Last month, the U.S. Department of Homeland Security (DHS) began implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. In addition to making several important changes to the Visa Waiver Program (VWP), the act prohibits anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program. The act also prohibits citizens of VWP-eligible countries who are also “nationals” of Iraq, Syria, Iran, or Sudan from further participation in the program.

On February 18, 2016, DHS added Libya, Somalia, and Yemen to the list of countries of concern. This means that anyone who has traveled to these countries since March 1, 2011 will no longer be eligible to participate in the VWP. However, the restrictions for Libya, Somali, and Yemen only apply to persons who have traveled to these countries. Dual citizens of these countries and VWP-eligible countries may continue to travel without visas. 

The DHS’s new restrictions do not bar individuals from traveling to the United States, but to do so, individuals impacted by the restrictions must obtain a U.S. visa—a process which generally includes an in-person interview with a U.S. consular officer. The Secretary of Homeland Security may waive these travel restrictions if he or she determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis.

An update to the Electronic System for Travel Authorization (ESTA) application with additional questions on travel to Libya, Somalia, and Yemen will be released in the spring of 2016. The update will also address exceptions for diplomatic and military-related travel provided for in the act.

Ogletree Deakins will continue to monitor this issue and report on significant developments accordingly.