The primary thrust of this new law is to mitigate the risk of someone either living in the U.S., or travels there frequently, to become radicalized with terrorist ideals and training while outside the U.S., then comes home to launch a terrorist attack. This law reflects the San Bernardino, CA attack last year, whereby, an Islamic husband and wife (a U.S. citizen and a Foreign National spouse who entered the U.S. legally) traveled outside the U.S., received radicalization training, then returned home and committed a terrorist act.

On January 21st, the first set of revised immigration rules stemming from the new law, were activated. The new rules are as follows:

• Visa Waiver Program. U.S. immigration rules already in effect, provide a special arrangement – called the Visa Waiver Program – which authorizes passport holders from any of the following countries to enter the U.S. for up to 90 days without an entry visa.

VISA WAIVER PROGRAM COUNTRIES

• Andorra

• Australia

• Austria

• Belgium

• Brunei

• Chile

• Czech Republic

• Denmark

• Estonia

• Finland

• France

• Germany

• Greece

• Hungary

• Iceland

• Ireland

• Italy

• Japan

• Latvia

• Liechtenstein

• Lithuania

• Luxembourg

• Monaco

• Netherlands

• New Zealand

• Norway

• Portugal

• Republic of Malta

• San Marino

• Singapore

• Slovakia

• Slovenia

• South Korea

• Spain

• Sweden

• Switzerland

• Taiwan

• United Kingdom

The new immigration rules under the Act specify that 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 U.S. embassies or consulates. Prior to January 21st, citizens of VWP-eligible countries submitted a request for VWP recognition; this was documented in the Electronic System for Travel Authorizations (ESTAs) to make entries into, and exits from the U.S. ESTA also holds previous traveler information, indicating if they have dual citizenship in Iran, Iraq, Syria or Sudan. If an ESTA approved traveler hits either trip flare – entry to one of the four countries in the past five years, or they are dual citizens of a VWP country AND one of the four countries listed above – those travelers have had their ESTA authorizations revoked. Until they see a U.S. Consular Officer to apply for a visa waiver, they cannot enter the United States. Visa waivers (since they are no longer eligible for an ESTA authorization) are issued on a case-by-case basis…there’s no ready-made rule(s) on what will or will not get someone an approved visa waiver to get back into the U.S.

The Secretary of Homeland Security indicated some of the visa waiver possibilities, such as:

– Travelers to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;

– Travelers to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;

– Travelers to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;

– Travelers to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and

– Travelers to Iraq for legitimate business-related purposes.

Current U.S. passport holders and Foreign Nationals with resident Green Cards already have travel data on-file with Homeland Security in regard to their travel to one of the four, flagged countries, and any dual citizenship thereto. The new rules, so far, do not revoke someone’s Green Card for travel to, or dual citizenship from, the four flagged countries.

Steve Miller, Copyright (c) 2016