The U.S. President on December 18, 2015 signed into law the Consolidated Appropriations Act 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act).
This came as a result of the Department of Homeland Security (DHS) and the U.S. Congress being concerned about the potential risks that the United States faces because of the current circumstances in Syria, Iraq and other countries of concern, and in wake of the Paris attacks and San Bernardino shooting. One of the things the Act does is to specify and establish new eligibility requirements for travel under the Visa Waiver Program.
The situation in Iraq, Sudan, Iran and Syria has pulled in thousands of foreign fighters who are not citizens of any of these countries. Some of these foreign fighters are made up of people from countries that are participating in the U.S. Visa Waiver Program. They can therefore travel to the United States for personal, legitimate purposes or for violent extremism without detection. According the DHS website “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 travelled to these countries since March 1, 2011”. This makes the countries of concern seven in total.
Questions Added to the Electronic System for Travel Authorisation Application
In compliance with the Act, the DHS has introduced to the Electronic System for Travel Authorisation (ESTA) application, additional questions which address the new eligibility requirements under the Act.
In February 2016, questions added were:
- Have you travelled to, or been present in, Iraq, Syria, Iran, or Sudan on or after March 1, 2011?
- Have you ever been issued a passport (or national identity card for travel) by any other country?
- Are you now a citizen or national of any other country?
- Have you ever been a citizen or national of any other country?
Following their responses to the above questions, ESTA applicants may be required to answer additional questions concerning travel to Iraq, Syria, Iran, and Sudan and a potential dual nationality.
In June 2016, the following questions were added:
- Have you travelled to, or been present in, Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen on or after March 1, 2011?
- CBP Global Entry program number, if applicable.
These new eligibility requirements do not stop travellers from visiting the United States. They just necessitate a traveller who has fallen short of the ESTA requirements to apply for and obtain a visa that will authorise travel. The traveller will have to go through the visa application process, which generally includes an in-person interview at a U.S. Embassy or Consulate.
According to the U.S. Customs and Border Protection website, any traveller that falls into any of the categories stated below is not eligible to participate in the Visa Waiver Program and travel to the United States without applying for a visa.
- Nationals of VWP countries who have been present in Iraq, Syria, or countries listed under specified designation lists (currently including Iran and Sudan) at any time on or after March 1, 2011 (with limited government/military exceptions).
- Nationals of VWP countries who have been present in Iraq, Syria, Iran, Sudan, at any time on or after March 1, 2011 (with limited government/military exceptions).
As a traveller, if you were in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen for military service with the armed forces of a country under the VWP, or if you travelled to carry out official duties as a full-time employee of the government of a VWP country, you are exempt from this restriction. If you are covered by this exemption, when travelling, it is highly recommended that you come with the official documentation that shows that you visited any of the above countries for military or official purposes. You might have to show these documents when you get to a U.S. port of entry.
Other categories of travellers who are exempted from this restriction are:
- Individuals who have travelled to Iraq, Syria, Iran, Sudan, on behalf of international organizations, regional organizations, or sub-national governments on official duty;
- Individuals who have travelled to Iraq, Syria, Iran, Sudan, on behalf of a humanitarian non-governmental organizations (NGO);
- Individuals who have travelled to Iraq, Syria, Iran, or Sudan for reporting purposes;
- Individuals who travelled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015);
- Individuals who have travelled to Iraq for legitimate business-related purposes; and
- Individuals who have travelled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen and maintain current Global Entry Program membership.
How Does this Affect Business Travellers?
This new restriction affects global business travellers because if they have travelled to or hold dual citizenship in any of the specified countries, they would be required to apply for a visa as they would likely not be covered by any of the listed exemptions.
Business travellers who believe they will likely fall under those affected by the restriction are advised to pre-emptively apply for a B-1 or B-2 visa so that they do not have to experience being turned back at the point of entry while attempting to use the ESTA approval. B-1 or B-2 visas must be applied for at a U.S. Consulate, and applicants need to check for and get all the necessary information on the Consulate’s website so that they are adequately prepared for the process.
It is recommended that the applications for these visas be made well ahead of travel dates as there is likely to be an increase in the number of people making B-1 and B-2 applications as a result of the new restrictions. In addition, it could take a longer time for applicants with ties to the specified countries, such as those who hold dual nationality to get through the security checks.
Applicants should be aware that in the event that they later secure an exception from the new restriction, they can travel under the Visa Waiver Program notwithstanding the fact that they have applied for and hold a B-1 or B-2 visa.