On January 21, 2016, the U.S. Government began implementing changes to the Visa Waiver Program (VWP) pursuant to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 as set forth in the year-end spending bill (H.R. 2029) which was signed into law by President Obama on December 18, 2015. As described in our January 13, 2016 Client Alert, the bill that was passed in the wake of the terrorist attacks in Paris and San Bernardino amended the eligibility criteria for the VWP to prohibit certain categories of individuals from participating in the VWP. The U.S. Departments of State and Homeland Security recently issued additional guidance confirming the immediate implementation of these changes as of January 21, 2016, and providing supplemental information regarding the scope of these changes. This guidance confirms that as of January 21, 2016, travelers in the following categories are no longer eligible to travel visa-free to the United States to be admitted under the VWP:

  1. 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); and
  2. Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria. 

The above 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 VWP program country, or in order to carry out official duties as a full-time employee of the government of a VWP program country – these military and official government services exceptions, however, do not apply to the dual national restriction. 

As of January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTA) registration and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked. Travelers who have their ESTAs revoked should have been contacted via email on or about January 21, 2016 at the address they provided as part of their ESTA application informing them that their current ESTA is no longer valid – the U.S. Department of Homeland Security’s Customs and Border Protection (CBP) recommends that any traveler check his or her ESTA approval prior to making any travel reservations athttps://esta.cbp.dhs.gov. These individuals will still be able to travel to the United States, but will have to apply for a U.S. non-immigrant visa before travelling to the United States as business visitors or tourists. 
For those persons who have not yet received an ESTA revocation e-mail but have travelled to Iran, Iraq, Syria, or Sudan since March 1, 2011, CBP’s guidance indicates that they should apply for a U.S. nonimmigrant visa well in advance of the desired travel to the United States to minimize the chance of delays. Further, the recent guidance clarifies that the Secretary of Homeland Security may waive these restrictions on a case-by-case basis if such waiver is in the law enforcement or national security interests of the United States. Categories of travelers who may be eligible for a case-by-case waiver include:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian non-governmental organization (NGO) on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

Currently, these waivers are not available for dual nationals of Iraq, Syria, Iran, or Sudan; the U.S. Government has indicated that it is continuing to explore whether and how these waivers can be used for such dual nationals. The recent guidance from the U.S. Departments of State and Homeland Security does not provide practical information regarding the waiver process or the validity period of the waivers, if and when they are granted. Case-by-case review of such waivers likely would be conducted by officers at U.S. consulates when the traveler who visited one of these four countries is applying for a U.S. non-immigrant visa.   
For additional information, please refer to the recent joint statement issued by the U.S. Department of State and Homeland Security, as well as the FAQs issued by the U.S. Department of Homeland Security’s Customs and Border Protection. CBP has also advised that if an individual has had his or her ESTA denied or revoked and has urgent travel prior to late February, the individual may contact the CBP Information Center at http://www.cbp.gov/contact and may apply for a nonimmigrant visa from a U.S. Embassy or Consulate.