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August 2008 Newsletter August 18, 2008 DEAR CLIENTS AND FRIENDS: Over the past years, literally millions of business visitors and tourists to the United States have entered under the “Visa Waiver” program. Basically, under this program, visitors from low-fraud countries do not need to actually apply for a visa; rather, they can simply travel to the United States and request admission to this country at the time of arrival. Unquestionably, this is a heavily utilized, time-efficient immigration program that has a major benefit of facilitating business and personal travel without delay or governmental red-tape. In the post 9/11 period, the U.S. Government has enacted a series of measures to ensure more stringent border security/anti-terrorism screening. In this vein, the Government is now instituting a new program called ESTA that will allow some pre-screening of foreign visitors before they arrive in the United States. This email summarizes these new ESTA revisions, which stands for “Electronic System for Travel Authorization.” If you or your company’s foreign affiliate employees or someone you know relies on the Visa Waiver program to make short visits to the United States for business or pleasure, this new ESTA program is important to you. Please feel free to forward this information to any individual who may be using the Visa Waiver program in the future and/or to request of us further clarification of the information now being presented. The Visa Waiver Program – Summary The Visa Waiver program allows citizens of certain low-fraud countries to enter the United States as visitors for up to 90 days without the delay of first applying to a U.S. Embassy/Consulate for a B-1/B-2 visitor visa. In return for this privilege of quicker admission to the United States, Visa Waiver visitors need to agree to the following: 1) that their stay will be limited to a maximum of 90 days (instead of the usual 6 months’ stay granted to most B-1/B-2 visitors, with possibility of extension); 2) that they cannot extend their stay beyond 90 days or change into any other immigration status; and 3) that they give up the right to contest a U.S. immigration officer’s decision to deny them admission to the United States (with a few limited exceptions). The program is widely used, with a recent Government Accountability Office (GAO) report estimating that in 2007 almost 13 millions foreign citizens used the Visa Waiver program. Using the Visa Waiver Program The current list of the 27 countries whose citizens are authorized to use the Visa Waiver program are: Andorra, Austria, Australia, 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. Using the program requires a currently valid passport from one of these countries (all of which issue machine-readable passports as required under the Visa Waiver program). After boarding a flight to the United States, Visa Waiver visitors fill out a Form I-94W, which is a green strip of paper asking several important questions concerning the individual’s eligibility to enter the United States. Upon landing in the United States, the U.S. Customs and Border Protection (CBP) officer who conducts immigration inspections may ask additional questions about the purpose of the visit to determine whether the intention of the foreign national complies with the purpose and scope of the Visa Waiver program. If satisfied, the foreign national will then be admitted to the United States for a period of up to 90 days, as memorialized on the executed and endorsed I-94W. The New Requirement: ESTA ESTA, which stands for “Electronic System for Travel Authorization”, was created by the U.S. Department of Homeland Security (DHS). ESTA is accessed through the CBP website at https://esta.cbp.dhs.gov/. At present, ESTA is a voluntary system, although it is tentatively scheduled to become mandatory on January 12, 2009. Once use of ESTA becomes mandatory, Visa Waiver visitors will be required to log onto the ESTA website and follow the step-by-step instructions for submitting an application to the ESTA system. The online ESTA application will capture the information previously captured on Form I-94W, which may eventually be phased out of use. For now, Visa Waiver visitors have the option to register their visits under the ESTA program. CBP claims that such registration may expedite a visitor’s inspection, but this remains to be seen. CBP claims that in most cases the ESTA system will produce a response in a matter of seconds, which will state that the planned travel is approved, or not approved (and thus a B-1/B-2 visa must be applied for), or is pending a decision. The stated purpose of this system is to provide for a pre-clearance review process to screen out visitors who may be inadmissible to this United States, including for security threat reasons. Pending travel requests may take up to 72 hours (3 days) to be resolved. Thus CBP recommends that any individual planning to make a Visa Waiver admission to the United States should submit their application through the ESTA website at least 72 hours (3 days) before the planned departure to the United States. It should be noted that an individual planning to use the Visa Waiver program does not have to wait until a plane ticket is reserved to file an ESTA application online. Travel plans may be updated in ESTA after they are finalized. After the ESTA system approves the travel, it is recommended (but not required) to print out the approval confirmation and take it on all Visa Waiver trips to the United States. An approved travel authorization from the ESTA system remains valid for up to two years (unless the Visa Waiver traveler’s passport expires in less than two years). For frequent international business travelers who come to the United States for the same business purpose several times a year, it is not necessary to update the information in ESTA. For visitors who will return in less than two years but with a different itinerary or different purpose of the visit (e.g., a frequent business visitor who will be vacationing in the United States), it will be necessary to log onto the ESTA website and update the existing information submitted earlier. Phased-In Implementation System The ESTA website is up and running, though it is not officially required for Visa Waiver travel. At present, this is voluntary system; the tentative final implementation date when this program will become mandatory is January 12, 2009. Frequent users of the Visa Waiver program are encouraged to visit the ESTA website now in order to familiarize themselves with the website and requirements. Further information about the ESTA program may be found on the CBP website at http://www.cbp.gov/xp/cgov/travel/id_visa/esta/. This web page contains further basic information about ESTA. We encourage anyone intending to use the Visa Waiver program in the near future to consult the Frequently Asked Questions (FAQs) that CBP has posted on the CBP webpage linked above, and we will also seek to keep our community of clients and friends informed of the phase-in of this new ESTA program. We encourage clients with questions about this new program or about the Visa Waiver program generally to contact our law firm. Thank you. Cordially, ROBERT D. ARONSON
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Aronson & Associates,
P.A. |