Practice Alert: Changes to the Visa Waiver Program (“VWP”)

On December 18, 2015, the 2016 Consolidated Appropriations Act (H.R. 2029) was signed into law. In addition to funding the government through September 30, 2016, the bill includes provisions that change the Visa Waiver Program (VWP) some of which take effect immediately. Though at this point it remains unclear how Customs and Border Patrol and other agencies will take steps to implement and enforce the new immigration laws, our office and the American Immigration Lawyers Association have contacted the various governmental agencies in pursuit of answers to these and other questions.  We will provide any information we receive as soon as it becomes available. Briefly stated, the new laws impose:

New Restrictions on VWP Eligibility for Certain Individuals (Effective Date: December 18, 2015)

1. Individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by DHS as supporting terrorism or "of concern") at any time on or after March 1, 2011, are not eligible to participate in the VWP. The new law exempts those performing military service in the armed forces of a VWP country or those carrying out official duties in a full-time capacity in the employment of a VWP country government. In addition, DHS may waive exclusion from the VWP program if it would be in the law enforcement or national security interests of the United States.
    
2. The new law also excludes from the VWP individuals who are nationals of Iraq, Syria, Iran, or Sudan. Nationality typically depends on the laws of the designated country, so it is important to note that an individual may be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country.

To participate in the VWP an individual must possess at the time of application for admission an electronic passport that is machine-readable.

New Conditions on VWP Countries

In addition to the restrictions imposed upon individuals, the new law also includes new conditions for participating countries such as passport security requirements, screening protocols, and information sharing. The new law also includes revocation provisions for countries failing to meet the new requirements. Some of these country requirements take effect immediately and others must be implemented within the next year.

We will keep you posted as soon as there is additional news to report.