US Implements Changes to Visa Waiver Law

January 21, 2016
On January 21, the U.S. State Department began implementing changes to the U.S. Visa Waiver Program. Citizens of 38 countries, including many E.U. states, do not need visas to travel to the United States. But the new measure bars citizens of those countries who are also dual nationals of Iran, Iraq, Syria and Sudan from participating in the program. Those who have travelled to those four countries since 2011 also cannot participate, according to some interpretations. Secretary of State John Kerry, however, noted that the Obama administration can waive the visa requirements, among other things, so as not to “interfere with the legitimate business interest of Iran.”  
 
The change was first proposed by Congress to make it more difficult for terrorists who hold E.U. or other citizenships to enter the United States. House Resolution 158 passed 407 to 19 on December 8. Iranian officials condemned the bill even before President Obama signed it into law as part of a $1.1 trillion spending bill on December 18. More than 100 Iranian lawmakers sent a letter to President Rouhani condemning the move and demanding government action. “This visa-waiver thing is absurd,” Iranian Foreign Minister Mohammad Javad Zarif told The New Yorker. “Has anybody in the West been targeted by any Iranian national, anybody of Iranian origin, or anyone travelling to Iran?”
 
On December 19, Kerry reportedly wrote a letter to Zarif assuring him that Washington will meet its commitments under the nuclear deal despite the changes to the U.S. Visa Waiver Program. Some U.S. lawmakers, however, have opposed Kerry’s outreach to Zarif. “[I]t was not and has never been Congress’s intent to allow the Administration to grant a blanket waiver to travelers to and from Iran in order to facilitate the implementation of the Iran deal,” said House Majority Leader Kevin McCarthy (R-CA). The State Department press release and text of Kerry’s letter to Zarif are below, followed by reactions from Iranian officials' and U.S. lawmakers. 
 
State Department Press Release
Jan. 21, 2015
 
The United States today began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act).  U.S. Customs and Border Protection (CBP) welcomes more than a million passengers arriving to the United States every day and is committed to facilitating legitimate travel while maintaining the highest standards of security and border protection.  Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):
 
  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.
These individuals will still be able to apply for a visa using the regular immigration process at our embassies or consulates.  For those who need a U.S. visa for urgent business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis.
 
Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked.
 
Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States.  Such waivers will be granted only on a case-by-case basis.  As a general matter, categories of travelers who may be eligible for a waiver include:
 
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who 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.
Again, whether ESTA applicants will receive a waiver will be determined on a case-by-case basis, consistent with the terms of the law.  In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.
Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate.  Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.
 
The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation.
 
An updated ESTA application with additional questions is scheduled to be released in late February 2016 to address exceptions for diplomatic- and military-related travel provided for in the Act.

Secretary of State John Kerry
 
Dear Mr. Minister:
 
Thanks for a constructive meeting yesterday. I wanted to get back to you in response to your inquiry about amendments to our Visa Waiver Program. First, I want to confirm to you that we remain fully committed to the sanctions lifting provided for under the JCPOA. We will adhere to the full measure of our commitments, per the agreement. Our team is working hard to be prepared and as soon as we reach implementation day we will lift appropriate sanctions.
 
I am also confident that the recent changes in visa requirements passed in Congress, which the Administration has the authority to waive, will not in any way prevent us from meeting our JCPOA commitments, and that we will implement them so as not to interfere with legitimate business interests of Iran. To this end, we have a number of potential tools available to us, including multiple entry ten-year business visas, programs for expediting business visas, and the waiver authority provided under the new legislation. I am happy to discuss this further and provide any additional clarification.

 

Foreign Minister Mohammad Javad Zarif
 
“This visa-waiver thing is absurd. Has anybody in the West been targeted by any Iranian national, anybody of Iranian origin, or anyone travelling to Iran? Whereas many people have been targeted by the nationals of your allies, people visiting your allies, and people transiting the territory of, again, your allies. So you’re looking at the wrong address…”
—Dec. 17, 2015, in an interview with The New Yorker
 
“Unfortunately, there are mixed signals coming from Washington, mostly negative signals, including the visa waiver program restrictions. Now we await for the decision by the administration on how it wants to bring itself into compliance with its obligations under the JCPOA.”
 
“I have had discussions with Secretary Kerry and others on this for the past several days since it’s become known that this was the intention. And I wait for them to take action.”
—Dec. 19, 2015, in an interview with Al Monitor
 
“If the Congress law is implemented as it is, it would definitely be a breach [of the nuclear deal].”
—Dec. 23, 2015, at a press conference
 
Parliamentary Speaker Ali Larijani
 
“Although it is not an important issue, it is aimed at harassment and is against the paragraphs 28 and 29 of the Joint Comprehensive Plan of Action (JCPOA).”
 
“If the Americans pursue the plan, they will destroy an achievement with their own hands since it is against the JCPOA and it will trouble them.”
—Dec. 17, 2015, in a speech in Qom
 
Deputy Foreign Minister Syed Abbas Araghchi
 
“The U.S. Congress's approval has different legal aspects which are being studied and if it is against the contents of the Joint Comprehensive Plan of Action (JCPOA), we will take action against it.”
 
“We are in consultation with the Group 5+1 (the US, Russia, China, Britain and France plus Germany) and specially the EU (Foreign Policy) Coordinator (Federica Mogherini) to show the necessary reaction in this regard.”

—Dec. 13, 2015, to reporters in Tehran 

“The law Obama signed contradicts JCPOA. Definitely, this law adversely affects economic, cultural, scientific and tourism relations.”

—Dec. 20, 2015, according to state television

“Although it is not an important issue, it is aimed at harassment and is against the paragraphs 28 and 29 of the Joint Comprehensive Plan of Action.”
—Dec. 27, 2015, in a parliament session
 
Parliament’s National Security and Foreign Policy Committee Chairman Alaeddin Boroujerdi
 
“It is true that they [Americans] have set restrictions on citizens of other countries but they have committed such a violation indirectly.”
—Dec. 20, 2015, according to Press TV
 

U.S. lawmakers 

House Majority Leader Kevin McCarthy (R-CA)
 
“When Congress passed legislation to reform the visa waiver program, we intended to keep the American people safe from terrorism and from foreign travelers who potentially pose a threat to our homeland. This legislation, which the President signed into law, allows the Secretary of Homeland Security to waive the new strict requirements for specific people if and only if it would benefit law enforcement or the national security interests of the United States. Contrary to what the Secretary of State seems to be saying to Iranian Foreign Minister Javad Zarif, it was not and has never been Congress’s intent to allow the Administration to grant a blanket waiver to travelers to and from Iran in order to facilitate the implementation of the Iran deal.

 

“The visa waiver reform law is not ambiguous, and, by Presidential signature, it is the law of the land. Instead of undermining Congressional intent regarding the visa waiver program, the White House should instead focus on Iran’s repeated violations of the U.N. Security Council’s bans on missile tests. Iran’s unwillingness to follow these international agreements should be a red flag that the Iran nuclear deal isn’t worth the paper it is written on.”

—Dec. 21, 2015, in a statement

 

Photo credit: Javad Zarif by Robin Wright