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.

As previously reported, on February 6, 2014, Citizenship and Immigration Minister (the “Minister”) Chris Alexander unveiled Bill C-24, the Strengthening Canadian Citizenship Act, which proposed significant amendments to the Canadian Citizenship Act (R.S.C., 1985, c. C-29).  On June 19, 2014, the Bill C-24 received Royal Assent and became law.

Bill C-24 updates the eligibility requirements for Canadian citizenship, strengthens security and fraud provisions, and amends provisions governing the processing of applications and the review of decisions.  The amendments to the eligibility requirements include:

1. Clarifying the meaning of being resident in Canada (physical presence rather than residence);
2. Modifying the period during which a permanent resident must reside in Canada before they may apply for citizenship (four years of physical presence in Canada during the six years preceding the filing of the application);
3. Expediting access to citizenship for persons who are serving in, or have served in, the Canadian Armed Forces;
4. Requiring that an applicant for citizenship demonstrate, in one of Canada’s official languages, knowledge of Canada and of the responsibilities and privileges of citizenship;
5. Specifying the age of which an applicant for citizenship must demonstrate the knowledge referred to above and must demonstrate an adequate knowledge of one of Canada’s official languages (changed from 18-54 to 18-64);
6. Requiring that an applicant meet any applicable requirement under the Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)) to file a an income tax return for the four taxation years during which they claim to have been resident in Canada;
7. Conferring citizenship on certain individuals and their descendants who may not have acquired citizenship under prior legislation;
8. Extending an exception to the first-generation limit to citizenship by descent to children born to or adopted abroad by parents who were themselves born to or adopted abroad by Crown servants; and
9. Requiring, for a grant of citizenship for an adopted person, that the adoption not have circumvented international adoption law.

The amendments to the security and fraud provisions include:

1. Expanding the prohibition against granting citizenship to include persons who are charged outside Canada for an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament or who are serving a sentence outside Canada for such an offence;
2. Expanding the prohibition against granting citizenship to include persons who, while they were permanent residents, engaged in certain actions contrary to the national interest of Canada, and permanently barring those persons from acquiring citizenship;
3. Aligning the grounds related to security and organized criminality on which a person may be denied citizenship with those grounds in the Immigration and Refugee Protection Act (S.C. 2001, c. 27) and extending the period during which a person is barred from acquiring citizenship on that basis;
4. Expanding the prohibition against granting citizenship to include persons who, in the course of their application, misrepresent material facts and prohibiting new applications by those persons for a specified period;
5. Increasing the period during which a person is barred from applying for citizenship after having been convicted of certain offences;
6. Increasing the maximum penalties for offences related to citizenship, including fraud and trafficking in documents of citizenship;
7. Providing for the regulation of citizenship consultants;
8. Establishing a hybrid model for revoking a person’s citizenship in which the Minister will decide the majority of cases and the Federal Court will decide the cases related to inadmissibility based on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
9. Increasing the period during which a person is barred from applying for citizenship after their citizenship has been revoked;
10. Providing for the revocation of citizenship of dual citizens who, while they were Canadian citizens, engaged in certain actions contrary to the national interest of Canada, and permanently barring these individuals from reacquiring citizenship; and
11. Authorizing regulations to be made respecting the disclosure of information.

The amendments to the provisions governing the processing of applications and the review of decisions include:

1. Requiring that an application must be complete to be accepted for processing;
2. Expanding the grounds and period for the suspension of applications and providing for the circumstances in which applications may be treated as abandoned;
3. Limiting the role of citizenship judges in the decision-making process, subject to the Minister periodically exercising his or her power to continue the period of application of that limitation;
4. Giving the Minister the power to make regulations concerning the making and processing of applications;
5. Providing for the judicial review of any matter under the Act and permitting, in certain circumstances, further appeals to the Federal Court of Appeal; and
6. Transferring to the Minister the discretionary power to grant citizenship in special cases.

Bill C-24 also makes related amendments to the Federal Courts Act (R.S.C., 1985, c. F-7) and the Immigration and Refugee Protection Act.