Labor Immigration Law

United States Labor Immigration Law News and Analysis

Visa Waiver Articles

Fiscal Year 2012 Visitor (B1/B2) Visa Denial Rates

The Department of State (“DOS”) routinely publishes the denial rate for B-1/B-2 visitor visas for each fiscal year (October 1 to September 30).    The fiscal year (FY) 2012 data has been published and we share it with our clients and readers.

It is interesting to note the countries with the highest and lowest denial rates.    Andorra has a 100% denial rate, although we suspect that due to its small size, the actual number of applications may be really small and thus skewing the denial rate.    Other countries with high denial rates are Bhutan (52%), Djibouti (65%), Haiti (54%), Laos (60%), Mauritania (54%), Monaco (57%), Senegal (67%), Somalia (61%), Gambia (73%).

Among the countries with the lowest visitor visa denial rates are Argentina (1.5%),  Chile (2.8%), Croatia (4.4%), Cyprus (1.9%), Hong Kong (1.7%), Qatar (1.2%),  South Africa (2.9%), Uruguay (2.7%).

We recognize that the value in these statistics is not so great for visa applicants since each visa application is reviewed on its own merits and each case is unique.    However, the data is also helpful in noting the denial rates for countries who are hoping to become beneficiaries of the visa waiver program designation (one of the criteria is consistently low denial rate of visitor visas).

Please do not hesitate to contact us if we can help you.  Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Taiwan to be Designated a Visa Waiver Program Country

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano has just announced that DHS has designated Taiwan as a Visa Waiver Program (VWP).   As a result, Taiwan passport holders will be able to travel visa-free to the United States starting on November 1, 2012.

The VWP will enable citizens of Taiwan to travel to the United States, beginning on November 1, 2012, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA) (about ESTA; about the ESTA fee).

Currently, 36 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

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New ESTA Fee Goes Into Effect September 8, 2010 for Visa Waiver Program Travelers

We wish to remind our readers and clients that a new fee goes into effect starting on September 8, 2010 for Electronic System for Travel Authorization (ESTA) registration.  ESTA is a required pre-travel registration for Visa Waiver Program (VWP) travelers to the U.S.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

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Paper Form I-94W Eliminated for Visa Waiver Travelers

DHS Secretary Napolitano announced earlier this week that as of late this summer, the paper Form I-94W (arrival/departure record) for authorized travelers from nations participating in the Visa Waiver Program (VWP) will be eliminated.  Instead, the arrival/departure information will be stored electronically.

After a successful 7-month trial conducted with VWP travelers from New Zealand on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the United States at all airports by the end of this summer.  CBP will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA VWP travel authorization became mandatory on January 12, 2009, for all nationals of VWP countries prior to boarding a carrier to travel by air or sea to the United States. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa, and allows DHS to determine whether a VWP traveler presents a threat long before the individual boards a U.S.-bound aircraft.  By eliminating the paper Form I-94W, travelers will be able to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States.

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Volcano Travel Disruptions and I-94 Departure Compliance

Our office has fielded numerous calls from a number of foreign nationals who are in the U.S. temporarily and whose departure plans have been disrupted by the infamous Icelandic volcano ash.  For many in the U.S. whose departure travel arrangements were closely related to their I-94 expiration date, the disruption and delay in departure travel plans has caused overstay of the authorized period of stay in the U.S. on the I-94 or I-94W cards.  It is important to note that future admissibility can be permanently impacted due to an overstay of a period of authorized admission to the U.S.

Visa Waiver Program (VWP) Travelers

Overstay of the period noted on the I-94W card may make one a VWP traveler ineligible for future travel to the U.S. under VWP and require visa application for future travel.   For those in the U.S. under the VWP, contact the CBP airport office or the nearest U.S. Citizenship and Immigration Services (USCIS) office. There will be a few travelers with no I-94W under the pilot paperless I-94W project.   There is a passenger service manager list for international airports.

Per relevant regulations, 8 CFR § 217.3:

Satisfactory departure: If an emergency prevents an alien admitted under this part from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.

Travelers on Nonimmigrant Visas

For those in the U.S. under a nonimmigrant visa, CBP directs them to apply for an extension of nonimmigrant status. Even though an I-539 extension is normally recommended to be filed 45 days before expiration, CBP notes that some arrangement regarding this point has been made. Of course, the I-539 extension filing fee is $300. At present, it is not clear whether the satisfactory departure option is available for VWP or nonimmigrant visa holders unable to depart the U.S. due to the effects of the volcano.

In a USCIS alert regarding the situation, travelers on nonimmigrant visas are advised to to either (1) visit the local USCIS office and bring passport, cancelled flight itinerary and I-94 card or (2) apply for an extension of status as soon as possible by filing Form I-539.

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Greece to be Designated a Visa Waiver Program Country

The U.S. Department of Homeland Security (DHS) Secreatary Napolitano announced that DHS will designate Greece as a Visa Waiver Program (VWP) yesterday, March 9, 2010. As a result, Greek nationals will be able to travel visa-free to the United States effective April 10, 2010.

The VWP will enable citizens of Greece to travel to the United States, beginning on April 10, 2010, for 90 days or less for tourism or business purposes without a visa, provided they have an e-passport and an approved authorization via the Electronic System for Travel Authorization (ESTA).

Currently, 35 countries participate in the Visa Waiver Program. The U.S. Congress authorized DHS in August 2007 to reform the VWP and strengthen the security arrangements required of existing participant countries, as well as to expand the opportunity for aspiring countries to join the program. This legislation also mandates certain improvements to the VWP for all participating countries, such as the requirement that travelers first obtain an online authorization to travel under the recently established ESTA, a web-based system that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

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USCIS Begins ESTA Enforcement

About the Electronic System for Travel Authorization

ESTA is an electronic travel authorization that all citizens of VWP countries must obtain prior to boarding a carrier to travel by air or sea to the United States under the Visa Waiver Program (WVP). ESTA has been mandatory since Jan. 12, 2009 for all nationals of VWP countries traveling to the U.S under the VWP. The requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

ESTA applications may be submitted at any time prior to travel, and once approved, generally will be valid for up to two years or until the applicant’s passport expires, whichever comes first. Authorizations are valid for multiple entries into the U.S. The Department of Homeland Security recommends that ESTA applications be submitted as soon as an applicant begins making travel plans.

VWP travelers are required to log onto the ESTA Web site and complete an online application. The web-based system prompts applicants to answer basic biographic and eligibility questions typically requested on a paper I-94W form; ESTA is expected to completely replace the paper I-94W in the coming months. A third party, such as a relative, a friend, or a travel agent, may submit an application on behalf of a VWP traveler.

ESTA Registration Mandatory – New Enforcement Campaign

We have written in the past about the Electronic System for Travel Authorization (ESTA) which became mandatory more than one year ago, on January 12, 2009, for all Visa Waiver Program (VWP) travelers into the U.S.

The Department of Homeland Security (DHS) has recently announced a 60-day campaign to enforce ESTA registration.  Pursuant to this campaign, DHS will use its authority to deny entry to all VWP travelers to U.S. who have not registered with ESTA.   Beginning January 20, CBP will initiate a 60-day transition to enforce ESTA compliance for air carriers; VWP travelers without an approved ESTA may not be allowed to board a U.S.-bound plane.

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Does Administrative Processing Constitute a Refusal of a Visa?

This question arises often in the context of Visa Waiver Program (VWP) travelers who seek to enter the U.S. under VWP while their visa application (for H-1B, for example) has been “delayed” by the U.S. consulate.

Under VWP,  a nonimmigrant alien applicant for admission to the U.S. under VWP must indicate on Form I-94W and on the ESTA application whether he has ever been refused a visa.   Consequently, the question arises at to whether a prior visa application’s “administrative processing” constitutes a denial which should be disclosed.  Administrative processing may take several months before completing the process and issuing a  visa.   Additionally, the U.S. Consulates consistently do not inform visa applicants that their visa has been denied; instead, the Consulate informs the visa applicant the visa application is under “administrative processing.” Some Consulates indicate that the “case has been suspended under Section 221(g).”

U.S. Customs and Border Protection (“CBP”) has provided some guidance after consulting with the Department of State.  Accordingly, 22 C.F.R. 42.81, 22 C.F.R. 40.6, and 221(g) processing do constitute visa refusal by the Department of State.
As a result, VWP applicants who  have had their visa application subject to “administrative processing” must  answer that they  have had their visa refused.  This does not necessarily mean that the VWP is not available to such applicants.  However, CBP will have to manually review these applications.  Under such manual review processing CBP has 72 hours to respond to a manual review, but according to CBP, the current average time is 1 hour for a manual review.   If after 72 hours, there is no response, the applicant should make a new ESTA application or go into the system and check on the application.

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April 2009 Visa Bulletin – EB-3 Retrogresses

The April 2009 Visa Bulletin has been released.  Unfortunately, even though there is some forward movement in some EB categories, the progress is very small and in fact, the dates for some EB-3 categories have retrogressed significantly.

  • EB-1 remains current across the board.
  • EB-2 remains unchanged – EB-2 ROW (Rest of World) is current, EB-2 China remains February 15, 2005, and EB-2 India remains February 15, 2004.
  • EB-3 applicants, however, will be disappointed again.  EB-3 ROW moves backwards by more than two (2) years to March 1, 2003.  EB-3 China moves forward by six (6) months to March 1, 2003.  EB-3 India moves forward byy only one (1) month to November 2001.

In light of these visa numbers, it becomes increasingly important to be able to file under the EB-2 category and avoid the very lengthy delays of the EB-3 category.  Please contact our office and we would be happy to evaluate your case and advise on the possibility of using the EB-2 category.

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Electronic System for Travel Authorization (ESTA) Now Mandatory

Today, January 12, 2009, the Electronic System for Travel Authorization becomes mandatory for all Visa Waiver Program (VWP) travelers.   We wrote earlier about the mandatory cutoff of January 12, 2009.

Effective today, VWP travelers coming into the U.S. may be turned away if they have not registered at least 72 hours before their travel to the U.S.  Despite the advance notices, there is a significant chance that a fair percentage of the 50 million visa-free travelers to the U.S. will be turned away for non-compliance with ESTA.

If you are a VWP travelers and you will be traveling to the U.S., please make sure to visit the ESTA website and register in advance of your travel.

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