Are You Still Eligible to Travel Under the Visa Waiver Program?

Imagine arriving at the airport to travel to the United States to negotiate a contract with a lucrative US business. Landing this contract will produce a great deal of profit for your European company. You’ve taken the necessary precautions to ensure a smooth trip: arrived early for your flight, confirmed the Electronic System for Travel Authorization (“ESTA”) application you made last year is still valid, and book your hotel and car rental in the United States well in advance. However, when you get to the check-in counter, the flight agent begins questioning a recent business trip you took to the Middle East. After a bit of discussion, the agent apologises and informs you that you are not able to board the flight, and are no longer eligible to travel under the Visa Waiver Program. In shock, you must now return to your home, potentially lose out on business in the United States, and deal with the process of obtaining a US visa.

Why you may no longer be eligible to travel under the Visa Waiver Program?

Unfortunately, the above scenario is becoming increasingly more common. If you have applied for ESTA after February 2016, you may have noticed the addition of a number of questions on the application. For example, it now asks the applicant to declare whether they are now, or have been a citizen or national of any other country. The vast majority of people traveling to the United States on the Visa Waiver Program were likely unaware of any changes to the program, as the ESTA application is currently valid for two years.

Accordingly, citizens of Visa Waiver Program countries who have travelled to Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen on or after 1 March 2011, are no longer eligible to travel to the United States visa free. Further, citizens who are a dual national of a Visa Waiver Program country and Iran, Iraq, Libya, Somalia, Sudan, Syria or Yemen, are also no longer eligible to travel visa free. There are limited exceptions for those present in one of the specified countries for military or diplomatic reasons.

Who does this Act affect?

On its face, the most obvious group affected by this new Act are those who have travelled to one of the listed countries since 1 March 2011. However, an even greater number of individuals who are also dual nationals may be restricted from applying under ESTA because of the new rules. As an immigration lawyer, clients often tell us they are not a national of a country simply because they do not maintain a valid passport for that country. It is important to note that a passport is just a travel document. While a valid passport can certainly be used for proof of citizenship, citizenship is not lost because the document is expired or damaged.

Citizenship of any given country depends on that country’s rules and regulations. For example, some nations do not allow dual nationality, and immediately revoke citizenship for nationals who have obtained a second citizenship. Alternatively, other countries require a formal process of renunciation before you are no longer considered to be a citizen. In the most extreme cases, a country may never allow you to renounce your citizenship, and will consider you to be a national for life.

Before applying for ESTA, you should be clear whether or not you are a dual citizen of one of the above mentioned countries. For example, Mohamed was born in Libya to Libyan parents. When he was a child his parents moved his family from Tripoli to Palermo, Italy. Mohamed maintained his Libyan nationality throughout his childhood, and when he turned eighteen-years-old he was naturalized as an Italian citizen. He did not renounce Libyan citizenship. He now wishes to travel to the United States under the Visa Waiver Program on his Italian passport. Mohamed is not eligible to travel visa free because he is still considered to be a national of Libya.

A more difficult scenario to determine would be the following – Amira was born in Bagdad, Iraq. Her parents, both nationals of Iraq, fearing persecution, fled to the United Kingdom when she was a child. Her entire family obtained UK nationality when Amira was six years old. She has not been to Iraq since her family left, and she does not maintain any ties to the country – including a valid Iraqi passport. Amira, now thirty, wishes to travel to the United States to take her children to Disney World. She is unsure if she will be approved on ESTA.

Unfortunately, this case is difficult to analyse. Amira doesn’t know if she is still considered to be a national of Iraq. Without any formal renunciation or due process regarding her Iraqi citizenship, she likely is still considered to be a national of Iraq – despite not having a passport from the country. If Amira is in fact a dual national of the United Kingdom and Iraq, and she does not disclose this on her ESTA application, she may be found to have misrepresented herself. Misrepresentation is a serious offence, which renders a foreign national permanently inadmissible to enter the United States. As a precaution, Amira should obtain the proper visa before traveling to the US.

What is the next step?

If you are no longer eligible to travel under the Visa Waiver Program, either because you have visited one of the listed countries on or after 1 March 2011, or you are a dual national of a Visa Waiver Country and one of the countries listed, you must obtain the relevant US visa before traveling. If you wish to travel to the US for tourism, the B2 visa would be a suitable alternative to traveling under the Visa Waiver Program.

While it may be disappointing to no longer be eligible to apply for ESTA, obtaining a B2 visa offers many benefits. A B2 visa is typically issued for a period of ten years – allowing its holder to travel to the US regularly within that period, without having to apply for a new visa. Additionally, when you enter the United States on a B2 visa, the immigration officer will stamp your entry for up to six months. It is important to note that because the visa is valid for ten years, it does not allow you to remain in the US for that period of time. You should spend no more than six months out of every calendar year in the US on a B2 visa.