Last week, Department of Homeland (DHS) Security Secretary Jeh Johnson issued a press release describing significant new security requirements for the Visa Waiver Program (VWP). The VWP was passed into law by Congress in 1986 as a way to facilitate tourism and short-term business visits to the U.S. Over the past 20 years, the VWP has expanded from a handful of countries to more than 30 countries today. The VWP allows citizens of those participating countries to stay without a visa for 90 days or less, so long as their travel purpose is tourism or business, they have a round-trip ticket to return from the U.S. upon entry, they have complied with all prior admissions to the U.S., they have never been found ineligible for a U.S. visa, they are registered with the Electronic System for Travel Authorization, and they have a compliant passport (i.e., machine-readable and, for some countries, an integrated chip).

Recently, concerns have grown among members of Congress and the public that terrorists could exploit the VWP to gain entry into the U.S. In response, Secretary Johnson announced that VWP countries will be required to expand the use of federal air marshals on international flights to the U.S., require all passports to contain an electronic chip with a digital photograph (known as e-passports), and require VWP countries to use the INTERPOL Lost and Stolen Passport Database to screen all travelers crossing those countries borders. These security measures are in addition to certain changes to the Electronic System for Travel Authorization made last year which resulted in the collection of additional data on individuals desiring to use the VWP.

This action may pre-empt public reports of legislation, which has yet to be introduced into Congress, to tighten the VWP requirements. Any further action to tighten VWP requirements may have an adverse effect on business and tourism, as more than 20 million people come to the U.S. using the VWP. Additionally, the registration system, the Electronic System for Travel Authorization, assists DHS to screen applicants who are ineligible for the VWP by using that system to check applicants for terrorist ties, travel bans, visa denials, and criminal history, including information provided by the applicant’s home countries.