The following post was written by Rachel Welford, an associate in the Cozen O’Connor Aviation Regulatory Practice Group.
The White House is proposing changes to the Visa Waiver Program (VWP) as well as enhanced security measures that would tighten the entry requirements for U.S.-bound alien travelers. Under VWP, travelers from 38 countries may enter the United States without a visa and stay for up to 90 days. The changes, proposed in the aftermath of the November 13, 2015 terrorist attacks in Paris, contemplate greater scrutiny of travelers under the VWP, as well as other security changes that could significantly increase costs and operational burdens for airlines.
Currently, U.S. law requires airlines operating international flights to or from the United States to provide travel document data for all travelers to U.S. Customs and Border Protection (CBP) via the Advance Passenger Information System (APIS) or face a $5,000 fine per violation for failing to do so. The White House is now asking Congress to give the Department of Homeland Security (DHS) authority to increase the fine amount to $50,000 per violation, a tenfold increase in the cost of non-compliance for airlines.
The White House also seeks to expand the use of DHS’s CBP preclearance program at airports in Belgium, Japan, Norway, the Netherlands, Spain, Sweden and the United Kingdom. At countries with preclearance facilities, CBP law enforcement officers inspect passenger documentation and baggage at foreign airports prior to departure to the United States. Because airlines are responsible for removing any inadmissible or deportable aliens with inadequate documentation at the airlines’ expense back to the aliens’ points of departure, expanding the number of preclearance countries could reduce the risk that airlines will need to transport such passengers and incur associated costs.
In addition to changes that would directly affect air carriers, the Obama administration seeks to modify the Electronic System for Travel Authorization (ESTA), the process by which every prospective VWP traveler undergoes counterterrorism screening and receives preliminary approval to enter the United States. Under the new rules, VWP travelers would have to provide ESTA information regarding past travel to countries constituting a terrorist safe haven, including Iraq and Syria. DHS would also accelerate its review of VWP partner countries and expand the collection and use of passengers’ biometrics (fingerprints and/or photographs).
The Obama administration is working closely with Congress to enact statutory authority for the planned VWP enhancements, and legislation to implement such enhancements has already been introduced.