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2016 Changes to Visa Waiver ESTA Program

| Jan 27, 2016 | New Immigration Laws, Visa Waiver Issues

It may have escaped public notice, but the Department of Homeland Security and the Department of State have begun implementing significant changes to the Visa Waiver Program (“VWP”). Pursuant to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, travelers who fall under the following criteria will no longer be eligible to travel or be admitted to the US under the Visa Waiver Program:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with some limited exceptions)
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria

Moreover, effective January 21, 2016, those people who currently have valid VWP travel privileges who also hold dual nationality with Iran, Ira, Syria, or Sudan, will have their travel authorization revoked.

What is the Visa Waiver Program?

The Visa Waiver Program is a compact between the United States and 38 other countries that allows its citizens to travel freely between the countries for business or tourist purposes without a visa. Only travelers who have applied and been approved by U.S. Custom and Border Protection’s Electronic System for Travel Authorization (or “ESTA” for short) may enter though the Visa Waiver.

What does this mean?

It essentially means nationals of VWP countries who also hold nationality from any of the four aforementioned countries or who may have recently traveled there, may no longer enter the United States under the auspices of the VWP. It does not mean that such visitors may never enter the country: there is no such blanket prohibition in effect like the one Donald Trump has been hawking. However, anyone in these groups who wishes to enter the US temporarily must now formally apply for a non-immigrant visa at their US consulate or embassy. The logic appears to be that the scrutiny under which applicants are interviewed for visas is higher (and hence, safer for the US) than that under which applicants are screened for ESTA, especially given that the individual must appear for a personal interview. Such individuals will no longer be able to travel freely to the US without an approved visa.

Under certain circumstances, these restrictions may be waived on a case-by-case basis. Generally speaking, waivers may be considered for those who have traveled to any of the four countries for specified purposes, namely humanitarian, governmental, journalistic, or business in nature.

VWP vs. Entering On A Visitor B-1/B-2 Visa

While there are many benefits to entering the US through the VWP, primarily the expedience of not having to apply for a visa, there are concomitant restrictions as well-the most notable being that the visitor is strictly limited to no more than 90 days here. Visits through VWP cannot be extended or changed. On the other hand, those who have gone through the process of securing a visa may stay potentially longer in the US: travelers who enter under a B-1/B-2 may be admitted for up to six months. Additionally, such visitors may be eligible to file for an extension of or change to their status, depending on the circumstances.

Conclusion

The government declares that only a small number of people will be affected by the changes. Whether or not this is borne out by the empirical evidence remains to be seen. There are certainly arguments both in favor of as well as against the new measures. Some would argue that the VWP weakens the security architecture of the immigration process and provides a backdoor through which sophisticated terrorists to infiltrate the country. On the opposite side, immigration advocates fear that basing policy on invidious distinctions like country of nationality without regard to individual criteria smacks of racism and nativism. If anything, the controversy engendered by this debate is only the beginning. With the recent announcement that the Supreme Court has granted certiorari to review President Obama’s Executive Action on immigration, 2016 is looking to be one of the most contentious years ever on immigration.