The Visa Waiver Program (VWP) enables citizens of participating countries to travel to the United States for business or tourism for 90 days or less without obtaining a U.S. visa. Those entering for business purposes as defined in INA § 101(a)(15)(B) are admitted in WB status. Those entering for purposes of pleasure as defined in the INA 101(a)(15)(B) are admitted in WT status. Important recent changes to the VWP program include the ESTA pre-authorization requirement.
The ESTA Pre-authorization Requirement
Starting on January 12, 2009, VWP passengers traveling to the United States by air or sea must obtain pre-travel authorization through an electronic screening system called the Electronic System for Travel Authorization (ESTA).
Under ESTA requirements, VWP passengers traveling to the United States by air or sea must register online and obtain a travel authorization before they begin travel to the United States under the VWP. DHS began accepting voluntary ESTA applications on August 1, 2008. The ESTA requirement does not apply to VWP travelers entering the United States at a land Port of Entry.
After submitting an ESTA application, three responses are possible:
- Authorization Approved
- Travel Not Authorized
- Authorization Pending
A response of Travel Not Authorized means that the traveler cannot enter the United States under the Visa Waiver Program. To enter as a visitor, he or she would then have to apply for a B visa at a U.S. consulate.
ESTA Authorization Validity
For citizens of countries that have entered into an agreement that recognizes passport validity for six months beyond the passport expiration date, an ESTA travel authorization will be valid for two years from the date of authorization, or until the traveler's passport expires, whichever comes first. [8 C.F.R. § 217.5(d)(1
For citizens of countries that have not entered into a 6-month passport validity agreement, "a travel authorization issued under ESTA is not valid beyond the six months prior to the expiration date of the passport. Travelers from these countries whose passports will expire in six months or less will not receive a travel authorization." [8 C.F.R. § 217.5(d)(2)]
A VWP traveler will have to obtain a new ESTA travel authorization if any of the following conditions occur during the validity of the traveler's last authorization [8 C.F.R. § 217.5(e)]:
- The traveler is issued a new passport
- The traveler changes his or her name
- The traveler changes his or her gender
- The traveler's country of citizenship changes or
- The circumstances underlying the traveler's previous responses to any of the ESTA application questions requiring a "yes" or "no" response (eligibility questions) have changed.
An ESTA authorization is only a determination that an alien is eligible to travel to the United States to apply for admission under the VWP. It is not a determination that the alien is admissible, which is a decision made at the port of entry [8 C.F.R. 217.5(f)(4)]. Also, an ESTA authorization does not impact the 90-day limitation on the duration of each visit under the VWP once admitted to the United States.