The Israel-US Visa Waiver Agreement: What Does It Mean for Palestinian American Travelers?

A few years ago, my brother-in-law, Reverend Khader el-Yateem, attempted to visit Jerusalem via the Sheikh Hussein northern crossing point from Jordan to Israel. At the passport control and after a long wait, he was denied entry, even though he had a valid US passport. His wife, a Jerusalemite with Israeli permanent residency, was allowed to enter. The reason, the authorities at the bridge told him, was that he was born in Bethlehem. To prove it, they showed him an old Israeli army-issued ID card1 in his name. To them, his US passport was irrelevant.

But on July 21, 2023, Reverend el-Yateem posted on his social media account a picture of himself holding a copy of his US passport and the slip of paper given to him at the Ben Gurion Airport allowing him entry, with the comment “most uneventful arrival to Tel Aviv.” He was traveling with his family to attend a wedding in Palestine.

What changed in the intervening years is the Israeli attempt to join the 40 countries that participate in the US Visa Waiver program, which allows citizens of participating countries to enter the US without a visa provided they extend the same courtesy to US citizens arriving to their countries. The program has a number of requirements, one of which concerns the denials of applications from nationals of the applicant country for US visas. The denial rate should be under 3 percent. Normally the annual denial rate for Israelis is 6–10 percent; with the coronavirus pandemic, fewer Israelis have been traveling, so the denial rate went down, and all of a sudden Israel became partly eligible for the waiver program.2

Other requirements, however, needed to be addressed, among them the issue of total reciprocity. For Israelis to be admitted to the US without a requirement for a prior visa, US federal law mandates that like any country participating in the Visa Waiver program, Israel must treat all US citizens equally upon entry, exit, or transit “regardless of their race, religion, ethnicity, national origin, or membership in any other protected class recognized by U.S. law.” In short, countries entering the Visa Waiver program must demonstrate that they treat a blue (US) passport as a blue passport, commonly referred to as “blue is blue.”3 These reciprocity rules are required for all other nations in the US Visa Waiver program.

Israel has notoriously violated such standards. Israeli law requires holders of Israeli status documents such as passports or permanent-resident IDs to enter and leave the country using these documents rather than any foreign passports. The US State Department archives are chock-full of complaints by Americans of diverse backgrounds, but especially Palestinian Americans, Arab Americans, Muslim Americans, and African Americans, who have all faced discriminatory Israeli policies.

Israel has long treated Americans differently depending on their ethnicity and their residency. This is evident in the ways that cut across various legal areas: upon entry into Israel at the airport, which falls under Israeli law; upon entry to the West Bank, which falls under recent COGAT (Coordinator of Government Activities in the Territories) Entry Regulations for foreign passport holders visiting Palestinians in the West Bank; on movement between areas of the country and the airport and access to and use of the airport; and of course for entry to and exit from Gaza. At all of these points, Israel has considered US Palestinians as Palestinians only, regardless of their citizenship status in the US, subjecting them to its permit regime that requires most Palestinians from the West Bank and/or Gaza to hold a special military permit to enter Jerusalem or Israel (including the airport), and for Jerusalem ID holders to present their laissez passe, not their US passport.4

Similarly, Israeli entry and exit policies are characterized by profiling and sometimes denial of entry even for frivolous reasons such as a logo on a T-shirt, a “like” on Facebook, or the way they answered a question while being interrogated.5

In signing a Memorandum of Understanding (MOU) with the US State Department on July 19, Israel seems to have agreed to the US requirement of reciprocity during a 30-to-45-day pilot period beginning July 20. According to the MOU, all US citizens will now be eligible for a 90-day tourist visa and allowed to enter and exit the country through Ben Gurion Airport—Israel’s main international airport—or any other port of entry. All should be treated equally, even those holding PA IDs; previously they were not even allowed to use this airport.

Any US citizen who wishes to enter Israel should be allowed to enter and exit the West Bank (thus superseding the COGAT Entry Regulations of October 2022). Advisories from both the US and Israel indicate that US citizens entering or residing in the West Bank will not be required to apply for a permit from the COGAT in order to move around in Israel.6

According to the MOU, Gazan Americans were largely excluded from this easing of regulations for “security” concerns; the only allowance is for US citizens with first-degree relatives in Gaza to “apply for a visit permit to enter Gaza . . . through the COGAT website.” Upon approval (which would not be automatic), the citizen would be entitled to a tourist permit for a single visit not exceeding 90 days.7 An FAQ released by the US Embassy in Israel states that “additional procedures relevant to Gaza Strip residents” would be made available by September 15.”8

Subsequently, in response to public pressure, Israel agreed that US Palestinians living in Gaza will be allowed to enter Israel on a B2 tourist visa and fly out of Ben Gurion Airport as of September 15. Until then, they can travel to Jordan via shuttle bus and fly out from there.9

While no official version was released, the unofficial version of the July 19 MOU setting the conditions for Israel’s entry into the Visa Waiver program that circulated online appears to permit Israel to engage in multiple types of unequal treatment. For example, it apparently allows Israel to distinguish American travelers on the basis of whether they hold a PA ID; reside in the West Bank; reside in Gaza; reside outside of the occupied Palestinian territory; or seek to visit first-degree family in Gaza.

Furthermore, the terms of the MOU indicate that the visa waiver for travel to the US will apply only to Israeli citizens rather than to citizens and nationals as provided under US federal statute. This omission would prevent US citizens who may also be Israeli permanent residents, such as Palestinian Jerusalemites, and US citizens who are residents of the Golan Heights from benefitting from the visa waiver when they travel to the US.

Jessica Montell, executive director of the Jerusalem-based Israeli human rights organization HaMoked—Center for the Defense of the Individual, told Jerusalem Story that her organization has been monitoring this waiver issue, particularly as it relates to the COGAT regulations on entry and stay (with Palestinians) in the West Bank. She expects that the US will be monitoring this pilot period to ensure that the principles of reciprocity are fully respected.

Of course, Israel’s arbitrary restrictions are not only a problem for US citizens—they also affect the entire Palestinian population and harm Palestinian institutions and Palestinian society as a whole. This should also concern the US, Montell advised.

Many Palestinian Americans who heard of the new Israeli policy to treat Americans equally were elated until they discovered that even as Americans, because they have Palestinian IDs, they are still barred from driving a car with an Israeli license plate across Israeli checkpoints into Jerusalem and Israel. Americans visiting West Bank settlements, however, have no such limitation and Israeli visitors in the US are not restricted in their movements.

Anecdotally, since July 20, Americans, including Palestinian Americans, have been treated similarly at Israeli international border crossings. However, once they arrive, discrimination continues. So if, for example, a Palestinian American couple comes for a visit and one holds an Israeli permanent-resident ID and the other is from Bethlehem and holds a PA ID, they are not allowed to cross the checkpoint in a car together. According to the published rules, “You may drive in Israel if you have a valid American driver’s license. It is not permitted for a Palestinian holding an American tourist approval to pass through the vehicular crossings.”10 It is not clear here what is meant by “Palestinian.” In our case study, the language implies that if the partner from Jerusalem has a car registered in Israel with a yellow license plate, the non-Jerusalemite partner cannot stay in the car in the passenger seat as it drives across the Israeli checkpoint at Checkpoint 300 or in Qalandiya. Instead, like all PA ID holders, the PA ID holder must get out of the car and walk into the special checkpoint area, be subjected to a body search, cross the checkpoint on foot, where he/she will show a passport and visa. Only outside the checkpoint can he/she rejoin the family in the car with yellow (Israeli) plates. These limitations are not placed upon American citizens crossing into the West Bank or living into the West Bank as Jewish settlers. Oddly, that same US citizen PA ID holder can rent a yellow-plate Israeli car at the airport upon entry and drive it anywhere in Israel.

Montell said that she is aware of the problems facing Jerusalem-based American Palestinian couples where only one of the spouses is able to drive an Israeli car or cross an Israeli checkpoint in the family car. “This may also be changed during this six-week trial period. The US Embassy is monitoring compliance to decide if Israel meets the requirements for the visa waiver.” Couples who run into difficulties while crossing checkpoints should report this type of discrimination on the embassy website.

Starting July 20, Israel initiated a pilot project. It publicly stated that all US citizens would be treated the same in Ben Gurion Airport and at the crossing points over the Jordan River, but that they will not be treated equally at checkpoints connecting East Jerusalem, which is occupied territory along with the rest of the occupied territories. US citizens who are also West Bank residents will not be able to use the Erez pedestrian crossing.11 Palestinian Americans already in the West Bank were provided access to an application process on the phone run by the COGAT (al-Munasseq) to apply for a visa allowing them entry to Israel. Initially, the visas indicated that the holder was a Palestinian, a practice that the US asked Israel to halt.12 Another loophole also exists: In the unofficial versions of the MOU that are circulating, the US seems to be granting Israel the right to deny visitors for what it might choose to refer to as security concerns—a loose label that has been used frequently in the past without providing evidence.13

While arriving at Israeli points of entry has been difficult, departing from Ben Gurion Airport is even more problematic with intrusive “security” interrogations at multiple points between check in and boarding about extended family relationships and history, places, and people visited while in Israel, professional roles and involvements, and so on. It’s common to be asked about relatives' names, their pronunciations, and even the names' meanings. As well, travelers might be asked to open their electronic devices and even their email, or to submit to full body searches and bag searchers, an unpleasant experience that is much more likely if one is “traveling while Arab.”

When asked at the airport how long he had been in Israel, a friend of mine looked at his watch and quipped ”30 minutes,” referring to the time it took to drive from the occupied city of Ramallah to Ben Gurion Airport; that wisecrack led to long and punitive waits, and his flight left without him. The stories of discrimination at Israeli entry and exit points could fill books, but they are not ancient stories from a distant past; they are current and ongoing.

Just a week before the start of the visa waiver trial period, our daughter Tania had left from that same airport to the US for a family visit. Even though she arrived with two toddlers at the airport 2.5 hours before departure time, one of her three bags never made it to JFK Airport. A note arrived at the baggage office saying that the bag, with only her personal clothing in it, was held up by Israeli security for further security checks. The bag arrived at the airport the following day, but it would take a week for Tania to be able to recover her clothes; in the meantime, she had to buy a few items that did not arrive with her luggage. There was nothing to raise suspicion in the airport except the fact that she is an American of Palestinian origin. This is a common experience for Palestinians, including US citizens.

The change in Israeli policy is not a change of heart. Israel will not end its profiling of American citizens as we can see in the fact that Americans living in the Gaza Strip will continue to be denied the ability to travel freely to and from various Israeli entry points. The July 19 MOU launches a trial period that will be evaluated at the end of September. Israel might temporarily treat all US passport holders with more civility, but few believe that it will lead to permanent change, considering that Israeli continues to refuse to even investigate and hold accountable the Israeli soldiers and officers who are responsible for the killing US citizens such as American Palestinian journalist Shireen Abu Akleh; nor has it charged any Israeli in the recent settler attacks against American Palestinians and their property in pogroms in the West Bank villages such as Turmus Ayya. There is also little faith that Israel’s legal system, which privileges Jews over all others, will be able to permanently apply a true reciprocity devoid of any profiling.

My brother-in-law, Reverend el-Yateem, was happy about an uneventful entry this week, but many Jerusalem couples, including my two American daughters, still face discrimination crossing checkpoints with their non-Jerusalemite spouses; their spouses are unable to even drive their own kids to school just because they were not born in East Jerusalem.

Once the US grants Israel entry into the Visa Waiver program, it is hard to imagine any force on earth reversing it, no matter what Israel does to violate its end of the reciprocity clause.

According to the website of the US Embassy in Israel, there are several ways for US citizens to file a complaint. This is especially relevant during this pilot phase, as Israel's respect for the agreed-upon procedures will influence the decision whether to finalize its acceptance into the US Visa Waiver program.

According to the website (cited here verbatim):

“If you are a U.S. citizen traveling on your U.S. passport and you were denied entry to Israel for a short term visit up to 90 days (denial of entry does not mean that you were re-directed from a vehicle crossing to a pedestrian crossing), or you wish to report your travel experience (even if you were admitted to Israel) you can contact the American Citizens Services (ACS) Unit at the U.S. Embassy in Jerusalem or at the Embassy Branch Office in Tel Aviv.  

1. By using the U.S. Embassy Jerusalem and Branch Office Tel Aviv online reporting form.
2. By phone (for denial of entry only): U.S. Citizens can call the Embassy at the phone numbers on our website: U.S. Citizen Services – U.S. Embassy in Israel (usembassy.gov) (+972-2-630-4000) 
3. You may also wish to contact the auditor for the Israeli Population and Immigration Authority at TZ@piba.gov.il to report discrimination at an airport or Port of Entry or you can report discrimination at a checkpoint with the West Bank or Gaza to COGAT: inquiries@cogat.gov.il or +972-03-6977577.”