waive these restrictions if he “determines that such a waiver is in the law enforcement or national security interests of the United States. … As a general matter, categories of travelers who may be eligible for a waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.”

It remains unclear as to exactly how an individual who falls into one of these categories may apply for a waiver, although CBP recommends contacting CBP directly with any questions or concerns via the website, www.cbp.gov/contact.

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