December 6, 2021

Volume XI, Number 340


December 03, 2021

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Congress Passes Legislation Affecting Visa Waiver Program

Certain key provisions of the omnibus spending bill will affect travel without visas, e-Passport requirements, EB-5 investors, and H-1B and L-1 “dependent” employers.

Included in the omnibus spending bill, which the US Congress passed on Friday and now heads to the White House for signature, are several key provisions that affect the immigrant and nonimmigrant community. Chief among these are provisions to impose stricter security requirements on Visa Waiver Program (VWP) travelers; require “e-Passports” of all VWP travelers; reauthorize the EB-5 Regional Center and E-Verify programs through September 30, 2016; and raise the filing fees for certain H-1B and L-1 visa petitions.

Changes to Visa Waiver Program

The funding bill includes H.R. 158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which the House passed on December 8. This bill includes more restrictive passport requirements and other security standards for the VWP. Nationals of certain countries and travelers who, since March 2011, have traveled to Iraq or Syria, any other country designated by the secretary of state as a state sponsor of terrorism (e.g., Iran and Sudan), or any other country designated as a country or “area of concern” would be barred from using the VWP. Such travelers would be required to appear for a personal interview and obtain a visa in their passports at a US consulate overseas before traveling to the United States for business or tourism. Those who traveled to a country of concern in the course of military or government service on behalf of a VWP member country would be exempted from this requirement.

e-Passport requirement

Additionally, the bill requires all VWP travelers to present an e-Passport with a biometric-enabled chip by April 1, 2016. The bill also requires all VWP countries to put in place mechanisms to validate these e-Passports by October 1, 2016. VWP travelers who do not currently hold an e-Passport will need to apply for a new passport to meet this requirement. This may significantly affect all travel to the United States by nationals of any VWP country.

EB-5 Regional Center Program and E-Verify

The bill reauthorizes the EB-5 Regional Center Program through September 30, 2016, with no significant changes. Current EB-5 investment requirements will remain in place for another year. The E-Verify program has also been extended through September 2016.

H-1B and L-1 “Dependent” Fees

The bill doubled the filing fee for companies that have at least 50 employees with 50% of them holding H-1B or L-1 status. Such companies would have to pay a new fee of $4,000 for H-1B visa petitions and $4,500 for L-1 visa petitions and/or “blanket” L applications at a US consulate.

Copyright © 2021 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume V, Number 355

About this Author

Eleanor Pelta, Morgan Lewis, Immigration Lawyer

A recognized leader in immigration and nationality law, Eleanor Pelta counsels clients on legal and strategic issues arising from the international movement of key personnel, from the individual transfer of high-ranking executives to high-volume transfers of expert staff. Her experience includes the use of blanket visa programs and the qualification of companies as “treaty investor” or “treaty trader” entities. Additionally, Eleanor counsels businesses on the immigration implications of corporate changes, such as mergers, acquisitions, downsizings, reductions in force,...

Eric Bord, Immigration Attorney, Morgan Lewis

Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E-Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis’s immigration compliance and risk management practice.

A James Vazquez-Azpiri, Morgan Lewis, employment attorney

A. James Vázquez-Azpiri counsels corporate clients on hiring and retaining foreign employees in his business immigration law practice. He advises businesses on labor certifications, specialty occupation petitions, and intracompany transfers. Clients rely on James for guidance through immigration law compliance during mergers, acquisitions, and corporate restructurings. He helps clients think and work proactively by providing them with traditional compliance policy reviews and audits, case management and litigation technology, and international executive travel and...