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New Process For Expanded Visa Free Travel To U.S.

by Robert C. Divine

Tourists and business visitors from an expanded number of countries may travel to the United States without a visa, but now they must electronically register before travel. The U.S. has added approval in the Electronic System for Travel Authorization (ESTA) as a pre-requisite for travel under the Visa Waiver Program on or after January 12, 2009. This alert provides details about these developments.

Expanded List of VWP-Eligible Countries and General Rules

The United States has been expanding the number of countries with whom it has agreements for their passport holders to travel visa free to the U.S. The Visa Waiver Program (VWP) allows citizens and nationals of eligible countries to travel to the U.S. on signatory transportation carriers or by land travel for continuous transit to a third country, for tourism, or for a business visit (not work for hire) without obtaining the B-1 or B-2 visa that otherwise would be required.

VWP travelers forfeit the ability to extend their 90-day stay, to change to another visa classification within the U.S., or to challenge a refusal of admission or removal. VWP travelers must possess a return ticket abroad, and if the ticket shows onward travel terminating in to Mexico, Canada, Bermuda, or the Caribbean Islands the traveler must be a citizen or legal permanent resident of that country of termination. Citizens of Bermuda, Canada, the Marshall Islands, and Micronesia do not need to apply for ESTA. Anyone who already has a B-1/B-2 visa that will remain valid for planned travel should use the visa rather than VWP and thus need not apply for ESTA.

See our web site's discussion about "Visa Waivers" for more detail about the Visa Waiver Program in general.

Until recently, the countries whose citizens and nationals could be eligible under the Visa Waiver Program have been as follows:

Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and The United Kingdom.

Effective November 17, 2009, by notice in the Federal Register, the following additional countries have been added to the VWP list for visa free visits to the U.S.:

Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovak Republic, and Republic of South Korea.

Travelers from the newly added countries wishing to travel visa free must comply with ESTA procedures for any trips to the U.S., even before January 12, 2009, and must have "E-Passports", even if issued before October 26, 2006.

ESTA: Electronic System for Travel Authorization

Since the events of September 11, 2001, the U.S. Departments of Homeland Security (DHS) and State (DOS) have been pushing the vetting of foreign travelers to the earliest stages the travel process in order to provide as much time for vetting as possible and to prevent unauthorized travelers from reaching the U.S. border in the first place. DOS personally interviews almost every visa applicant at a U.S. consulate and runs name- and biometrics-based checks before issuing visas. DHS officers have trained private air and sea carriers how better to detect fraudulent documents and have used "no fly" lists to prevent boarding of flights.

Meanwhile, the U.S. has been seeking to increase travel convenience to friendly countries with good records for compliance with U.S. immigration laws, including offering the Visa Waiver Program (VWP) to more countries. Before doing so, DHS has imposed a new Electronic System for Travel Authorization (ESTA), which requires every visa waiver visitor (even a non-ticketed infant) prior to air or sea travel from any location to complete a web based registration process. Travel agents and carriers will ask "Do you have an ESTA?" and without it the traveler will not be allowed to board the vessel. VWP travelers arriving at a U.S. land border are not required to have ESTA approval.

When to Apply for ESTA

Most VWP travelers must obtain ESTA approval before seeking admission to the U.S. on or after January 12, 2009, but they can complete ESTA before that date. go ahead even now. If a traveler submits an ESTA application before January 12, 2009, and receives a "not authorized" response, then he cannot use the VWP to enter the U.S. even before that date. Travelers from the countries added to the VWP November 17, 2008 (listed above) must use ESTA for any VWP travel, even before January 12.

Because the receipt of a "not authorized" response from ESTA will require acquisition of a visa for U.S. admission for someone who did not expect to need a visa, it makes sense to apply for ESTA at least far enough in advance to be able to apply for and obtain a visa if it becomes necessary. In some countries that can take several months. Because ESTA may take up to 72 hours to provide approval or denial for travel, one should submit an ESTA application at least 72 hours before VWP travel. But ESTA usually responds immediately, and an ESTA application can be submitted even moments before travel.

How to Apply for ESTA

The ESTA application is purely electronic and must be completed online at the ESTA web page of U.S. Customs and Border Protection (part of DHS). The computer used must support 128 bit encryption, support English language fonts, and have a browser version using at least Internet Explorer 5.0 (service pack 2) or Netscape 6.2. The traveler can complete the application himself or authorize a third party such as attorney, travel agent or relative to complete it for him, but the agent must attest that he has read the information to the applicant, and the applicant is responsible for the information's accuracy. The data collected about the applicant basically mirrors the data on the existing I-94W card and the applicant's passport and is not voluminous. The questions can be reviewed in numerous languages on the ESTA web site, but the answers must be provided in English. There is no fee for now, but one day that might change. As with many internet based forms systems, applicants should take care not to "scroll" while the cursor is located in a list menu, because he may unwittingly change the field value.

Required Fields for ESTA

Only certain fields of data are required. The required fields are name (first and last, not middle), countries of citizenship and residence, date of birth, gender, passport information (number, issuing country, and issuance and expiration dates), "address while in the U.S." (address, city, state), and admissibility questions (discussed in a moment). Thus, the applicant's passport biographic and validity pages should be handy to enter an ESTA application. Information should be entered exactly as in the passport, and if the passport has incorrect biographic data, it should be corrected first with the issuing country.

Especially if the ESTA is prepared well in advance of travel, the traveler might not know where within the U.S. he will travel but must enter something for "address while in the U.S." Happily, this information can be quite tentative (such as "Friendly Hotel, Chattanooga, Tennessee") and need not be updated when the itinerary later solidifies or changes. If the itinerary already involves multiple locations, the first one should be entered.

Also required are the "admissibility" questions about communicable diseases, physical or mental disorders, drug abuse or addiction, plans for work in the U.S., or past criminal arrests or convictions, removal from the U.S., misrepresentation in U.S. immigration matters, visa or entry refusals, or child custody violations. If the answer to any of these questions-under the heading "Do any of the following apply to you?"-is even arguably "yes," the applicant should abort the ESTA application and immediately consult counsel. A criminal arrest or conviction, anywhere in the world, no matter how long ago, should be discussed with counsel. DHS provides "screen level online help" that provides background on the meaning of the admissibility questions, but even that information uses statutory legal references and defined legal terms that should be discussed with U.S. immigration counsel in case of any doubt at all.

Apparently ESTA will attempt to determine from DHS databases if the traveler has ever stayed longer in the U.S. than permitted, even though no question about that is asked. A record of admission without timely departure may trigger ESTA denial or jeopardize admission at the port even if ESTA is approved. This underscores the need for travelers upon departing the U.S. always to turn in the I-94 card to the carrier, Canadian port official (land departures to Canada) or DHS official (usually by mail, for land departures to Mexico), so that DHS can enter the departure to match the admission by "I-94 number." There is a process by which to send departure information by mail to DHS when the I-94 was not properly surrendered upon departure from the U.S., and U.S. immigration counsel should be consulted for this.

Optional Fields for ESTA

ESTA requests some information that the applicant may choose to withhold. Optional data fields include: email address, telephone number, and flight information (airline carrier code, flight number, boarding city). It is not clear when, if ever, ESTA will be used to contact a traveler by email or telephone, but it could be helpful to enter the data. Persons concerned with potential DHS scrutiny of personal email accounts or phone records may choose to leave these out. It is not clear that entering flight information adds any value for the traveler. It can be left out, but if it is entered it does not need to be updated even if the flight is changed. Travelers do not need to go into ESTA to update their flight information before each trip to the U.S., but they may.

Fields that can be Updated in ESTA

ESTA allows a traveler with ESTA account to go into the electronic account (using name, date of birth and assigned account number) and update his email address, telephone number, flight information, and "address while in the U.S." None of these updates are required, even if the information was entered, even if it was initially required (address while in the U.S.), and even if it has changed since ESTA submission, and even from one trip to the next. Nevertheless, a traveler may update these fields.

Field Changes that Require New ESTA

A change to any of the following fields of data affects the information that is matched in DHS and carrier records and thus requires a completely new ESTA application: name, date of birth, gender, passport information, and admissibility questions. That means that if the traveler obtains a new passport or even obtains a renewal of an existing passport keeping the same passport number, he must complete a new ESTA application. And if, for instance, the applicant becomes arrested for any crime anywhere in the world, even if not convicted, he may need to file a new ESTA application and should consult U.S. immigration counsel.

Passport Requirements for VWP and ESTA

The traveler's passport must be issued by one of the designated VWP countries. It must be "machine readable." For most countries, if it was issued on or after October 26, 2006, it must meet the requirements for an "E-Passport," meaning it must have an integrated data chip. (Passports issued before issued before October 26, 2005 must be "machine readable," and passports issued Between October 26, 2005, and October 25, 2006 must also have a digital photo). For new VWP countries effective November 17, 2008 or thereafter, it must be an E-Passport regardless of issuance date. For countries that have an applicable agreement, it must be valid beyond the period of requested stay (i.e., 90 days after admission). For other countries, the passport must be valid for 6 months longer (i.e., essentially for 9 months from date of admission).

If a traveler obtains a new passport with longer validity, or even if he only extends validity of a retained passport, or if any of the data fields required by ESTA about the passport change, he must complete a new ESTA application. Of course, if the passport is reported lost or stolen, that passport cannot be used for a VWP admission, and the traveler will need to complete a new ESTA application once a replacement passport is obtained.

A dual citizen needs to pick the passport he will use for VWP travel and use that passport's information in the ESTA application.

Printing and Submitting Application for ESTA

Once the fields have been completed and before the "submit" button is clicked, the traveler or agent should print the application, which is the only record that will be available concerning the data entered in ESTA. Once "submit" is clicked, that data will no longer be available, and only updates of certain non-essential fields can be made.

After submission, the ESTA system immediately presents a screen with the application number and Application Status, and we strongly advise printing this screen as well. Transportation carriers generally will ask if the traveler "has ESTA approval" but will not need to request the application number, because the carrier and applicant will only need to submit to DHS the passport number and other biographic data to match the DHS ESTA record. Nevertheless, the application number is needed to update the application or to check on a "pending" response (discussed below). Moreover, a printout of the ESTA application number may prove helpful in resolving confusion with the travel agent, carrier, or port inspector about whether the traveler is ESTA approved, especially in the program's early months.

Status in ESTA: Approved, Not Authorized, or Pending

The ESTA response screen immediately showing the application number will also show the Application Status. The possible responses are as follows:

  • Authorization Approved. The traveler may use this approval to travel for two years from date of approval. Note that ESTA approval does not guarantee that DHS will actually admit the traveler, and VWP rules allow DHS to "remove" the traveler without any further process, sending him back on the next available vessel.
  • Travel Not Authorized. The traveler cannot use VWP to seek admission to the U.S. and must apply instead to a U.S. consulate for a visa. While nothing prohibits the traveler from applying for ESTA all over again, ESTA will almost surely return the same answer, unless perhaps if the applicant initially had erroneously entered the name, date of birth, or passport information and enters the correct information in the later application.
  • Authorization Pending. ESTA will take up to 72 hours to resolve the application and provide one of the two responses above. The applicant must check back in ESTA by choosing "Update or Check the Status " and entering his application number, name, birth date and passport number.

Validity and Use of ESTA Approval

An ESTA approval will be valid for seeking admission to the U.S. for two years after it is issued. Some transportation carriers will integrate their systems with ESTA to the point that VWP travelers on their vessels will not have to complete Form I-94W at all as the vessel arrives at the port, since the answers will already have been provided in ESTA. Other travelers will have to complete Form I-94W even though they have ESTA approval. Again, travelers must complete a new ESTA application in the event of change to most required data fields (discussed above), including passport renewal, and they may update non-essential fields (discussed above) without a new ESTA application.

Redress with DOS and ESTA

ESTA is designed to flag travelers who may require greater screening than "primary inspection" at a port of entry efficiently involves. A traveler who has been repeatedly directed to "secondary inspection" can expect to receive an ESTA "not authorized" response. There may be other reasons for ESTA denial. The primary redress is to apply to DOS for a visa at a U.S. consulate abroad, and in this context the traveler may wish to explain any known issue in hope of resolution in DOS and DHS databases. Neither DHS nor DOS will tell a traveler why an ESTA denial was issued.

A traveler may wish to use the DHS Traveler Redress Inquiry Program (TRIP) to try to resolve repetitive problems from a "false hit" relating to an old resolved issue or relating to a different person. A TRIP resolution might reduce problems at the port of entry even with a visa and thus might be worth the effort, but TRIP resolution of the cause of an ESTA denial is too unlikely to lead to ESTA approval and will come too slowly to avoid the need for a visa for travel in the reasonably near future.

When to Obtain a Visa Instead

A traveler holding a passport of a VWP-eligible country must nevertheless apply for a visa, rather than seek admission without a visa, in any of the following circumstances:

  • Travel will be by a carrier that has not signed a VWP agreement with the U.S.
  • The traveler needs the option to remain in the U.S. for more than 90 days or to change to another nonimmigrant classification (such as student, worker, etc.) after admission.
  • Any question about admissibility exists (i.e., the I-94W questions)
  • The traveler's passport is not machine readable, or is not an E-Passport as required.
  • The traveler has previously overstayed or violated the terms of a past admission to the U.S.
  • ESTA is "not authorized."

Of course, even someone who could use the Visa Waiver Program but finds the new ESTA rules or other aspects of the VWP to be insufficiently convenient may instead apply for a B-1/B-2 visa. Most travelers who have enjoyed visa free travel in the past will find ESTA a minor inconvenience, and DHS has done its best to make ESTA system easy and clear.

How We Can Help

We assist clients in evaluating and comparing the seemingly innumerable visa classifications for which they might be qualified, whether a visa will be required (and if not required whether it should be obtained anyway), where and how to apply, and how best to accomplish entry. We advise clients about inadmissibility grounds that may apply and assist in waiver applications and appeals from denials of them. We assist clients in seeking review of visa denials. We represent clients in removal proceedings, where available if they are found inadmissible. We help clients seek remedies even when they have been removed at the border without a hearing. We help clients maintain their status and extend and change it to meet new goals. We also plan and take appropriate steps toward permanent residence, coordinating such plans and steps with the temporary status.

About The Author

Robert C. Divine is the Chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., a law firm of 550 lawyers and public policy advisors with offices in 14 cities from Washington, D.C. to New Orleans. Mr. Divine served from July 2004 until November 2006 as Chief Counsel and for a time Acting Director of U.S. Citizenship & Immigration Services (USCIS). He is the author of Immigration Practice, a 1,600 page practical treatise on all aspects of U.S. immigration law that is revised and reprinted annually to reflect the law's constant changes. He has practiced immigration law since 1986 and is the current Chair of the American Immigration Lawyers Association's liaison committee to the U.S. Department of State. He serves as a consultant to Interpreter Releases, Thomson-West's immigration weekly journal. His practice includes all aspects of U.S. immigration law, representing large and small international and domestic employers, family sponsors, and individual foreign nationals. He has also litigated significant business matters, including class action employment discrimination, contract, commercial, product liability, antitrust, ERISA benefits, business torts (including RICO, misrepresentation, Consumer Protection Act), and immigration-related criminal matters.

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