A Visa Program Exception for Israel

(This article previously appeared in the Jewish Currents email newsletter; subscribe here!)

On September 27th, Israel saw a decade-long quest come to fruition when the United States Department of Homeland Security and State Department announced that Israel would soon become part of the Visa Waiver Program (VWP), permitting Israelis to travel to the US without first securing a visa. The decision, which will take effect in two months, was cheered by Israeli and US officials, who say it will enhance economic ties and security cooperation between the two countries—but sharply criticized by Palestinian Americans, who believe the move condones Israel’s continuing discrimination against Palestinian, Arab, and Muslim American travelers, as well as those active in the Palestine solidarity movement. Palestinian rights advocates say that in addition to allowing Israel to treat some American visitors differently than others, admitting Israel into the VWP also functions as a gift to the current far-right Israeli government. “My community is being sacrificed to give [Israeli Prime Minister Benjamin] Netanyahu a perk,” James Zogby, the head of the advocacy group Arab American Institute, told Jewish Currents.

Israel has worked to gain entry to the VWP since 2013. AIPAC and Jewish American establishment groups have lobbied for the move, as have many members of Congress. According to Hadar Susskind, head of the Jewish anti-occupation group Americans for Peace Now, Israel wanted to join the program not only to ease Israeli citizens’ travel to the US, but also for symbolic reasons. “It’s a benefit only 40 other nations get, and Israel wants to see itself as one of the most favored nations,” Susskind said. However, Israel previously found itself blocked from the program for two reasons. The first was the visa refusal rate: A country can only qualify for the VWP if the US annually rejects less than 3% of visa applications by that country’s citizens. Israeli citizens’ visa rejection rate routinely exceeded that threshold due to incomplete applications and US embassy officials’ fear that Israelis would overstay their visas. It was only in the last fiscal year, after a period of low travel following the pandemic, that the US visa rejection rate for Israeli citizens fell below 3%, giving Israel a unique window of opportunity.

The other, much more contentious, reason that Israel has struggled to enter the VWP is the program’s requirement of “reciprocity.” While the exact definition of “reciprocity” is not laid out in the law creating the VWP, US officials have defined it to mean “equal treatment and freedom of travel for all US citizens.” In other words, under the VWP, American security officers won’t discriminate against Israeli travelers entering the US without visas if Israeli border officers likewise allow Americans visa-free entry into Israel regardless of their race, religion, or national origin. However, Israeli border officials have routinely violated this expectation by frequently detaining, interrogating, and deporting Palestinian Americans as well as other Arab and Muslim US citizens. Israel has also prevented many Palestinian Americans from using Ben-Gurion Airport in Tel Aviv, requiring them to first travel to Jordan before allowing them to cross into the occupied West Bank. Palestinian Americans with Gaza IDs have likewise faced discrimination since they are often only allowed to enter the coastal enclave through Egypt. For years, these discriminatory policies drew US censure, with the State Department warning travelers that Arab and Muslim US citizens may experience “significant difficulties and unequal and occasionally hostile treatment at Israel’s borders and checkpoints.” And as recently as July, a Biden administration official noted that Israel “does not currently meet all of the statutory and policy requirements” of the VWP because of a lack of full reciprocity towards Palestinian Americans.

Israel has long resisted making the changes necessary to enter the VWP due to worries that easing restrictions on Palestinian Americans could pose security concerns. But after the US visa refusal rate for Israeli citizens came down in the last fiscal year, the Israeli political establishment decided to push past its security concerns and ease travel for Palestinian Americans so it could finally enter the VWP. On July 19th, Israel signed a Memorandum of Understanding (MOU) with the US in which it committed to “equal treatment” for all US citizens. Starting July 20th, Israel has allowed Palestinian Americans to use Ben-Gurion Airport, making their trips to Israel and the West Bank much easier. On September 11th, Israel also published new travel regulations permitting Palestinian Americans with Gaza IDs visa-free travel to Israel, though Gazans still face more restrictions on travel than those with West Bank IDs.

According to Human Rights Watch’s Eric Goldstein, these changes are an example of the US successfully using its influence to “get Israel to treat its citizens somewhat better.” Scott Lasensky, who served as an Obama administration policy advisor on Israel, shared this assessment, telling Jewish Currents that “in the last two years, the United States leveraged the Visa Waiver Program to get Israel to do a whole range of things that it didn’t want to do in terms of Arab, Palestinian, and Muslim American travel.” The resulting shifts have been significant for Palestinian Americans, thousands of whom have been able to enter Israel since mid-July. “So many Palestinians have been waiting their whole lives to be able to go to Jerusalem,” said Alia El-Assar, the congressional outreach coordinator for the American Federation of Ramallah, Palestine. “This is huge for them.”

But although these changes are positive and “marginally ease entry for Palestinian Americans,” El-Assar said, “they are not enough.” Among US citizens, Palestinian Americans residing in the West Bank are still singled out in being required to apply for an Israeli entry permit using a separate online system run by the Israeli military. Furthermore, even if they have tourist visas, such citizens are still not permitted to drive through military checkpoints into Israel. The Biden administration has said that the separate online system for Palestinian Americans would be eliminated by May 1st, 2024. It has also promised to “solve” the car issue, but the existing MOU with Israel does not reference changes to car regulations, and in fact explicitly states that the memorandum’s “principles and commitments” do not apply to Israeli vehicle regulations. Palestinian Americans who live in Gaza are also excluded from the full benefits of the VWP: They are still required to wait as long as 45 days to get permission to enter Israel—a duration far longer than the 48 hours Israel takes to approve all other American travelers. Furthermore, El-Assar told Jewish Currents that, in instances she has documented since Israel made changes to its visa policies, Palestinian Americans have continued to face harassment at the hands of Israeli border officials, particularly as they are leaving the country. “When it’s time to leave, they have been harassed, they’ve been intimidated, they’ve been forced to strip down so they can be searched,” she said. “This is a strategy to discourage Palestinian Americans from returning.”

In addition to restricting Palestinian American visitors, Israel also continues to hold the power to prevent US citizens from traveling to certain parts of Palestine. Americans are still largely barred from visiting Gaza unless they have an immediate relative there. Moreover, according to the MOU, Israel still has the discretion to ban travelers it deems to be security risks. Zaha Hassan, a human rights lawyer and a fellow at the Carnegie Endowment for International Peace, said that such discretionary power could be used to exclude affiliates of Palestinian human rights organizations. “There’s nothing in the MOU to prevent denials of entry over speech, activism, or association with certain NGOs and human rights organizations,” Hassan said. According to the Times of Israel, even when the US recently warned Israel not to continue denying entry to Americans who express support for a boycott of the country, Israel did not agree to that request.

The Biden administration’s decision to grant Israel entry into the VWP despite these violations of reciprocity has drawn opposition from Palestinian Americans. “The Department of Homeland Security is supposed to implement the law,” Hassan said. “It’s not supposed to create an exception for Israel outside of the law.” Some members of Congress are joining Palestinian American advocates in criticizing the move. In a joint statement written on September 27th, Senators Chris Van Hollen, Brian Schatz, Jeff Merkley, and Peter Welch argued that “equal treatment of all U.S. citizens is critical to the integrity of the Visa Waiver Program, and we are deeply concerned with the Administration’s decision to move forward in violation of that principle.” And on September 26th, Israel’s entry into the VWP faced its first legal challenge as the American-Arab Anti-Discrimination Committee (ADC) filed a federal lawsuit seeking to stop the decision by arguing that the Department of Homeland Security was redefining the meaning of “reciprocity” and thus taking an “arbitrary and capricious action.” But two days later, a judge rejected ADC’s request for a preliminary injunction to prevent Israel’s entry, dashing hopes for immediate federal action against the Biden administration’s move.

US officials have tried to reassure critics by saying that they will continue to monitor Israel’s compliance with the VWP’s requirements; some have even talked about a “snapback” provision that would reverse the country’s entry into the program if it discriminates against Americans. However, human rights advocates worry that there is little prospect for reversing the Biden administration’s decision. “If they’re not going to apply human rights law on aid to Israel, how can I expect them to apply it now for American travelers who are going to be treated in a discriminatory manner?” said Zogby. “When have we ever snapped anything back with Israel?”