DHS Implements VWP Changes in Response to Terrorism Concerns, Announces Further VWP Travel Restrictions
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
In January, the United States began implementing changes to the Visa Waiver Program (VWP) under a new law. Travelers in several categories are no longer eligible to travel or be admitted to the United States under the VWP. The Department of Homeland Security (DHS) announced on February 18, 2016, that it is continuing its implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 by adding Libya, Somalia, and Yemen as three countries of concern. DHS is limiting VWP travel for certain individuals who have traveled to these countries.
Under a new law enacted by Congress in December 2015, the Secretary of Homeland Security had 60 days to determine whether additional countries or areas of concern should be subject to the travel or dual nationality restrictions under the Act. In consultation with the Director of National Intelligence and the Secretary of State, the Secretary of Homeland Security determined that Libya, Somalia, and Yemen be included as countries of concern, specifically for individuals who have traveled to these countries since March 1, 2011. The restriction on Visa Waiver Program travel does not apply to dual nationals of these three countries. DHS said it continues to consult with the Department of State and the Office of the Director of National Intelligence to develop further criteria to determine whether other countries should be added to this list.
The United States began implementing changes under the new law in January 2016. The three additional countries designated join Iran, Iraq, Sudan, and Syria as countries subject to restrictions for VWP travel for certain individuals. Under the new law, the Secretary of Homeland Security may waive these restrictions if he 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, DHS said. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of a humanitarian nongovernmental organization on official duty; or as a journalist for reporting purposes.
DHS said the latest addition of the three countries indicates “the Department’s continued focus on the threat of foreign fighters.” DHS said it was the latest step in a series of actions over the past 15 months “to strengthen the security of the Visa Waiver Program and ensure the Program’s requirements are commensurate with the growing threat from foreign terrorist fighters, many of whom are nationals of Visa Waiver Program countries.”
An updated Electronic System for Travel Authorization (ESTA) application with additional questions on travel to Libya, Somalia, and Yemen will be released in the spring to address exceptions for diplomatic and military-related travel provided for in the new law.
DHS noted that those affected will still be able to apply for visas using the regular immigration process at U.S. embassies or consulates. For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, DHS states, “U.S. embassies and consulates stand ready to provide visa interview appointments on an expedited basis. The new law does not ban travel to the United States, or admission into the United States, and the great majority of Visa Waiver Program travelers will not be affected.”