On December 18, 2015, Congress passed and President Obama signed the Visa Waiver Program and Terrorist Travel Prevention Act of 2015 as part of the Omnibus government funding bill (PL 114-113). This law revokes visa waiver eligibility of foreign nationals who are citizens of ESTA program countries, who:
- have travelled to “Iraq, Syria, or any other country or area of concern” (including countries with governments designated as having provided support of acts of international terrorism, such as Iran and Sudan) since March 1, 2011, or
- who are a national (including dual nationals, for example, through lineage or marriage) of these countries.
The law provides for limited exceptions for military service/government employment of a visa waiver country, and authorizes the Department of Homeland Security (DHS) to grant case-by-case waivers if it is in the “law enforcement or national security interests” of the United States. The law also increased electronic passport requirements and created a system to designate “high risk” program countries.
Prior to passage of this law, the European Union’s ambassador as well as the ambassadors of 23 program countries indicated that European countries intend to reciprocate these restrictions against U.S. citizens. After passage, Iran’s Foreign Minister raised the fact that the travel restrictions run contrary to the Joint Comprehensive Plan of Action (JCPOA) nuclear deal, and Secretary John Kerry responded on December 19, 2015 to affirm commitment to the JCPOA.
On January 21, 2016, the Department of State (DOS) and Customs & Border Protection (CBP) began to implement the new law, and DHS invalidated the ESTA registration of thousands of foreign nationals who had indicated dual citizenship on their ESTA applications. Agency implementation updates are available on the DOS, CBP and DHS websites. These individuals should be notified via the address they provided on their ESTA registration, however it is possible that an individual was deregistered but not notified. If an individual’s ESTA registration was revoked, s/he will not be allowed to board a conveyance to travel to the U.S.; CBP recommends that potentially affected travelers check the validity of their ESTA approval before embarking on travel to the U.S.
Foreign nationals who are no longer eligible for ESTA are now required to make appointments to apply for B-1/B-2 visitor (or other appropriate) visas at U.S. consulates, unless they can obtain a waiver of ineligibility. Foreign nationals who have reported travel to “countries or areas of concern” on their ESTA registrations have not, to date, been deregistered from ESTA on a blanket basis. However CBP has recommended that these individuals apply for visas as well as they will likely be removed.
Individuals with denied/revoked ESTA registration with urgent travel needs can make a request for expedited interview scheduling. In announcing implementation of the law, DOS and CBP provided examples of situations in which a waiver may be appropriate as including foreign nationals who have traveled:
- to Iran, Iraq, Sudan or Syria on official duty for international organizations, regional organizations, sub-national governments, or humanitarian NGOs;
- to Iran, Iraq, Sudan or Syria as reporting journalists;
- to Iran for legitimate business-related purposes following the JCPOA (July 14, 2015); or
- to Iraq for legitimate business-related purposes.
Waiver applications must be submitted to DHS. CBP will be issuing information on how a waiver application can be submitted.
NOTE:
For general information on the visa waiver and B-1/B-2 visitor categories, please see our website.
