A U.S. Customs and Border Protection (CBP) interim final rule published at 87 FR 18967 (April 1, 2022) will expand the ESTA pre-registration requirement to Visa Waiver Program (VWP) visitors planning to enter the United States through land ports of entry. Currently, ESTA pre-registration is needed only for VWP entry through air and sea ports of entry. The rule goes into effect on May 2, 2022.

Background

DHS first introduced this interim final rule in its Fall 2018 regulatory agenda. On December 5, 2019, DHS submitted the rule to OMB for review, but later withdrew the rule on 11/10/2020. In the Spring and Fall 2021 DHS Regulatory Agendas, however, the rule went back on its rulemaking agenda as an interim final rule with a target action date of 03/00/2022.

Summary in the preamble to the interim final rule notice in the Federal Register:

Title: Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders

Summary: "This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for noncitizens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry. Currently, noncitizens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W). Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States. DHS has already implemented the ESTA requirements for noncitizens who intend to enter the United States under the VWP at air or sea ports of entry."

The rule will be effective 30 days after its publication in the Federal Register. As an interim final rule, CBP will also accept comments until the effective date of the rule.

CBP offers the following practical information in the rule preamble. Once the rule is effective:

  • Submit your ESTA at least 72 hours in advance of arrival at a land port of entry. "To expedite the admission process, DHS encourages VWP travelers who intend to travel to the United States by land to apply for a travel authorization at least 72 hours in advance of their anticipated arrival at a U.S. land port of entry. By submitting an ESTA application well in advance of anticipated arrival at a land port of entry, a traveler will be able to minimize the likelihood that he or she will be found to be inadmissible under the VWP upon arrival at the port of entry and prevent a potentially long wait time at the border while his or her application is under review."

  • An ESTA authorization is valid for land, air and sea travel.

    • "A travel authorization will be valid at all ports of entry. Therefore, if a VWP traveler already has a valid travel authorization obtained for air or sea travel, the traveler will not need to obtain another travel authorization for admission at a land port of entry."

    • "The same general rule and exceptions regarding the duration of a travel authorization as set forth in 8 CFR 217.5(d) will apply to a travel authorization issued for travel to air, sea, and land ports of entry."

    • "DHS will notify an individual with an approved ESTA authorization at the e-mail address he or she provided in the application when his or her ESTA expiration date is approaching. Subject to certain exceptions, each travel authorization will generally be valid for a period of two years from the date of issuance, meaning a noncitizen may travel to the United States repeatedly within a two-year period without obtaining another authorization."

    • "A VWP traveler must obtain a new travel authorization approval if any of the following conditions occurs: (1) the noncitizen is issued a new passport; (2) the noncitizen changes his or her name; (3) the noncitizen changes his or her gender; (4) the noncitizen changes his or her country of citizenship; or (5) the circumstances underlying the noncitizen’s previous responses to any of the ESTA application questions requiring a “yes” or “no” response (eligibility questions) have changed."

  • I-94W.

    • "Following the implementation of ESTA at U.S. land ports of entry, all VWP travelers are required to complete the electronic version of the paper Form I-94W (i.e., an ESTA application) instead of the paper Form I-94W."

    • " Although the collection of the I-94W data elements will now be done electronically through ESTA, travelers at the land border will continue to receive a printed departure record. This printed departure record is equivalent to the departure portion of the paper Form I-94W. This document will be stamped by the CBP officer who processes the traveler’s admission and should be retained by the traveler while he or she is in the United States. VWP visitors who depart from the United States via a land port will generally be required to surrender this document upon leaving the United States.14 CBP will enter the departure information manually into the appropriate CBP database."

  • Carriers will not be required to screen for valid ESTAs, but...

    • "DHS will not require land carriers (such as bus and rail companies) to screen passengers or necessitate a travel authorization in advance of arrival to a U.S. land port of entry. Other than the different time frames, the ESTA procedures and requirements for VWP travelers arriving at land ports of entry will be the same as the procedures and requirements for VWP travelers arriving at air or sea ports of entry as provided in 8 CFR 217.5."

    • " If a VWP traveler arrives at a U.S. land port of entry without a valid travel authorization and wants to apply for one, the traveler will be permitted to withdraw his or her application for admission, return to Mexico or Canada, submit an ESTA application there, and await receipt of a travel authorization in Mexico or Canada before returning to a U.S. port of entry. Receipt of a travel authorization will take at least two hours from the time that it is submitted. If the traveler’s ESTA application is approved, the traveler may return to a U.S. land port of entry to seek admission. If the traveler’s ESTA application is not approved, the traveler is not eligible to seek admission to the United States under the VWP. In such a case, the traveler may apply for a nonimmigrant B-1, B- 2, or B-1/B-2 visa from a U.S. Embassy or Consulate and then reapply for admission to the United States."

  • Fees.

    • ESTA fee. "VWP travelers applying for a travel authorization to travel to U.S. air and sea ports of entry must pay a $4.00 ESTA operational fee and an additional $10.00 Travel Promotion Act fee through September 30, 2020. This same fee will apply to VWP travelers arriving at U.S. land ports of entry."

      • But... "On February 9, 2018, section 30203(a) of the Bipartisan Budget Act of 2018, Pub. L. 115-123, extended the sunset provision of the travel promotion fee through September 30, 2027. On December 20, 2019, section 806 of the Further Consolidated Appropriations Act of 2020, Pub. L. 116-94, increased the travel promotion fee from $10 to $17. CBP will be publishing a separate rule to reflect these legislative changes." NAFSA note: See RIN: 1651-AB40.

    • I-94W fee. "A VWP traveler arriving at U.S. land ports of entry will still have to pay the $6.00 I-94W fee provided for in 8 CFR 103.7(d)(5), unless he or she is entering within a current 90-day VWP admission period."