U.S. Expands Restrictions on Visa Waiver Program for Visitors

U.S. Expands Restrictions on Visa Waiver Program for Visitors

The Department of Homeland Security (DHS) oversees the Visa Waiver Program (VWP) in conjunction with the U.S. Department of State. This program was created in 1989, and allows citizens of 38 countries to travel to the United States for tourism and business for up to 90 days without obtaining a visa.

Most of these countries are in Europe and also include Australia, New Zealand, Chile, South Korea, Taiwan, Japan, Brunei and Singapore. Per the VWP, these 38 countries must also permit U.S. citizens to travel to their countries for the same amount of time without a visa for tourism and business related purposes.

The VWP uses complex methods to detect and prevent terrorists and criminals from traveling to the U.S. This approach utilizes national level assessments concerning the impact of each country’s participation in the VWP on U.S. national security concerns. According to the Department of Homeland Security, under the VWP, approximately 20 million people visited the United States.1

In the aftermath of the 2015 terrorist attacks in Paris, lawmakers in Washington passed a bill called the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. Implementation of this program began on January 21, 2016, and under this bill, nationals of VWP who have traveled to or been present in Iran, Iraq, Sudan or Syria on or after March 1, 2011, are no longer eligible to travel or be admitted to the United States, with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country.

In addition, this bill denied visa free entry into the U.S. to foreigners who are dual nationals of Sudan, Iran, Iraq or Syria. Being removed from the VWP does not mean a person is banned from traveling to the U.S. Instead, these individuals will still be able to apply for a visa using the regular process at a U.S. embassy or consulate.2

The new visa waiver restrictions have been implemented for the purpose of safeguarding people with ties to countries who pose a terror threat from traveling to the U.S. However, the negative consequences of this bill affects a large number of people who have never traveled to Iraq, Iran, Syria or Sudan and who have absolutely no ties to terrorist groups.

Controversially, these drastic changes in this bill also apply to dual-national individuals who are both citizens of the VWP country and of Sudan, Iran, Iraq or Syria. The American Civil Liberties Union (ACLU) has opposed this bill and has shared its concern that some dual national citizens of Sudan, Iran, Iraq and Syria may have status through their parents and may have never visited any of these countries.

In a letter to Congress in December 2015, ACLU stated “It is wrong and un-American to punish groups without reason solely based on their nationality, national origin, religion, gender or other protected grounds.”3

Nationals of Syria, Iran and Sudan inherit their nationality from their father rather than one’s country of birth, and thus, even those individuals who have never traveled to any of these countries lose the privileges afford under the visa waiver program, according to the ACLU.

Overall, this bill, as a hasty response to the Paris terrorist attacks, does not make the United States any safer. Millions of people who use the VWP everyday do not pose a threat and travel to the U.S. for legitimate purposes. Since the implementation of this restricted bill, several of this author’s clients from Syria, Iran, Iraq and Sudan have been tremendously impacted by this bill.

One client in particular, who was born in Iraq and holds dual citizenship in Australia, was unable to travel to the U.S. through the VWP solely because she was an Iraqi national. As a result of these new restrictions, she was required to apply for a visitor visa using the lengthier immigration process at a U.S. embassy in Australia.

Another client from Britain had his VWP privilege revoked because he visited his mother with cancer six months ago in Iran.

Since the implementation of the new bill, thousands of individuals who either visited or are nationals of one of these four countries have been restricted from taking advantage of the VWP.
Ambassadors to the U.S. from European Union member states expressed concern about the implications of the proposed VWP changes. They have cautioned against “introducing elements of rigidity or automaticity” into the program.

“A blanket restriction on those who have visited Syria or Iraq, for example, would most likely only affect legitimate travel by businesspeople, journalists, humanitarian or medical workers while doing little to detect those who travel by more clandestine means overland,” the diplomats wrote. “European Union citizens who are dual nationals of a proscribed country would also be disproportionately and unfairly affected.”4

Reciprocal actions among European nations and other countries eligible for the visa waiver program could bar Americans. Since the inception of this bill, various countries have raised concerns about their citizens’ inability to benefit from the VWP.

Based on the fact that the visa waiver program operates on reciprocity, the visa waiver program countries are likely to respond with reciprocal measures that could render Iranian, Syrian, Sudanese and Iraqi nationals with dual U.S. citizenship ineligible for the visa waiver program, effectively creating a second tier of American citizens traveling abroad.

The end result of this restricted bill is that in essence, Congress has created two classes of American passport holders that is extremely discriminatory, unfair and un-American.

[1] www.dhs.gov/visa-waiver-program.
[2] Id.
[3] https://www.aclu.org/letter/aclu-letter-house-re-visa-waiver-program-improvement-and-terrorist-travel-prevention-act-2015.
[4] http://www.cnsnews.com/news/article/patrick-goodenough/state-dept-warns-changes-visa-waiver-program-could-have-very.