the Visa Waiver Program has come under scrutiny given the terrorist attack by Muslim extremists in San Bernadino CA in November and an even more gruesome attack in Paris that left 130 dead. The VWP allows citizens of 38 designated countries to travel to the United States for business or tourism without a visa for stays of 90 days or less. Around 60 percent of all overseas visitors to the U.S. arrive through the VWP.

However, Congress and the President agreed in the most recent spending bill in early December 2015 to tighten provisions in the Visa Waiver Program (VWP). The changes contain categorical exclusions for nationals of Iraq, Iran, Sudan, and Syria as well as individuals who travel to those countries.

Even before the attacks, DHS Secretary Jeh Johnson has described ongoing DHS efforts to secure the homeland and suggest Congressional actions that could augment those efforts. Johnson mentioned security enhancements to the VWP that he directed earlier in 2015 due to the fact that, “thousands of ISIL’s force consists of foreign terrorist fighters, including from countries in the Visa Waiver Program.” He also encouraged Congress to take further action and “put legislative teeth in our existing enhancements, and possibly make others.”

In the wake of the San Bernardino attacks terror concerns reached levels in this country not seen since 9/11, and Congress acted swiftly, with the House passing H.R. 158: Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 by a 407-19 vote. The bill became law on December 18.

Major provisions of the new law include:

• VWP participating countries issue and validate machine readable, electronic passports that are “fraud resistant” and contain “biographic and biometric information.”
• The VWP will not be open to travelers who have “been present” since March 2011 (when the Arab Spring began) in Iran, Iraq, Sudan, or Syria (the primary states where ISIS operates, and/or State Department-labeled state sponsors of terrorism). The law makes it possible to add other countries to the exclusion list.
• The VWP also excludes nationals of Iran, Iraq, Sudan, or Syria, including dual citizens of these countries.
• These exclusions do not apply to individuals who travel to those countries as military personnel or full time government workers.
• Not specifically mentioned are persons (such as journalists, doctors, missionaries, and aid workers) travelling to countries of concern to work for international organizations.

Critics of the new VWP law argue that exceptions should be made for certain types of international workers and that the law unfairly targets dual nationals, in particular Iranian Americans (the US contains the largest Iranians expat community in the world), who may simply be returning home to visit loved ones.

Writing in The Hill, Leila Golestaneh Austin and Morad Ghorban point out that, “there is absolutely no evidence to suggest that any individuals who travel to Iran have become radicalized or committed acts of terror. On the contrary, most take with them a deep appreciation of American values and beliefs.”

Nevertheless, the new rules are effective immediately and are statutory law, meaning both Congress and the President agreed to them – so these rules will be staying for awhile.

Any questions about the Visa Waiver program or changes to the program, please contact Denver attorney Catherine Brown at 303-322-2117.