US Implements Key Changes to the Visa Waiver Program for Certain Travelers

by Joseph McKeown

The US State Department last week implemented key changes to the Visa Waiver Program (VWP), used by nationals of thirty-eight countries to travel to the US on a short-term basis. Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, travelers in certain categories are no longer eligible to travel or be admitted to the US under the VWP, also referred to as the Electronic System for Travel Authorization (ESTA). These travelers include:  

  • 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 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.

Effective January 21, 2016, the State Department has revoked ESTA for travelers who have previously indicated they hold dual nationality with one of the countries listed above on their ESTA applications. These individuals will still be able to apply for a visa using the regular nonimmigrant visa process at US Embassies and Consulates abroad, and applicants who need to travel for urgent business, medical, or humanitarian reasons can request that their applications be expedited. Applicants will be required to attend an in-person interview at the US Embassy/Consulate and obtain a visa in their passport before traveling to the US.

Under this new law, the Obama administration has included waivers for certain individuals who have traveled to Iran, Iraq, Sudan, or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty, or on behalf of a humanitarian NGO on official duty, or as a journalist for reporting purposes. In addition, 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 traveled to Iraq again for “legitimate business-related purposes” may also be eligible for the waiver, which is determined on a case-by-case basis. Republicans have condemned these additional waivers saying that the Obama administration abused a minor provision in the law to add them with the sole intent of placating Iran.

The State Department notes that the “new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.”

The new law has many critics. "It is wrong and un-American to punish groups without reason solely based on their nationality, national origin, religion, gender, or other protected grounds," the ACLU wrote in a letter to Congress in December when the bill was passed. Journalist Ali Gharib in the Guardian says that the new restrictions for Iranians are “motivated by hatred” and are ineffective, nonsensical, and won’t make Americans any safer.

Current ESTA holders can check their ESTA status prior to travel on the Customs and Border Protection website, which is advisable before trips are booked and made to the US.