21 Bender’s Immigration Bulletin
505
May 1, 2016
Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 —Threading the Needle between Security and Travel Facilitation By Jeffrey Gorsky and Noah Klug On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016, which includes the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act).1 This provision received bipartisan support and reflected Congressional concern over both the influx of Near Eastern refugees to Europe and terrorist incidents in both Paris and San Bernardino. However, the provision has been criticized as discriminatory by the American Civil Liberty Union, the Leadership Conference, the National Iranian American Council and other interested groups. The European Union Ambassador to the United States, David O’Sullivan, wrote an editorial signed by other Ambassadors from E.U. member nations, critical of the Act’s restrictions.2 The Act provides for two different bases for VWP ineligibility.3 Dual nationals with nationalities from specified countries are ineligible.4 Travel to specified countries will also create a bar to VWP, but there are some exceptions.5 The Act made ineligible for VWP nationals from program countries who were also nationals of Iraq and Syria.6 It also provided for VWP exclusion based on nationality from certain countries designated under specific legislative authority, or by the Secretary of Homeland Security (DHS), and that provision added to this list Iran and Sudan.7 There is no exception to the 1 Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Division O, Title II (2015)
bar based on dual nationality. Customs and Border Protection (CBP) will be examining its ESTA database and revoking any ESTA registrations if it discovers evidence of nationality in the specified countries.8 The Act also bars eligibility for VWP travel to persons who have been present in Iraq, Syria or other countries designated as authorized by the Act at any time on or after March 1, 2011.9 On February 18, 2016, DHS announced that it would add to this list Libya, Somalia and Yemen as countries of concern.10 There are exceptions to the bar based on travel. The Act excepts official travel by military personnel or full-time government employees of visa waiver countries.11 The Act allows for a waiver of the VWP restrictions if the waiver is in the law enforcement or national security interests of the United States.12 Travelers apply for a waiver simply through applying as normal using the ESTA registration system.13 On January 21, 2016, the Obama Administration announced a number of “blanket waivers” using these waiver powers under the Act.14 The waivers, which 8
DHS Press Office, United States Begins Implementation of Changes to the Visa Waiver Program (Jan. 21, 2016) https://www.dhs.gov/news/2016/01/21/ united-states-begins-implementation-changes-visa-waiverprogram 9
Supra note 1 at § 203.
10
2
European Union's Ambassador to the United States David O'Sullivan and the ambassadors to the U.S. of the 28 EU member states, What the Visa Waiver Program means to Europe (2015), http://thehill.com/blogs/congress-blog/ foreign-policy/262999-what-the-visa-waiver-programmeans-to-europe 3
Supra note 1, at § 203.
4
Id.
5
Id.
6
Id.
7
Id.
DHS Press Office, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016) https://www.dhs.gov/news/2016/02/18/dhs-announcesfurther-travel-restrictions-visa-waiver-program# 11
Supra note 1, at §203.
12
Id.
13 Visa Waiver Program Improvement and Terrorist Travel Prevention Act Frequently Asked Questions (Question 10) http://www.cbp.gov/travel/international visitors/visawaiverprogram/visawaiverprogramimprovement andterroristtravelpreventionactfaq 14
Supra note 8.
21 Bender’s Immigration Bulletin only apply to the ineligibility based on travel (the announcement states that the government “will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan”) include: Individuals who have traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, or subnational governments on official duty; Individuals who have traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian non-governmental organizations (NGO); Individuals who have traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes; Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and Individuals who have traveled to Iraq for legitimate business-related purposes.15 This announcement has been criticized by a number of Congress leaders, who see it as an overly broad use of the waiver authority, which the Act limits to cases involving law enforcement or national security interests, so that more restrictive legislative provisions remain a possibility.16 There is one other provision that can restrict VWP eligibility: effective April 1, 2016, all VWP country citizens must possess an electronic passport to travel to the United States under the VWP.17 The Act also contains screening requirements and data share for the eligible countries, but these provisions will not affect travelers.18
**** Jeffrey Gorsky is Senior Counsel with Berry Appleman & Leiden LLP. Before joining BAL, Mr. Gorsky served as Chief of the Legal Advisory Opinion section of the Visa Office in the Department of State. For almost two decades, Mr. Gorsky led the team that provides legal guidance to consular officers worldwide on visa matters. During his tenure in Washington, DC, Mr. Gorsky was a trusted advisor to senior 15
Id.
16
Caroline May, GOP Slams Obama Visa Waiver for Certain Travelers to Iran, Syria: ‘Blatantly Breaking the Law,’ Breitbart News, January 21, 2016, available at http://www.breitbart.com/big-government/2016/01/21/gopslams-obama-visa-waiver-for-certain-travelers-to-iran-syriablatantly-breaking-the-law/ 17
Supra note 1, at § 203.
18
Supra note 1, at § 202.
506
May 1, 2016 policymakers and worked closely with counterparts at the Department of Homeland Security, the Department of Labor, and the Department of Justice. He assisted the Department of Justice on civil and criminal visa matters and testified for the government as an expert witness on visas. He twice earned the State Department’s Superior Honor Award. Before assuming his position in Washington, DC, Mr. Gorsky served in various positions at US consulates around the world. Mr. Gorsky worked as a criminal defense lawyer before joining the government. Noah Klug, a dual-qualified attorney in both the United States and Australia, is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP. He is responsible for managing the global immigration programs of some of the world’s largest and bestknown multinational companies, as well as providing these clients and their employees with US immigration law advice and support. Mr. Klug plays a key role in both the global and the US immigration practices in the firm and often assists with addressing complex legal questions and issues. Mr. Klug has significant experience in both global and US corporate immigration law. Prior to joining BAL, Mr. Klug worked as a Senior Associate at a prominent global corporate immigration law firm in its Sydney and Melbourne offices, before which he served as an Attorney-Advisor at a US Government immigration agency in the Washington, D.C. area. Mr. Klug currently serves on the steering committee of the Global Migration Section of the American Immigration Lawyers Association (AILA) and is the past (founding) chair of the AILA Asia Pacific Chapter, past co-chair of the American Bar Association (ABA) Immigration and Naturalization Committee, and past member of the AILA National Business Immigration Committee. Mr. Klug is a thought leader in the area of corporate immigration law. He has written numerous articles on the subject, helped draft comments on proposed governmental policies, and recently contributed to a major immigration study published by Business Roundtable. Mr. Klug is also a regular presenter on corporate immigration law and has spoken at events held by the American Immigration Lawyers Association, the American Bar Association, the American Chamber of Commerce, the American Australian Association, the Australian Trade Commission (Austrade), Export Council of Australia, Immigration Law Weekly (ILW), the Media, Entertainment & Arts Alliance of Australia, the New South Wales Department of Industry & Investment, and the Pennsylvania Department of Community & Economic Development.
