VISA Interview Waiver Programs, VISA Waiver Programs, INA Sec 222, What?

So hey, how about these last 7 days, eh? Have we figured out how to stop this ride? No? Not yet? Cuz we really, really need to – our tangerine toddler can’t write worth a damn, and it’s starting to cause some problems.

Buried in the orange anger ifrit’s latest assault on civil rights and human decency is a section that boils down to a lot of head-scratching and confusion. Section 8 of the vile executive action that violates US immigration laws while consigning Syrian refugees to death reads:

Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

Waitwhat – suspend, immediately, the Visa Waiver Program? The VWP is an agreement between the US and 35-odd other countries that lets their citizens travel to the USA for 90 days or less without first securing a VISA, provided they meet a list of requirements. This facilitates travel and tourism, minimizes US costs in other countries, and is generally a nice thing – especially for those of us who have ex-pat spouses and family we adore in other countries.

Suspending this would be catastrophic, and Section 8 seems pretty clear – all nonimmigrants must undergo an in-person interview, pursuant to section 222 of the INA, 8 USC 1222, unless that’s waived by something like the VISA Waiver Program. The language seems pretty clear that “all individuals seeking a nonimmigrant visa undergo an in-person interview” – those statutory exceptions are listed in section 222 of the INA, but are your basic consular/diplomatic type things. Certainly, they’re not “travel tourists!”

Except, there’s also an Interview Waiver Program, which has been completely scrubbed from the main State Department website, but you can still see (as of 3am Saturday the 28th of January – oh hey, gong xi fa cai) on the State Department’s Indonesian website. They talk about an interview waiver program, which is essentially the VISA Waiver Program, but for countries who are not officially designated VWP countries:

Many Indonesians who wish to renew their visas may qualify for the interview waiver program which allows for visa renewal without an interview. If qualified, applicants only need to pay the visa application fee, fill out the visa application form, print out a Drop-Box Confirmation Letter, and drop off documents at the RPX Document Drop-off Location any weekday between 10am and 3pm. Qualified applicants do not need to appear at the U.S. Embassy in Jakarta or the U.S. Consulate General in Surabaya for an interview.

Okay, that maybe clears – hang on. The “additional resources” page (see picture) is just redirecting folks to the VWP page. So basically, the IWP is just the VWP (and note that if you can find any US government web page that talks about an interview waiver program separate from the VISA Waiver Program, they refer to it as a IWP; the “VISA” bit isn’t included, perhaps in an effort to eliminate the confusion going on right now.)

Australian and New Zealand newspapers are running with two stories: that this does and does not affect their citizens (as both countries are designated VWP participants). So what does this mean? Does the VWP still exist? Is this VISA Interview Waiver Program different?

I think the answer to all is “…who knows.”

Given that search results still pull up an Interview Waiver Program, and there are still results live on country-specific State Department websites, it seems safe to say that, cloudy and awful language aside, the intent of Section 8 of the horrid human rights fail of an executive order is attempting to stop interview-free travel for trustworthy citizens of non-VWP designated countries. But as we all know, the problem with “intent” is that you can have Intent A and still end up with Effect B; in this instance, I see nothing in Section 8 that says by “ensuring compliance with INA,” they mean “ensuring compliance by nonimmigrants from all countries except VWP participants.” Do you?

Now, add to that and keep in mind that admission into the USA – even if you’re from a VWP-participating country – is completely up to the customs and immigration agent you’re talking to, and their understanding of the law, and you can see why people are freaking out. The executive order is unclear, appears to be smooshing together two separate VISA-waiving programs, and reiterates that all nonimmigrants must have valid VISAs to enter the USA.

So what’s going to happen when someone tries to enter the US with a VWP, now?

I’d like to say business as usual, they’ll be admitted, no problems – but I can’t. All I can say is, if you’re from a VWP-participating country and have plans to visit America, call your consular office first thing Monday morning and see what they say. Follow their advice, ask if they have an updates email service, and check back with them frequently. Make sure your documents are all on the up-and-up for travel, be polite to agents you’re dealing with when entering the USA, and hope that clarification comes sooner rather than later (or that the entire thing is just dropped – the order itself is illegal seven ways to Sunday, not that that’s stopped our tiny-handed kleptocrat).

With thanks to Jeremy Youde for pointing out the second SBS tourism article and helping me think through the issue.