New Security Changes to the Visa Waiver Program and ESTA

Yesterday, the Department of Homeland Security announced it will take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from Visa Waiver Program (VWP) travelers regarding any past travel to countries constituting a terrorist safe haven. In addition, steps have already been taken to strengthen the screening of those who are traveling to the United States, including security enhancements to the Visa Waiver Program and ESTA.

The Visa Waiver Program (VWP) uses the Electronic System for Travel Authorization (ESTA) to permit visa free travel for 20 million visitors per year to the United States for citizens of 38 program partner countries around the world. VWP utilizes a layered system of security to detect and prevent terrorists, serious criminals, and other potentially dangerous individuals from traveling to the United States. These layers of security include comprehensive screening of VWP travelers prior to departure for the United States, at various points throughout the traveler’s journey, and upon arrival at U.S. ports of entry.

Over the past year, the Administration has taken a series of steps to enhance the significant security measures in the VWP. In the wake of the attacks in Paris, the administration is announcing additional actions today that will further enhance and accelerate these changes.

How Does the Visa Waiver Program and ESTA Work?

  • Every prospective VWP traveler undergoes counterterrorism screening and must receive approval through DHS’ Electronic System for Travel Authorization (ESTA). Through ESTA, DHS evaluates whether individuals are eligible to travel to the United States under the VWP before they are allowed to board a carrier bound for the United States.
  • The counterterrorism screening draws on information from U.S. law enforcement and intelligence agencies. DHS uses this information to decide if the travel poses any law enforcement or security risks. Without DHS approval through ESTA, VWP travelers cannot travel to the United States and must appear in person for a visa interview before they can be authorized to travel to the United States.
  • This process has been enhanced repeatedly to improve security and more effectively identify individuals who might pose a threat to the United States.
  • Travelers must be a citizen of a VWP country to use the program. Residence in a VWP country, or the possession of refugee travel documents issued by a VWP member state, does not qualify an individual for VWP travel.Recently Enhanced Security Measures

New Changes Announced

  • DHS will immediately take steps to modify its Electronic System for Travel Authorization (ESTA) applications to capture information from VWP travelers regarding any past travel to countries constituting a terrorist safe haven. The Director of National Intelligence, in coordination with the Secretary of Homeland Security, will identify and regularly review these countries so that traveler risk assessments can be made on the most up-to- date information.
  • The Director of the Federal Bureau of Investigation will evaluate the terrorism information sharing that occurs between the United States and VWP countries, in consultation with the Director of National Intelligence and the Secretaries of State and Homeland Security, and provide a report to the President of the United States within 60 days identifying options to mitigate any deficiencies.
  • DHS will offer assistance to countries to better facilitate terrorism information sharing, specifically to include biometric pilots. For example, DHS and the Terrorist Screening Center will assist all interested VWP countries in screening refugees or asylum seekers, including through the application of extensive terrorism information already provided to VWP members and through piloting capability for conducting near real time biometric checks.
  • The Secretaries of DHS, State, and Commerce will promote the Global Entry program among VWP partners to further expand this trusted traveler program, which includes biometrics.
  • The Secretary of Homeland Security will work with Congress to seek authority to increase Advance Passenger Information System (APIS) fines from $5,000 to $50,000 for air carriers that fail to verify a traveler’s passport data.
  • The Departments of Homeland Security and State, the Federal Bureau of Investigation, and U.S. intelligence community elements will deploy Foreign Fighter Surge Teams to work with countries to counter terrorist travel.
  • The Departments of Homeland Security and State will encourage and provide assistance as needed to enhance border security and legislation related to FTFs of our partner countries, and encourage more robus

Working with Congress to Enhance the Visa Waiver Program

The Administration is working with Congress to provide statutory authority for many of the key security enhancements to VWP, including:

  • Improving our ability to identify individuals who may have traveled to conflict zones to train or fight with terrorist organizations or other adversaries and increasing information sharing between our VWP partners and INTERPOL;
  • Maximizing the use of international agencies like INTERPOL to track lost and stolen travel documents, and to prevent their usage for illicit travel;
  • Encouraging VWP partner countries to share information and to use thatinformation in their own border screening activities;
  • Accelerating the requirement for 100% of VWP travelers to use e-passports(i.e., passports with embedded security chips);
  • Exploring how biometrics could be effectively added to the VWP process;and
  • Expanding the use of the DHS’ Customs and Border Protection (CBP)Preclearance program, through which CBP law enforcement officers inspect passengers and their baggage – to include collecting and screening biometrics where appropriate – at foreign airports prior to departing for the United States

For more information, email Gail@GailLaw.com or call 1-877-GAIL-LAW or 407-292-7730.

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