A healthy and non-overly restrictive immigration policy is essential to the health of the American economy and the country’s current and historical aim of attracting the best and the brightest including people with a desire to work hard to build a better life. This goal also extends to the free-flow and exchange of ideas facilitated through travel by executives, scientists, and other influential individuals. These highly accomplished individuals may wish to visit the U.S. to speak at conferences or seminars, negotiate business deals, sign contracts, and work on highly sophisticated or technical matters concerning an array industries and interests including high tech startups, biomedical firms, and aerospace engineering interests – to name a few.  

However, concerns regarding the intentions of some foreign travelers following the Paris and San Bernardino terrorist attacks resulted in the Terrorist Travel Prevention Act of 2015 which was passed by Congress in late 2015. The law amended certain aspects of the Visa Waiver Program which allows individuals from certain nations to enter the United States visa free for purposes of tourism or business. The experienced Miami immigration attorneys of Colombo & Hurd can provide some insight into the array of changes implemented by this act. Furthermore, we can assess the effect of President Obama’s recent executive action modifying the act.

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Restrictions Implemented to Visa Waiver Program through Terrorist Travel Prevention Act of 2015

Chiefly, the main effect of Terrorist Travel Prevention Act of 2015 is to amend the eligibility criteria set forth of individuals to qualify for the Visa Waiver Program. These changes were implemented starting January 21, 2016. The Department of Homeland Security with the U.S. Department of State have issued guidance relating to the changes implemented by this legislation.

One of the major changes affected by this legislation is that the nationals of the 38 qualifying Visa Waiver  Program nations including Australia, Austria, France, Germany, Iceland, South Korea, Sweden, and the United Kingdom who would otherwise be eligible may become ineligible if they have traveled to certain nations. As set forth in the original legislation, nations who have traveled to Iraq, Sudan, or Syria on or after March 1, 2011 are now ineligible. Furthermore nationals of Visa Waiver Program nations who are dual citizens or otherwise also nationals of Iraq, Sudan, or Syria are also ineligible.

However, there are a number of exceptions to this change and other instances where eligibility for the Visa Waiver Program is contingent upon a case-by-case analysis. For instance, individuals present in the restricted nations due to military service in the armed forces of a Visa Waiver Program nation are exempted from the inclusion. Individuals who traveled to these nations as part of their official duties as a full-time government employee are also exempted. However, the restriction dual-nationals is not cured or otherwise affected by these exemptions. Dual nationals with valid Electronic System for Travel Authorizations (ESTA) registration will have this authorization revoked.

Certain individuals may be eligible for a case-by-case review regarding their Visa Waiver Program eligibility. This may include individuals who traveled for the purposes of or on behalf of:

  • Legitimate business purposes
  • As a journalist for legitimate news reporting purposes
  • An NGO on official business
  • International organizations, regional organizations, and sub-national governments on official duty

As with the above exemptions, these case-by-case exemptions are not available for dual nationals.

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Obama Provides Carve-out for Individuals Traveling From or Who Have Traveled to Iran

While the legislation as passed by Congress originally contained prohibitions on Iran nationals and individuals traveling to Iran, executive action by President Obama has rescinded these restrictions. The original legislation contained a provision permitting exemptions for those who have traveled, “in the law enforcement or national security interests of the United States.” The approach implemented by President Obama and other federal agencies includes a specific carve-out to permit for visa waiver decisions on a case-by-case basis for people who traveled to Iran to pursue legitimate business activities following the adoption of last year’s nuclear accord. Furthermore, individuals who have traveled to  Iran, Iraq, Sudan and Syria are still ineligible for the visa waiver program, but they may apply for entry to the U.S. through the traditional visa process as administered by the U.S. State Department.

However, this is a fast-changing area and due to Congressional concern over the changes implemented, it is not clear whether events will develop further.

Experienced Visa and Visa Waiver Guidance from Miami Immigration Lawyers

The experienced immigration lawyers of Colombo & Hurd can provide on-point trusted visa and immigration advice for individuals and businesses. To discuss how our services can assist you call 800-659-7142 or contact us online to schedule a consultation at our Orlando or Miami offices.