On January 21, 2016, the United States State Department announced changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the “Act”). These changes are effective immediately and should be noted by any person with a visa to enter the United States, or who intends to obtain a visa to enter the United States under the Visa Waiver Program (“VWP”).
Effective immediately, under the Act, travelers in the following categories are no longer eligible to travel to or be admitted to the United States under the VWP:
- Nationals of VWP countries who have travelled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
What this means For the purposes of this client alert, non-U.S. persons eligible under the VWP who have travelled to Iran and Iraq after March 1, 2011 will no longer be able to enter the United States under the Electronic System for Travel Authorizations (“ESTA”) process. Travelers with existing ESTAs and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications have now had their current ESTAs revoked. For example, a UK citizen holding an Iranian passport will have already received an email notification from the State Department informing him that his ESTA has been revoked.
The official description of these changes is provided at the bottom of this alert. It should be noted that such description clearly states that the military and government-employment exceptions are not available to persons with dual nationality, such as UK and Iranian nationals.
Using discretionary powers, the Secretary of Homeland Security may, on a case-by-case basis, waive the new restrictions under the Act, if it can be determined that such a waiver is in the national security interests of the United States.
In the past, several organizations, NGOs and journalists have operated in Iraq, Iran, Sudan and Syria. Such categories of travelers who are with international and regional organizations and sub-national governments on official duty; NGOs on official duty; journalists; and Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015), may be eligible for a waiver under the Act. Additionally, individuals who have travelled to Iraq for legitimate business-related purposes may also be eligible for a waiver. The latter may provide some comfort to legitimate non-U.S. organizations involved in the energy, construction and defense sectors within Iraq, Syria, Iran and Sudan.
Travelers who have received a notification that they are no longer able to travel under the VWP may still visit the United States. However, such travelers will require a valid, non-immigrant visa issued by a U.S. embassy or consulate. This process will inevitably be more costly and time-consuming to travelers.
A specific degree of caution should be considered in connection with the recent lifting of certain U.S. sanctions against Iran. Non-U.S. persons interested in doing business in Iran are cautioned when considering visits to Iran at this stage. This is especially important for organizations or persons with businesses that involve dollar-denominated transactions and operations and travel interests in the United States.
From the FAQ section of U.S. Customers and Border Patrol website1:
What are the specific changes to the VWP? Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the VWP:
- Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions).
- Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
These restrictions do not apply to VWP travelers whose presence in Iraq, Syria, Iran, or Sudan was to perform military service in the armed forces of a program country, or in order to carry out official duties as a full-time employee of the government of a program country. These military and official government services exceptions, however, do not apply to the dual national restriction.
Travelers who are known to fall into the dual national category noted above will receive notice via email on or about January 21, 2016 that their current ESTA is no longer valid.
The Act also requires that all VWP travelers use an electronic passport for travel to the United States by April 1, 2016. Finally, the Act includes other changes to the VWP to promote enhanced information sharing of terrorism and criminal data, and use of INTERPOL databases and notices for border screening purposes.
The vast majority of VWP eligible travelers will not be affected by the legislation.
Client Alert 2016-030