News Release from Jewell Stewart & Pratt PC The 2016 Consolidated Appropriations Act was signed into law on December 18, 2015. In addition to funding the U.S. federal government through the 2016 fiscal year, it includes far-reaching, immediately effective changes to the Visa Waiver Program. As background, citizens of the 38 countries participating in the Visa Waiver Program (“VWP”) may come to the United States as visitors for business or pleasure without first obtaining visitors’ (B-1 or B-2) visas in their passports. They may visit the U.S. for periods of up to 90 days, provided that they are eligible for admission as visitors under applicable law.
Under the December 18, 2015 law, the VWP became immediately unavailable to two groups of citizens of VWP countries:
- Any citizen of a VWP country who was physically present in Iraq, Syria, Iran, or Sudan on or after March 1, 2011, is ineligible for VWP travel to the U.S. The law specifically exempts military personnel or government employees of VWP countries who traveled to the restricted countries on official business. The law also provides for a waiver for law enforcement or national security interests.
- Any citizen of a VWP country who is a national of Iraq, Syria, Iran, or Sudan is ineligible for VWP travel to the U.S. Whether a person is a national of Iraq, Syria, Iran, or Sudan is determined by the citizenship and nationality laws of those countries, not by whether the person has a passport of the country or has allegiance to it. Thus, depending on the laws of the country in question, a citizen of a VWP country might also be a national of another country – for example, through parentage or marriage -- even without having been to that country or having applied for a passport of that country.
Although the Department of Homeland Security (“DHS”) has not yet publicly stated what measures are being taken to implement the new law, it is expected that the online Electronic System for Travel Authorization (“ESTA”) application, which must be completed before VWP travel to the U.S., will be expanded to include questions about prior travel and potential nationality in Iraq, Syria, Iran, or Sudan. As with all VWP applicants, if the ESTA application is rejected, the applicant will be unable to visit the U.S. visa-free, and instead must apply for a regular B-1/B-2 visitor visa from a U.S. visa-issuing Embassy or Consulate. Current VWP travelers with an already-approved ESTA application may be required to re-apply and answer new questions. We will post updates as they become available from DHS.
By Claire Pratt. © Jewell Stewart & Pratt PC 2016