On December 15, 2015, Speaker of the House Paul Ryan (R-WI) announced that Congress reached agreement on a $1.1 trillion FY 2016 omnibus spending bill (HR 2029), which included a controversial provision that could have implications for the Joint Comprehensive Plan of Action (“JCPOA”).  Division O, Title II contains the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (HR 158), which would make changes to the United States Visa Waiver Program (“VWP”).

Under the VWP, DHS waives the “B” nonimmigrant visa requirement for aliens traveling from 38 approved countries, permitting stays of up to 90 days for business or tourism.  A consular interview is not required.  However, individual travelers must have a valid Electronic System for Travel Authorization (“ESTA”) approval before traveling and the participating countries must meet a number of security requirements to maintain their eligibility.

After the Paris and San Bernardino ISIL-inspired terrorist attacks, many in Congress raised concerns that potential terrorists could enter the United States without sufficient screening and sought to add restrictions to certain visa programs, including the VWP.

Proposed Visa Waiver Program Restrictions

In particular, section 3 of the omnibus provision targets travelers to certain countries or areas of concern.  It would restrict visa-free travel to the United States by: (1) VWP country nationals who have traveled to one or more of those countries since March 1, 2011; or (2) VWP nationals who also hold citizenship of one of those countries.  The legislation defines countries or areas of concern as:

  • Iraq or Syria;
  • A country designated under the Export Administration Act of 1979 (50 U.S.C. § 2405), Arms Export Control Act (22 U.S.C. § 2780), Foreign Assistance Act of 1961 (22 U.S.C. § 2371), or other provision of law for having “repeatedly provided support of acts of international terrorism” – in particular, Iran and Sudan; or
  • Any other country or area of concern designated by the Secretary of Homeland Security pursuant to this legislation.

The legislation authorizes the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to designate a country or area of concern based on the following criteria:

  • Whether the presence of a foreign national in the country or area increases the likelihood that he is a credible threat to US national security;
  • Whether a designated Foreign Terrorist Organization has a significant presence in the country or area; or
  • Whether the country or area is a safe haven for terrorists.

The legislation contains a broad general waiver that authorizes the Secretary of Homeland Security to waive application of the law to a foreign national if it is in the law enforcement or national security interests of the United States to do so.  It also contains a narrower waiver of applicability for foreign nationals who are present in a country or area of concern to: (1) perform military service in the armed forces of a VWP country; or (2) carry out official duties as a full-time employee of the government of a VWP country.

This latter waiver would apply, for example, to a British soldier who advised the Iraqi armed forces in 2012, or a French civil servant previously employed at the French Embassy in Sudan.  However, as drafted, the legislation does not appear to apply to a British national who worked for a contractor supporting allied forces in Iraq in 2012.  Likewise, it does not appear to apply to journalists or aid workers.

Potential JCPOA and other Practical Implications

European Union Ambassador to the United States David O’Sullivan has repeatedly criticized this legislation, arguing in an op-ed in The Hill that, “A blanket restriction on those who have visited Syria or Iraq, for example, would most likely only affect legitimate travel by businesspeople, journalists, humanitarian or medical workers while doing little to detect those who travel by more clandestine means overland.”

In particular, VWP country nationals could lose their ability to travel visa-free to the United States if they travel to Iran as part of exploratory trade delegations in advance of JCPOA Implementation Day or undertake JCPOA-consistent activities in Iran after JCPOA Implementation Day.  This could also create competitive disadvantages because nationals of countries that are not in the VWP (e.g., India, Brazil), could travel to Iran for business without fear of losing VWP benefits, whereas European, Japanese, or South Korean nationals may be forced to choose between pursuing legal business opportunities in Iran and losing their VWP benefits.

The application of the bill to dual nationals also is notable, since it is possible for a VWP country national to have citizenship of a restricted country without ever having set foot in that country.

Next Steps

The House is expected to pass the omnibus by December 18, and the Senate is also expected to pass it a few days thereafter.  President Obama has not indicated any intent to veto the omnibus due to the VWP provision or any other controversial provision, so it is expected to become law before the end of 2015.

Going forward, the Department of Homeland Security, in particular U.S. Customs and Border Protection, the Department of State, and other agencies will likely face challenges in determining how to implement this legislation.  In addition, the 28 EU ambassadors to the United States have indicated that the EU may apply retaliatory visa measures to US nationals seeking to travel to Europe, and it is possible that this legislation could become the target of a lawsuit or a dispute settlement proceeding at the World Trade Organization.

Steptoe will continue to monitor the advancement of the omnibus and how the federal government addresses implementation challenges once it becomes law.

Marc Frey, a senior director in Steptoe’s Washington office, and Liz LaRocca, an attorney in Steptoe’s Washington office, contributed to this post.