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CBP releases FAQ on Visa Waiver Program: Rule Changes

On December 18, 2015, President Obama signed the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015” into law. On January 21, 2016, the Department of Homeland Security (DHS) and Department of State (DOS) began implementing changes to the Visa Waiver Program ("VWP”). There are two main changes to the program: individuals who have traveled to Iran, Iraq, Sudan, and Syria since March 1, 2011 (with limited exceptions) and/or are dual nationals of one of those countries and a VWP country are, with limited exceptions, no longer eligible for the VWP. However, these individuals may apply for a nonimmigrant visitor’s visa at a US consular post abroad, where they will be subject to the normal vetting process for US visas.

Exceptions and Exemptions to New Visa Requirement

Individuals who visited one of these countries for diplomatic or military purposes “in the service of a VWP country”, should not have their ESTA revoked. In such cases, Customs and Border Protection (“CBP”) advises travelers to carry evidence of military or diplomatic service with them when traveling to the US, and to confirm that ESTA was not erroneously revoked before traveling.

The published guidance further indicates that the Secretary of Homeland Security has authority to grant exemptions in cases of “law enforcement or national security interests”, although the FAQ and information from CBP and DOS emphasize that such waivers will be granted on a “case-by-case basis”. Potential VWP travelers “who may [emphasis added] be eligible for a waiver include:

  • 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.”

Current Holders of ESTA

Beginning January 21, 2016, travelers who have valid Electronic System for Travel Authorization (ESTAs) and who are dual citizens of Iran, Iraq, Sudan, or Syria will receive an email from CBP notifying them that their ESTA has been revoked. Individuals who are currently in the US under ESTA but who are no longer eligible under the new law will need to apply for a nonimmigrant visitor visa abroad before their next trip to the United States.

The Department of State advises that additional information and a new ESTA application will be available in February 2016.

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Danielle Lifrieri