United States: Advance Electronic Approval Required Under Visa Waiver Program

New Developments

On June 9, 2008 the U.S. Department of Homeland Security (DHS) published an interim final rule requiring all travelers using the Visa Waiver Program (VWP) to obtain travel authorization in advance of their trip to the United States through the Electronic System for Travel Authorization program (ESTA). When ESTA is implemented, the U.S. Customs and Border Protection (CBP) will be better able to determine whether the VWP traveler poses a law enforcement or security risk before the traveler is present in the United States. DHS anticipates that ESTA implementation will become mandatory no later than January 12, 2009. Comments on the interim rule will be accepted until August 8, 2008: http://edocket.access.gpo.gov/2008/pdf/E8-12673.pdf.

Background

The VWP was first introduced in 1986 and allows citizens and eligible nationals of certain countries to travel to the United States for business or tourism for up to 90 days without first obtaining a nonimmigrant visitor visa. Currently there are 27 countries designated to participate in this program:

Aliens from VWP countries must provide certain biographical information to CBP officers at ports of entry on a paper form— Form I-94W Nonimimgrant Alien Arrival/Departure Form. VWP travelers must also possess an electronic or machine-readable passport and round-trip ticket, and submit to an inspection process that includes answering questions regarding prior criminal activity, deportation or visa revocation, as well as waiving the right to review or appeal the CBP officer's determination (except on the basis of requesting asylum).

Discussion of ESTA

As required by Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, ESTA will become mandatory 60 days after publication of a notice in the Federal Register. Once ESTA becomes mandatory, all VWP travelers will be required to either obtain an electronic travel authorization through ESTA or obtain a visa from the U.S. Department of State in advance of their trip. In this manner, DHS expects to be able to determine the admissibility of citizens and eligible nationals from VWP countries and whether such travel poses a security threat to the Untied States before the traveler begins their trip.

DHS will start accepting voluntary applications effective on August 1, 2008. When ESTA becomes mandatory, DHS recommends VWP travelers submit ESTA applications no less than 72 hours prior to travel. Each travel authorization would be valid for a period of no more than two years. Travelers whose ESTA authorization is approved, but whose passports will expire in less than two years, will receive travel authorization that is valid only until the expiration date of the passport, after which the traveler will be required to obtain a new travel authorization. Other events that will trigger the requirement of a new travel authorization include: (1) the issuance of a new passport; (2) a change in the traveler's name; (3) a change in the traveler's gender; (4) a change in the travelers country of citizenship; and, (5) changes to the traveler's responses to the CBP admissibility questions referenced above.

While currently payment of a fee for use of ESTA by travelers is not required, it is possible that a fee will be charged in the future.

Conclusions and Recommendations

Individuals and employers of individuals from VWP countries should closely review this interim rule to make sure they fully understand these new requirements and take action to ensure that future travel to the United States is not hindered due to a failure to obtain advance travel authorization. In addition, comments should be provided to the docket if questions about the program remain or there are ideas on how to better implement the program.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.