DEPARTMENT OF HOMELAND SECURITY ANNOUNCES ENHANCED VISA REQUIREMENTS FOR CERTAIN TRAVELERS

On January 21, 2016, U.S. Customs and Border Protection began implementation of changes to its Visa Waiver Program (VWP) as established under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (114th Congress, 1st Session, H.R. 158, Dec. 9, 2015) (the “Act”).

The Act — which was originally passed in December 2015 — specifically allows U.S. customs officials to more closely screen travelers from 38 countries included within the purview of the VWP — including several European nations — whose citizens are allowed to travel to the U.S. without first obtaining a visa. It specifically excludes nationals of countries otherwise subject to the VWP who have travelled to, or been present in, Iran, Iraq, Sudan, or Syria on or after March 11, 2011 from VWP eligibility, with exceptions granted to individuals serving a VWP country travelling for diplomatic or military purposes. Dual nationals of both a VWP country as well as Iran, Iraq, Sudan, and Syria will similarly be excluded from participation in the VWP— although such individuals will still be able to apply for a visa using the regular immigration process. Such travelers will also be allowed to apply for a U.S. visa for urgent business, medical, or humanitarian travel to the United States via U.S. embassies and consulates on an emergent basis.

Implementation of the new program also requires travelers with current valid Electronic System for Travel Authorizations (ETSAs) previously indicating dual nationality of both a VWP country and Iran, Iraq, Sudan, or Syria on their ETSA applications to have their ETSA status revoked.

However, despite imposition of new VWP requirements, such restrictions may be waived by the Secretary of Homeland Security if determined to be in the interests of U.S. law enforcement or national security interests, as established on a case-by-case basis under generalized waiver requirements under the Act. Such waivers include: (1) individuals who traveled to Iran, Iraq, Sudan, or Syria on behalf on international organizations, regional organization, and sub-national governments on official duty; (2) individuals travelling on behalf of a humanitarian NGO on official duty; (3) journalists travelling for reporting purposes; (4) individuals travelling for business-related purposes following the U.S./Iraq Joint Comprehensive Plan of Action reached as of July 14, 2015; and (5) others travelling for other legitimate business-related purposes.

Such changes to the VWP have generally been supported by members of the U.S. travel industry and compliment security-tightening actions taken by the White House last November after terrorist attacks in Paris, France claimed 130 lives. An updated ETSA application with additional questions addressing exceptions for diplomatic and military-related travel is expected to be released in February 2016.

If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622), Drew Derco (dderco@eckertseamans.com, 202-659-6665), or Reese Davidson (rdavidson@eckertseamans.com, 202-659-6633).

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