Changes to the Visa Waiver Program and Implementation of the Electronic System for Travel Authorization

The U.S. Department of Homeland Security (DHS) recently announced changes to the Visa Waiver Program (VWP) and implementation of the Electronic System for Travel Authorization (ESTA). These changes give the federal government ability to obtain information about international travelers in advance of travel to the U.S. in order to enhance national security.

The VWP—which allows eligible citizens and nationals of specific countries to travel into the U.S. without first obtaining B-1/B-2 visa stamps in their passports—was expanded on November 17. The program now includes citizens and nationals of the Czech Republic, Estonia, Hungary, Republic of Korea, Latvia, Lithuania and Slovakia, in addition to countries already covered by the program.

Beginning January 12, 2009, all nationals and citizens of VWP countries must obtain specific travel authorization through the ESTA prior to traveling into the U.S. Countries that are part of the November 17 program expansion must now obtain an ESTA travel authorization prior to VWP travel to the U.S.

What is the Visa Waiver Program (VWP)?

The Visa Waiver Program (VWP) enables eligible citizens or nationals of specific countries authorized by the U.S. government to travel into the U.S. for tourism or business for a stay of 90 days or less without obtaining a specific B-1/B-2 visa stamp in their passport from the U.S. consulate or embassy in their home country before such travels to the U.S. VWP was established by the U.S. government in 1986 in order to eliminate unnecessary barriers to travel and to stimulate the tourism industry.

What countries are authorized to participate in VWP?

Prior to the recent expansion, 27 countries were authorized by the U.S. government to participate in VWP: Andorra, Australia, Austria, 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.

As of November 17, the VWP also includes the following seven countries: the Czech Republic, Estonia, Hungary, Republic of Korea, Latvia, Lithuania and Slovakia. Additionally, on December 30, Malta joined the VWP.

How does the U.S. benefit from the VWP?

The VWP promotes U.S. tourism and streamlines specific documentary requirements for certain travelers coming into the U.S. for a limited period of time. The federal government is also seeking to enhance and modernize VWP to strengthen national security, law enforcement and immigration requirements.

According to the federal government, countries that would like to be a part of the VWP program have the opportunity to enhance their security standards and strengthen their cooperation and commitment to the U.S. regarding security-related issues. Countries participating in VWP—including the seven that were recently admitted—will be required to provide certain information to the U.S. to enhance travel security. Such information will include information on air passengers, serious crimes, known or suspected terrorists, asylum and migration matters, information about lost or stolen passports, as well as other airport and aviation security measures.

Countries seeking to join VWP will be required to comply with the applicable security measures upon admission. Although countries currently included in the program will also be required to comply with such requirements, no specific timetable has been released by DHS for such compliance.

Will any other countries be added to VWP in the near future?

Yes. DHS has indicated that additional countries are working to comply with the VWP admission requirements. These countries include Bulgaria, Cyprus, Greece, Poland and Romania.

Countries that would like to be added to VWP must meet the 9/11 Commission Act of 2007 security provision requirements as outlined by DHS and are then formally announced by the federal government as countries added to the VWP.

Are there specific passport and other documentation requirements for travel into the U.S. under the VWP?

Yes. All VWP travelers must present an individual machine-readable passport (MRP) at the U.S. port of entry to enter the U.S. without a visa. Machine readable passports issued or renewed/extended on or after October 26, 2006, must include an integrated chip with information from the data page, as well as other biometric information, including a digital photograph of the holder (aka an "e-passport").

If a VWP traveler does not hold an e-passport, the traveler can still travel pursuant to VWP if the holder has an MRP issued or renewed/extended between October 26, 2005 and October 25, 2006, which includes a digital photograph printed on the data page or an integrated chip with information on the data page. Finally, travelers who have passports issues prior to October 26, 2005, can still travel under VWP as long as the traveler has an MRP.

If a traveler cannot meet the above passport requirements, the foreign national must either obtain a new passport that qualifies under the rules or obtain a B-1 visa for business travel or a B-2 visa for tourism by applying for the appropriate visa through a U.S. embassy or consulate.

Do all family members traveling pursuant to VWP need e-passports or other passports that satisfy the above documentary requirements?

Yes. Families seeking to enter the U.S. under the VWP need to obtain an individual MRP for each traveler, including infants. MRPs typically have biographic data for only one traveler in the machine-readable zone. Therefore, it is important to secure such travel documents for all travelers, no matter how young, before traveling into the U.S. under VWP.

What is the new Electronic System for Travel Authorization (ESTA) program?

DHS has developed the Electronic System for Travel Authorization (ESTA) for travelers under the VWP. All nationals and citizens traveling pursuant to VWP will be required to obtain a specific travel authorization prior to initiating travel to the U.S. under the VWP. ESTA is an online, automated system administered by DHS through a U.S. government Web site. Through the ESTA program, a VWP traveler will be notified of his or her eligibility to travel to the U.S. under VWP.

An approved ESTA is not a visa under U.S. immigration laws. Additionally, individuals applying for and traveling under valid U.S. visas (B-1/B-2, L-1, H-1B, etc.) are not required to obtain an ESTA approval. Advance ESTA approval for travel into the U.S. is only required for VWP and those participating countries and travelers.

When will the ESTA program be implemented?

Beginning January 12, 2009, all individuals traveling under VWP will be required to obtain authorization to travel to the U.S. under ESTA. Individuals traveling pursuant to those countries recently added to VWP (the Czech Republic, Estonia, Hungary, Republic of Korea, Latvia, Lithuania and Slovakia) are currently required to comply with ESTA. ESTA travel authorization will be required for all VWP travelers prior to boarding an airplane or cruise ship headed to the U.S.

Why is ESTA being implemented?

According to DHS, the ESTA online system was designed and developed in response to the implementing recommendations of the 9/11 Commission Act of 2007 to improve the security of VWP and the overall national security of the U.S.. The ESTA system will be able to determine if an individual is eligible for VWP travel—and if such travel to the U.S. would pose any law enforcement or security risks.

Who is required to obtain ESTA travel authorization?

All nationals or citizens of VWP countries who plan to use VWP to travel into the U.S. will be required to receive an ESTA travel authorization prior to boarding a U.S. bound airplane or sea vessel. Children, regardless of age, will be required to obtain an independent ESTA approval.

Do VWP travelers just "transiting" through the U.S. need an ESTA travel authorization?

Yes. Since the U.S. no longer has a "transit without visa" program, VWP travelers will need an ESTA travel authorization or a visa to transit through the U.S.

If the VWP traveler is only planning to transit through the U.S., the applicant should note this information in the ESTA application by indicating "in transit" as the final destination location under the heading "address while in the United States."

Do citizens of Bermuda, Canada, the Marshall Islands or Micronesia need to apply for an ESTA?

No. Citizens of these countries are not part of VWP as they are visa exempt under the current rules. The ESTA travel authorization only applies to those traveling under VWP.

How does the online ESTA system work?

The ESTA Web site offers a help section to assist applicants with the online process. After logging into the system, the applicant will answer basic biographical and eligibility questions. Such questions are similar to what is already asked upon entering the U.S. on the paper I-94W form. After answering the questions on the Web-based system, the applicant will typically have one of the following responses within seconds:

• Authorization approved: Travel authorized
• Travel not authorized: Traveler must obtain a nonimmigrant visa at a U.S. Embassy or Consulate before traveling to the U.S.
• Authorization pending: Traveler will need to check the ESTA Web site for updates within 72 hours to receive a final response.

An approved ESTA travel authorization does not guarantee admissibility into the U.S. at an airport or other port of entry. An ESTA travel authorization only authorizes a VWP traveler to board a carrier for travel into the U.S. without a visa. Upon arrival into the U.S., the VWP traveler will be inspected by a Customs and Border Protection official who will determine whether or not the foreign national is admissible/inadmissible under VWP or U.S. immigration law.

How will an airline know whether a VWP traveler has an approved ESTA authorization?

Carriers will not receive the ESTA application information that VWP travelers provide to DHS through the on-line system. However, they will receive confirmation of a passenger's ESTA status through the Advance Passenger Information System (APIS) indicating whether an ESTA is required and whether ESTA authorization has been granted.

How soon should an ESTA authorization be applied for in connection with VWP travel into the U.S.?

DHS recommends that the ESTA application be submitted no later than 72 hours prior to travel. However, it is recommended that the application be submitted as soon as the VWP applicant begins to plan U.S. bound travel.

DHS has also indicated it should also be able to accommodate last-minute and emergency travelers.

Additionally, since authorizations will remain valid for up to two years, a VWP traveler can apply for the ESTA authorization well in advance of VWP travel to the United States.

Does a VWP traveler need to have specific travel plans to apply for an ESTA travel authorization?

No. A VWP traveler does not need to have specific U.S. travel plans in order to apply through the ESTA online system. Information can be updated in the ESTA system once it is finalized and confirmed. DHS has indicated that travelers may update this destination information or itineraries once the ESTA authorization has been approved—but this will not be required under the system.

Can a VWP traveler use the ESTA online system if he or she does not speak or write English?

Yes. As of October 15, the ESTA system was equipped for 15 foreign languages including, Czech, Danish, Dutch, Estonian, Finnish, French, German, Icelandic, Italian, Japanese, Norwegian, Portuguese, Slovenian, Spanish and Swedish. Additional languages to be incorporated on December 16 include Hungarian, Korean, Latvian, Lithuanian and Slovak.

Although instructions for the online system are available in multiple language through the ESTA system, all responses must be provided in English.

Is there a fee involved for the ESTA program?

No. Under current rules, DHS will not charge a fee for completion of the ESTA application and online process. However, unauthorized third parties have established Web sites that charge VWP travelers for information about ESTA and for submitting applications to DHS on behalf of the traveler.

If an individual does not have access to the Internet, a friend, relative, personnel in the travel industry or another third-party can file the ESTA application on the individual's behalf.

What is the validity period of an approved ESTA authorization?

According to DHS, each approved ESTA will generally be valid for a time period of two years. This will allow the VWP traveler to travel to the U.S. under VWP repeatedly within a two-year period without obtaining another ESTA travel authorization through DHS. If a traveler's passport will expire prior to the two-year period, such individual will only receive a valid ESTA travel authorization until the passport expiration.

Can a VWP traveler with an approved ESTA authorization use it multiple times?

Yes. A VWP traveler can travel to the U.S. multiple times within the validity period without having to re-apply for another ESTA authorization.

When does a VWP traveler need to re-apply for ESTA travel authorization?

A VWP traveler must re-apply for ESTA travel authorization once the travel authorization expires—the earlier of the two-year validity period or expiration of the VWP traveler's passport. New travel authorization through ESTA will also be required if: an individual obtains a new passport; there is a change in name, gender or citizenship; or if certain answers to the ESTA on-line questions have changed.

What happens if an ESTA application is denied?

If the ESTA application is denied, the traveler will need to apply for a nonimmigrant visa at a U.S. embassy or consulate through those specific procedures. Emergency or urgent appointments at the consulate will not be specifically available for those denied an ESTA travel authorization.

DHS has announced that a traveler may reapply for an ESTA after a period of 10 days. However, unless the circumstances have changed, the VWP traveler will continue not to be qualified for an ESTA. It also appears that the only source for inquiries regarding a reason for the denial will be the DHS Travel Redress Inquiry Web site. Consular officers will not be able to provide details about ESTA denials or be able to resolve the issue(s) that caused the ESTA denial.