By Mahsa Aliaskari and Alexander Madrak
Seyfarth Synopsis: Citing security reasons, the Trump administration announces expansion of requirements for the 38 countries that participate in the U.S. Visa Waiver Program (VWP) allowing limited travel to the U.S. for business and tourism.
On December 15, 2017, the Department of Homeland Security (DHS) announced additional security measures for countries whose nationals use the U.S. Visa Waiver Program (VWP) for temporary visits to the U.S. The Administration’s most recent announcements surrounding the VWP requirements fall in line with its ongoing efforts to tighten the rules for those seeking to visit, work or live in the United States. With national security serving as the justification for the enhanced scrutiny and increasing limitations, while the VWP changes may appear innocuous, they may also impact how companies handle business travel. For clarification on all of the acronyms used in this space, remember – if you are traveling using ESTA – that means you are traveling under the VWP program.
The VWP allows citizens from 38 countries to travel to the United States for business or pleasure for up to 90 days. More than 20 million people participate in the program each year, generating nearly $100 billion in travel exports for the U.S. economy. European countries encompass a large majority of the 38 countries with Australia, New Zealand, Japan, Singapore and South Korea also participating.
The DHS announcement included a requirement for VWP-participating countries to screen travelers crossing their borders from third-party countries against U.S. counterterrorism information. Another change that more closely aligns with the Administration’s pattern of tightening the rules for entry into the U.S. requires VWP countries to engage in a public information campaign aimed at reducing visa overstays. This public information campaign requirement will be applied to any country where more than 2% of its nationals overstay their 90-day stay in the U.S. Current statistics show that only 4 of the 38 countries that participate meet this threshold – Greece, Hungary, Portugal, and San Merino.
DHS has historically struggled to monitor and enforce exit requirements. With these new VWP requirements, we may see efforts to better track VWP travelers, which may mean more countries being subject to this new public information campaign requirement. But more importantly, it is not yet clear what kind of an “information campaign” would be deemed sufficient for a country to comply, how it would be monitored and what kind of unilateral action will be taken if a country is deemed noncompliant. What we do know is that the DHS Secretary has the authority to designate and remove countries from the VWP. Without a clear roadmap of how these new requirements will be monitored or implemented, there is some cause for concern that a country could be removed at any time.
Now more than ever, business travelers should keep in mind that overstaying the 90-day period even by one day not only makes the person deportable from the U.S., but can also mean losing the privilege of using the VWP. To visit in the future, a B visitor stamp would have to be obtained at a U.S. consulate for any entries into the U.S., and the B visa applicant may have to explain their overstay to a consular officer.
The increased requirements on the VWP follow the Administrations’ efforts to increase enforcement and restrictions in the immigration arena. Stay tuned.