Israel and the US Visa Waiver Program: Not a Done Deal

Israel has long sought entry into the United States Visa Waiver Program (VWP) with limited success, despite years of efforts and the close strategic and bilateral relationship between the two countries. Like many before it, the current Bennett government has also failed to make progress on an issue considered important for Israeli citizens and institutions. Old obstacles remain in place and new ones continue to evolve, including the latest introduction of novel regulations for entry that will undoubtedly impact American citizens.

Background on the US VWP

The US Visa Waiver Program permits nationals of participating countries to enter the United States by getting a tourist visa issued upon arrival at an American port of entry. This means that visitors from these countries do not have to secure a visa from a US embassy or consulate in their home country ahead of time. That usually involves getting screened and interviewed, a time-consuming process that results in either approval or denial of said visa. The rationale from the VWP process is that it facilitates travel and economic ties between the countries and promotes continued and strong relations.

The rationale from the VWP process is that it facilitates travel and economic ties between the countries and promotes continued and strong relations.

Currently, 40 countries participate in the program. The vast majority of them, 32, are European nations, and Australia and New Zealand, key American intelligence allies, make the list. Major Asian allies like Japan, South Korea, Taiwan, and Singapore benefit from the program while Chile and Brunei round out the list. The last country to join the group was Croatia which was designated for eligibility in 2021.

The program is not merely a club for countries with friendly relations with the United States. In fact, the US has strong ties with a much larger number of nations. More importantly, the collective represents a security agreement as well. The US Department of Homeland Security states that the “The Visa Waiver Program is a comprehensive security partnership between the United States and a designated country that meets several requirements related to counterterrorism, law enforcement, immigration enforcement, document security, and border management.”

Remaining outside the program means that Israel has failed to meet its requirements. For Israeli leaders and supporters of the US-Israel relationship—who often couch bilateral ties in security terms and emphasize their closeness—this failure to be in the premiere program is an awkward reminder that as close as the relationship might seem, important gaps remain.

History of US-Israel Negotiations

The visa policy of the United States is largely determined by the Executive Branch, particularly the State Department. While security screening for visa applicants has long involved an interagency process, the post-9/11 era shifts centralized this under the Department of Homeland Security. Israeli leaders have sought to navigate the bilateral relationship with different American administrations and push the visa waiver program issue over the years. But their efforts have come up against bureaucratic resistance despite having strong political relationships in Washington. Over the years, this dynamic has led Congress, a space where Israel has plenty of allies and supporters, to try to find ways to help Israel get into the program, even over the objections of US executive agencies.

Israeli leaders have sought to navigate the bilateral relationship with different American administrations and push the visa waiver program issue over the years.

A congressional hearing from 2003 is one of the earlier instances of this playing out. After witness testimony, the first question raised by then-Chairman of the Committee on Government Reform, former Representative Tom Davis (R-Virginia), was regarding Israel and admitting it into the program. He asked: “Where does Israel stand in regard to the Visa Waiver Program? Are there ways the Israelis could receive expedited entry into the country?” A State Department official explained that Israel failed to meet the requirements of the program because of a so-called “refusal rate.”

The refusal rate is a key criterion for entry into the program. In order to waive the visa requirement, the US government wants to reliably know that visitors from the home country would not be likely to be denied a visa if they apply for it normally. Visas are denied for a wide range of reasons, but it is often because applicants fail to provide sufficient documentation or convincing evidence that their trip is indeed for tourism purposes and not to work or immigrate illegally. A 2010 US State Department cable leaked among the Wikileaks trove of documents revealed that immigration fraud from Israel was a major concern for US diplomats and that diplomatic staff had been engaged in an investigation of a wide ranging scam to bring Israelis to illegally work in the United States, mostly selling Dead Sea products in malls, as well as elsewhere around the world. The cable notes that “it is culturally acceptable for post-army Israelis to work illegally in the United States; key parts of the Dead Sea industry have been able to base a large part of their business models upon the employment of illegal workers.”

Historically, the refusal rate for visa applicants from Israel has been higher than the maximum allowable threshold of 3 percent. In other words, before the United States permits a country into the VWP, it wants to see at least 97 percent of visa applications by that country’s citizens being approved. In recent years, Israel’s refusal rate for B visas (tourism visas) was well above the threshold, at 5.3 percent in 2019 and 6.52 percent in 2020.

Over the years, congressional efforts have also sought to change US law to make Israel’s entry into the program easier.

Over the years, congressional efforts have also sought to change US law to make Israel’s entry into the program easier. In 2013, for example, then-Senator Barbara Boxer (D-California) led a legislative push that tried to excuse Israel from certain requirements in legislation called the US-Israel Strategic Partnership Act, but the final text was ultimately amended before passage in 2014. In 2013, Senator Ron Wyden (D-Oregon) introduced legislation that called for Israel’s entry into the program by making an exception for its refusal rate that failed to meet the threshold. Then-Representative Brad Sherman (D-California) had introduced similar legislation in the House of Representatives the month before.

Most recently under the Biden Administration and the government of Prime Minister Naftali Bennett, there seems to be a new push to try to get Israel in. The meeting between the two last summer followed with readouts that noted the issue on the agenda. Other progress has been made after Israeli ministers, working with American counterparts, have come to terms regarding the sharing of security databases, another program requirement. While there seems to be new momentum, and President Joe Biden’s commitment to tasking his team to “enhance consultations” suggests a commitment from the top, it isn’t clear that Israel has a viable pathway to address the actual and significant remaining sticking points, specifically the refusal rate and the issue of reciprocity.

Reciprocity and the Treatment of US Citizens by Israel

Along with the refusal rate, a consistent and significant sticking point in the negotiations between Israel and the United States is the former’s failure to meet the principle of reciprocity due to its discriminatory treatment of American citizens at ports of entry it controls. US citizens travelling through Israeli controlled entry points, arriving at either the airport or one of the land crossings from neighboring countries, have often been denied entry if they have a Palestinian, Arab, or Muslim background, or if there is any suspicion that they have been involved in activism or dissent against Israel’s treatment of Palestinians.

While the US State Department has said that it expects that Israel treat American citizens equally at ports of entry, the US government acknowledges that US citizens traveling to Israel can and have been denied entry but has failed to prevent Israel’s practices. The State Department’s travel advisory notes that:

The U.S. government seeks equal treatment and freedom to travel for all U.S. citizens regardless of national origin or ethnicity. U.S. citizens who are denied entry into Israel or the West Bank should receive a written explanation from Israeli authorities. Some U.S. citizens of Arab or Muslim heritage (including Palestinian-Americans) have experienced significant difficulties and unequal and occasionally hostile treatment at Israel’s borders and checkpoints.

Interestingly, the advisory mentions that activities related to the Boycott, Divestment, and Sanctions (BDS) movement have been decisive factors in denial of entry into Israel and the occupied West Bank.

Beyond these politically motivated denials of US citizens, there is also a blanket discrimination policy against those also holding Palestinian identity cards. They are not permitted to use the airport and must instead fly to a neighboring country (Jordan or Egypt) to seek access via a land crossing. For Palestinians residing in the United States who travel back to Israeli occupied Palestinian territory to see family or friends, this discriminatory treatment means added expense and difficulty. Their neighbors in the United States who are US citizens could plan to travel to visit relatives in the occupied West Bank, whether in a Palestinian town or an adjacent Israeli settlement. Even though they are both US citizens and traveling from and to nearly identical spots, Israel’s discriminatory policy forces them to take different routes, use different ports of entry, and go through different processes.

New COGAT Regulations

The latest wrinkle in this issue has come in the form of newly issued regulations governing entry and access through Israeli controlled land crossings used by Palestinians and would specifically impact foreign nationals like US citizens and others. Last February, the Coordination of Government Activities in the Territories (COGAT) office of the Israeli military that operates the land crossings into the occupied territory issued new regulations that take effect in May and will remain in effect for a pilot period of two years before being reevaluated.

The latest wrinkle in this issue has come in the form of newly issued regulations governing entry and access through Israeli controlled land crossings used by Palestinians.

The lengthy regulations may impact US citizens in various ways. Most applicable, however, is that related to the new protocol for the entry of certain foreign nationals into Israel. Some Americans citizen seeking to enter the occupied West Bank will first have to gain approval from a local Israeli embassy or consulate ahead of travel in order to gain permission. This means that the Israeli government will screen these applicants ahead of time and before they travel instead of making determinations at the crossing. The US State Department has said little about these new regulations and only went as far as to say they are still under study. However, the department repeats that it continues to expect equal treatment of US citizens “upon arrival.” That leaves open an interesting space. If some US citizens have to apply prior to arrival and are not granted permission by the Israeli government, will the US government still consider that discriminatory treatment? The failure of the State Department to address this directly thus far does not bode well for US citizens expecting their government to protect them from discrimination.

What Is Next?

The State Department is going to eventually have to come up with a response to Israel’s new guidelines and determine whether they will be in line with the reciprocity principle. The new regulations go into effect in late May of 2022 and will apply to travelers to Palestine during the high travel summer season. This means that US citizens might be denied permission as soon as this month. How the State Department responds to this is not clear. Indeed, it is not clear how US diplomats would know about these instances since that would rely on citizens reporting the denials or documenting their experiences.

As of now, the refusal rate remains Israel’s biggest obstacle; and it is unclear that it will make the necessary progress to get below the threshold any time soon. However, if it does and this issue is taken off the table, the main sticking point will then be Israel’s discriminatory treatment of US citizens. The new regulations might try to minimize known instances of these denials, but it is only likely to work if the US State Department chooses to turn a blind eye to its own citizens.