Imagine arriving at the airport to travel to the United States to negotiate a contract with a lucrative American company. Obtaining this contract will produce a lot of benefits for your European company. You’ve taken the necessary precautions to ensure a smooth trip: you got to your flight early, confirmed that the Electronic System for Travel Authorization (“ESTA”) application you made last year is still valid, and booked your hotel and car rental at the United States States well in advance. However, when he arrives at the check-in counter, the flight agent begins to question a recent business trip he took to the Middle East. After some discussion, the agent apologizes and informs him that he cannot board the flight and is no longer eligible to travel under the Visa Waiver Program. In shock, he must now return home, potentially lose business in the United States, and deal with the process of obtaining a US visa.
Why might I no longer be eligible to travel under the Visa Waiver Program?
Unfortunately, the above scenario is becoming more and more common. If you applied for ESTA after February 2016, you may have noticed the addition of a series 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 who travel to the United States under the Visa Waiver Program were probably unaware of the changes to the program, as the ESTA application is currently valid for two years.
Accordingly, citizens of Visa Waiver Program countries who have traveled to Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 are no longer eligible to travel to the United States without visa. Additionally, citizens who are dual nationals of a Visa Waiver Program country and Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen are no longer eligible to travel without a visa. There are limited exceptions for those present in one of the specified countries for military or diplomatic reasons.
Who does this Law affect?
At first glance, the group most affected by this new Law are those who have traveled to one of the listed countries since March 1, 2011. However, an even larger number of people who also hold dual citizenship may be restricted from applying. THIS because of the new rules. As an immigration attorney, clients often tell us that they are not citizens of a country simply because they do not have 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 as proof of citizenship, citizenship is not lost because the document is expired or damaged.
Citizenship of any given country depends on the rules and regulations of that country. For example, some nations do not allow dual citizenship and immediately revoke the citizenship of nationals who have obtained a second citizenship. Alternatively, other countries require a formal resignation process before you are no longer considered a citizen. In the most extreme cases, a country may never allow you to relinquish your citizenship and will consider you a national for life.
Before applying for ESTA, you must be clear whether or not you have dual nationality from one of the countries mentioned above. For example, Mohamed was born in Libya to Libyan parents. When he was a child, his parents moved their family from Tripoli to Palermo, Italy. Mohamed kept his Libyan nationality throughout his childhood, and when he turned eighteen 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. Muhammad is No eligible to travel without a visa because he is still considered a citizen of Libya.
A more difficult scenario to determine would be the following: Amira was born in Baghdad, Iraq. Her parents, both citizens of Iraq, fearing persecution, fled to the UK when she was a child. Her entire family obtained British nationality when Amira was six years old. She has not been to Iraq since her family left and she has no ties to the country, including a valid Iraqi passport. Amira, now thirty years old, wants to travel to the United States to take her children to Disney World. She is not sure if she will be approved on ESTA.
Unfortunately, this case is difficult to analyze. Amira doesn’t know if she is still considered a citizen of Iraq. Without any formal waiver or due process regarding her Iraqi citizenship, it is likely that she will still be considered a citizen of Iraq, despite not holding an Iraqi passport. If Ella Amira does, in fact, have dual UK/Iraq nationality, and she does not disclose this on her ESTA application, it is possible that she has been found to have misrepresented herself. Misrepresentation is a serious crime, which makes a foreign national permanently inadmissible to enter the United States. As a precautionary measure, Ella Amira must obtain the proper visa before traveling to the US.
What is the next step?
If you are no longer eligible to travel under the Visa Waiver Program, either because you visited one of the listed countries on or after March 1, 2011, or you have dual citizenship of a Visa Waiver Country and one of the listed countries , you must obtain the appropriate US visa before you travel. 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.
While it can be disappointing to lose your eligibility to apply for ESTA, obtaining a B2 visa offers many benefits. A B2 visa is generally issued for a period of ten years, allowing its holder to travel to the US regularly within that period, without having to apply for a new visa. Also, when you enter the United States on a B2 visa, the immigration officer will stamp your entry for up to six months. It is important to note that because the visa is valid for ten years, it does not allow you to stay in the US for that period of time. You must not spend more than six months of each calendar year in the US on a B2 visa.