Visa Waiver Program

Q: What is the Visa Waiver Program and what are the requirements to be eligible for and to travel under the program?

A: The Visa Waiver Program (VWP) is administered by the U.S. Department of Homeland Security. The program allows eligible citizens or nationals of certain designated countries to travel to the United States for tourism or business stays of 90 days or less without first having to obtain a visa.

Only citizens or nationals of certain countries are currently eligible to travel to the United Status under the Visa Waiver Program. A list of the eligible countries is as follows:

AndorraHungaryNew Zealand
AustraliaIcelandNorway
AustriaIrelandPortugal
BelgiumItalySan Marino
BruneiJapanSingapore
ChileRepublic of KoreaSlovakia
Czech RepublicLatviaSlovenia
DenmarkLiechtensteinSpain
EstoniaLithuaniaSweden
FinlandLuxembourgSwitzerland
FranceMaltaTaiwan
GermanyMonacoUnited Kingdom
GreeceThe Netherlands

You should keep in mind that the new countries of Curacao, Bonaire, St Eustatius, Saba and St Maarten (from the former Netherland Antilles) are not eligible to travel into the United States under the Visa Waiver Program if those visitors are applying for admission with the passports from these countries. Also, the United Kingdom for purposes of the Visa Waiver Program only includes British citizens with the unrestricted right of permanent abode in England, Scotland, Northern Ireland, Wales, the Isle of Man, and the Channel Islands.

In order to travel under the Visa Waiver Program, you must be a traveler who possesses a passport with specified security features. All Visa Waiver Program travelers must have a passport that can be read by a machine. In addition to having a machine-readable passport, and depending on when your passport was issued to you, there may be other passport requirements that apply. Some of the following requirements may be applicable to you:

  • Nationals of the Czech Republic, Greece, Estonia, Hungary, the Republic of Korea, Malta, Latvia, Lithuania, Slovakia, and Taiwan require passports with an integrated chip containing the information from the data page of their passport.
  • Nationals of other Visa Waiver Program countries:
    • Machine-readable passports issued or renewed/extended on or after 10/26/06:
      • Passports must also have integrated chips with information from the data page.
    • Machine-readable passports issued or renewed/extended between 10/26/05 and 10/25/06:
      • Passports must have digital photographs printed on the data page or integrated chips with information from the data page.
    • Machine-readable passports issued or renewed/extended before 10/26/05:
      • No further requirements.

You should check the Visa Waiver Program traveler guide for other details on the passport requirements.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: What is the Electronic System for Travel Authorization (ESTA) and why is authorization under ESTA required for the Visa Waiver Program?

A: The Electronic System for Travel Authorization (ESTA) is an automated system that helps determine eligibility to travel to the United States under the Visa Waiver Program (VWP). The Electronic System for Travel Authorization helps determine whether travel by a person poses any law enforcement or security risk to the United States. Once you have completed an ESTA application, you will be notified of your eligibility to travel to the United States under the Visa Waiver Program.

Authorization under the ESTA is a requirement for all travel to the United States under the Visa Waiver Program. The “Implementing Recommendations of the 9/11 Commission Act of 2007” (9/11 Act) amended Section 217 of the Immigration and Nationality Act (INA), making it a requirement that the Department of Homeland Security (DHS) implement an electronic travel authorization system and other measures to enhance the security of the Visa Waiver Program. ESTA helps DHS determine whether an individual is eligible to travel to the United States without posing any security risk in advance. The ESTA serves as a way to counter-balance the fact that individuals will be traveling into the United States without a valid visa under the Visa Waiver Program.

Keep in mind that an approved Electronic System for Travel Authorization (ESTA) is not a visa. This means that the ESTA does not meet any regulatory or legal requirements to serve as a valid visa for entry into the United States. You will still need to obtain a valid visa in any circumstance where a visa would otherwise be required under U.S. immigration laws. If you already have a valid visa, you will still be able to travel to the U.S. on that visa for the purpose for which it was issued to you. And, if you do have a valid visa on which you are traveling to the United States, you are not required to apply for and obtain an ESTA.

In addition, you should be aware that you are required to have an ESTA or a visa to transit through the United States en route to another country.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: When should I apply for an Electronic System for Travel Authorization (ESTA) and how long does it take for my ESTA application to be processed?

A: You may submit your application for an Electronic System for Travel Authorization (ESTA) at any time prior to your travel date to the United States under the Visa Waiver Program. In most cases, ESTA will provide a determination of your eligibility to travel under the Visa Waiver Program almost immediately. There are three types of responses that you may receive when you submit a Electronic System for Travel Authorization application. These are:

  • Authorization Approved
  • Authorization Pending
  • Travel Not Authorized

If you receive an approval, then you are authorized to travel into the United States under the Visa Waiver Program. If you receive an Authorization Pending response, then you will need to check the website for updates within 72 hours in order to receive your final response to your ESTA application. If you receive a response that your ESTA application has been denied and that you are not authorized to travel to the United States, then you will be referred to the travel information website for information on how to apply for a visa in order to travel to the United States.

The U.S. Department of Homeland Security recommends that if you plan to travel under the Visa Waiver Program to the United States that you should submit your ESTA application as soon as you make any travel plans. As a Visa Waiver Program traveler, however, you are not required to have any specific plans to travel to the United States before you apply for an Electronic System for Travel Authorization. However, if you do have travel information available, then you are encouraged to provide your travel itinerary and destination addresses when applying for an ESTA.

Every Electronic System for Travel Authorization application is generally valid for two years or until your passport expires, whichever of these comes first. A new Electronic System for Travel Authorization is required when any of the following occurs:

  • You are issued a new passport;
  • You change your name;
  • You change your gender;
  • Your country of citizenship changes; or
  • The circumstances underlying your previous responses to any of the ESTA application questions requiring a “yes” or “no” response have changed.

Keep in mind that if you have to submit a new application for any of the above reasons, then you will be charged the associated fee for each new application that you need to submit. Every approved ESTA application is generally valid for two years and it allows you to have multiple visits to the United States within that time frame without having to apply for a new ESTA approval.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: I applied for an Electronic System for Travel Authorization (ESTA) and it was denied. How can I still travel to the United States under the Visa Waiver Program (VWP)?

A: The Electronic System for Travel Authorization (ESTA) is designed to screen every traveler under the Visa Waiver Program for law enforcement or security risks before they travel into the United States. Most travelers will receive an approved Electronic System for Travel Authorization when they submit their application.

If your Electronic System for Travel Authorization application happens to be denied and you still wish to continue with your trip to the United States, then your will be required to apply for a non-immigrant visa at a U.S. embassy or consulate in your home country abroad first. You can visit the website of the State Department or the U.S. consulate or embassy in your country for more information on the application process and requirements for a non-immigrant visa.

Unless any of your circumstances have changed, it will not be useful for you to reapply for an Electronic System for Travel Authorization (ESTA). You will still not qualify for an ESTA and will need to instead apply for and obtain a non-immigrant visa if you still wish to travel to the United States. If you think you made a mistake in answering the Visa Waiver Program eligibility questions on the application, then you may be able to correct the mistake and obtain your ESTA, depending on which question the mistake was made on.

The ESTA website provides a link to the DHS Travel Redress Inquiry Program (TRIP) website where you can inquire into the reason for your ESTA denial. However, there is no guarantee that a request for redress through TRIP will resolve your Visa Waiver Program ineligibility reason causing your ESTA application to be denied.

Also, the U.S. consulate or embassy in your home country will be unhelpful since they are not able to provide details on why your ESTA application was denied nor are they able to resolve the issue causing the denial.

Keep in mind that reapplying for an Electronic System for Travel Authorization with false information for the purpose of qualifying for an ESTA can make you permanently ineligible for travel into the United States, since it could be considered material misrepresentation or fraud.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: What are the requirements in order to be eligible for admission into the United States under the Visa Waiver Program?

A: There are specific requirements that you will need to meet in order to qualify for the Visa Waiver Program (VWP). Below is a list of the eligibility requirements for the VWP:

  • You must intend to enter the United States for 90 days or less;
  • You must have a passport that is lawfully issued to you by a Visa Waiver Program country that is valid for six months beyond your intended visit to the United States;
  • You must be a national of the VWP country that issued your passport;
  • You must not pose a safety threat to the United States;
  • You need to have been checked using an automated electronic database containing information about inadmissible aliens to the United States;
  • You have to have a return trip ticket to any foreign destination other than a territory bordering on the United States or an adjacent island unless:
    1. You are a resident of an adjacent island,
    2. This requirement is waived by the Attorney General under regulations, or
    3. You are a visitor for business who arrives aboard a private aircraft that maintains a valid agreement guaranteeing to transport you out of the United States, if you are found to be inadmissible or deportable;
  • You have to present to the U.S. Customs and Border Protection (CBP) officer a completed and signed Form I-94W, Nonimmigrant Visa Waiver Arrival and Departure Form;
  • You must not have failed to comply with the conditions of any previous admission under the Visa Waiver Program;
  • If arriving by air or sea, you must arrive aboard a carrier that signed an agreement, "signatory carrier", guaranteeing to transport you out of the United States if you are found to be inadmissible or deportable;
  • You must convince the examining CBP officer that you are clearly and beyond a doubt entitled to be admitted into the United States and that you are not inadmissible under section 212 of the INA. For reasons that would make you inadmissible, you should look at the Immigration and Nationality Act at INA § 212 (a);
  • You have to waive any right to review or appeal a CBP officer's decision as to your admissibility, other than on the basis of an application for asylum or an application for withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
  • You must waive any right to challenge your removal, other than on the basis of an application for asylum or an application for withholding of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: Is there any way for me to extend my stay in the United States under the Visa Waiver Program?

A: Generally, there are no extensions available under the Visa Waiver Program (VWP). This means that, if you wish to visit the United States for longer than the allowable 90 days under the Visa Waiver Program, then you will need to obtain a valid visa for travel into the U.S.

If are in the United States under the Visa Waiver Program and you encounter an emergency while in the United States that prevents you from leaving within the 90 days authorized period, the USCIS district director that has jurisdiction over the place where you are temporarily staying may grant you a period of satisfactory departure. Keep in mind that the USCIS district director can grant or deny your request at his or her discretion. Also, if granted, the period of satisfactory departure will not be allowed to exceed 30 days. If you are able to depart the United States within this 30 day period granted to you, then you will be regarded as having satisfactorily accomplished your visit to the United States without overstaying your authorized period under the Visa Waiver Program.

Satisfactory departure will only be granted for real emergencies. If you do not have a real emergency, then you will not be able to extend your stay in the United States beyond the authorized 90 day period under the VWP. Some circumstances under which you may be granted this 30 day period include:

  • Hospitalization
  • Conditions that caused your flight to be cancelled or delayed for more than 24 hours (i.e. weather, worker strikes, etc.)
  • States of emergency in the country

If your overstay is due to an emergency related to weather and you are staying close to the airport until boarding and you are not able to visit a USCIS office in order to request and obtain the satisfactory departure 30 day grace period, then you should keep a copy of any proof of the emergency so that you can resolve any questions about the reasons for your overstay the next time that you come into the United States. If you are not able to prove you overstayed due to an emergency, then you may not be allowed to enter into the United States again. Some evidence that you should keep to prove your emergency situation could include:

  • Cancelled tickets
  • A statement from an airline about flight cancellations
  • Newspaper articles or other reports of significant storms

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: Are there any restrictions on what I can do while in the United States if I am on the Visa Waiver Program?

A: If you enter the United States under the Visa Waiver Program (VWP), there will be some restrictions that you will have to abide by. Firstly, you are only allowed to stay in the United States for 90 days and must depart immediately once your authorized period of stay is over. Also, a person who entered the U.S. under the VWP cannot request an extension of this original allowed period of stay in the United States. However, keep in mind that you can seek to adjust your status on the basis of either marriage to a U.S. citizen or an application for asylum. You are allowed to travel in and out of the United States to contiguous countries (Mexico, Canada, and the Caribbean) as many times as you would like during your authorized 90 day period of stay, as well.

There are employment related restrictions on the work activities you are allowed to partake in while you are in the United States under the Visa Waiver Program. You will generally be allowed to partake in meetings and conferences in relation to your profession or line of business or related to your employer in your home country. However, most forms of “gainful employment” is not allowed under the VWP. There are some exceptions to this inability to work while in the U.S. under the VWP, however. Some of these exceptions include:

  • Those who perform professional services in the United States for a non-U.S. employer, and
  • Those who install, service, and repair commercial or industrial equipment or machinery pursuant to a contract of sale.

Other types of people and activities that the Visa Waiver Program is appropriate for include:

  • Selling
  • Voluntary Work
  • Service Engineer
  • Speaker/Lecturer
  • Conference
  • Researcher
  • Business Venture
  • Medical Elective
  • Telecommuters

Any performer, such as a musician or actor, who plans on performing live or taping any scenes while in the U.S. to use for productions or any athlete who plans on participating in an athletic event are not allowed to use the Visa Waiver Program for these engagements. They will need to obtain a valid O visa or P visa before coming into the United States, instead. In addition, any journalists on assignment or foreign media representatives are not allowed to use the VWP and must instead have a non-immigrant media I visa.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: What happens to the data that is used for the Electronic System for Travel Authorization (ESTA) application?

A: The information that you will submit through the Electronic System for Travel Authorization (ESTA) website is subject to strict privacy controls and provisions. Only those with a professional need to know will have access to your information. The U.S. government operates the website and uses technology that prevents unauthorized access to the information that you will give. There are U.S. laws and regulations which prevent and punish misuse of the information, as well.

The information you will give when applying for an ESTA remains active for the period that your ESTA is valid. This is generally for two years or until your passport expires, whichever event happens first. The U.S. Department of Homeland Security (DHS) will then keep your information for an additional year. The information will then be archived for 12 years in order to allow retrieval for national security, law enforcement, or investigatory reasons. Once archived, few officials have access to the information and it is kept well controlled. If your data is linked to an active law enforcement lookout records or enforcement activities or an investigation or case, your information will stay accessible for the duration of the law enforcement activities that your information is related to. This is true even if your Electronic System for Travel Authorization (ESTA) application is denied.

Your information may be shared by other components of the Department of Homeland Security if there is a reason that these components need to be informed. The DHS and the Department of State (DOS) share information with DOS consular officers in order to assist them in determining whether to issue a visa to someone after that person’s ESTA application was denied. Your information may also be shared with state, federal, local, tribal, and foreign government agencies if there is a proper reason, such as an investigation or prosecution of any violation of any laws. This information is also used by DHS to assist them with their anti-terrorism efforts.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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Q: If I am a citizen of a contiguous country (such as Mexico or Canada) or of an adjacent island, do I need to use the Visa Waiver Program?

A: If you are a citizen of one of the contiguous countries to the United States, such as Canada or Mexico, or if you are a citizen of an adjacent island to the United States, you do not necessarily need to use the Visa Waiver Program (VWP). There is a U.S. statute, 8 U.S.C. section 1182(d)(4)(B), 8 C.F.R. 212.1 which is separate from the Visa Waiver Program that permits the Attorney General and the Secretary of State, acting jointly, to waive the visa requirements for admission into the United States for nationals of foreign contiguous territories or adjacent islands in non-immigrant status or for residents of those islands or territories who have a common nationality with those nationals.

This statutory visa waiver was granted to permanent residents of Bermuda and Canada who were citizens of Commonwealth of Nations countries or of Ireland until 2003. However, in 2003, the visa waiver for non-citizen permanent residents of Bermuda and Canada was terminated. Now, any Canadian and Bermudian permanent resident who is a citizen of a Visa Waiver Program country can visit the United States without a visa under the VWP. Citizens of other countries who are not on the approved country list for the Visa Waiver Program are required to have a valid advance visa in order to enter the United States.

The Bahamas

If you are a citizen of the Bahamas, you do not need a visa to enter the United States if you apply for entry at one of the Preclearance Facilities in Nassau or at the Freeport International Airports. You must not have had a criminal conviction or any other ineligibility, must not have violated any U.S. immigration law in the past, and must be in possession of a valid and unexpired passport or another travel document which states that you are a Bahamian citizen. If you are over the age of 14, you have to also have a police certificate from the Royal Bahamas Police Force that was issued within the last six months. If you do not apply for admission to the United States at one of the above locations, then you will need a valid visa for entry.

Canada

If you are a citizen of Canada, you are not required to have a non-immigrant visa in order to enter the United States, unless you fall under the non-immigrant visa categories of E, K, S, or V visas. If you are entering as a visitor into the United States, you do not have be fingerprinted or photographed and you do not need a machine readable passport. You can enter the United States for a maximum initial stay of one yet, but this time can be extended. However, keep in mind that the U.S. Customs and Border Patrol (CBP) usually considers six months to be the maximum allowed amount of visitation time in a given calendar year unless you have extenuating circumstances, such as you are requiring medical treatment. As of June 1, 2009, Canadian citizens are required to present a valid passport or a NEXUS card when entering the U.S. by air. They are also required to present a valid passport, a NEXUS card, a Free and Secure Trade Card (FAST card), or an enhanced driver’s license or identification card when entering the U.S. by land or water.

British Overseas Territories

If you are a citizen of the British Overseas Territories, you are allowed to enter the United States without a visa, due to their connection with Bermuda, if you are bona fide visitor. You must not have any criminal convictions or other ineligibility, must not have violated any U.S. immigration law, and must not be arriving in the United States from outside the Western Hemisphere. You will need to present a Bermudian passport, as well.

Cayman Islands

If you are a resident of the Cayman Islands, you are allowed to enter the United States under the Visa Waiver Program since you are a citizen of the British Overseas Territories. However, you can also enter the United States without a visa using your Cayman Islands passport. You must be able to confirm your British Overseas Territories citizenship and be endorsed by the Cayman Islands Passport and Corporate Services Office with a Cayman-U.S. visa waiver. You are not required to apply for an ESTA since you are not entering under the VWP.

Turks and Caicos Islands

If you are a resident of Turks and Caicos Islands, you are allowed to enter the United States under the Visa Waiver Program since you are a citizen of the British Overseas Territories. However, you can also enter the United States without a visa on a Turks and Caicos Islands passport, as well, for short business and for pleasure. You must not have any criminal convictions or other ineligibility, must not have violated any U.S. immigration law, and must arrive in the United States on a direct flight from the territory. You must have a police certificate from the Royal Turks and Caicos Islands issued within the past six months.

Contact our office today to speak with a lawyer to learn more about your options and to begin the immigration process.

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