Department of Homeland Security and Department of State Issue Joint Statement Regarding Changes to Visa Waiver Program and Customs and Border Protection Issues Updated FAQs

As part of the 2016 Consolidated Appropriations Act, Congress enacted certain changes to the Visa Waiver Program (VWP) in legislation entitled the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which restrict use of the program by dual nationals of a VWP country who are also nationals of Iraq, Syria, Iran, and Sudan or VWP national who have traveled to those countries at any time on or after March 1, 2011.  Under the new rule, such individuals are unable to use VWP and must apply for a B1/B2 visitor visa before traveling to the United States as a visitor.  On January 21, 2016, the Department of Homeland Security (DHS) and the Department of State (DOS) released a Joint Statement discussing these new changes.  Customs and Border Protection (CBP) has also issued updated FAQs addressing how the new legislation will impact admission of individuals who fall under the VWP restriction. The DHS/DOS Joint Statement clarifies the following points:

  • Consulates are prepared to process visa applications on an expedited basis for impacted individuals with urgent business, medical, or humanitarian travel to the U.S.
  • Starting on January 21, 2016, VWP travelers with current ESTA registrations who have previously indicated that they are also a national of Iraq, Syria, Iran, and Sudan, will have their ESTA registration revoked and should receive email notification of the same on the email address they used when completing their ESTA registration (D&S note: impacted dual-nationals who do not receive such email notification should not presume their ESTA registration remains valid as email delivery errors may occur.  These individuals should apply for a visa at a U.S. consulate in advance of travel to the U.S.).
  • An updated ESTA application will be released in February 2016 with additional questions to address these new requirements as well as exemptions for diplomatic and military related travel.
  • A waiver of the VWP restrictions may be granted to individuals who have traveled to one of the 4 listed countries in certain specifically enumerated circumstances, which include when such travel was:
    • On behalf of an international organization, regional organization, or sub-national government on official duty;
    • On behalf of a humanitarian NGO on official duty;
    • As a journalist for reporting purposes;
    • To Iran for legitimate business-related purposes following the conclusion of the Iranian nuclear deal on July 14, 2015; and
    • To Iraq for legitimate business-related purposes.

The Government has not yet clarified procedures for requesting a waiver of the VWP travel restriction but has indicated that eligibility determinations will be may on a case-by-case basis by U.S. Customs and Border Protection (CBP) officers at the port of entry.

CBP’s FAQs provide further clarification that as of April 1, 2016, all VWP nationals traveling to the U.S. will be required to have an electronic passport (D&S note: this may apply to visa waiver nationals whose passports were issued prior to October 26, 2006).  The FAQs also explain that:

  • Travelers whose ESTA is revoked based on the new law who believe they qualify for an exception and who have urgent travel prior to late February, should contact the CBP Information Center and may also apply for a visitor visa and request an expedited appointment attaching evidence of their ESTA revocation/denial email and also mention any reasons they believe the travel to one of the 4 countries falls under a military or diplomatic service exception;
  • Once a new ESTA application is available CBP will provide additional information about procedures for ESTA registration for those who are eligible for an exception for military or diplomatic service;
  • Individuals should check their ESTA approval prior to making any travel plans or reservations to the U.S. as they will not be permitted to board U.S. carriers if their ESTA is revoked;
  • Individuals who entered the U.S. prior to January 21, 2016, and subsequently had their ESTA revoked will remain lawfully admitted as ESTA need only be valid upon admission to the U.S. However, if they depart the U.S. for travel to any country including Canada, Mexico, or the Caribbean, they may not be eligible to re-enter the U.S.;
  • Individuals with imminent U.S. travel who believe their ESTA was revoked in error may contact the CBP Information Center;
  • Impacted individuals with upcoming U.S. travel are urged to contact an immigration attorney to advise regarding any associated risks with such travel.

D&S will continue to monitor the situation and advise of updates as they become available.

UPDATE: On February 18, 2016, DHS added Libya, Somalia, and Yemen to the list of "countries of concern", limiting Visa Waiver travel for those who have traveled there since March 1, 2011. Such individuals must also now obtain a visa to travel to the U.S., which requires an in-person interview at a U.S. Consulate or Embassy overseas.