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.

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