Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

The Visa Waiver Program’s New and Improved Two-Tier System

4 Comments

Shane Bagwell

America’s most recent change to its immigration system has been a disastrous oversight of secondary consequences that often come as the result of hasty, reactionary politics. Updates to the Visa Waiver Program were generally positive, but a provision included in the update meant to restrict the travel rights of certain groups backfired. Here we will review the program, the changes, and the potential repairs planned for VWP.

The Visa Waiver Program authorizes citizens of participating countries to travel to the United States without a visa for stays of 90 days or less, avoiding the burden of applying through a U.S. Embassy or Consulate prior to entry into the country.[1] Started in 1986, the program was intended to facilitate tourism and short-term business stays, while cutting red tape and shifting State Department resources to more high priority tasks.[2]

Countries which are currently authorized under the Visa Waiver Program:

VWP

 

In light of recent events around the world, anti-immigrant, anti-refugee, and anti-Muslim sentiments have been inflamed, particularly in the west. As a result of these fears, the U.S. Congress passed the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015”, section 3 of which prevented persons from entering the United States under the Visa Waiver Program if the person: “has been present, at any time on or after March 1, 2011, in Iraq or Syria, in a country designated as one that has repeatedly provided support for acts of international terrorism, or in any other country or area of concern designated by the Department of Homeland Security (DHS); and regardless of whether the alien is a national of a program country, is not a national of Iraq or Syria, a country designated as a country that has repeatedly provided support for acts of international terrorism, or any other country or area of concern.”

The second part of this change, that “regardless of whether the alien is a national of a program country” a person may be excluded as a member of a class due only to their other citizenship has been most troubling to civil rights advocates and others.[3] There has been particular uproar from the Iranian-American community, due in part to the fact that Iranian citizens are unable to renounce citizenship, and it passed down to children in certain situations. For example, Article 976 of the Civil Code of Iran states that a child born to an Iranian father, no matter where they may have been born, is an Iranian citizen. This means that, for citizenship purposes, a child whose grandfather was Iranian, but who has no cultural or political ties to Iran may be an Iranian citizen through patrilineal descent.

The second section of the act failed to make exceptions for any group visiting countries such as Syria or Iraq for legitimate purposes. The Obama administration announced that certain groups would be exempted from the visa requirement, such as journalists, humanitarian workers, those traveling on behalf of international organizations or local governments, as well as those who have visited Iraq for “legitimate business-related purposes,” or travelled to Iran after July 14, 2015.[4] These actions have received pushback from Republicans, who believe that the unilateral granting of exemptions was not authorized in the bill.

PassportControl

Because the Visa Waiver Program is reciprocal, there is a likelihood that these restrictions will be matched by partner countries.[5] Rep. Jared Hauffman (CA-2)., in a letter to President Obama, stated that “[b]ecause the VWP is founded on reciprocity, our U.S. citizen constituents are concerned that this exclusion could result in our VWP partners severely restricting, or entirely ending, visa-free travel for certain U.S. citizens.” This presents an awkward circumstance for Americans who hold multiple citizenships, either by choice or involuntarily.

Rep. Justin Amash (MI-3) introduced the Equal Protection in Travel Act of 2016 on January 13th to repeal the controversial section that applies only to dual nationals of Visa Waiver Program countries.[6]  The bill has received broad bipartisan support, but, in an unpredictable Congress, nothing is certain. As such, it is possible that the restrictions could remain in place, and that retaliatory measures could be taken reducing the utility of U.S. passports for dual nationals under the program.

Until the Equal Protection in Travel Act is signed in to law, the status of dual nations in Visa Waiver Program countries remains in flux. Without swift congressional action, the rules will remain in place, and could cause chaos for dual national travelers within the network. It is worth noting that Canadian citizens are visa exempt and are not participants in the Visa Waiver Program, and therefore the new restrictions do not apply to Canadian citizens who have dual nationality in one of the specified countries.[7]

Shane Bagwell is a 3L at the University of Baltimore School of Law, and a graduate of West Chester University with a Bachelor of Arts in Political Science. He currently serves as the President of the Military Law Association. His interests are Middle Eastern politics, international conflicts, and the law of land warfare. He is currently a law clerk for the Office of the State’s Attorney for Baltimore City, Economic Crimes Division.

[1]     “Visa Waiver Program,” U.S. Dept. of State, https://travel.state.gov/content/visas/en/visit/visa-waiver-program.html

[2]     Visa Waiver Permanent Program Act, Pub. L. 106-396, https://www.gpo.gov/fdsys/pkg/PLAW-106publ396/html/PLAW-106publ396.htm

[3]     These Changes To Tighten Visa Waiver Program Are Now In Effect, NPR. http://www.npr.org/sections/thetwo-way/2016/01/21/463846286/these-changes-to-tighten-visa-waiver-program-are-now-in-effect

[4]     Visa Waiver: U.S. Visa Rules Eased For Some European Travelers Who Visit Terrorist Hotspots, HNGN. http://www.hngn.com/articles/172169/20160122/visa-waiver-u-s-rules-eased-european-travelers-who-visit.htm

[5]     Austin, L. G. (2015, December 18). Visa Waiver Program Improvement Act short on prevention but punitive towards Iranian Americans, the Hill. http://thehill.com/blogs/congress-blog/foreign-policy/263661-visa-waiver-program-improvement-act-short-on-prevention

[6]     Equal Protection in Travel Act of 2016, H.R.4380, 114th Cong. (Referred to the House Committee on the Judiciary 1/13/2016)

[7]     8 CFR §212.1(a)

 

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Author: Ius Gentium

Ius Gentium is a legal forum for the University of Baltimore School of Law's Center for International and Comparative Law Fellows to write on and discuss international and comparative legal issues.

4 thoughts on “The Visa Waiver Program’s New and Improved Two-Tier System

  1. Due to the fact that VWP was founded on reciprocity, do you think many countries will restrict the travel of certain U.S. citizens? I wouldn’t think it would affect the countries of whose citizens would not be affected. What is your take?

    • It’s absolutely possible that they could, but considering the cash which US tourists tend to bring with them, I think it unlikely. It could certainly happen as a matter of principal, however.

  2. If I understood that last tidbit correctly, t almost seems to be a double standard; new restrictions imposed on citizens or visitors of those specified countries, but yet, if you are a dual citizen in one of these countries and Canada, you are exempt. I understand the generally positive relationship between the US and Canada, but I fail to see what about their dual citizenship with Canada would make someone exempt from the new restriction, given the supposed purpose of the new restrictions.

  3. As a follow up, Europe is considering reciprocating the restrictions. http://www.washingtontimes.com/news/2016/mar/21/david-inserra-eu-threatens-retaliation-against-us-/

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