Labor Immigration Law

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.

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.

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.

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.

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.

The U.S. Department of Homeland Security (DHS) will designate Malta as a Visa Waiver Program (VWP) country on Dec. 30, 2008*. Maltese nationals will be able to travel visa-free to the United States effective Dec. 30th.

The VWP will enable citizens of Malta to travel to the United States, beginning on Dec. 30, 2009, 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, 34 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 newly 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.

The visa-free travel to the U.S. for certain nationals of Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea is now effective.  The final rule admitting these countries to the Visa Waiver Program (VWP) has been published.

One note for nationals of these seven countries who wish to travel to the U.S. under VWP – you must register in advance for the Electronic System for Travel Authorization.

With the Visa Waiver Program’s (VWP) recent expansion and the upcoming mandatory use of the Electronic System for Travel Authorization (ESTA) after January 12, 2009, we wanted to review the passport requirements for visa-free travel to the U.S. under VWP.

Passports Issued on or After October 26, 2006.  Any passport issued by a VWP country on or after October 26, 2006, must be an e-Passport which has an integrated computer chip capable of storing biographic information from the passport’s information page as well as certain biometric information.

Passports Issued between October 26, 2005 and October 25, 2006.  Older passports, issued between October 26, 2005, and October 25, 2006, can still travel to the U.S. without a visa, providing your passport has a digital photograph printed on the data page.

Passports Issued before October 26, 2005.  Passports issued before October 26, 2005, can still travel to the U.S. without a visa under VWP if the passport has a machine-readable zone.

Visa Required for All Other Passports.  If the VWP passport does not have any of the requirements described above, the VWP country national would have to obtain a U.S. visa in order to enter the U.S.

President Bush just announced that the Department of Homeland Security has notified Congress that the administration intends to admit seven new countries into the Visa Waiver Program.  The new countries are Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea. The exact date of the visa waiver program eligibility for these countries is expected to be announced shortly.

About the Visa Waiver Program

The Visa Waiver Program (VWP) is a program of the United States of America which allows citizens of specific countries to travel to the US for tourism or business for up to 90 days without having to obtain a visa.

To be eligible for a visa waiver under the VWP, the traveller seeking admission to the U.S. must be a citizen of a country that has been designated by the Attorney General, in consultation with the Secretary of State, as a “program country”. Permanent residents of designated countries do not qualify unless they hold a citizenship of another designated country. The criteria for designation as program countries are specified in Section 217 (c) of the Immigration and Nationality Act (Title 8 U.S.C. §1187). The criteria stress passport security and a very low nonimmigrant visa refusal rate: not more than 3% as specified in Section 217 (c)(2)(A) of the Immigration and Nationality Act, as well as ongoing compliance with the immigration law of the United States.

The full list of VWP countries, taking into effect the new seven countries is as follows:

• Europe: Andorra, Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France (including French overseas territories), Germany, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, Norway, Portugal, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom;
• Asia: Brunei, Japan, Singapore and South Korea; and
• Oceania: Australia and New Zealand.

As a reminder, citizens of all VWP countries traveling must register using the new Electronic System for Travel Authorization (ESTA). Registration is optional until January 12, 2009, when it becomes mandatory and a VWP traveler may be denied entry in the U.S. under the VWP if he/she has not registered using ESTA.

The Department of Homeland Security has released a report with a number of statistical breakdowns of admissions into the U.S. of nonimmigrants for 2007.  According to the DHS, there were 171 million nonimmigrant admissions into the U.S. in 2007.  The numbers show entries in the U.S. broken down by visa type, port of entry, age and more.

Nonimmigrant Admissions in the United States: 2007