HR 158–Is the Visa Waiver Program on Borrowed Time?

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was passed into law and signed by President Obama on December 19, 2015  set off all kinds of alarm bells among residents of and frequent travelers to the Middle East.    The law created two new categories of individuals who are not eligible for visa-free entry to the US:  persons who have traveled to Syria, Iraq, Iran, and Sudan at any time on or after March 11, 2011, and any individuals who are dual nationals of one of those countries and one of the 38 countries eligible to participate in the Visa Waiver Program (VWP) .  It is too soon to know how many people who previously could utilize the VWP for visa-free entry to the US for business and tourism will now be compelled first to apply for and receive a nonimmigrant visa for future business and pleasure travel.  But despite the predictable uproar over the new law,  it could have been much worse–the entire program could have been cancelled, leading to travel disruption, chaos at understaffed consular sections in US embassies, and significant economic and commercial harm to businesses and individuals.

The Visa Waiver Program has been controversial among some in Congress and law enforcement for many years.  Originally adopted as a pilot program in the late 1980s to remove the visa requirements for entry to the US for tourist and business travelers from certain countries, its annual renewal was frequently subjected to Congressional delays and wrangling over whether certain countries should or should not be eligible to take part.  Although Congress eventually made the program permanent,  program participants could find themselves suddenly disqualified to participate, as famously happened to Argentina in 2002 and Uruguay in 2003,  if too many nationals from their country were found to be abusing the program.  To make matters worse,  events since 9/11 caused growing fears that visa-free entry to the U.S. made it too easy for potential terrorists to evade security vetting as part of the visa process.  These concerns led to the adoption of the online ESTA pre-clearance procedure that VWP travelers now must utilize before being granted permission to enter the US without visas.  However, ESTA didn’t go far enough for some critics of the VWP, and the rapid rise of ISIL and confirmed reports that citizens of many VWP program countries were actively engaged in supporting the activities of the Islamic State in Syria and Iraq put the entire program at real risk of being eliminated.

Congress stepped back from this precipice when it passed H.R. 158.  Under its provisions the VWP continues in operation for most persons previously eligible for visa-free entry to the US, but not all.  Persons who fit into the categories noted above will now have to apply for visas and receive full security screening as part of that process before they can be admitted to the US.  The disruption to travel and business activity this will cause may be considerable.  Families from VWP countries may have their travel plans upended because one member of the group may have dual nationality with Syria, or may have vacationed in Iran;  business travelers may miss conferences because of the need to work a visa appointment into a tight schedule.  Already criticism of the law’s impact is circulating widely in social and print media.  It has been rightly pointed out that restrictions on freedom of travel can cause harm to individuals and societies alike.

These objections are legitimate, but futile.  The law’s enactment may have been the only way to protect the VWP itself from elimination, and had that occurred, the consequences would have been much worse for everyone.   Citizens of our closest allies would be compelled to wait for weeks and stand in long lines in order to get interviewed for visas, at embassies no longer staffed to accommodate a huge increase in visa requirements.  U.S. consular sections would have been overwhelmed.  The economic and political fallout would have been dramatic and damaging.

Critics of HR 158 should keep this in mind and focus on ensuring that the new restrictions are widely understood and minimally disruptive rather than attacking the mind-set of the law’s proponents.  This may not be as difficult as some think.  For travel agents,  immigration attorneys and HR personnel in multinational corporations, relatively simple and straightforward changes to existing questionnaires and intake forms can help identify individuals from VWP program countries who will now need visas far enough in advance to minimize last minute travel disruptions.  Frequent travelers who fall into the new categories can apply for and receive multiple entry visas  that will not only allow them entry to the U.S. but even to request longer periods of stay than VWP travelers, who are limited to stays of 90 days on each entry.

Disruptions caused by the new law will be worst in the next several months as procedures are sorted out and everyone gets used to the changes.  Only after that can we assess the net effects of HR 158 on commerce and travel.









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