The U.S. House of Representatives on Tuesday, December 8, voted overwhelmingly to limit visa-free travel to the United States through the Visa Waiver Program (“VWP”). This legislation is expected to be added to the year-end Omnibus spending bill that is currently being debated and finalized on Capitol Hill. If implemented, the bill would impact selected nationals of certain countries who regularly engage in visa-free travel and force them to obtain visas before traveling to the U.S. Many business travelers regularly use the VWP program, and could be impacted by these changes.

Background on the Visa Waiver Program:

The VWP is administered by the Department of State and allows travel by approximately 20 million business or pleasure visitors from 38 participating countries to the U.S. for 90 days or less without first obtaining a visa from a U.S. Consulate.  Prior their trip to the United States, travelers must be eligible to use the VWP and obtain a valid Electronic System for Travel Authorization (ESTA) approval.

Recent events, particularly the Paris terrorist attacks, have increased scrutiny of the security risks associated with such travel. The federal government has already announced further enhancements and acceleration of security changes to the VWP, including the introduction of additional data fields to ESTA applications, new travel screening and information sharing requirements with VWP participating countries to address threats by foreign terrorist fighters, and information sharing regarding past travel by ESTA applicants to countries constituting a terrorist safe haven.  The Department of Homeland Security will also provide a report to the White House about pilot programs that would entail collection and use of biometrics for traveler identification, and potential penalties against VWP participating countries that are deficient in key areas of cooperation. The House has also moved swiftly to pass new legislation (House Bill H.R. 158) that would increase the program’s security requirements.

Legislation:

The House Bill, if passed, will impact the Visa Waiver Program in the following ways:

  1. Require any person who has traveled to Iraq, Syria, Iran, or Sudan since March 2011 to obtain a visa, notwithstanding citizenship of a VWP country, to travel to the United States
  2. Strip VWP privileges from citizens of VWP participating countries who hold dual citizenship status of Iraq, Syria, Iran, or Sudan
  3. Expect VWP countries to share counterterrorism information with the U.S. or face expulsion from the program
  4. Require traveler information to be checked against Interpol database and require VWP countries to issue e-passports with biometric information

Separately, a different Senate bill has been proposed that would add a biometrics requirement for all visa waiver travelers.

H.R. 158 has been criticized by some advocacy groups as overbroad and prohibitively restricting the travel privileges of too many individuals. The VWP travel privileges would be stripped from all individuals who have traveled to Iraq, Syria, Iran, and Sudan since March 2011 which will include journalists, academics and scholars, refugee caseworkers, and humanitarian aid workers, among others.

Additionally, the passage of this bill could result in certain additional travel restrictions on Americans traveling to VWP countries. Passage of the bill could result in Americans of Syrian, Iranian, Iraqi, or Sudanese origin becoming automatically subject to similar restrictions when they travel to Western Europe countries, Japan, and South Korea that participate in the VWP program. As a result, Americans of certain national origins may be treated differently than other Americans in needing visas to travel to those VWP program countries.

Other prospective visa changes:

Lawmakers are also considering changes to the K-1 fiancée visa program. This review has been prompted by the admission to the U.S. of one of the shooters in the December 2015 San Bernardino, CA, incident on a fiancée visa.

Employer Insights:

While the VWP program has never permitted actual employment in the U.S., and thus does not impact work-authorized foreign nationals, these changes will impact foreign workers and executives of multinational corporations who frequently enter the U.S. through the VWP program. These changes could result in greater delays for foreign nationals entering the U.S. on the VWP program and, in the cases of certain individuals, could force them to obtain a visa before travels  to the U.S. Employers and individual travelers are advised to monitor the status of this and other Congressional bills relevant to VWP travel. If the House Bill is implemented, they must carefully determine whether their future travel to the United States will require a visa.