Israel Is Unlikely to Respect US Visa Waiver Program Rules

The United States recently announced that starting July 20, 2023, Israel would enter a trial period to determine whether it qualifies for admission into the US Visa Waiver Program (VWP). Federal law requires, among other things, that US citizens and nationals be allowed to travel visa-free without discrimination to a Visa Waiver Program Country (VPC) in exchange for the United States providing the same privilege to the citizens and nationals of the VPC. This requirement is a principle known in international relations as reciprocity. The State Department has asserted that Israel will be making changes to its short-term entry procedures “to ensure equal treatment for all US citizens, without regard to national origin, religion, or ethnicity.”

Up until this year, previous State Department travel advisories have warned travelers about the discrimination they may face at Israeli-controlled ports of entry. Despite assurances from US officials over the course of the last year that “Blue is Blue” (meaning all persons holding blue US passports must be treated the same) and that all US citizens are entitled to the same treatment that Israeli citizens and nationals receive at US-controlled border crossings, a leaked memorandum of understanding (MoU) signed between the United States and Israel confirms that not only will the disparate treatment of US citizens based on their national origin and religion continue—now it will be given US sanction.

The Biden Administration’s Push to Admit Israel into the VWP

The Biden administration has made it a priority for Israel to be admitted into the VWP. US officials were confident that a previously elusive prerequisite—keeping the rate of tourist visa rejections for Israeli travelers to the US under 3 percent—could be met. This became possible because in 2019 the United States changed how it calculates the rejection rates, limiting the counting of denials to only the final adjudication of a visa application in a fiscal year rather than every incident of a visa denial for an applicant. In addition, as a result of COVID-19 travel restrictions, Israeli tourist denials fell during Fiscal Year 2022. These factors allowed Israel’s rejection rate for tourist visas to fall from 6.52 percent in FY2020 to 2.27 percent in FY2022. Thus, the United States was able to announce in January 2023 that Israel had met this preliminary hurdle.

The Biden administration has made it a priority for Israel to be admitted into the VWP.

Two of the three other major requirements have also been met. The United States and Israel signed an information-sharing agreement in March 2022 allowing each country a limited number of criminal history requests on nationals boarding flights between the two countries, and in July 2022 they signed another requiring Israel to exchange information on nationals who may represent a threat to the security or welfare of the respective country or of its citizens. The remaining obstacle is the reciprocity requirement. According to former Ambassador to Israel Tom Nides, who led negotiations with Israel on this matter, freedom of travel for all Americans is “the fundamental basis of the Visa Waiver Program,” which Israel has not met. To ensure that Israel changes its behavior and is held to account, he promised that any agreement with Israel would have to include a “snapback” provision to remove it from the VWP if federal statutory obligations are not maintained.

The Challenge of Reciprocity and the “Fix” Contained in the MoU

The State Department has long warned American travelers about discriminatory treatment they are likely to face at the hands of Israeli border officials. Previous travel warnings for Israel, the West Bank, and Gaza have warned about the substantial difficulties and hostile treatment some US citizens of Arab or Muslim heritage (including Palestinian Americans) have experienced at Israel’s borders and checkpoints. Israel sometimes denies these individuals entry for their associations with political or non-governmental organizations, or for their participation in or expressions of support for the Boycott, Divestment, Sanctions (BDS) movement. Palestinian Americans who are also Jerusalem permanent residents may even encounter problems retaining their Jerusalem residence status by virtue of holding US citizenship. In addition, Americans with family, professional, or political connections inside the West Bank have been told that Israel may limit their movement to travel only in the West Bank. With respect to Gaza travel, US citizens who receive rare approval to depart Gaza via its crossing with Israel are not permitted to fly out of Israel’s airport and must travel to Jordan. All travelers to Israel have been warned that they should have no expectation of privacy for any data stored on their devices or in their accounts, and that if their devices are confiscated, there is no possibility for redress.

Israel’s discriminatory treatment, particularly of Arab Americans, was the primary reason behind the Obama administration’s decision to block its admission to the VWP. Attempts by California Senator Barbara Boxer, backed by the American Israel Public Affairs Committee, to amend US immigration laws to effectively exempt Israel from having to comply with the reciprocity requirement failed, and have been criticized as an attempt to undermine the civil liberties of American travelers.

Israel’s discriminatory treatment was the primary reason behind Obama’s decision to block Israel’s admission to the VWP

While the relevant US authorities assessed Israel’s qualification for admission to the VWP, in February 2022, the Israeli Coordinator for Government Affairs in the Territories (COGAT), the military authority responsible for Palestinians in the West Bank, published its West Bank foreign entry procedures in English and in unclassified format (though it has been revised at least twice, once in September and again in December 2022). The procedures essentially end all tourism to the West Bank if the traveler is visiting a Palestinian individual or a Palestinian academic institution in either occupied East Jerusalem or the West Bank. The few classes of travelers allowed to enter must obtain a military-issued permit, and are restricted to using only the land crossing with Jordan. Americans visiting Jewish Israelis or illegal Israeli settlements and academic institutions in the West Bank, however, are not subject to the restrictions. In an early version of the procedures, Americans would also have had to disclose their family relationships to Palestinians in the West Bank, the names and ID numbers of those whom they intend to visit, and any vested or nonvested property interests they hold in the West Bank.

Palestinian, Arab, and Muslim American membership organizations, civil rights groups, humanitarian organizations, and other interested parties have engaged in numerous invite-only or off-the-record “listening sessions” with responsible officials in the State Department, the Department of Homeland Security, the Office of Palestinian Affairs in Jerusalem, and the US Embassy to Israel, and were assured that all Americans would be treated equally were Israel to enter the VWP. Senators Chris Van Hollen (D-MD) and Brian Shatz (D-HI), along with 14 other Democratic senators, penned a letter calling on the Departments of State and Homeland Security to ensure the non-discriminatory treatment of Americans, and asked whether the US would be requiring changes to Israeli policies. And a bipartisan group of 65 senators sent a letter to the same departments urging the United States and Israel to address these issues, including the reciprocal treatment of US citizens. A number of members of Congress also sent individual and joint letters to complain about the specific treatment of their constituents at Israeli-controlled border crossings or the impact of the COGAT entry procedures on their ability to travel.

In the middle of this summer’s travel season, the United States and Israel signed an MoU regarding the initiation of a trial period that would assess Israel’s qualification for admission to the VWP. At the time of signing, State Department Spokesperson Matthew Miller acknowledged that the Israeli Government was not currently in compliance with VWP reciprocity requirements and would have to “further modify its regulations and public-facing guidance in the coming days.” He added that the United States seeks “equal treatment regardless of national origin, religion, or ethnicity for all US citizens, including those who are in Gaza” by the end of the trial period. While the signed MoU has not been officially released, nor is there a plan for it to be made public, versions of it have been leaked to the press. Most of its operative terms are confirmed in US and Israeli travel advisories and published on the two governments’ respective websites. Based on the MoU and the publicly available guidance interpreting it, the United States has deviated substantially from federal statutory requirements.

Disparate Treatment of Palestinian Americans

Under the terms of the MoU, and according to related updates to the Israeli entry procedures, Palestinian Americans will continue to be treated differently than all other travelers. If they are registered in Israel’s population registry (Palestinians derive their Palestinian Authority ID numbers from Israel, and Israel must preapprove their application for PA travel documents) and are currently residing in the West Bank, they must obtain a military-issued permit (dubbed a “US Tourism Approval in Israel”) to enter or transit through Israel. Other Americans, including Israeli Jews registered in Israel’s population registry, are not subject to these restrictions. Though the MoU indicates that Israel’s reliance on military procedures is “superseded” by the MoU, alternative processes will not be in place before the end of the trial period—if at all—thus enabling Israel to be admitted into the VWP even while subjecting Palestinian Americans to martial law. Other concerning provisions require Palestinian Americans to download a COGAT-developed app on their phones or devices in order to apply for these special permits. Given Israel’s sophistication in developing and deploying spyware technologies, as well as previous complaints about the app, including that it required users to give COGAT and third parties access to personal data, many Palestinian Americans are concerned their privacy and security will be compromised by utilizing it. With the short time provided to assess the app, it is not possible to address these and other concerns related to Israel’s well-documented mass surveillance of Palestinians; nor to determine how this will impact the rights of Americans in the occupied territories.

In any case, much of what has been set out in the MoU and characterized by US officials as improving the travel experience of Palestinian Americans is not novel; in fact, since Israel closed Ben Gurion Airport to Palestinian Americans in the early 2000s, seeking military permits is common practice for Americans wishing to use the airport. What is new is that since the trial period began, more Palestinian Americans holding a Palestinian Authority ID have been able to use Israel’s international airport. This may be short-lived, however, because according to the updated COGAT procedure, the changes Israel made to ease entry are “part of its candidacy for participation in the Visa Waiver Program,” and are not necessarily a permanent fixture. Moreover, without the inclusion of the promised “snapback” provision in the MoU, Israel may remain in the VWP even if it falls well short of its commitments.

Restrictions on Gaza Entry and Exit

Despite the State Department’s continued assertions that Israel will permit Americans entry to Gaza as part of the VWP (subject to security procedures), the MoU provides that only persons with first-degree family members (parents, siblings, and children under 12 years of age) may apply for entry with 45-days advance notice. In addition, Americans inside Gaza are excluded from using the airport in Israel and must take a special shuttle bus organized between Israel and the PA for transit through Israel to access Jordan’s airport. The procedures related to Gaza will only come online in mid-September, leaving little time to assess Israel’s compliance with them. Regardless, the reciprocity requirement fails here because Israeli nationals are not subjected to similar restrictions when seeking entry to or transit through the United States.

Ideological and Security Justifications for Exclusion

Current Israeli law and procedures specifically exclude supporters of Palestinian human rights and those affiliated with particular political or non-governmental organizations from entry to Israel and the occupied territories. Nothing in the MoU or in any State Department guidance addresses exclusion based on speech, conscience, or associations, although an unnamed Israeli source has said that Israel will not enforce travel bans on BDS supporters. Given that Israel has designated virtually all Palestinian political organizations as “terrorist organizations” and has, since October 2021, extended this designation to prominent Palestinian human rights groups and community-based organizations, the failure to address this leaves many Americans vulnerable to exclusion simply for upholding what are essentially universal values. Moreover, by leaving what constitutes Israel’s “legitimate security, criminal, health or immigration concerns” undefined, this basis for exclusion is likely to continue to be used as a proxy for racial profiling. The Committee for Academic Freedom of the 1,200-member Middle East Studies Association has also objected to the MoU’s failure to constrain the use of security justifications, arguing that, “The practice of using national or religious origin or protected speech as a proxy for exclusion amounts to impermissible discrimination and violations of the right to free speech, which adversely impacts the academic freedom of US students and scholars.”

Ineffective Compliance Review

The provisions of the MoU contain no yardstick for measuring Israel’s compliance with the reciprocity requirement; nor do they require denial of Israel’s admission or its removal from the program if it does not adhere to requirements. The data Israel must collect during the trial does not include information on US citizens’ nationality, age, race, or sex, all of which would help to determine whether entry denials are based on legitimate security concerns or whether they instead demonstrate racial profiling. Nowhere does the MoU explicitly state what actions or level of disparate treatment would result in denial of Israel’s admission into the VWP. The only time the MoU even mentions reviewing Israel for compliance is six months after it has been admitted into the program.

In light of all of the above, the promise that “Blue is Blue” and the notion that Israel’s application for admission to the VWP might induce it to change its long-standing discriminatory practices appears to have been completely abandoned. Perhaps the most telling example of how discrimination against Palestinian Americans will endure is a provision in the MoU, and confirmed on the State Department website, that prohibits Palestinians on Israel’s population registry from riding in Israeli public transportation or cars when crossing checkpoints and denies them the ability to rent an Israeli-plated vehicle.

Impacts on US Foreign Policy Objectives and Security

Beyond the impact on the civil liberties of US citizens, the MoU undermines US foreign policy objectives that seek to preserve the possibility of a negotiated political solution between Israel and the Palestinians. It may also make classes of US citizens more insecure when traveling internationally. By accepting three separate entry procedures for Palestinians holding different IDs—one for the West Bank, another for Gaza, and yet another for East Jerusalem—the United States is mimicking Israel’s own policy that seeks to fragment Palestinian populations in the occupied territories, which furthers Israel’s illegal settlement enterprise and encourages emigration. In addition, the United States’ failure to challenge Israel’s closure policy for Gaza and its acquiescence to Israel’s disparate treatment of Palestinians in the West Bank compared with Jewish settlers illegally residing there effectively normalizes Israel’s apartheid regime over Palestinians in the occupied territories. Nowhere is this clearer than in the case of Palestinian East Jerusalemites, whom the United States has excluded from benefiting from visa-free travel even though they are nationals of Israel, and despite the fact that the plain language of the applicable federal statute provides that nationals of a VPC are included in the Visa Waiver Program.

The United States also appears to have effectively accepted Israel’s territorial designs over the West Bank. As has become abundantly clear, Israel is in the process of officially annexing the area and intends to maintain security control there. Thus, the MoU’s failure to reference the pre-June 1967 line in a travel program involving entry into and exit out of “Israel” is to turn a blind eye to Israel’s territorial designs. The specific exclusion of Gaza’s crossing with Israel from the definition of an international border (while Israel claims it no longer occupies the strip) also accepts a one-state solution for Israelis and Palestinians, but one that envisions no rights for the latter, running counter to the Biden administration’s position that “Palestinians and Israelis alike deserve equal measures of security, freedom, opportunity and dignity.”

The provisions of the MoU contain no yardstick for measuring Israel’s compliance with the reciprocity requirement.

The current US agreement with Israel also gives legitimacy to the distinctions Israel has created between nonresident and resident PA-ID holders, which risks playing into the plans of those in the Israeli government who wish to displace and dispossess Palestinians. Israel may now argue that Palestinian Americans residing outside the occupied territories have relinquished their residency and are “absentees.” This is not a hypothetical concern; Palestinian American Jerusalem ID holders have had their residency revoked in this way for years. Over 14,500 Palestinian Jerusalemites have had their residency revoked on the basis that their “center of life” is no longer Jerusalem. The fact that the MoU requires Israel to ask travelers about all the citizenships they hold puts Palestinian American Jerusalemites in the precarious position of having to choose whether to lie, or to tell the truth and lose their Jerusalem residency rights.

Finally, the US acquiescence to the differential treatment of Americans traveling abroad sends a message to other countries that the United States is not a zealous defender of the rights and security of certain classes of its citizens. Poor treatment of Arab American travelers in other parts of the world may become more pronounced. US passports will be devalued at a time when international travel is fraught with security risks. Today it is Arab Americans. Tomorrow it very possibly will be others.

The views expressed in this publication are the author’s own and do not necessarily reflect the position of Arab Center Washington DC, its staff, or its Board of Directors.

Featured image credit: Shutterstock/Roman Yanushevsky