As a result of the Paris and San Bernadino attacks, the United States began closely scrutinizing its Visa Waiver Program (“VWP”).  Of course, Ms. Tashfeen Malik (one of the San Bernadino attackers) entered the United States under K-1 status, using an actual fiancee visa that she had obtained from a United States consulate.  Her husband, Syed Farook, was a United States citizen.  In other words, neither attacker had actually used the VWP to enter the United States.

In any event, reforms to the VWP were included in the Consolidated Appropriations Act, 2016 [Public Law 114-113] (the “Act”), which President Obama signed into law on December 18, 2015.  The two most significant changes to the VWP, as a result of the Act, are as follows:

• It requires that all VWP applicants be in possession of machine-readable passports. Beginning on April 1, 2016, the Act also requires that all passports must be electronic and fraud resistant, and must contain relevant biographic and biometric information. Governments of participating VWP countries must certify that they meet these requirements by April 1, 2016, and must also certify by October 1, 2016 that they require these passports for entry into their countries.
• More importantly, any individual who is a dual citizen of Iran, Iraq, Sudan (but not including South Sudan), or Syria, or who has visited any of those countries since March 1, 2011, is ineligible for travel to the United States under the VWP.  In other words, an Iranian citizen who also holds United Kingdom citizenship will no longer be eligible to use the VWP.  The Department of Homeland Security or Department of State may also designate additional countries as “areas of concern” or state sponsors of terrorism in the future, and if they do, similar restrictions will apply to individuals from those countries as well.

A VWP prohibition also applies to any individual (regardless of citizenship) who has visited Iran, Iraq, Sudan, or Syria since March 1, 2011.  However, an exception to this prohibition (but not the dual national prohibition) applies to individuals who are either a member of the military of a VWP country or a full-time employee of the federal government of a VWP country, who has traveled to one of the excluded countries on official orders.  In other words, it not sufficient to merely be a member of the military or a federal government employee of a VWP country; the individual must also have traveled to the excluded country on official orders.

On January 21, 2016, the Department of Homeland Security (“DHS”) and Department of State (“DOS”) issued a joint statement addressing these changes (the “Joint Statement”).  In this Joint Statement, DHS/DOS stated that (as of that date) travelers who currently had a valid Electronic System for Travel Authorization (“ESTA”) and who had previously indicated on their ESTA application that they held dual nationality with one of the four excluded countries would have their current ESTAs revoked.

The Joint Statement also stated that, under the new law, the Secretary of Homeland Security had the authority to waive these restrictions, if he determined that such a waiver was in the law enforcement or national security interests of the United States; such waivers would be granted only on a case­-by-­case basis.  As a general matter, categories of travelers who may be eligible for a waiver include:

• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and subnational governments on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
• Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
• Individuals who traveled to Iran for legitimate business­-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
• Individuals who have traveled to Iraq for legitimate business­-related purposes.

Whether ESTA applicants will receive a waiver will be determined on a case­-by-­case basis, consistent with the terms of the law. DHS/DOS will also continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan.

It should be mentioned that a dual national of one of the excluded countries (Iran, Iraq, Sudan, or Syria) who also holds Canadian citizenship will not be subject to any additional restrictions since Canada is not a participant of the VWP.  Canadian citizens are visa exempt under 8 CFR 212.1(a); this visa exemption exists independently from the VWP.

On August 29, 2014, the U.S. Department of State (“DOS”) published an interim final rule in the Federal Register, which raised the fee for processing renunciations of United States citizenship from $450.00USD to $2,350.00USD, a 522.22% increase.  This new fee became effective on September 6, 2014.

The obvious reason for this fee increase is to discourage dual citizens from renouncing their United States citizenship.  During the past two years, renunciations of United States citizenship have increased significantly.

Every quarter, the U.S. Department of the Treasury publishes the names of all individuals who have expatriated.  For the first two quarters of 2014, the total number of individuals who expatriated was 1,577.  The total number of individuals who expatriated in 2013 was 2,999.  In 2012, the total was only 932.

It is widely believed that this increase in expatriations is due to the United States’ aggressive global tax reporting obligations, which includes the Foreign Account Tax Compliance Act (“FATCA”).  Among other things, FATCA requires foreign financial institutions and U.S. withholding agents to implement new procedures for tax information reporting and withholding, account identification, and documentation.  The objective of these procedures is to identify U.S. persons who are evading U.S. tax obligations using financial accounts held outside of the United States.

The rush to expatriate has created backlogs for renunciation appointments at United States consular posts in Canada.  As a result, it is currently not possible to schedule a renunciation appointment until the beginning of 2015.

Many of these proposed renunciants are Canadian citizens who believed that they had lost their United States citizenship years ago.  However, as a result of FATCA, they have recently obtained formal legal advice and discovered that they are still United States citizens.

Individuals who intend to renounce their United States citizenship should be aware that, as a result of 1996 amendments to the Immigration and Nationality Act (“INA”), a former U.S. citizen who renounces United States citizenship (on or after September 30, 1996) for the purpose of avoiding U.S. taxation will be considered inadmissible to the United States.  In light of this fact, care should be taken to properly document the reason for the renunciation in order to avoid this ground of inadmissibility.  Although this ground of inadmissibility is not being aggressively enforced at the present time, this may change in the future.

In some cases, it will be possible for an individual to argue that he or she has already lost U.S. citizenship by operation of law.  If the individual is successful, DOS will issue a Certificate of Loss of Nationality, retroactive to the date of the prior loss.

Arguing a prior loss of United States citizenship is preferable to renouncing because it will avoid the potential ground of inadmissibility that could result from a formal renunciation.  It could also reduce or eliminate the individual’s potential U.S. tax obligations.  For example, a former U.S. citizen who successfully establishes that he or she automatically lost citizenship by operation of law ten years ago would have ceased to have U.S. tax obligations as of that date.

In conclusion, individuals who believe that they lost their United States citizenship years ago but do not already possess a Certificate of Loss of Nationality should consult with a qualified United States immigration lawyer to determine if they are still United States citizens.  Even if they did lose their U.S. citizenship due to a prior expatriating event, they should apply for a Certificate of Loss of Nationality in order to properly document this loss.

If they are still U.S. citizens, they may then decide to formally renounce their United States citizenship at a consular post.  However, if they do, they should seek guidance from a qualified United States immigration lawyer to ensure that the renunciation does not result in their inadmissibility at some point in the future.

Within the Province of Ontario, a qualified United States Immigration Lawyer must be admitted to the practice of law in the United States and must also possess a Foreign Legal Consultant Permit issued by the Law Society of Upper Canada.  Merely being an Ontario lawyer or paralegal is not sufficient.

Any other individual in Ontario who represents a client in a U.S. renunciation matter (or any other U.S. legal matter) commits an offence under the Law Society Act and is subject to a fine of up to $25,000.00 for a first offense and $50,000 for each subsequent offence.  Unfortunately, the Law Society of Upper Canada does not enforce this law so the adage “buyer beware” applies here.