This post updates information concerning guidance released by the U.S. Department of State about implementation of the Visa Waiver Program (VWP) Improvement and Terrorist Travel Prevention Act. We provide a summary and link to additional information published by U.S. Customs and Border Protection (CBP) concerning the implementation and operation of the new VWP law.  The CBP document can be accessed here.

In its FAQs, CBP reiterates the two new barriers to VWP participation based on travel and dual nationality.  CBP reports that ESTA travelers who are “known” to be included in the dual national category will be notified in late January that their ESTA is no longer valid.  CBP also reports that it is working on notification to ESTA travelers who have traveled to Iran, Iraq, Syria, or Sudan.

CBP recommends that travelers who received an ESTA revocation apply for a nonimmigrant U.S. visa well in advance of travel.  CBP notes that U.S. Embassies and Consulates will process visa applications and will expedite visa interviews for travelers with “urgent business, medical, or humanitarian travel.”  Further, CBP recommends that travelers who have not received an ESTA revocation, but who have traveled to Iran, Iraq, Syria, or Sudan, should also apply for a visa in advance of planned travel.

In its previous press release, the Department of State outlined a variety of situations that may permit an individual otherwise precluded from VWP travel based on the travel restrictions (but not the dual national restrictions) to continue to use the VWP. CBP references those situations in the FAQs and notes further that “whether ESTA applicants will receive a waiver will be determined on a case-by-case basis.” CBP advises that it will determine, at some time in the future, whether waivers may be used by individuals otherwise barred from the VWP on the dual nationality grounds. CBP notes that the new ESTA application form, expected to be available in late February, will contain questions to determine whether a traveler is eligible for one of the exceptions (for military or government-related travel to one of the four named countries) from the travel-based restrictions.

Finally, the CBP’s FAQ covers situations where a traveler has had an ESTA revoked but has not received a notification, where a traveler who entered the United States on a valid ESTA, which is subsequently revoked, and what travelers may do if they believe an ESTA was revoked in error. We encourage potentially affected individuals to read CBPs FAQs and check back at Inside Business Immigration for additional information as it becomes available.