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Business Visas to Europe This Summer?

“Reciprocity” Could Hit Hard for the Unaware

March 22, 2017

Currently, U.S. visitors traveling to Europe on business or as tourists, in most cases, do not need a visa to travel to most countries in the European Union.  However, this soon may change, and businesses that regularly send employees for short, permissible hops across the Atlantic for their jobs need to be ready.

What is the Visa Waiver Program?

The Visa Waiver Program (VWP) enables most citizens of participating countries to travel into other participating countries for tourism or business purposes for 90 days or less without the need to get a visa.  For a country to be VWP eligible with the United States, it must meet very strict requirements, including a low non-immigrant visa refusal rate, as well as meet other security and compliance requirements.

How did we get into this situation?

Contrary to some news reports, this is not a response to the immigration policies of the new President’s administration.  A diplomatic dispute concerning full reciprocity of the VWP has been simmering since 2014, when the European Commission announced that five countries (Australia, Brunei, Canada, Japan, and the United States) were failing to reciprocate visa-free travel to all EU citizens.  Since then, the United States has not responded, and has not granted full reciprocity for EU citizens from Bulgaria, Croatia, Cyprus, Poland, and Romania.  The other countries have responded and granted reciprocal visa-free travel to all member countries of the EU.  The United States is the last hold-out.

The EU Parliament passed a non-binding resolution on March 2, 2017, to impose visa requirements temporarily for U.S. citizens “within two months.”  EU officials have stated that they hope to resolve the dispute before a meeting scheduled between the United States and the EU on June 15, 2017. 

How likely is it that the U.S. will comply with the EU’s demands?

The EU clearly is insisting that the United States treat all EU citizens equally, a requirement under the EU laws; however, it is unlikely that the United States will be in a position to grant VWP to all EU citizens from Bulgaria, Croatia, Cyprus, Poland, and Romania.  Under INA 217(c) (8 U.S.C. § 1187), a new country entering into the VWP with the U.S. must have had a visitor visa refusal rate of less than 2 percent during the previous two fiscal years, and neither of those years had more than 2.5 percent refused, or not more than 3 percent refused in the previous full fiscal year.  Most of the countries in question have refusal rates higher than allowed to be new VWP participants under U.S. law.  (Bulgaria had a visitor visa refusal rate of 16.86 percent; Croatia 6.78 percent; Cyprus 2.03 percent; Poland 5.37 percent; and Romania 11.43 percent.) 

Other than an act of Congress changing the VWP entry requirements, it is unlikely that full admission of all EU countries into the U.S. VWP will happen.

What happens next?

Diplomacy is the next step.  A huge number of Americans visit the EU every year, and the economic cost to the EU in imposing visa requirements on the millions of tourists and business travelers from the United States certainly will diminish the leverage of the EU to insist on full reciprocity.  Further, one of President Trump’s campaign promises was for Poland to be admitted as a VWP country.  However, in the event that the EU does impose visa requirements for American business and holiday travelers, the principles of “reciprocity” may result in the United States also imposing visa requirements from all EU member countries.

We all need to wait and see how the diplomatic process unfolds over the next several months.  This may not be an issue—but it could be a huge issue.  Let’s see what happens.

Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.