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The recent tragic events in Paris, France have moved Congress and the Administration to seriously consider changes to the Visa Waiver Program (VWP). The VWP permits citizens of 38 countries to apply for entry to the United States as a visitor, without first obtaining a visa. On Dec. 8, 2015, the House of Representatives passed H.R.158, the Visa Waiver Program Improvement and Terrorist Prevention Act on a vote of 407-19. Similar legislation, S.2337, the Visa Waiver Program Security Enhancement Act, has been introduced in the Senate. Additionally, on Nov. 30, the Administration announced a series of new changes to the VWP, outlined here.

The House bill, H.R.158, amends Section 217 of the Immigration and Nationality Act to make “terrorism risk” an explicit factor that the Department of Homeland Security (DHS) must consider under the electronic system for travel authorization (ESTA). Additionally, H.R.158 requires reporting to Congress by DHS on information related to individuals denied travel to the United States under ESTA, or whose eligibility had been revoked during the prior year. The bill also requires DHS to report on foreign government information sharing and travel patterns for its nationals.

The Senate bill, S.2337, would require individuals from VWP participant countries who had traveled to Syria or Iraq in the past five years to obtain a traditional tourist or business visa, which would require an in-person interview, and submission of biometric information. Should such a requirement be enacted, this will be a potentially significant consideration for businesses operating internationally in reliance on the VWP. The bill would require VWP travelers to submit biometric information such as fingerprints and a photograph prior to traveling under the program. Finally, the legislation would require enhanced intelligence sharing between VWP countries and the United States.

The changes to the VWP that are being considered have broad international implications. On Dec. 3, in the midst of significant attention from lawmakers and swift action by the Administration, the European Union’s ambassador to the United States sounded a note of caution about moving too fast and too far with changes to the program. Congress is faced with the challenge of balancing critical national security interests and the benefits of travel, tourism, and international commerce facilitated by the VWP that is of interest to many countries around the globe.

Nevertheless, it is conceivable that changes to the VWP could come to pass during the busy final days of the 114th Congress’ first session. The House has overwhelmingly passed H.R.158, and the Administration acted quickly following the events in Paris to strengthen the program. Congress must pass an omnibus appropriations bill before it adjourns for the year, and current reports suggest that VWP changes are under discussion for inclusion in the end of year spending bill currently being negotiated. Businesses that rely on the Visa Waiver Program should monitor closely activities in Congress leading up to the final resolution of the end of year spending legislation. GT will closely follow these legislative and administrative initiatives to restrict use of the VWP and will provide updates.

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Photo of Laura Foote Reiff ‡ Laura Foote Reiff ‡

Laura Foote Reiff has more than 32 years of experience representing businesses and organizations in the business immigration and compliance field. She is also a business immigration advocate and has long chaired prominent business immigration coalitions. Laura is Co-Founder of GT’s Business and

Laura Foote Reiff has more than 32 years of experience representing businesses and organizations in the business immigration and compliance field. She is also a business immigration advocate and has long chaired prominent business immigration coalitions. Laura is Co-Founder of GT’s Business and Immigration and Compliance Group which she co-led since 1999. She currently chairs the Northern Virginia/Washington D.C. Immigration and Compliance Practice. Laura is also Co-Managing Shareholder of the Northern Virginia Office of GT, a position she has held since 2010. As a global leader in the business immigration community, Laura has served on the Boards of the American Immigration Lawyers Association, the American Immigration Council, the National Immigration Forum and is currently the Chair of the America is Better Board.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.

 Admitted in the District of Columbia and Maryland. Not admitted in Virginia. Practice limited to federal immigration practice.