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.
Before applying for ESTA, you should be clear whether or not
you are a dual citizen of one of the above mentioned countries. For example,
Mohamed was born in Libya to Libyan parents. When he was a child his parents
moved his family from Tripoli to Palermo, Italy. Mohamed maintained his Libyan
nationality throughout his childhood, and when he turned eighteen-years-old he
was naturalized as an Italian citizen. He did not renounce Libyan citizenship.
He now wishes to travel to the United States under the Visa Waiver Program on
his Italian passport. Mohamed is not eligible to travel visa free because he is
still considered to be a national of Libya.
A more difficult scenario to determine would be the
following - Amira was born in Bagdad, Iraq. Her parents, both nationals of
Iraq, fearing persecution, fled to the United Kingdom when she was a child. Her
entire family obtained UK nationality when Amira was six years old. She has not
been to Iraq since her family left, and she does not maintain any ties to the
country - including a valid Iraqi passport. Amira, now thirty, wishes to travel
to the United States to take her children to Disney World. She is unsure if she
will be approved on estausa.
Unfortunately, this case is difficult to analyse. Amira
doesn't know if she is still considered to be a national of Iraq. Without any
formal renunciation or due process regarding her Iraqi citizenship, she likely
is still considered to be a national of Iraq - despite not having a passport
from the country. If Amira is in fact a dual national of the United Kingdom and
Iraq, and she does not disclose this on her ESTA application, she may be found
to have misrepresented herself. Misrepresentation is a serious offence, which
renders a foreign national permanently inadmissible to enter the United States.
As a precaution, Amira should obtain the proper visa before traveling to the
US.
What is t
If you are no longer eligible to travel under the Visa
Waiver Program, either because you have visited one of the listed countries on
or after 1 March 2011, or you are a dual national of a Visa Waiver Country and
one of the countries listed, you must obtain the relevant US visa before
traveling. If you wish to travel to the US for tourism, the B2 visa would be a
suitable alternative to traveling under the Visa Waiver Program.
