New York Lawyer's Legal Updates

Changes To Visa Waiver Program

Author: New York Immigration Attorney Alena Shautsova

Usually, to come to one country from another, a person would have to obtain a visa, or permission. Citizens of the United States may travel without visas to many countries, but for some countries they do need to obtain visas. Non-U.S. citizens usually have to apply for a visa before coming to the United States. However, citizens of specified by the law countries do not need visas to enter the US if they come with non-immigrant intent (do not plan to stay in the U.S. or work), and visit U.S. for a relatively short period of time (typically, no longer than 90 days). This exception is known as "Visa Waiver". Visa Waiver has its pluses (there is no need for a formal visa application) and minuses: one who enters the U.S. on a Visa Waiver cannot change his/her status to any other status (limited exceptions apply), and is subject to expedited removal in case of status violation.

After the terrorist attacks in San Bernadino and Paris, the Visa Waiver Program has come under extreme scrutiny. There are two major changes that have been put into effect. The first change requires an individual looking to enter the U.S. under the VWP (Visa Waiver Program) to update their passport. Passports must now be machine readable. The change is understandable as it purports to help avoiding fraud and speeding up the process at the point of entry.

The second change is more drastic: citizens of the following countries (dual citizenship included): Iraq, Iran, Syria and Sudan (excluding South Sudan) are excluded from entering the U.S. under the VWP, as well as persons who traveled to these countries since March of 2011.

The exclusion of nationals who have traveled to any of the above mentioned countries came as a shock to the legal community. Although these countries have never been included as participants of the VWP, many foreign nationals that possess a dual citizenship with one of the excluded countries will no longer be able to enter under the program.

The only exception to the new exclusion rule concerns individuals without dual citizenship with Iraq, Iran, Syria and Sudan who have traveled to Iraq, Iran, Syria or Sudan, and who are military members of a participating VWP countries or employees of the federal government of a VWP countries, as long as the travel was done in service to the military or federal governmental entity by official order.

If you are an individual who has been affected by the recent changes to the VWP, it is recommended by the CBP to submit an application for a non-immigrant visa well in advance of travel arrangements. If an affected individual is in need of immediate travel, the U.S. Embassies and Consulates are prepared to process expedited non-immigrant visa applications for individuals with urgent business, medical or humanitarian travel needs.

A common question with regard to the new changes, is whether Canadians with specific dual citizenship will be precluded from coming to the U.S. without a visa. A short answer is “no.” Citizens of Canada come to the U.S. under a special law, not Visa Waiver Program, and as such the changes will not affect them. Another common question is if the recent change will preclude individuals who fall under new rules from re-entering the U.S. under Visa Waiver after a short trip to Canada or Mexico. Unfortunately, the recent changes made such individuals ineligible to use VWP, and it means that they will have to apply for a visa prior to coming back to the U.S., even if they were in the U.S. before and traveled to neighboring countries for a short time.

If you believe you are subject to new changes, it is highly suggested that you consult with an attorney before attempting to enter the U.S.

06 February 2016
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