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.

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.

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.

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.

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.

• 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.

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 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.

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.

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.

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.

Nonimmigrant Admissions in the United States: 2007

The report seeks to assess the operation of the program and to analyze DHS’s efforts to expand it.  The GAO report found, among other things that although the government is trying to expand the VWP aggressively by discussing it with a number of countries who are hopeful to join it, there are a number of deficiencies which have created confusion among U.S. government officials who negotiate with candidate countries and has set unreasonable expectations among the countries themselves.

Membership in VWP is granted to countries which have between 3 and 10 percent visa refusal rates and which have 97 percent return rate, meaning that 97 percent of the nationals of a particular country who enter the United States must return to the home country.  In order to allow a country to join VWP, DHS must be able to certify that a particular country has 97 percent return rate,.  However, DHS is unable to properly account for those who remain in the U.S. beyond their authorized period of stay.

In addition, for DHS to to maintain its authority to admit certain countries into the program, it must incorporate biometric indicators (such as fingerprints) into the air exit system by July 1, 2009. However, DHS is unlikely to meet this timeline due to several unresolved issues. In addition, DHS does not fully consider countries’ overstay rates when assessing illegal immigration risks in the Visa Waiver Program.

The GAO report goes into great detail in outlining DHS’s performance under the VWP.  It is a helpful read for anyone who is interested or affected by the Visa Waiver Program or the Electronic System for Travel Authorization (ESTA).

USCIS has released screenshots of the new system to allow the affected parties to become familiar with the system before it launches.  We are republishing these screenshots for the benefit of our clients.

Under the new program, which is optional until January, when it becomes mandatory for all of VWP travelers from 27 countries, all travelers to the U.S. must pre-register before traveling to the U.S. through an online system by entering personal information such as passport number, intended dates of travel, etc.  If the system rejects the pre-registration, the traveler must apply for a visa at the U.S. consulate.

The GAO estimates that between 1% and 5% of the travelers could be rejected by the online pre-registration system. This amounts to an estimated 500,000 additional visa applications.  Given the relatively short timeline between announcement (early June 2008), the optional launch date (August 2008)  and the mandatory cut-off date (January 2009), there will  be many travelers who either 1) do not know about the pre-registration until shortly before their travel or 2) do not apply for pre-registration until a point when a rejection from the pre-registration system would make it impracticable to schedule a visa appointment and apply for a U.S. visa.

Homeland Security and the State Department indicate that they are aware of the potential of increased demand in visas early next year, but they say they are prepared to handle it.

We are advising our VWP clients  to apply as early as possible for their pre-screening clearance and be flexible in case they need to schedule a visa appointment and interview.  We also urge our clients to check the Consulate Wait Times website for some idea on how long it takes to schedule and attend a visa interview.

To apply for authorization to travel to the U.S., VWP travelers will log-in to a web-based system and complete an application providing certain personal and eligibility information which is currently required on the I-94W form filled out by VWP travelers upon entry into the U.S.   The applications may be submitted at any time prior to travel to the United States and DHS encourages travelers to do so as soon as their travel plans are made.  The system will allow modification of travel plans and other information.

Once the application is completed, the information will be compared to various law enforcement databases and an instant response will be provided to the applicant.  The possible responses are: Authorization Approved, Travel Not Authorized, or Authorization Pending.  An Authorization Approved is valid for up to two years or until passport expiration, whichever is earlier, is valid for multiple entries to the U.S., and is not a guarantee for admission to the U.S.

According to DHS, once the program becomes mandatory (expected January 2009), VWP travelers who fail to complete the pre-travel authorization may be denied boarding on the airplane or may be turned at the U.S. port of entry.

Currently, all airlines are already required to transmit to the DHS biographic information for all passengers prior to their departure from the United States, but just because someone has a ticket does not indicate with a level of certainty that the same person boarded a plane and left the country. Therefore, the new departure biometric system would provide a higher degree of certainty to DHS.

It is DHS’s intention to implement the air and sea biometric exit procedures by January 2009; such timeline would allow the DHS to maintain the Visa Waiver Program and if the new rule is not implemented by June 30, 2009, then DHS may not be able to extend the Visa Waiver Program to new countries.

Although nationals of these countries cannot yet come to the U.S. without visas, based on these agreements, it is possible that final arrangements will be finalized later in 2008.

The VWP allows a national from one of the current 27 VWP nations to travel to the U.S. for 90 days or less without having to obtain a B-1/B-2 visitor visa. The VWP is limited to nations with high rates of compliance with U.S. visa requirements and low rates of rejections of visa applicants.  Currently these countries are Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.