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DHS Implements Visa Waiver Program Travel Restrictions

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On January 21, 2016 the Department of Homeland Security confirmed that the Visa Waiver Program Improvement and Terrorist Travel Prevention Act would begin to be implemented. As a result of the recent terrorist attacks in San Bernardino county and abroad, Congress passed the Act in an effort to protect Americans from potential attacks and to secure the border. The Act increases travel restrictions for certain nationals seeking admission to the United States via the Visa Waiver Program.

Presently, the Visa Waiver Program allows nationals from 38 designated countries to travel and seek admission to the United States without a visa, for a maximum duration of 90 days. Visa Waiver Program travelers must have an approved Electronic System for Travel Authorization (ESTA) before travel.

As of January 21, nationals of visa waiver participating countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 will no longer be eligible to travel or seek admission to the United States under the visa waiver program.  Nationals from visa waiver participating countries who maintain dual nationality with any of the aforementioned countries, are also excluded from traveling or seeking admission to the United States under the visa waiver program. Instead, these individuals must apply for a tourist visa at a United States Consulate or Embassy abroad before seeking admission to the United States. Part of this process will require a nonimmigrant interview to be conducted, before issuance of a tourist visa. DHS expects that this new legislation will not adversely impact visa waiver program travelers, since the Act does not ban these individuals from traveling to the United States, rather it removes the privilege of traveling under the visa waiver program, and requires these individuals to apply for a tourist visa.

In a recent press release, the Department of Homeland Security announced that travelers who maintain dual nationality with any of the countries listed above will have their ESTA’s revoked beginning January 21st. Exceptions to this rule exist for diplomatic and military personnel. In addition, the Secretary of Homeland Security may grant waivers lifting these travel restrictions in limited circumstances for law enforcement personnel, or if it is determined that certain individuals may be admitted as a matter of national security. It is not yet clear under what circumstances approved waivers may be used for dual nationals of Iran, Iraq, Sudan, or Syria and participating visa waiver countries.

According to DHS, the following categories of travelers may be eligible for such waivers:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

The new ESTA application will be released in late February of this year and will address exceptions for diplomatic and military personnel.

To check on the status of your ESTA please click here.

For information on the tourist visa application process please click here.

For assistance with submission of a waiver, please contact our office.