United States: New Limitations On Visa-Less Travel To The U.S.

Tara L. Vance is Senior Counsel and Neal N. Beaton is a Partner in our New York office.

HIGHLIGHTS:

• Changes to the Visa Waiver Program (VWP) have been implemented pursuant to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.
• As of Jan. 21, 2016, travelers who fall into certain categories – namely those who have traveled to, visited or are dual nationals of Iran, Iraq, Sudan or Syria – are no longer permitted to travel and enter the U.S. under the VWP. Instead, those individuals must apply for issuance of a visa to enter the U.S. and enter the country using a valid visa.
• Nationals of Mexico and Canada who travel to the U.S. without a visa under the North American Free Trade Agreement (NAFTA) are not impacted by the changes to the VSP.

The U.S. Department of Homeland Security (DHS) and the Department of State on Jan. 21, 2016, commenced implementation of changes to the Visa Waiver Program (VWP) pursuant to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act), which was signed into law on Dec. 18, 2015. Pursuant to the Act, travelers who are nationals of a VWP country and who:

• have traveled to or visited Iran, Iraq, Sudan or Syria on or after March 1, 2011 (with limited exceptions for diplomatic or military travel), or
• are nationals of Iran, Iraq, Sudan or Syria

are no longer permitted to travel to and enter the United States under the VWP. Instead, such individuals must first apply for issuance of a visa to enter the United States and enter the U.S. using a valid visa (typically a B-1 business visitor or a B-2 tourist visa for persons no longer eligible for the VWP).

As of Jan. 21, 2016, for travelers who fall into the above categories who have valid registration for travel under the Electronic System for Travel Authorization (ESTA), such ESTA registrations will be revoked.

Additionally, the Act requires that VWP travelers use an electronic passport for travel to the U.S. by April 1, 2016, and includes other changes to promote and enhance information sharing of terrorism and criminal data, and the use of INTERPOL databases and notices for border-screening purposes.

VWP Countries

The VWP was created in 1986 to ease the travel experience for foreign nationals coming to the U.S. temporarily as tourists or business visitors. Nationals of the 38 countries listed below are currently VWP participants and, as such, can travel to the U.S. for up to three months as a tourist or business visitor without needing to apply for a visa:

Instead of requiring a formal visa to enter the U.S., nationals of these countries must register and obtain ESTA authorization prior to boarding an approved U.S.-bound air or sea carrier.

Visitors from Canada and Mexico can enter the U.S. without a visa under the North American Free Trade Agreement (NAFTA) and are therefore not affected by the Act.

The new regulations could have far-reaching effects on those not prepared, such as the following examples:

• a person born in the U.K. who holds dual nationality with the U.K. and Iran is required to apply for and obtain a B visa to travel to the U.S., even if the person has never set foot in Iran
• a businessperson who is a national of Japan and who has traveled to Syria in the past five years is required to apply for and obtain a B visa prior to entering the U.S. as a tourist or business visitor

Possible Waivers

Under the Act, the Secretary of Homeland Security is permitted to waive the above travel restrictions if it is determined that such a waiver is in the interests of U.S. law enforcement or national security. The Act does not provide the procedures for applying for such a waiver but the announcement issued last week regarding implementation of the Act advises that applications for waivers will be reviewed on a case-by-case basis and could apply to individuals who have traveled to:

• any of the above-referenced countries on behalf of an international organization, regional organization and subnational governments on official duty
• any of the above-referenced countries on behalf of a humanitarian non-governmental organization (NGO) on official duty
• any of the above-referenced countries as a journalist for reporting purposes
• Iran for legitimate, business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015)
• Iraq for legitimate, business-related purposes

A new ESTA registration form is expected to be released in February 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.