The National Law Forum

The Blog of the The National Law Review

Travel to the United States in 2016: The Year of Fear – Restrictions on the Visa Waiver Program (VWP) ESTA

On January 21, 2016, the United States began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

Nationals of Visa Waiver Program countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011, will no longer be able to participate in the Visa Waiver Program.  In addition, nationals of Visa Waiver Program countries who are also nationals of Iran, Iraq, Sudan, or Syria will not be able to participate even if they have not visited or been present in those countries. 

There will be limited exceptions for individuals who are traveling on behalf of international organizations, regional organizations and subnational governments on official duty; who are there on behalf of a humanitarian NGO on official duty; or are journalists traveling for reporting purposes.  Certain individuals traveling to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action of July 2015 and other individuals traveling to Iraq for legitimate business related purposes may be exempt as well.

Currently, thirty-eight (38) countries are participants in the Visa Waiver Program:

Andorra

Hungary

New Zealand

Australia

Iceland

Norway

Austria

Ireland

Portugal

Belgium

Italy

San Marino

Brunei

Japan

Singapore

Chile

Republic of Korea

Slovakia

Czech Republic

Latvia

Slovenia

Denmark

Liechtenstein

Spain

Estonia

Lithuania

Sweden

Finland

Luxembourg

Switzerland

France

Malta

Taiwan**

Germany

Monaco

United Kingdom*

Greece

The Netherlands

Individuals impacted may still travel to the United States as visitors for business or pleasure, if they successfully complete the normal process for applying for a non-immigrant visa at a United States Embassy or Consulate, as others who are not nationals of Visa Waiver Program countries, regularly do.  However, there certainly is concern that there will be backlogs and delays associated with the visa application process.

The Year of Fear

The real question which yet remains unanswered is precisely how will this change be implemented.  Customs and Border Protection (CBP) of the United States Department of Homeland Security advises that it will be modifying its Visa Waiver Program (ESTA) questionnaire to identify individuals who might be ineligible and provide them an opportunity to explain why an exemption might be applicable.  How such applications will be processed and assessed remains unknown.

In addition, it is not clear how implementation will take place with reference to those individuals who are already ESTA Visa Waiver Program participants.  The inference is, that they will be notified, perhaps by e-mail, but it is unclear.  Accordingly, it would make sense for those, who are subject to these new restrictions, to be prudent and simply and proactively apply for visas at appropriate American Embassies or Consulates, or at the very least, reach out to CBP.  The CBP website is www.cbp.gov and the CBP Information Center can be reached at www.cbp.gov/contact.

Canadians and Americans

Canadians are generally visa exempt but do not participate in the Visa Waiver Program, and accordingly these provisions are not applicable to them.  Of course, the United States imposes no  restrictions with reference to United States citizens, but one can anticipate that there might be in the coming months, restrictions or, backlash, or reaction from other countries.

More to Come – Passport Restrictions

Beginning April 1, 2016, passports must be electronic  and fraud resistant, and contain additional biographic and biometric information not previously required.  In addition to being machine readable, passports must contain an electronic chip that stores biographic data, biometric identifier, a digital signature and a unique chip identification number.

In addition, Visa Waiver countries by October 1, 2016  must have the capability to validate passports at key points of entry with heightened ability to screen travelers.

So what does the rest of 2016 hold for us?  It looks like it will be a battle between those forces that would like to see this be a year of hope, as compared to those who will settle for it being a year of fear.  Each has a legitimate agenda.  We are a compassionate country that  wants to present a welcome face to visitors, business persons, refugees and those in need.  But, on the other hand, we certainly do have much to fear from those who would be very happy to take advantage of our benevolence and of our open society to do harm.

Ultimately, I think our security concerns will predominate, but hopefully, we will find a sensible balance and equilibrium as time goes by.

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