Congress is Considering Changes to the Visa Waiver Program

A bill winding its way through Congress could impact business travel and the U.S. tourism industry. On December 8, 2015, the House of Representatives passed by a vote of 407-19 the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (H.R.158).  This bill would amend the Immigration and Nationality Act to include terrorism risk as a factor the Department of Homeland Security (DHS) must consider under the agency’s Electronic System for Travel Authorization (ESTA) used to determine an alien's eligibility to travel to the United States under the Visa Waiver Program (VWP). 

Established in the 1980s, the VWP enables nationals or citizens of 38 designated countries to travel to the United States for tourism or business purposes for stays of 90 days or less, without first having to obtain a visa at a U.S. consulate.  All nationals or citizens of VWP countries are required to make an application with the ESTA, and must have an approved ESTA prior to boarding a carrier to travel by air or sea to the United States under the VWP.  Currently, travelers from VWP countries can be denied ESTA approval if something in their background triggers the requirement for further scrutiny, they have a communicable disease, have been arrested for and convicted of certain crimes, or have a past history of visa revocation or deportation. Any of these instances will require them to appear for an in-person interview at a U.S. consulate in order to obtain authorization to travel to the United States. 

While DHS introduced new traveler screening and information-sharing requirements for VWP countries in August 2015 to specifically address the threat posed by foreign terrorist fighters, in the wake of the attacks in Paris, on November 30, 2015, the White House announced additional actions to include further security enhancements to the VWP.  These actions, set forth in the new legislation, include capturing information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven, working with other countries to better facilitate terrorism information sharing, and accelerating the review process for VWP partner countries.

In addition to the changes noted above, H.R.158 authorizes the DHS to suspend a country from the VWP without prior notice if the country fails to comply with an agreement to share information regarding whether its citizens and nationals traveling to the United States pose a U.S. security threat. Under the terms of the legislation, the DHS must notify an affected country and Congress of any suspension.

If these changes are enacted, a traveler barred from the ESTA would still have the option to apply for a nonimmigrant visa at a U.S. consulate.  However, the process could negatively affect how business is conducted due to the potential delays on the availability of the traveler to reach the United States.  Many foreign nationals have business needs to enter the United States and a delay in their availability to conduct business in the United States could be detrimental to the company’s operations, particularly if the business at hand is time-sensitive. The changes could also result in a decrease in U.S. tourism, which would affect the transportation, entertainment industries, among others.

The following are some brief statistics from the U.S. Department of Commerce, International Trade Administration, National Travel & Tourism Office, Survey of International Air Travelers, and DHS Form I-94 arrival records:

  • More than 19 million travelers visit the U.S. through the VWP annually.
  • 30 of the 38 designated countries are European.
  • In 2014, the U.S. received 34,419,016 international visitors, 37.1% of whom came from Europe. 
  • In 2014, the U.S. received 5,163,000 business visitors (73.1% in Management, Business, Sales, Science, & Arts), spending on average $4,185, and 23,474,000 visitors for pleasure, spending on average $3,009.

H.R.158 was received by the Senate on December 9, 2015, and is currently pending.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.