21 December 2015
Category News Room
21 December 2015,

On December 8, 2015, the U.S. House of Representatives passed H.R.158, which proposed dramatic changes to the U.S. Visa Waiver Program (INA § 217). The Visa Waiver Program allows citizens of 38 participating countries to travel to the U.S. without a visa for stays of 90 days or less.

H.R. 158 invalidates Visa Waiver Program eligibility based on prior travel to designated countries or holding citizenship in any of those same countries – thus this legislation directly affects Visa Waiver nationals who hold a second nationality.  Specifically anyone who has, at any time after February 28, 2011, visited (1) Iraq and Syria, (2) all countries designated by the Secretary of State or other provisions of law to be ruled by governments that have repeatedly provided support to acts of international terrorism, and (3) any other country or area of concern designated by the Secretary of Homeland Security.  Currently the second provision adds Sudan and Iran to the list, so the initial countries of concern are Sudan, Syria, Iran and Iraq.  Again, the travel “ban” also applies to individuals who hold that nationality.  The only exception is if someone traveled to these regions as part of a U.S. military assignment.  For the third group of travel ineligible countries the Secretary of Homeland Security Jeh Johnson will have 60 days from December 18, 2015 to designate these countries based upon stated criteria including the presence of a foreign terrorist organization in that country and whether the country is safe haven for terrorists. The House bill will also now require all foreign nationals participating in the program to possess the latest passport technology – they must be machine readable and include electronic chip technology.

The U.S. Senate proposed similar legislation (S. 2337), but then chose to roll the House bill into the Omnibus Appropriations Act that was voted on last Friday.  Immediately after its passage Obama scheduled a signing ceremony and the Omnibus is now law.

Although the law will require certain Visa Waiver travelers to obtain a B visa, we want clients to know that in addition to this direct screening method, there is enhanced screening going on with Visa Waiver entrants who are still eligible to use the program.  We have heard of clients and others being questioned about travel to countries where violence and instability exists.  If you have traveled to such countries be sure to remember your reasons for travel and be comfortable explaining such travel to CBP.

Furthermore, as more individuals will require a visa, and others who are still eligible for the program will seek a visa to avoid any uncertainty with travel, we expect more security screening for visa issuance.  Thus clients should expect that visas will take longer to issue and appointments should be booked further in advance to ensure availability.

We will continue to update clients on the list of additional countries as soon as DHS provides that list and we encourage all companies who have visa waiver travelers to notify their employees of the changing landscape in visa waiver travel immediately – we wish to avoid travelers unknowingly board an 8 hour flight only to be denied visa waiver status, then denied admission and turned around to fly back!  As a final note, as the U.S. government looks to restrict entry to such travels know that other countries will enact similar measures to their own visa programs in reaction to the recent increased concerns about terrorism worldwide or as a response to our limitations – as such U.S. passport holders should also pay attention to the possibility of enhanced screening or reduced travel flexibility in the future.

** This newsletter/memo is provided for informational and discussion purposes only.  It does not act as a substitute for direct legal contact on an individual basis **

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