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Fear and Loathing in Congress: House Passes H.R. 158 to Limit Visa Waiver Travel for America's Closest Allies

Fear and Loathing in Congress: House Passes H.R. 158 to Limit Visa Waiver Travel for America's Closest Allies

Note: H.R. 158 was signed into law on December 18, 2015.

On December 8, 2015, the U.S. House of Representatives caved in to fear and xenophobia, passing H.R. 158, The Visa Waiver Program Improvement and Terrorist Prevention Act. Section 3 of H.R. 158 would end nearly three decades of visa free travel for certain passport holders from America’s traditional friends and allies. Certain visitors to the U.S. from the United Kingdom, France, and Australia, for instance, would be required to apply for a visa to visit family or conduct business in the United States, merely by virtue of holding dual nationality with Iraq, Syria, Iran and Sudan, or for having visited those countries within the last five years, even as journalists, researchers, human rights advocates, or international aid workers. These proposed visa rules would apply regardless of whether a VWP visitor was involved in any wrongdoing, and put U.S. citizens at risk of retaliation by visa waiver countries.

Although H.R. 158 is not yet law, it has already sown fear and mistrust in the immigrant community.The Law Offices of Daniel Shanfield – Immigration Defense PC has drafted this Q&A to help foreign nationals and their families better understand the impact of H.R. 158.

Q: What is the visa waiver program (VWP)?

A: Under Section 217 of the Immigration & Nationality Act, the VWP allows visa-free entry to the U.S. for citizens of 38 countries that are friends and allies of the United States, including many European countries, Australia, and Japan. Under VWP, nationals of visa-waiver program countries may visit the US as tourists and stay for up to 90 days without the need to obtain a visitor (B1/B2) non-immigrant visa.

Q: Where can I find the list of the 38 Visa Waiver Program Countries?

A: The 38 VWP Countries are listed on the US Department of State website.

Q: I heard that visa waiver visitors can come to the United States without any screening or background checks. Is that true?

A: False. All visa waiver visitors must register electronically with DHS before coming to the United States through the ESTA system (Electronic System for Travel Authorization). The ESTA system screens visa waiver entrants against the U.S. government’s battery of criminal and security databases before they are allowed to enter the United States.

Q: How does H.R. 158 affect VWP visitors who plan to visit the U.S.?

A: If passed, Visa Waiver Program visitors are not affected by H.R. 158 bill unless 1) the VWP visitor has traveled to Iraq, Syria, Iran or Sudan since March 1, 2011; or 2) the VWP is a national of Iraq, Syria, Iran or Sudan as well as the VWP country.

Q: Would H.R. 158 ban VWP visitors who fall within the foregoing 2 categories from visiting the United States?

A: No. Visa Waiver Program visitors are not barred from traveling to the U.S.; rather, they would have to apply for a visitor visa to do so.

Q: Are there any exceptions to the H.R. 158 for visitors who fall within the 2 foregoing categories?

A: Yes. The bill allows an individual who would otherwise be prohibited from visa-free travel to come to the U.S. under VWP if the visitor’s presence in Iraq, Iran, Syria, or Sudan was for official military or government service on behalf of the visa-waiver program Country.

Q: I am a dual national of Iran and the United States and I hold Iranian and U.S. passports. How would H.R. 158 affect me?

A: H.R. 158 would not affect you. The proposed VWP amendments affect only visa waiver visitors to the United States.The proposed changes under H.R. 158 would have no effect on anyone who is returning to the U.S. as a United States citizen, a U.S. legal resident green card holder. Nor would H1-B specialty worker, F-1 student, L-1 multinational manager, or any other non-immigrant or immigrant visa category.

Q: I am a dual national of Iran and France and have a United States permanent resident green card. How would H.R. 158 affect me?

A: As discussed above, H.R. 158 does not affect U.S. permanent residents. The proposed VWP amendments affect only visa waiver visitors to the United States, not green card holders.

Q: I hold Afghanistan and United Kingdom passports as a dual national for both countries. My wife is physician from the U.K., who has visited Afghanistan to visit my family and volunteer with an international aid agency. Could the United States under H.R. 158 add Afghanistan to the Iraq, Syria, Iran and Sudan list?

A: It is theoretically possible. Travel restrictions to the United States may be expanded to VWP nationals who have traveled to or are dual nationals of “any other country or area of concern” designated by the State Department as “a state sponsor of terror.” Currently, there are three countries designated as state sponsors of terror: Iran, Sudan, and Syria. However, this list is frequently revised. Any addition to this list would be incorporated in the H.R. 158 bill by reference. Furthermore, the bill would also allow the State Department to determine that the country has a significant presence of a foreign terrorist organization or that the country is a safe haven for terrorists. Finally, 60 days after the bill’s enactment into law, the Department of Homeland Security (DHS) and the Director of National Intelligence (DNI) would confer whether to expand the list.

Q: I am a Canadian citizen who visits the United States frequently. What are the implications of H.R. 158 if I’ve traveled to Iraq, Syria, Iran or Sudan since March 1, 2011, or if I’m a dual national with one of these four countries?

A: Canadian nationals enjoy visa-free travel to the United States under a separate provision of law (8 CFR § 212.1(a)). As Canadian visitors, their entry is not governed by the visa-waiver program (INA § 217). Section 3 of H.R. 158 therefore does not apply to Canadian nationals. Dual nationality with Iran, Iraq, Syria, or Sudan, or travel to any of these countries, would not affect their access to enter the U.S. without a visitor visa.

Q: Other than Canada, is there any other country that enjoys visa-free travel to the United States outside the Visa Waiver Program Countries?

A: The only other country is Bermuda. Like Canada, nationals of Bermuda continue to benefit from visa-free entry to the U.S. regardless of their dual nationality or past travel history to Iraq, Syria, Iran or Sudan.

Q: I hold dual Iranian and United States citizenship, and my husband is a naturalized U.S. citizen from France who has visited Iran with me on vacation. How would H.R. 158 affect us?

A: H.R. 158 would directly affect U.S. citizens holding dual nationality with Iraq, Syria, Iran or Sudan, or who have visited and of these four countries since March 11, 2011. Section 3 of H.R. 158 only addresses entry into the U.S. for visitors under the visa waiver program. U.S. citizens do not enter the United States under the visa waiver program.

However, H.R. 158 if passed would likely affect America’s international relations with its visa waiver partners. Under the visa reciprocity rules between the U.S. and its friends and allies, countries like France and the United Kingdom could respond by limiting visa-free travel for U.S. citizens. For example, a U.S. Citizen who also holds Iranian nationality might no longer be able to enter the U.K. without a visa because of the H.R. 158 restrictions on U.K. nationals.

Q: When will the H.R. 158 bill come into effect?

A: H.R. 158 is only a bill and will not affect any travelers from visa waiver program countries unless it is also passed by the Senate and signed into law by the President. For now, the bill has passed the House (on December 8, 2015) and is waiting to be picked up by the Senate. If the Senate passes the bill, it will have to be signed by the President in order to become law. Before this happens, H.R. 158 remains a proposal and does not currently affect anyone traveling to the U.S. from visa waiver countries.

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