Business Immigration Insights

When President Obama signed the omnibus appropriations act on December 18, 2015, he not only funded the federal government through Fiscal Year 2016, but also enacted the ”Visa Waiver Program Improvement and Terrorist Travel Prevention Act,” which was passed by the House in early December and incorporated into the appropriations bill.

Effective immediately, the Act prohibits visa-free travel to the United States for anyone who has been in Iraq, Syria or a country designated as “of concern” or “supporting terrorism” (including Iran and Sudan) since March 2011, unless they were full-time government officials or military forces of VWP‑participating countries.  Although a waiver is available for “law enforcement or national security interests,” there is no specific exemption for employees of international organizations, such as the UN High Commission for Refugees, which conducts official activities in Syria, or the International Atomic Energy Agency, which monitors Iran’s nuclear weapons program.

In its most controversial provision, the Act also prohibits visa-free travel for anyone with a passport from a VWP country who is also a national of Iraq, Syria or countries of concern, whether or not they have traveled to, or currently hold passports from, those countries.  Because nationality laws are complex, vary widely, and change frequently, it is not clear how such a determination will be made in individual cases.  Both those who were born in targeted countries and – since some countries confer nationality not by birth, but by blood, or by a combination of the two –those whose parents, and not themselves, were born in targeted countries could be excluded.

U.S. citizens are certain to be affected by these changes under the worldwide government practice of “visa reciprocity.”  Since some citizens of countries that currently participate in the VWP will now be excluded from that program, the governments of those countries will, in turn, prohibit visa-free travel of comparable U.S. citizens, who will therefore be required to apply for visas at the consulates of VWP countries before traveling.  A list of currently participating VWP countries may be found at the State Department’s website, Visa Waiver Program.

In FY2013, 20 million travelers – 37 percent of all visitors that year – entered the United States under the VWP.  Countries that participate must have a US visa refusal rate of less than 3 percent, issue machine-readable passports with biometric identifiers, and meet other requirements.  A waiver of the refusal-rate requirement was briefly available (October 2008 to July 2009), but has been suspended, pending DHS’s implementation of an air-exit system that incorporates biometric identifiers.