Posted by Kevin Hack on January 28, 2016 in Blog


The Visa Waiver Program (VWP) is maintained by the Department of Homeland Security to offer ease of access into the United States for passport holders from certain countries. As the name suggests, passport holders from VWP participating countries can access the United States for 90 days without applying for a visa, through a simple electronic portal. Applicants who are rejected can still gain access to the US through the traditional visa process, via an interview with a consular officer, though this route takes much longer, subjecting applicants to an assortment of fees and waiting periods.

Americans benefit from the system as membership is accompanied by the admission of American citizens into member countries on similar conditions. In addition to establishing ease of travel (and the increased social and commercial integration that more travel will inevitably produce) the VWP also establishes standards for passport identification and information, an important security step in combating the use of counterfeit travel documents.

Following the attacks in Paris, and the alleged status of several of those implicated in the attack as citizens of European countries, the VWP has been discussed as a possible method by which terrorists could gain access to the United States, and legislation has been introduced in order to increase the security of the program.


In early December, Congress moved to pass the last few pieces of legislation of the year before its Members ended session for the Winter Recess. Among these was HR 158, or the Visa Waiver Program Improvement and Terrorist Travel Prevention Act.

HR 158 consists of 10 sections, and the bulk of which exist to tighten the functionality of the Visa Waiver Program including targets drawn from the Department of Homeland Security, and other goals that are designed to increase the general security of the program. These measures include updating passports with fraud-proofing or electronic information, biometrics (readable fingerprints) with passports, and improving communication regarding reports of lost or stolen documents. These measures serve primarily to urge additional coordination across participating countries, and are a natural response to the increased security awareness that followed the Paris attacks, hence meriting the overwhelming support the legislation received in Congress and from the White House.

Recent public opposition to HR 158 is predicated on a single section: Section 3.

Section 3 of HR 158 contains stipulations by which nationals of VWP participating countries are ineligible for the program and must go through the more arduous process of attaining a visa from a US consular post.  Particularly it targets two groups: individuals who have recently visited countries considered state-sponsors of terrorism, as well as Iraq and Syria, and individuals who are dual-nationals of Iraq, Syria, or any other country perceived to be a threat.

These restrictions on the VWP invite the opportunity for other members of the program to institute similar, reciprocal restrictions on Americans traveling abroad; restrictions that are similarly likely to be directed at Americans of Arab descent.

For many Middle Eastern countries, parentage is often sufficient to qualify for a passport from many of the target countries, making the child of an Iraqi national with an Iraqi passport unable to enter the United States, even if they have never been to Iraq before. This feeds into a broader narrative that can allow for the discrimination of individuals based on national origin. In an ongoing effort to recognize the rights due to American citizens, understanding this inherently discriminatory flaw is crucial in pursuing the struggle for broader equality in the United States.

After the legislation passed the House of Representatives in December, members of Congress, led by Michigan members Rep. John Conyers Jr., Rep. Dan Kildee, Rep. Debbie Dingell, and Rep. Brenda Lawrence. submitted a letter to Senate leadership echoing concerns over the provision. The letter was signed by 29 other House Democrats.

The VWP adjustments proposed in HR 158 have been adopted as part of the omnibus spending package approved at the end of 2015. On January 13, Representatives Justin Amash (R-MI) and John Conyers (D-MI) introduced HR 4380, the Equal Protection in Travel Act to remove the language regarding dual nationals. Senators Jeff Flake (R-AZ) and Dick Durbin (D-IL) introduced S 2449, the Senate version of the same bill, a week later.

While the changes to the VWP passed with the support of the Obama administration, administration officials have since indicated their support for the Equal Protection in Travel Acts as well. As Senate debate continues to push forward on the more highly publicized issue of refugee resettlement programs, the importance of these adjustments to the Visa Waiver Program should not be overlooked.

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