EU Decision on Visa Waiver Expected Tuesday


Washington DC – The full implications of H.R. 158 – legislation that bars visa-free travel to the U.S. for citizens of the EU if they are dual nationals of Iran, Iraq, Sudan or Syria – could soon come to a head. Tuesday, July 12, marks the self-imposed deadline for the European Commission to decide whether to take reciprocal action against the U.S. by suspending visa-free travel to the EU for all American citizens.

The deadline is the latest chapter in the European Union’s efforts to obtain full visa-free travel privileges for all of the bloc’s citizens. The Visa Waiver Program, which enables visa-free travel between the U.S. and thirty-seven states including Japan, Australia, and much of Europe, is based on the concept of reciprocity. However, the U.S. does not grant visa-free travel privileges for five EU states: Bulgaria, Croatia, Cyprus, Poland and Romania. Under the EU Treaties, the European Commission must address complaints of non-reciprocity from member states and must react after two years if restrictions are not lifted. The five states filed a complaint in 2014 citing the lack of U.S. reciprocity, prompting the upcoming decision on whether to suspend the program for Americans.

In the intervening period, Congress passed H.R. 158, the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act.” The barring of EU citizens who possess dual citizenship with Iran and other Middle Eastern countries, or who have traveled to those countries, from enjoying visa-free travel to the United States has only exacerbated EU frustrations.

Read personal stories from American and European dual nationals who are affected by H.R.158 >>

The July 12 deadline is an extension of a previous April deadline, which the European Commission delayed as an act of faith that the U.S. would address the outstanding issues. In a statement issued at the time, the Commission highlighted the recent passage of H.R. 158 as an additional issue that must be resolved.

The Commission could now decide to activate a reciprocity mechanism that would provisionally suspend visa waivers for all U.S. citizens. Alternatively, it could propose legislation tailored to reflect the implementation of H.R. 158. However, the Commission expressed in April that “in the spirit of solidarity,” it would much rather move towards a VWP that is fully reciprocal than away from it by responding with counter visa-waiver suspensions.  

NIAC, in a letter to all 38 countries party to the visa waiver program, urged them to reconsider reciprocal actions against US citizens. NIAC noted the reciprocation would further entrench discrimination and would be counterproductive to the EU’s commitment to openness. The EU response indicated that any reciprocation would likely target all American citizens rather than signaling individuals out who are dual nationals.

EU reciprocal restrictions, if decided on, would not go into effect immediately. EU states will be afforded four months (with the option to increase it to six) to raise objections to the proposal; the final decision to suspend the program will be voted on first by the European Parliament and then the European Council.

There is good reason to believe that a proposal to reciprocate is unlikely. In its April statement, the Commission indicated that any reciprocal action will only be undertaken after assessing the “legal, political, economic” impact and feasibility of implementation have been considered. Immediate concerns include a decline in the tourism and public aviation sectors. It was reported in April that EU reciprocation would cost EU citizens and companies roughly 2.5 billion euros per year for the roughly 8 million visas for which they would need to apply. Moreover, the Commission concluded member states would be “highly unlikely” to be able to process the increased volume of visa application within the 90 days stipulated by the visa codes.

In light of Brexit, the negative economic repercussions of such a decision likely increases the odds that Brussels will release a more measured approach. The UK’s recent referendum to leave the EU could decrease the urgency to act on the visa waiver restrictions as the EU braces for the economic and political implications. Regardless, the UK and Ireland were already not party to the VWP and would not have been affected.

In the aftermath of the passage of H.R.158, which restricts not just dual nationals but also travel to the countries listed in the legislation, the Department of Homeland Security (DHS) added three nations to the list – Libya, Yemen, and Somalia. Notably, it did not include dual citizens to its new provision, indicating that, unlike Congress, the Administration is aware of the burdensome effect  of the law on dual citizens of Middle Eastern descent.  In testimony before the Senate, DHS officials stated that targeting dual nationals for restrictions provided no security benefits. Nonetheless, while DHS has indicated it would continue to examine whether a waiver is warranted to lift the restrictions against dual nationals of Iran, Iraq, Syria and Sudan, it has yet to extend them.

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Witnesses Paint Dual Nationals as Terror Threat at Congressional Hearings

New restrictions barring certain dual nationals from visiting the U.S. under the Visa Waiver Program “feel like discrimination,” said Rep. Thomas Massie (R-KY), speaking at a Congressional hearing on the new visa law last week. “There’s a category of millions of Americans, freedom-loving Americans, that could be exposed to discrimination as a result merely of who their parents were,” he observed. Massie, who recently introduced legislation to repeal the dual national restrictions, was joined by a few of his colleagues in expressing concern about the new restrictions. However, much of the two House hearings on the implementation of H.R. 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act, focused on accusations that the Obama Administration was not enforcing the new restrictions stringently enough.

Two non-governmental witnesses — one from the neoconservative Foundation for Defense of Democracies (FDD) and the other from the far-right Center for Immigration Studies (CIS) — cast dual nationals, including Iranian Americans specifically, as a security threat deserving of travel restrictions. In her testimony, Jessica Vaughan of CIS took issue with NIAC Action’s argument that the new restrictions were discriminatory and in line with the inflammatory rhetoric from Donald Trump. Instead, Vaughan suggested that all dual nationals should be suspected of dual loyalty:

“The real issue here is dual nationality, not ‘second-class citizenship.’ The fact is that people who retain more than one nationality are indicating that they have not fully renounced their allegiance to their country of origin despite attaining citizenship in another country. Some people have dual nationality for sentimental reasons, others for the convenience of having multiple passports, and some do it to facilitate illicit activity, including espionage and terror. But it is fundamentally a personal choice.”

Dr. Emanuele Ottolenghi of FDD claimed that Iranian dual nationals should be considered security threats – highlighting the Iranian-American used car dealer convicted of plotting to assassinate the Saudi ambassador. He then suggested all dual nationals were suspect, outlining cases of several Lebanese dual nationals associated with Hezbollah who planned attacks overseas. Curiously, none of the dual nationals linked to terror that were cited by Ottolenghi in his defense of profiling would have actually been barred from traveling without a visa under the new restrictions.

Much of the comments from lawmakers were focused on the Obama administration’s use of a broad waiver in the legislation to exempt certain individuals from the visa restrictions, including aid workers and individuals who have traveled to Iran to conduct business under the nuclear accord. The title of one hearing even claimed that the waivers were issued to “appease” Iran. Vaughan said that activism within the Iranian-American community may have convinced the administration to utilize the waivers, though the waivers issued thus far do not exempt Iranian dual nationals or persons who have traveled to Iran to visit family, as tourists, or for academic purposes. 

Homeland Security Committee Chairman Michael McCaul (R-TX) claimed the administration’s use of the waiver was illegal. However, the State Department’s Hillary Batjer Johnson patiently explained, “The law grants the Secretary of Homeland Security the authority to waive the travel or dual nationality restrictions if he determines that such a waiver is in the law enforcement or national security interest of the United States.” McCaul acknowledged that the waiver is included in the law but stuck to his main point of contention that the administration had requested explicit exceptions in the text of the bill itself during negotiations on the bill, which had been rejected by lawmakers.

Following the over-the-top rhetoric of many of his colleagues, Rep. Gerry Connolly (D-VA) injected some levity into the hearing by jokingly asking the government witnesses whether they were part of some secret conspiracy to allow terrorists to come into the United States. Connolly also highlighted the concern felt by many of his constituents who were “apoplectic” about the application of this law because they feel they are “unwitting victims” based on their national background. 

Other lawmakers, however, appeared to have little grasp of how the Visa Waiver Program operates. Among them, Rep. Steve Russell (R-OK) suggested that British citizens traveling to Iran for business would be treated more favorably than those traveling to Malaysia because of the waivers. However, unlike travel to Iran, there were never any restrictions on citizens of VWP countries who traveled to Malaysia to begin with. Russell left the hearing still opposed to the use of any waivers.