New Secretary Of DHS Announces New Country Requirements For Visa Waiver Program

by Jackson Lewis P.C.
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Department of Homeland Security Secretary Kirstjen Nielsen has announced new security measures applicable to all countries in the Visa Waiver Program (VWP).

The VWP allows citizens or nationals of 38 participating countries to enter the U.S. for business visits or tourism for stays of up to 90 days without obtaining a visa stamp in their passports.  Travelers must have a valid ESTA (Electronic System for Travel Authorization) approval in advance of their travel and (as of April 1, 2016) must have an e-Passport with an embedded electronic chip.

In 2015, under the Terrorist Travel Prevention Act, certain travelers were no longer eligible to use the VWP (but they could apply for B visas):

  • Nationals of VWP countries who traveled to or had been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen after March 1, 2011; and
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Now, the Trump Administration has announced further security enhancements. According to Nielsen, the following security measures will apply to all VWP countries:

  • Full implementation of all existing information sharing arrangements to screen travelers against U.S. counterterrorism information databases;
  • VWP countries must be judged to have effective safeguards against insider threats in aviation ; and
  • VWP countries with a two percent or greater rate of business visitor or tourism overstays will have to initiate public information campaigns to reduce violations.

DHS is also asking Congress to:

  • Bolster reporting of foreign terrorist fighter information to organizations, such as INTERPOL and EUROPOL;
  • Enhance systems to collect and analyze data on passenger travel (Advance Passenger Information/Passenger Name Records); and
  • Finalize efforts to allow U.S. Federal Air Marshals to operate onboard U.S. air carriers on direct flights to the United States from abroad.

To date, four countries have been identified as overstay violators: Greece, Hungary, Poland, and San Marino, a separate republic in Central Italy.

It has been reported that, overall, approximately 1 percent of travelers to the U.S. overstay their visas. Although the percentage is small, the Administration worries that some overstays represent a national security risk. Nielsen also stated in her announcement that “[t]hese enhancements will strengthen the program, and they are part of our continued efforts to raise the baseline for homeland security across the board.”

To date, there is no information on how these new restrictions will be enforced, but Nielsen is authorized to remove countries from the VWP.

VWP travelers from the four identified countries who already have ESTA approvals should check the status of their countries’ participation prior to traveling.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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