As part of its efforts to educate the public about the new changes to the Visa Waiver Program (VWP) resulting from the enactment of the Consolidated Appropriations Act of 2016, the U.S. Customs and Border Protection (CBP) published Frequently Asked Questions dealing with these changes.

By way of background, the VWP permits citizens of 38 countries to travel to the United States  for business or tourism without the need to obtain a visa.  All prospective VWP travelers, however, must obtain pre-travel authorization through CBP’s Electronic System for Travel Authorization (ESTA).  On Dec. 18, 2015, President Obama signed into law the Consolidated Appropriations Act 2016 which included the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act).  Under provisions of the Act, new eligibility requirements for travel were established.  Those who do not meet the new standards are required to obtain a B-1/B-2 visa from a U.S. Embassy before they can travel to the United States.  ESTA has been updated to include additional questions to address the new eligibility requirements.

The VWP restricted travel utilizing ESTA to the following individuals:

  • Nationals of VWP countries who were present in Iran, Iraq, Syria and Sudan on or after March 1, 2011 (with limited exception).  Since enactment, Department of Homeland Security which has the authority to add additional countries has added Libya, Somalia and Yemen to the list.
  • Nationals of VWP countries who are also nationals of Iraq, Iran, Syria or Sudan.

The CBP’s recently published FAQ’s gave some guidance to the implementation of the Act.  Among other things, it addressed the following:

  • What are the exceptions to the physical presence restriction to ESTA?  (Answer: Travel was for the purpose of representing the program country on official military orders or official government business.  These exceptions do not apply to the dual national restriction).
  • What should a person do if he or she falls under one of the restrictions? (Answer: Apply for a visa at an American Embassy that has jurisdiction over your place of residence or nationality).
  • What are the additional questions that are now included in ESTA? (Answer: The added questions relate to travel to the restricted countries and whether the applicant has been issued a passport or national identification card by another country.  Depending on the answers given, the applicant will be directed to answer additional questions).
  • The FAQ’s deal with the issue of who is entitled to a waiver of the restrictions and the process to obtain the waiver.  Also, the FAQ’s address the process undertaken to revoke existing ESTA’s and the means utilized by CBP to advise prior travelers of the revocation of their ESTAs.
  • How are dual nationals or dual citizens defined?  (Answer: The CBP will determine dual citizenship or nationality in accordance with U.S. legal standards and practices).