By Tara L. Vance and Neal N. Beaton from Holland & Knight Many Finns enter the U.S. for up to ninety days as business visitors or tourists under the Visa Waiver Program (VWP).  However, new limitations have been implemented pursuant to the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Travelers who fall into certain categories – namely those who have traveled to, Iran, Iraq, Sudan, Syria, Libya, Somalia or Yemen or are dual nationals of Iran, Iraq, Sudan or Syria – are no longer permitted to travel and enter the U.S. under the VWP. Instead, those individuals must apply for issuance of a visa to enter the U.S. and enter the country using a B-1 (business visitor) or B-2 (tourist) (or other) visa. As background, the VWP was created in 1986 to ease the travel experience for foreign nationals coming to the U.S. temporarily as tourists or business visitors.  Thirty-eight countries (including Finland) are currently VWP participants and, as such, nationals of these countries can travel to the U.S. for up to ninety days as a tourist or business visitor without needing to apply for a visa although they must first register under the Electronic System for Travel Authorization (ESTA). The U.S. Department of Homeland Security (DHS) and the Department of State on January 21, 2016, commenced implementation of changes to the VWP pursuant to the Act, which was signed into law on December 18, 2015. Pursuant to the Act, travelers who are nationals of a VWP country and who:

  • have traveled to or visited Iran, Iraq, Sudan or Syria on or after March 1, 2011 (with limited exceptions for diplomatic or military travel), or
  • are nationals of Iran, Iraq, Sudan or Syria

are no longer permitted to travel to and enter the United States under the VWP. DHS subsequently added travel to Libya, Somalia or Yemen to the list. For travelers who fall into the above categories who have valid registration for travel under ESTA, such ESTA registrations will be revoked. The new regulations could have far-reaching effects on those not prepared, such as the following examples:

  • a person born in Finland who holds dual nationality with Finland and Iran is required to apply for and obtain a B visa to travel to the U.S., even if the person has never set foot in Iran
  • a businessperson who is a national of Finland and who has traveled to Syria in the past five years is required to apply for and obtain a B visa prior to entering the U.S. as a tourist or business visitor

Under the Act, the Secretary of Homeland Security is permitted to waive the above travel restrictions if it is determined that such a waiver is in the interests of U.S. law enforcement or national security. The Act does not provide the procedures for applying for such a waiver but the announcement issued regarding implementation of the Act advises that applications for waivers will be reviewed on a case-by-case basis and could apply to individuals who have traveled to:

  • any of the above-referenced countries on behalf of an international organization, regional organization and subnational governments on official duty
  • any of the above-referenced countries on behalf of a humanitarian non-governmental organization (NGO) on official duty
  • any of the above-referenced countries as a journalist for reporting purposes
  • Iran for legitimate, business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015)
  • Iraq for legitimate, business-related purposes

It cannot be expected that these exceptions will be broadly applied and reliance on them would put an entering visa-less visitor at risk of having his or her entry barred at the airport if found not to qualify. Additionally, the Act requires that VWP travelers use an electronic passport for travel to the U.S. by April 1, 2016, and includes other changes to promote and enhance information sharing of terrorism and criminal data, and the use of INTERPOL databases and notices for border-screening purposes. Instead of requiring a formal visa to enter the U.S., nationals of these countries must register and obtain ESTA authorization prior to boarding an approved U.S.-bound air or sea carrier. Authors are Holland & Knight's lawyers Tara L. Vance and Neal N. Beaton. Welcome to hear more about legal issues at Legal Event U.S. Tax and Estate Issues at Holland & Knight office on Thursday April 7, 2016 at 5:30-8:30 PM. Further information and registration to the event