On December 8, 2015, Congress passed H.R. 158, an Omnibus spending bill, which included an Act to amend the Visa Waiver Program (VWP). That portion of the bill is titled The Visa Waiver Program Improvement Act of 2015. The impetus for the changes, which restrict usage of the VWP, was the November 2015 terrorist attacks in Paris.

On December 8, 2015, Congress passed H.R. 158, an Omnibus spending bill, which included an Act to amend the Visa Waiver Program (“VWP”). That portion of the bill is titled The Visa Waiver Program Improvement Act of 2015. The impetus for the changes, which restrict usage of the VWP, was the November 2015 terrorist attacks in Paris.

The Visa Waiver Program was created in 1986. It permits individuals of certain pre-approved countries to enter the U.S. without first obtaining a visitor visa. Visa Waiver travel is limited to temporary visitors who normally would be required to obtain a B-1 (Business Visitor) or B-2 (Visitor for Pleasure) visa. Each trip to the U.S. on the VWP is limited to 90 days. Individuals who enter the US on the VWP may not change status to another nonimmigrant classification, nor may they extend their stay. They also are not permitted to apply for adjustment o status to permanent residency (except on the basis of marriage to a U.S. citizen). In addition, VWP entrants give up their right, as a condition of entry, to a hearing before an immigration judge. Thus if they are found to be inadmissible or to have violated their status, they have no procedural recourse to contest those findings and may be removed summarily, without access to a removal proceeding.

Despite the restrictions on the VWP, it is regarded as an extremely useful tool for quick trips to the US, as it avoids the wait time and stress of a visa interview. Those who seek entry to the U.S. must first apply for approval with U.S. Customs and Border Protection through the ESTA portal. ESTA will usually inform the traveler within 1-2 days whether his application has been approved, after which he may purchase a plane ticket and travel to the U.S. This allows people to travel to the U.S. without a great deal of advance planning, and thus is seen as a benefit to the U.S. economy because it encourages tourism.

The Visa Waiver Program Improvement Act of 2015 makes a couple of significant changes to the program. First, it requires that all VWP applicants must be in possession of machine-readable passports. Beginning on April 1st, 2016, the Act also requires that all passports must be electronic and fraud resistant, and must contain relevant biographic and biometric information. Governments of participating VWP countries must certify that they meet these requirements by April 1, 2016, and must also certify by October 1st, 2016 that they require these passports for entry into their countries.

More significantly, the Act created a controversial new VWP requirement that any individual who is a citizen of Iran, Iraq, Sudan or Syria, or who has visited any of those countries since March 1, 2011, is ineligible for VWP travel. In addition, the Department of Homeland Security or Department of state may designate additional countries as “areas of concern” or state sponsors of terrorism in the future, and if they do, similar restrictions will apply to individuals from those countries as well.

It should be noted that Syria, Iraq, Iran and Sudan are not currently, nor have they ever been, designated as VWP participating countries. However, there are many individuals who possess dual citizenship in one of these countries as well as in a country that is listed as a VWP country. Under the new law, dual nationals of those countries are barred from using the Visa Waiver Program, even if they have not traveled to any of the listed countries since 2011.

One exception to the new rule is for members of the military of the VWP countries who have traveled to one of the excluded countries on official orders.

The new law also made additional changes to the VWP reporting requirements for member countries, all aimed at tightening the security of the program. The most controversial provision, however, is the restriction on citizens of, and people who have traveled to, the four listed countries. That provision also raises many as-yet unanswered questions about implementation. Presumably there will be a transition period for implementation of the new restrictions, as there are likely many people who currently have an approved ESTA registration but who are now prohibited from traveling. These individuals will need to receive notice of their ESTA revocation. It is not clear how the Department of Homeland Security (DHS) will collect information about the countries to which currently approved ESTA holders have traveled since 2011, as that information was not previously collected in the ESTA application process. Presumably, the current ESTA questions will be modified to screen for these disqualifiers from program participation going forward. However, it is not clear how DHS will independently verify the countries to which applicants have traveled during the relevant period, as it is possible for applicants to lie on the application. This verification process may slow down ESTA adjudications.

It is also unclear how DHS will screen for dual citizenship, or how “dual citizenship” will be defined. Every country has its own rules for how citizenship is conferred, maintained and relinquished. It is not clear whether someone who previously held, but has since relinquished, citizenship in one of the excluded countries will be barred from VWP travel, or whether someone who has never obtained citizenship in an affected country but nevertheless has a claim to such citizenship will be excluded. Citizenship acquisition and retention laws are extremely complex. We expect that in the coming month, we will continue to receive more information about how the new changes will be implemented. We will continue to report on, and provide analysis of, this developing issue.