Immigration lawyer: Changes to Visa Waiver Program

When we watch our favorite TV channels (take, for example, HGTV’s House Hunters International), we see happy folks making a decision to move to another country, and simply arriving there. The important decisions are what type of house to live in, what’s the best location, and how much do I have to pay for it? As we watch, few of us stop to ask if these people, who are often Americans, applied for the right visa, obtained an immigration lawyer, were vetted through security clearances, and if their purpose for being in this new country accords with their legal status. (When was the last time you asked yourself, Are they authorized to work in Costa Rica? Are they allowed to own a business in Mexico?)

When people are traveling to the U.S., there are always hoops to jump through. Anyone coming to the US will have to deal with the U.S. government at some point.  A person with a visa might be stopped, questioned, and turned around and sent back to their home country if a Customs and Border Protection officer does not believe their purpose for coming to the U.S. makes sense with their visa.

The Visa Waiver Program (VWP) offers the closest thing to “just getting on a plane” and coming to the United States. Countries can participate in VWP if they meet certain criteria (and offer reciprocal, similar programs to United States citizens). Among some of the requirements for countries to qualify as eligible, visitor visa refusal rates must be very low.  (See https://www.dhs.gov/visa-waiver-program)

If a national of a VWP country is seeking to visit the United States, they can be present for up to 90 days. The individual will not be allowed to work while in the United States, and if the person overstays their allotted time here, he or she will have no right to a hearing before an immigration judge and may simply be removed from the United States. In addition, if a person from a Visa Waiver country arrives at a U.S. port of entry, but a Customs and Border Protection officer does not believe their visit will be temporary in nature or for appropriate purposes, the individual may be refused entry (and as a result, may not be able to use the VWP again in the future).

In December 2015, Congress passed the Consolidated Appropriations Act 2016, which included the VWP Improvement and Terrorist Travel Prevention Act (“the Act”). The Act was added to the Consolidated Appropriations Act in the wake of the shootings in San Bernadino, California last December 2^nd, 2015 and the terrorist attacks in Paris in November 13^th, 2015. The Act established new, additional requirements for travelers using the VWP. Travelers from Visa Waiver countries who cannot meet these new requirements must apply for visas in order to visit the United States. (See https://www.cbp.gov/faqs/what-are-specific-changes-vwp) The new requirements under the Act disqualify nationals of VWP countries who were present anytime on or after March 1, 2011 in Iraq, Syria, or countries listed as “countries of concern” (currently including Iran and Sudan). Nationals of VWP countries who have dual citizenship in Iraq, Syria, Iran, or Sudan are also prohibited from using VWP regardless of whether they have traveled to any of the countries mentioned above in the last several years. There is an exception for VWP travelers “whose presence in Iraq, Syria, Iran, or Sudan was to perform military service in the armed forces of a [Visa Waiver] program country, or in order to carry out official duties as a full-time employee of the government of a program country.” However, a person who is a national of Iraq, Syria, Iran, or Sudan cannot qualify for this exception. This list of “countries of concern” may grow in the future at the discretion of the Secretary of Homeland Security.  After the initial announcement about these changes, the Department of Homeland Security added that people cannot use VWP if they were present in Libya, Somalia or Yemen at any time since March 1, 2011. (Dual nationals of Libya, Somalia or Yemen are not prohibited from using VWP right now.)

One might ask, “What’s the big deal? Just go apply for a visa if that’s what you have to do.” It’s true that anyone who wants to visit the U.S. can still apply for a visitor visa even if they have traveled to countries that make them ineligible to use VWP. The trouble is this: Our law is written to presume that everyone is seeking to immigrate to the United States (read: move here and live here permanently.) It is up to a visitor visa applicant to show otherwise, and Consular officers may deny visitor visas for any reason, even their own (sometimes completely unfounded) negative opinion of a visa applicant. Those who have experience applying for visitor visas know that with this legal standard in place, the process is a crapshoot – a person seeking a visa to visit the U.S. must prepare herself and her documents, but once she is in front of a Consular officer, it’s up to chance. The Houston economy benefits significantly from international travel, for purposes of tourism, business visitors, and visits from potential investors looking to determine if our city is right for their future ventures.

As Texas Monthly reported in its November 30^th article, Texas Without Syrian and Lebanese Refugees Would Not Be Texas, our state has benefitted significantly from Lebanese and Syrian immigrants. We also have sizeable populations of Persian and Iraqi immigrants. Disqualifying those who have dual nationality in a VWP country and one of these countries will likely mean that these prospective visitors will face additional hurdles in getting authorization to visit the United States at all, much less Texas or the city of Houston.

Many of the changes to the VWP are recent. It remains to be seen whether nationals of countries of concern will have a particularly difficult time getting visitor visas or experience other travel issues.

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