Controversy Over New Visa Waiver Program Laws

Introduction: Controversy Over Changes to the Visa Waiver Program

On December 18, 2015, President Barack Obama signed the omnibus appropriations bill for 2016, which will fund the government through September of 2016. Among the most significant immigration provisions in the bill [see blog] were changes to the Visa Waiver Program (VWP). Included in the omnibus bill was legislation that was passed by the U.S. House (H.R. 158) in order to address security concerns with the VWP. Please see my blog post [see blog] about the legislation that has now been signed into law.

Since the VWP legislation was passed by the U.S. House, numerous concerns have been raised about its effects on persons who have visited Iraq, Syria, Iran, or Sudan and nationals of those four countries. The following are the two provisions at issue:

1. Any person who has been present in Iraq, Syria, Iran, or Sudan since March 1, 2011, will be ineligible to use the VWP. There are limited exceptions for those who were present for military or government service for a VWP country. There is also a discretionary waiver if DHS finds that granting a waiver would be in the law enforcement or national security interests of the United States.
2. Nationals of Iraq, Syria, Iran, or Sudan are ineligible to use the VWP.¹

Concerns Raised by Congress

While the VWP legislation passed Congress overwhelmingly, legislators expressed concerns with certain aspects of the legislation.

On December 11, 2015, thirty-three members of the U.S. House wrote a letter to Senate leaders urging them to consider changes to the VWP legislation so that it would not affect:

Persons who are dual citizens because of ancestry;
Humanitarian workers and journalists.

Furthermore, the House letter urged the inclusion of a “sunset provision” so that the changes would need to be re-authorized after a specified period of time.²

On December 13, a bipartisan group of four U.S. Senators wrote a letter urging changes to the legislation so that dual nationals who have not traveled recently to any of the four designated countries would not be affected.³ The letter also noted how this provision could prompt reciprocal treatment of similarly situated U.S. citizen dual nationals.

Concerns Raised by Immigration Advocates

Many immigration advocates oppose the new law. For example, in addition to citing the same concerns as the U.S. House letter, AILA criticized the legislation after it was passed by the House because it “could result in discrimination that will exclude people without consideration of legitimate risk factors.”⁴

International Concerns

The European Union has indeed expressed concerns about the new law's effect on dual nationals and its effect on the Iran nuclear deal. To that effect, the Iranian government stated that it believes the legislation violates the nuclear deal. In response to the Iranian concerns, Secretary of State John Kerry wrote a letter to Iran indicating that the legislation will not invalidate the nuclear deal, and that the Administration will use discretionary waivers and other tools to ensure that the new law will not affect Iranian business interests.⁵ Secretary Kerry's letter has been criticized heavily by Congressional Republicans.

Conclusion

While most of the changes to the VWP appear to be beneficial, the concerns raised with regard to its effect on dual nationals of Iraq, Syria, Iran, and Sudan who have not traveled recently to those countries are valid. It is highly unfortunate that the Senate did not take the opportunity to improve the legislation by narrowing its scope in this regard.

However, Secretary Kerry's letter to Iran is deeply troubling. While there are a few real concerns with the final version of the legislation, those brought by a country which is designated on account of its government's sponsorship of terrorism are not among them. That the Administration decided to enter into a non-binding agreement with Iran without the support of the majority of the Congress or the majority of the American people should not, and does not, give the Iranian government a say in our immigration policy.

It is important to note that the Department of Homeland Security (DHS) has not announced how it will implement the new law yet. We will keep the site updated with news about the implementation of the new VWP laws and any legislative efforts to further modify the VWP statutes.

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1. “Practice Alert: Changes to the VWP Enacted in the Consolidated Appropriations Act, 2016,” (Dec. 21, 2015), Published on AILA InfoNet at Doc. No. 15122130
2. “Thirty-Three Lawmakers Urge Congressional Leaders to Consider Improvements To Visa Waiver Bill Provisions,” (Dec. 11, 2015), Published on AILA Advocacy and Media at Doc. No. 15121700
3. “Senators Leahy, Durbin, Heller, and Flake Express Concern with Visa Waiver Program Legislation,” (Dec. 21, 2015), Published on AILA Advocacy and Media at Doc. No. 15122112
4. “AILA: Congress Should Reject H.R. 158 Until Its Visa Waiver Program Changes Are More Carefully Weighed,” (Dec. 8, 2015), Published on AILA Advocacy and Media at Doc. No. 15120800
5. Werner, Erica, “Republicans, administration spar on visa travel for Iran,” (Dec. 23, 2015), Associated Press, Dec. 23, 2015, http://bigstory.ap.org/article/0a7ad179bd4a4f1388a1febafccec59c/gop-administration-spar-new-visa-laws-impact-iran [link]