farhad emam Farhad Emam
Publish Date : 02/19/2016

Travel to Iran or the US under the VW Improvement Act


Key terms

VW Improvement Act, Tourism, Investment, dual nationality


It is reported on the website of bloombergview.com on February 10, 2016 (Josh Rogin:  Obama Weighs Looser Rules for Iranian Travelers):

As soon as President Barack Obama signed the law last December, removing visa waiver privileges for foreign citizens who have visited Iran and other Middle Eastern nations, the Iranians objected and Secretary of State John Kerry assured Tehran that the administration would use its executive authority to ensure the law would not impede “the legitimate business interests of Iran.”

What are the actions taken by the US Government to “assure Tehran”? These actions are included in two documents briefly explained in this Legal Report, namely a “policy memo” and an “implementation plan”.

I. Policy memo

In this memo the US Government recommends waivers for eight classes of persons. Three classes among them that are explained in parts 1, 6 and 7 of this memo cover the Iranians who would like to travel to the US. In this Legal Report, we will just cite the relevant provisions of the memo (and the “implementation plan”) while referring those who are interested in reading a more detailed analysis of this subject to our Booklet titled “Tourism law in Iran”.

1.1. Business related travel to Iran following the conclusion of the JCPOA (July 14, 2015).

Rationale: The VWP legislation and its implementation do not violate U.S. commitments under the JCPOA. Nevertheless, these provisions do have the potential to cause citizens of VWP countries to hesitate to travel to Iran for business, which could adversely affect normalization of trade with Iran and, in turn, Iran’s commitment to implementing the JCPOA. Moreover, these provisions could adversely affect the strength of our partnership with the EU and with non-EU states in addressing Iranian (and other) issues. Thus, it is in the national security interest of the United States to waive the VWP ineligibility for individuals who have travelled to Iran for legitimate business purposes after July 14, 2015, or will travel to Iran for legitimate business purposes in the future.

Iranian Dual nations: This category should also include dual nationals of Iran who have traveled to Iran for legitimate business purposes since that date. Including dual nationals is appropriate for both of the national security reasons listed above, since these individuals will be important facilitators for companies that want to trade with Iran.

Legal argument: This limited approach is directly tied to JCPOA implementation and avoids burdening close allies whose nationals travelled to Iran for legitimate business purposes after the deal was concluded. As discussed in the legal paper, this approach is defensible based on the specific national security interests associated with maintaining the strength of international partnerships, as well as JCPOA implementation. DHS, in consultation with State, would have to determine what business travel would be viewed as “legitimate” and hence covered by the waiver. A baseline would be travel to Iran for business-related activities that were not prohibited or sanctionable under U.S. law and regulations or pursuant to UNSC resolutions at the time when the travel occurred.

Specific ESTA language: Questions should be added to elicit whether individuals traveled to Iran for legitimate business purposes. Possible questions include: “Was you travel to Iran after July 14, 2015? If yes, was the travel for business purposes? If yes, please describe the travel, including the company or other entity for which you were traveling and all entities in Iran with which you had dealings.” This last question would require some manual intervention by DHS to ensure the travel was for “legitimate business purposes,” so State and DHS need to collaborate on the mechanics of such an approach. If it was considered important to elicit further information to validate the applicant’s answer to these basic questions, additional questions that could be considered might include: For a dual national, whether the individual traveled with family members to Iran, as this could be an indicator that the purpose of travel was not solely business. Additionally, the travel question could ask, was the travel exclusively/solely for business purposes?

1.2. Dual-Iranian nationals who were born outside of Iran

Rationale: The current law excludes nationals of a VWP country who are also nationals of Iran, even if the Iranian nationality was acquired by operation of law, rather than an affimative act by the individual.

Legal argument: The United States has a national security interest in Iran moderating politically over time. Penalizing those who were born outside of Iran runs counter to this objective because it alienates a group that largely support the U.S. goal of encouraging Iran to moderate politically.

Specific ESTA language: No additional language is needed.

1.3. Dual-Iranian nationals traveling to the United States for business purposes or as part of official duties as an employee of a Humanitarian Non-Governmental Organization (NGO)

Rationale: The current law excludes nationals of a VWP country who are also nationals of Iran from traveling to the United States under the VWP. While this would be a broad category to include in a waiver, this group is engaged in activity that is important for the U.S. national security interest. Placing restrictions on humanitarian employee will make it harder for those organizations to recruit personnel from VWP countries, which would impact programs aimed at helping civilians in those countries.

Legal argument: The United States has a national security interest in promoting business and humanitarian ties with our closest allies in VWP countries. The United States also has a national security interest in Iran moderating over time, and thus in not alienating those who largely support that U.S. goal. Placing restrictions on dual nationals from Iran engaging in these activities will undermine that interest.

Specific ESTA language: ESTA questions would need to be updated to seek the purpose of the travel to understand whether it was solely for business purposes or as an employee of a humanitarian NGO on official duties.

II. Implementation plan

Due to importance of the issues raised by the Implementation Plan, a full citation of few paragraphs of it is necessary:

Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will 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 sub-national 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.

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

Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid non-immigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States.

III. Reactions in the US and in Iran

On the American side, as reported on the website of einnews.com on February 11, 2016:

At a hearing of the U.S. House Homeland Security Committee on February 10, lawmakers voiced particular concern over exempting from the new visa clampdown some travelers who conduct business in Iran -- an area the administration had sought to liberalize now that economic sanctions against Tehran have been lifted under last year's nuclear deal.

On the Iranian side, according to the presstv.com on December 20, 2015:

Over 100 of Iranian lawmakers on Sunday called on the government to adopt reciprocal measures in proportion to the US move to change the VWP. In a written note to Iran’s President Hassan Rouhani, 102 legislators said the government should adopt tough reciprocal measures related to implementation of JCPOA in case of violation of its contents.

Notwithstanding this verbal dispute, we need to wait for the final judgment of those who will vote for or against the VW Improvement Act by their feet in the months to come.


To learn more about the issues mentioned in this Legal Report, you may read the following texts on the website of www.lawiniran.com. If after reading this Legal Report and the following texts, you still have questions that call for detailed responses, you may send them to us by clicking on “Our Services” button on the website of www.lawiniran.com and following the procedure explained there.


1. Law in Iran Legal News: House Passes Visa Waiver Program Bill, Friday, December 11, 2015.

2. Law in Iran Legal News: Balancing Tourism against Terrorism, Friday, December 11, 2015.

3. Law in Iran Legal News: Visa Waiver Program Reforms & Senate, Friday, December 11, 2015.


Law in Iran Legal Report: The Visa Waiver Act of 2015 and Tourism of Iran, Friday, December 11, 2015.


All rights reserved for Mr. Farhad Emam. No part of these pages, either text or image may be used for any purpose other than personal use. Therefore, reproduction, modification, storage in a retrieval system or retransmission, in any form or by any means, electronic, mechanical or otherwise, for reasons other than personal use, is strictly prohibited without his prior written permission and shall have legal consequences.


You can also follow us on:

1. Twitter: @lawiniran

2. Linkedin: https://www.linkedin.com/in/farhad-emam-22735a51

3. Facebook:https://www.facebook.com/Lawinirancom-169230710097564/