The Visa Waiver Program permits nationals of certain low-risk countries to enter the U.S. for a period of up to 90 days as a visitor without first obtaining a visa from a U.S. Consulate abroad.

The Visa Waiver Program permits nationals of certain low-risk countries to enter the U.S. for a period of up to 90 days as a visitor without first obtaining a visa from a U.S. Consulate abroad. On December 18, 2015, Congress mandated changes to the Visa Waiver Program to limit visa-free travel to the U.S. for individuals who either (1) are dual nationals of Iran, Iraq, Libya or Sudan and a Visa Waiver Program country; or (2) have traveled to one of those countries since March 1, 2011. The Bill initially named only Iraq and Syria as countries to which travel since March 1, 2011 would result in Visa Waiver disqualification. However, the Bill states that additional countries could be added for a period of 60 days after the bill was signed into law. Sudan and Syria were subsequently added. Then, on February 18, 2016, 3 additional countries were added. They include Libya, Somalia & Yemen.

At this time, dual nationals of Libya, Somalia and Yemen are not barred from using the Visa Waiver Program. The new restriction applies only to individuals who have traveled to one of those three countries since March 1, 2011.

CBP has updated the ESTA portal, through which individuals apply for Visa Waiver Program travel authorization, to include questions about dual citizenship and travel to Iran, Iraq, Syria and Sudan. However, questions have not yet been added about travel to Libya, Somalia & Yemen; it is anticipated that ESTA will be updated this spring.

It should be noted that there is an exception to Visa Waiver ineligibility based on travel to one of the 7 prohibited countries, and it applies to individuals who traveled to one of the countries on official military or government orders. Individuals who already had an approved ESTA at the time the law went into effect, and who became potentially ineligible for VWP travel when the bill became law, may present proof that they qualify for the military/government orders exception when applying for admission at the port of entry. However, it is not yet clear how the mechanics of applying for that exception will apply to new ESTA applicants going forward. It may be added to the ESTA portal or may require further review by DHS following an ESTA denial. That remains to be seen.

Finally the government also has the authority, under the new law, to waive the new ESTA ineligibility based on “law enforcement or national security interests” of the United States. It is not yet clear how this waiver authority will be exercised.