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The Visa Waiver Program

by Gregory Siskind

Started as a pilot program in 1986 and made permanent in 2000, the Visa Waiver Program allows citizens of designated countries to enter the United States as business or tourist visitors for up to 90 days without requiring them to obtain a visa. Millions of people use the program each year. There are currently 27 countries participating in the program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The applicant for entry under the Visa Waiver Program must be a citizen of the participating country, not merely a permanent resident. In the case of the United Kingdom, the person must be a British citizen, not a British overseas citizen or citizen of a Commonwealth nation.

Argentina was removed from the list of participating countries after suffering an economic collapse. Following Argentina’s financial struggles, neighboring Uruguay was eliminated from the list due to concerns about the country’s ability to deal with the turmoil in Argentina. In addition, Belgium citizens must present a machine-readable passport in order to be admitted to the US due to questions concerning the integrity of its non-machine-readable passports and inadequate reporting of lost or stolen passports by the Belgian government. Portugal has received a similar warning concerning the timeliness of reporting lost or stolen passports.

The program was designed to be altered dramatically by October 1, 2003, as all Visa Waiver Program nationals were to be required to obtain a Machine Readable Passport or a US non-immigrant visa in order to enter the US. While the State Department had authority to grant a waiver to travelers from countries that were making progress toward providing these passports, the Department previously stated that it would not exercise this option, leaving the already shaky travel industry concerned about possible financial ramifications.


However, the Bush administration did in fact exercise this option and postponed enforcement of the Machine Readable Passport. Instead, the new regulations should be enforced beginning October 2004. Administration officials decided to delay implementation of the rules by more than a year because of the chaos that could have resulted next month when travelers who were unaware of the new rules tried to enter the US with the old-style passports. Governments will be allowed to continue with the program once they provide written assurances of their commitment to ending passport fraud and to introducing machine-readable passports. The new rules will not be waived for Belgium due to security concerns already present in that country.


Under the program, the participation of designated countries must be reviewed every five years. To continue participation, the rejection rate of applications for B-1/B-2 visas for that country cannot be over three percent. Also, the country must allow US citizens to visit under the same terms as the US allows that country’s citizens to enter the US on the Visa Waiver Program. When the program was made permanent in 2000, a provision was included that allowed for the immediate termination of a country in the event of an emergency such as war or economic collapse.


The applicant for entry must show that they have the financial resources to support themselves during their stay in the US. Those who arrive by boat or plane must have a return ticket. Upon arrival, the applicant completes an I-94W. On this form, the applicant indicates that they waive the right to a hearing in the event they are ordered deported, and that they understand they cannot apply for an extension or change of status in the US. Therefore, if the purpose of a person’s visit to the US is to investigate possible employment or education, they should obtain a traditional B-1/B-2 visa.

About The Author

Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.