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 (LINK PDF) 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. 

Read More

D&S Legislative Update: Omnibus Spending Bill Passed by the House, Up for Vote in the Senate

In the late hours of Tuesday evening, December 15, 2015, after days of intense negotiations, Congressional leadership announced that it has reached a sweeping year-end deal on the omnibus federal spending bill needed to continue to fund the Federal government. This announcement follows the five-day continuing resolution passed by Congress on December 10, 2015, to allow for additional time for the omnibus federal spending bill to be finalized and avoid a government shutdown.

On Thursday, December 17, 2015, the House passed the spending bill by a vote of 318 to 109.  The Senate is expected to vote on and pass the bill on Friday, December 18, 2015.  The omnibus appropriations bill contains a recommendation to extend the EB-5 program in its current form through September 30, 2016, without the widely discussed changes to the minimum investment amounts or the definition of Targeted Employment Area (TEA).  In addition to extending the EB-5 program, the bill will also extend other expiring immigration programs, including the E-verify program, Conrad 30 waivers for J-1 medical workers, and R-1 visas for religious workers. Finally, the bill contains reforms to the Visa Waiver Program (VWP), including the requirement that program users have electronic passports with biometric and biographic information and restricting use of the program for certain individuals who have traveled to Iraq, Sudan, Iran and Syria.

UPDATE: On Friday, December 18, 2015, the U.S. Senate approved the spending bill by a vote of 65 to 33. President Obama is expected to sign the bill into law no later than December 18th.

House Passes Vote to Restrict U.S. Travel by Foreign Nationals Who Have Visited Syria, Iran, IraQ or Sudan in the Last 5 Years

Today, in a 407-19 vote, the House passed legislation restricting certain travel privileges to nationals of visa waiver participant countries. The legislation, which has the support of the White House, is expected to be wrapped into the much-discussed government spending bill and become law in the next few weeks.

Rather than a comprehensive approach, this new legislation appears to be the first of what will be a piecemeal approach to implementing enhanced security measures in response to the November 13th Paris terrorist attacks and the recent shooting in San Bernardino, CA.  The legislation comes in the wake of the White House's release of a  Fact Sheet outlining new security enhancements that would be implemented immediately to add additional security measures to the Visa Waiver Program (VWP), which is a program that allows nationals of 38 member countries to enter the U.S. as a visitor for up to 90 days without procuring a visa.

The legislation would ban nationals of visa waiver countries who have traveled to Iran, Iraq, Sudan, or Syria since March 1, 2011 from traveling to the U.S. under the VWP. Such individuals must now obtain a visa to travel to the U.S., which requires an in-person interview at a U.S. Consulate or Embassy overseas.

D&S will continue to monitor the changes that are anticipated to be made to the Visa Waiver Program in the coming weeks and provide timely updates outlining new developments.

White House Releases Fact Sheet on Enhancements to Visa Waiver Program

This week the White House released a Fact Sheet detailing enhancements that are to be made to the Visa Waiver Program (VWP), which included several new security changes. The Administration explained that these enhancements are being implemented in the wake of last month's terrorist attacks in Paris.  

In addition to enhanced security measures already made to the program over the course of the last year, including new security-related data fields and new traveler screening and information sharing requirements with VWP countries, the new changes announced in the Fact Sheet aim to aggressively strengthen the VWP and bolster relationships with VWP partner countries on an accelerated basis.  More specifically, the Fact Sheet states that the Department of Homeland Security (DHS) will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. Additionally, the new enhancements will includes measures to evaluate and further facilitate terrorism-related information sharing between the U.S. and VWP countries including piloting real time biometrics checks on refugees and asylum seekers in WVP countries and working with Congress to increase penalties and fines for failure to comply with passenger screening requirements.  The Administration indicated that it is working with Congress to provide statutory authority for many of the key security enhancements it has proposed to the VWP.

The Fact Sheet follows a Statement issued by DHS Secretary Jeh Johnson on August 6, 2015 discussing steps that have been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the VWP.

DHS Announces Intention to Implement Security Enhancements to Visa Waiver Program

On August 6, 2015, Secretary of the Department of Homeland Security ("DHS"), Jeh Johnson, released a statement announcing DHS and the State Department's intent to implement a number of additional or revised security criteria for all participants in the Visa Waiver Program ("VWP"). These criteria will apply to both new and current members of the Program.  In addition, these enhancements are intended to build upon the additional data fields of information added to the Electronic System for Travel Authorization ("ESTA") application last fall.

The most significant of the new security enhancements include:

  1. The requirement that VWP members use e-passports for all travel to the U.S.
  2. The requirement that the INTERPOL Lost and Stolen Passport Database be used to screen travelers crossing the borders of a VWP country.
  3. Permission for expanded use of U.S. federal air marshals on international flights from VWP countries to the U.S.

Secretary Johnson's statement emphasized that the new measures were intended to enhance security without hindering lawful trade and travel between VWP participating countries.