Policy Analysis #3: Israel Is Not Eligible for Visa Waiver Program

November 14, 2021

ISSUE: After President Biden’s meeting on August 27 with Israeli Prime Minister Naftali Bennett, the White House issued a readout stating the countries are “working together towards Israel’s inclusion in the Visa Waiver Program.”

The Visa Waiver Program is administered by the State Department and provides for reciprocal, visa-free entry to the United States and participating countries by their respective nationals. The program has stringent entry and security requirements. Despite Israel’s long-standing desire to join the program, its discriminatory treatment of US citizens based on their ethnic and religious identities and their political viewpoints has led to a high rejection rate of US citizens seeking entry to Israel and to Occupied Palestinian Territory it controls, rendering it ineligible for participation in the program.     

However, President Biden’s statement that he will “direct our teams to work toward Israel fulfilling the requirements of the visa waiver program to get that done” signal that Israel’s inclusion in the program could be imminent despite its systematic discrimination against US citizens. On October 26, Homeland Security Secretary Alejandro Mayorkas confirmed that Israel is at the top of the list of four “candidates in the pipeline” for participation in the program, and Israel’s Ambassador to the UN Gilad Erdan stated that “very significant progress has been made toward achieving the objective.”

Members of Congress must ensure that Israel ends its discriminatory treatment of US citizens, as required by US law and Israeli treaty obligations to the United States, discussed below, prior to its admission to the Visa Waiver Program.

BACKGROUND

State Department travel warning on Israel details discrimination against US citizens

The Department of State’s international travel information for Israel and Occupied Palestinian Territory contains ample documentation of Israel’s discriminatory entry regime. Among these findings are: 

  • Discrimination based on ethnic and religious affiliation. “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.”     
  • US citizens on the Palestinian population registry are not allowed to freely enter Israel. “Individuals registered in the Palestinian Authority population registry, including those whom Israeli authorities believe may have a claim to a Palestinian ID card, are prohibited from entering Israel without advance permission, regardless of other nationality, including U.S. citizenship, or place of residence.”
  • US citizens on the Palestinian population registry are often denied the use of Israel’s airport. “Some have been allowed to enter Israel but told they cannot depart Israel via Ben Gurion Airport without special permission, which is rarely granted. Some families have been separated as a result, and other travelers have forfeited airline tickets.”
  • Israel frequently denies entry to US citizens who express solidarity with the Palestinian people, infringing upon their freedoms of association and speech. “The Israeli Ministry of Interior has continued to deny entry into the country of some foreign nationals (including U.S. citizens) affiliated with certain political and non-governmental organizations that the Government of Israel views as anti-Israel....U.S. citizens have been denied entry to Israel and the West Bank for involvement in and/or expressing support on social media for the BDS movement.”
  • Israel often denies entry to US citizens who refuse to give access to their social media and email accounts for its purpose of attempting to determine their ethnicity, religion, and political viewpoint. “Israeli security officials have also on occasion requested access to travelers’ personal e-mail accounts or other social media accounts as a condition of entry. In such circumstances, travelers should have no expectation of privacy for any data stored on such devices or in their accounts.”

As a result of all these discriminatory entry policies that target Palestinian- and Arab-Americans, and American Muslims, along with all US citizens who express support for the human rights of the Palestinian people, Israel has a high rate of rejecting the entry of US citizens, making it ineligible for the Visa Waiver Program. For example, last year, Israel rejected for entry 6.7 percent of US citizens, more than double the percentage of rejections allowed under the terms of the Visa Waiver Program. 

Congress has enacted a law to ensure that Israel meet the standards of the program 

In 2013, Sen. Barbara Boxer (D-CA) introduced S.462, the United States-Israel Strategic Partnership Act of 2013. The bill would have admitted Israel into the Visa Waiver Program as long as it “has made every reasonable effort, without jeopardizing the security of the State of Israel, to ensure that reciprocal travel privileges are extended to all United States citizens.” 

The language in the bill was widely decried as a loophole enabling Israel to enter the program while persisting in its discriminatory treatment of US citizens. While all other countries are mandated to abide by all the requirements of the program, this bill would have enabled Israel to join only after making a “reasonable effort” that would have allowed it to continue to deny entry to US citizens at higher rates than permitted by the program under the pretext of “security” considerations.

As a result of civil society pushback against Sen. Boxer’s attempt to exceptionalize Israel’s entry into the Visa Waiver Program, a new version of the bill was introduced in 2014 and was signed into law as P.L. 113-296. The law states that Israel cannot receive any special exemptions to the Visa Waiver Program and would only be eligible to join “when Israel satisfies, and as long as Israel continues to satisfy, the requirements for inclusion in such program.”

Israel is treaty-bound to provide entry to US citizens

Regardless of whether or not Israel is eventually allowed to join the Visa Waiver Program, Israel is treaty-bound to allow entry to US citizens, and its current discriminatory entry regime against US citizens based on their ethnic and religious affiliation and their political opinions constitutes a violation of these treaty obligations. 

In 1951, the United States and Israel signed a treaty of friendship, commerce, and navigation, which entered into force in 1954 after ratification. Article II of the treaty states:

  1. Nationals of either Party shall be permitted to enter the territories of the other Party and to remain therein: (a) for the purpose of carrying on trade between the territories of the two Parties and for the purpose of engaging in related commercial activities; and (b) for other purposes subject to the laws relating to the entry and sojourn of aliens.
  2. Nationals of either Party, within the territories of the other Party, shall be permitted: (a) to travel therein freely, and to reside at places of their choice; (b) to enjoy liberty of conscience; (c) to hold both private and public religious services; (d) to bury their dead according to their religious customs in suitable and convenient places; (e) to gather and to transmit material for dissemination to the public abroad; and (f) to communicate with other persons inside and outside such territories by mail, telegraph and other means open to general public use.

Israel’s discriminatory treatment of US citizens based on their ethnic and religious affiliations and political opinions, restrictions on the freedom of movement of US citizens, and denial of rights to US citizens to engage in solidarity with the Palestinian people all constitute clear violations of these treaty obligations.