FAQ: The Visa Waiver Program Improvements and Terrorist Travel Prevention Act

What is the Visa Waiver Program (VWP)? 

The Visa Waiver Program permits citizens of 38 participating countries to travel to the United States, Europe, Japan and South Korea without a visa for stays of 90 days or less. In the United States, the VWP is administered by the Department of Homeland Security (DHS) in consultation with the Department of State.  Permanent residents of designated countries who are not citizens of those countries do not qualify for a visa waiver.   

What is the Electronic System for Travel Authorization (ESTA)? 

ESTA is a fully automated, electronic system for screening passengers before they begin travel to the United States under the VWP. Eligible citizens from all VWP countries must obtain approval through ESTA prior to traveling to the United States under the VWP.  

ESTA applications are available on the U.S. Customs and Border Protection’s (CBP) website.  VWP travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States. 

What is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act? 

On December 18th, 2015, the President signed into law the 2016 omnibus appropriations bill, which included the Visa Waiver Program Improvement and Terrorist Travel Prevention Act (H.R. 158).? The legislation, amongst other measures, establishes new eligibility requirements of citizens of VWP countries wishing to travel to the United States.  The new restrictions do not bar travel to the United States.  Travelers who do not meet the new eligibility requirements must now apply for a visa to enter the United States.   

Who will the Visa Waiver Program Improvement and Terrorist Travel Prevention Act affect? 

The Act will require foreign citizens of VWP participating countries who have travelled to Iraq, Syria, Iran, or Sudan within the past five years to obtain a visa to enter the United States.  It also includes citizens of VWP countries who are also nationals of Iraq, Syria, Iran, or Sudan.    

The dual national provision has come under fire as it could potentially apply to people solely based on their national origin and irrespective of their travel.   

How will the Act affect Iranian Americans? 

The VWP is based off of reciprocity. For example, a UK citizen can travel to the US for up to 90 days and a US citizen can also travel to the UK for up to 90 days without a visa. As such, the implementation of the new restrictions may trigger reciprocal restrictions from other participants in the Visa Waiver program against Iranian Americans and other American citizens.? It could thus lead to discrimination against Americans based on national origin in that a U.S. passport held by an American of Iranian descent is treated differently from a US passport held by an American of other national origins. 

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act does not impact Iranian Americans (US citizens) -or U.S. permanent residents – who travel to Iran from returning to the United States.  The Act only impacts visa free travel between VWP participating countries.    

Are there any exemptions or waivers to the new eligibility requirements?  

Yes, the Act provides for exceptions for individuals who have travelled to Iraq, Syria, Iran, or Sudan in order to perform military service in the armed forces of a program country or to carry out official duties as an employee of a program country government.  In addition, the law allows for the Secretary of Homeland Security to waive the new VWP restrictions if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.   

Has the Obama administration issued any waivers to the new eligibility requirements?  

Yes, on January 27th the administration announced that it will create exceptions for individuals who have travelled to Iraq, Syria, Iran, or Sudan on behalf of international/regional organizations and sub-national governments as well as those who have travelled on official duty for humanitarian or journalistic work. In addition, exemptions will allow for legitimate business travel to Iran and Iraq. Such exemptions will be granted on a case-by-case basis.?  

Has the Obama administration expanded the restrictions to VWP eligibility?  

Yes, on February 18th the DHS designated Libya, Somalia, or Yemen as three countries of concern.  Certain citizens of VWP countries who have travelled to these newly designated countries will also be required to obtain a visa to enter the United States.  The restrictions would not apply to those with dual citizenship in Libya, Somalia, or Yemen.   

How is the Obama administration defining “dual nationals” or “dual citizens”?  

The administration has announced that it will not rely solely on the laws of Iran and other countries in determining who is a dual national and thus ineligible to travel to the United States under the VWP. 

The CBP has modified its questions on dual nationality on its ESTA application.  If applicants select Iraq, Syria, Iran, or Sudan, follow-up questions are asked regarding status of current citizenship including dual-citizenship information, and how citizenship was acquired.   The Obama Administration has yet to identify the specific process for determining dual nationality, indicating that the matter is still being reviewed as part of inter-agency dialogue.   

Are there any measures in Congress that would repeal the Visa Waiver Program Improvement and Terrorist Travel Prevention Act? 

While there was widespread bipartisan support for the Visa Waiver Program reforms passed last year, there are growing concerns in Congress with respect to dual nationality provisions. The Equal Protection in Travel Act of 2016 (S.2449/H.R.4380) would strip the provisions aimed at restricting certain dual nationals of the 38 countries participating in the Visa Waiver Program.?The bill does not alter the travel ban for those who have actually travelled to specified countries.??The legislation, sponsored by Senator Jeff Flake (R-AZ) in the Senate and Representative Justin Amash (R-MI), has bipartisan support but it is unlikely to pass either chamber of Congress unless it garners more Republican support.  

While the legislation is pending, a group of Democratic Senators have sent a letter urging DHS to clarify the circumstances in which it will consider waivers for VWP travelers who are dual nationals of Iran, Iraq, Sudan, or Syria. U.S. Representatives John Conyers, Jr. (D-MI), Ranking Member of the House Judiciary Committee, and Zoe Lofgren (D-CA), Ranking Member of the Immigration and Border Security Subcommittee also sent a letter to urging the Administration to make clear that the United States will not discriminate against any travelers based solely on ancestry and to provide waivers for non-business related travel to Iran.  

Senator Flake has offered his legislation as an amendment?to the Federal Aviation Administration (FAA) reauthorization bill (S. 2658).? The FAA bill is scheduled to be considered by the Senate this week.? Senator Flake is working on a path to get his amendment to come up for a vote.? However as of April 15th, the Amendment looks unlikely to be included in the FAA reauthorization.

Will the European Union (EU) place reciprocal restrictions on American citizens? 

In an open letter published in The Hill, 28 European member state ambassadors to the United States stated that US citizens may require visas to enter the EU should the United States move ahead with plans to eliminate visa-free travel. The EU is also considering the suspension of visa free travel for all American citizens because the U.S. government still excludes certain EU member states from the VWP.? In assessing next steps on visa reciprocity with the United States, the European Commission has recommended that the U.S. Congress consider passing the Equal Protection in Travel Act of 2016 in order to mitigate the impact imposed on dual nationals. The Commission did not propose to reintroduce visa requirements for U.S. citizens at this time. However, the ultimate decision whether or not to suspend the visa waivers is in the hands of the European Parliament and the Council, who have until July 12th to decide.  The United Kigdom or Ireland would not be bound by any suspension measure or decision taken by the EU.   

What is PAAIA doing? 

• PAAIA staff, board members, and IA-100 members have been in direct communication with members of Congress and the Administration on this   issue.  We have communicated how the Visa Waiver Program Improvement and Terrorist Travel Prevention Act falls short on prevention but punitive towards Iranian Americans. 

• PAAIA is supporting the Equal Protection in Travel Act of 2016 and is urging members of Congress to pass the legislation.    

• PAAIA helped disseminate on Capitol Hill an open letter signed by prominent Tech industry professionals in support for the Equal Protection in Travel Act of 2016.   

• PAAIA has joined an impressive coalition of civil rights, faith, refugee and humanitarian aid organizations voicing support for the Equal Protection in Travel Act of 2016. 

• Working with our coalition partners, PAAIA has called for executive action to waive discriminatory prohibitions based on national origin under the Visa Program Improvement and Terrorist Travel Prevention Act. 

• PAAIA has been in communication with EU officials to mitigate the impact of any reciprocal actions towards the Iranian American community.

• PAAIA will continue to monitor the situation and work to mitigate the impact of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act on the Iranian American community.?