The Visa Waiver Program (VWP) permits citizens¹ of 38 countries to travel to the United States for legitimate business or tourism for stays of up to 90 days without first needing to obtain a physical visa from a U.S. consulate or embassy. In return, the 38 countries designated as part of the VWP permit U.S. citizens to travel to their countries for stays generally up to 90 days for business or tourism purposes, without the need to first obtain a visa from one of these countries' embassies or consulates.

The VWP is often cited as a very useful program because it allows for business or tourism travel without the need for extensive advanced planning and without the need to go through an often cumbersome and expensive visa application process subject to the whims of the consular officer conducting the visa interview.

While the need for obtaining a physical waiver is eliminated under the VWP, those entering the U.S. pursuant to the VWP may only engage in those activities which are allowed under the traditional B-1 business visitor or B-2 pleasure visitor categories.

Such activities include for business:

• Engaging in commercial transactions (i.e., buying or selling) which do not involve gainful employment in the United States

• Negotiating contracts

• Consulting with business associates, including attending meetings at a U.S. corporation

• Litigating as a litigant or witness

• Participating in scientific, educational, professional, or business conventions, conferences, or seminars

• Undertaking research

• Short-term training

And for pleasure:

• Social visits of friends and family

• Seeking medical treatment

• Tourism

• Short-term, non-credit study

• Participating in amateur athletics and entertainment events

Each trip to the U.S. on the VWP is limited to 90 days per admission, and the duration of admission may not be extended from within the United States.

Individuals who seek entry to the U.S. under the VWP must first apply for approval with U.S. Customs and Border Protection (CBP) through CBP's Electronic System for Travel Authorization (ESTA) portal. Travel permission, if granted, is typically granted nearly immediately or at most within one or two days of application through the ESTA portal.

Travelers who are denied ESTA approval may ask CBP to re-review their application and submit evidence to CBP in order to attempt to overcome the concerns which resulted in the denial of ESTA approval. If ESTA approval cannot be obtained, then travelers may seek a traditional visa from a U.S. embassy or consulate, but the denial of the ESTA application does create a near-insurmountable challenge to being granted a traditional visa.

In addition to approval though the ESTA system, travelers must also have the following in order to seek admission into the U.S. pursuant to the VWP program:

• A valid, roundtrip ticket with a U.S. departure date scheduled for no more than 90 days from the date that admission is sought

• A valid, machine-readable passport from a participating country

And travelers must also:

• Be traveling by sea or air via an approved air or sea carrier

• Not have previously violated the conditions of previous admissions to the United States, or have been previously found ineligible for a U.S. visa

Two Recent Changes for Increased Security as of April 1

Because of recent security threats and acts of violence within the U.S., two significant changes to the VWP have occurred:

• As of April 1, 2016, all VWP entrants must in possession of machine-readable passports that are both electronic and fraud resistant. All passports must also contain relevant biographic and biometric information about the passport's owner.

• Any individual who is a dual citizen of Iran, Iraq, Sudan (but not including South Sudan), Libya, Somalia, Yemen, or Syria, or who has visited any of those countries since March 1, 2011, is ineligible for VWP travel.

The recent changes to the VWP provide for limited exceptions to the bar against those who have visited Iran, Iraq, Sudan, Libya, Somalia, Yemen, or Syria. To qualify, the otherwise barred individual must establish that the purpose of the travel to Iran, Iraq, Sudan, or Syria was for one of the following reasons:

• On behalf of an international organization, regional organization, or sub-national government on official duty

• On behalf of a humanitarian nongovernment organization on official duty

• For travel to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action

• For travel to Iraq for legitimate business-related purposes

These military and official government services exceptions do not apply to the dual national restriction.

CBP advises that:

A new ESTA application with additional questions will be released in late February that will address the exceptions provided for in the new law, although travelers who are subject to these exceptions are advised to carry with them proof of their military or government service on their trip to the United States. If an individual has his or her ESTA denied or revoked, and has urgent travel prior to late February, the individual may go to the CBP website. If a traveler needs to speak to someone immediately, they may contact the CBP information Center. The traveler may also apply for a nonimmigrant visa from a U.S. Embassy or Consulate. The individual should mention that an ESTA was denied due to the new law and attach a copy of the ESTA denial email in the request for an expedited visa interview. The person should also mention reasons they believe the travel barring ESTA approval was to perform military services in the armed services of a program country, or in order to carry out official duties as a full-time employee of the government of a program country.

Finally, it should be noted that Canadian citizens are visa exempt and are not participants in the Visa Waiver Program; thus the new restrictions do not apply to Canadian citizens who have dual nationality in one of the prohibited countries.

This article first appeared in the Aug. 25, 2016, International Law Blog, published by the State Bar of Wisconsin International Practice Section. To receive future blog posts from this section, join the International Practice Section. To view additional blog articles published by this and other State Bar of Wisconsin sections, visit the Recent Blog Postings on WisBar.org.

Endnotes

¹ Travelers must be a citizen of a VWP country to use the program. Residence in a VWP country, or the possession of refugee travel documents issued by a VWP member state, does not qualify an individual for VWP travel.