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Visa Waiver Program

Written by Henry J. Chang
Updated October 25, 2010

Background

Legislation originally enacted in 1986 authorized the Attorney General and Secretary of State to establish a three year pilot program for the waiver of nonimmigrant visa for certain visitors for business ("B-1") or pleasure ("B-2") who seek to enter the United States for no more than 90 days. The pilot program was extended several times and on October 30, 2000, the Visa Waiver Permanent Program Act, Public Law No. 106-396, was signed into law. This law creates a permanent Visa Waiver Program ("VWP").

Canadian citizens and landed immigrants of Canada having a common nationality with Canadians (i.e. British Commonwealth citizens) are already visa-exempt under 8 CFR §212.1(a). Therefore, the VWP will be of no benefit to such aliens. However, for visitors to Canada (and possibly landed immigrants of Canada who do not have a common nationality with Canadian citizens) the VWP provides them with an opportunity to travel to the United States without the need for a nonimmigrant visa issued at the U.S. consulate.

Available to Nationals of Certain Countries

The VWP benefits are limited to nationals of countries that extend reciprocal privileges to U.S. citizens and whose nationals have not been refused nonimmigrant visas beyond a specified rate. VWP waivers are open to nationals of any designated country regardless of their place of residence or point of embarkation.

Countries currently designated as VWP 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, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom..

Ireland was initially designated as a pilot program country with probationary status. However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided that any country in probationary status before September 30, 1996, the date of its enactment, would be considered to be a full visa waiver country.

Slovenia was added to the list on September 30, 1997. Portugal, Singapore and Uruguay were added to the list on August 9, 1999.

In an interim rule published on February 21, 2002, the Department of Justice stated that, due to the current economic crisis in Argentina and the increase in the number of Argentine nationals attempting to use the program to live and work illegally in the United States, Argentina's participation in the VWP was terminated. Effective February 21, 2002, all Argentine nationals require visas to enter the United States as visitors for business or pleasure.

In an interim rule published on March 7, 2003, Uruguay was removed from the list of designated countries, effective April 15, 2003. In that same rule, Belgium was allowed to continue on a provisional basis for one year until March 15, 2003. It was reevaluated at that time and was allowed to continue its participation in the VWP.

For the purposes of the VWP, the only nationals of the United Kingdom who are eligible are British citizens who have the unrestricted right of permanent abode in the United Kingdom (England, Scotland, Wales, Northern Ireland, Channel Islands, and the Isle of Man); not covered are British overseas citizens, British dependent territories citizens, or citizens of British Commonwealth countries.

Effective November 17, 2008, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea were added to the list of countries eligible under the VWP.

Effective December 30, 2008, Malta was added to the list of countries eligible under the VWP.

On March 9, 2010, Department of Homeland Security (“DHS”) Secretary Janet Napolitano announced the designation of Greece as a member of the VWP.

Not a Safety Threat

The alien may only use the VWP if he or she is found not to represent a threat to the welfare, health, safety, or security of the United States.

No Previous Violation

If the alien previously was admitted without a visa under the VWP, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant. Therefore, if the alien violates the terms of the VWP, he or she will never be able to use it again.

Notwithstanding the above, in a USCBP press release dated August 12, 2004, it was stated that USCBP officers were authorized to grant "no-risk" travelers who overstayed the VWP on a prior visit a one-time parole, after which they would have to obtain a visa to return.

Must Be Admissible

Under INA §217(g), a visa waiver under the VWP cannot be granted to a person whose admissibility depends upon a waiver of admissibility. Therefore, an alien requiring an INA §212(d)(3) or other waiver of inadmissibility cannot seek a visa waiver under this program.

Waiver of Rights

Aliens entering the United States under the VWP must waive any right otherwise provided in the Immigration and Nationality Act:
  1. To administrative review or appeal of an immigration officer's determination as to their admissibility; and

  2. To contest any action for deportation;
other than on the basis of an application for asylum in the United States as provided in INA §208.

Limitation on Period of Stay, Changes of Status, and Adjustment of Status

A person admitted under the VWP cannot be authorized to remain in the United States longer than 90 days, except that, in emergency situations the District INS Director may permit satisfactory departure within another thirty days without a violation of status. VWP aliens may not change nonimmigrant status within the United States under INS §248 and may not adjust status to permanent residence within the United States under INA §245, unless they are the immediate relative of a U.S. citizen, or pay the penalty fee pursuant to the provisions of INA §245(i) [Note: INA §245(i) has expired but some grandfathered aliens may still be entitled to use it].

An alien seeking re-entry to the United States after departure to a foreign contiguous territory or adjacent island may be readmitted but only for the remainder of the authorized period of stay which he or she was originally granted upon initial arrival in the United States under the VWP. This is to prevent VWP aliens from getting around the 90 day limit simply by travelling to Canada or Mexico and asking for another 90 days. How this effects VWP aliens who reside in Canada or Mexico is not clear. Presumably, in the case of a VWP national who resided in Canada, a second application for admission after the alien's departure for Canada would not be considered an application for readmission and the alien would be granted an additional 90 days. In practice, many ports of entry have not applied this rule strictly. Numerous aliens who travel to Canada at the end of their 90 day period are granted a subsequent 90-day period upon reentry.

Differences Between VWP and Previous Visa Waiver Pilot Program

The VWP was different from the previous visa waiver pilot program in several respects:

  1. The new VWP permits the Department of State to determine reciprocity for VWP purposes (visa-free entry as a visitor for up to 90 days) based upon reciprocity with a single country or based upon a country that in conjunction with other countries has established a common border area.

  2. To be considered for nomination as a VWP participant, a country must now certify that it issues a Machine Readable Passport ("MRP") to its citizens. Those countries that were designated before May 1, 2000 must have certified that they had a program in place to begin issuing MRPs no later than October 1, 2003 [the date was subsequently changed to October 26, 2004, for most VWP countries] and must begin issuing MRPs no later than October 1, 2003 [the date was subsequently changed to October 26, 2004, for most VWP countries], or they will lose their status.

  3. On and after October 1, 2007 [the date was moved up to October 1, 2003 by the USA Patriot Act and then subsequently changed to October 26, 2004, for most VWP countries], all aliens were required to have a MRP to enter the U.S. under the VWP. Aliens who do not have an MRP must have a visa.

  4. The legislation imposes a requirement that all aliens applying for entry under the VWP be checked through an automated lookout database and be found not to have any INA §212(a) inadmissibilities applicable to them.

  5. The new legislation contains a more detailed description of what the Attorney General ("AG") must evaluate during the nomination phase. The AG, in consultation with the Secretary of State, must evaluate the effect that the designation of the country would have on the law enforcement and security interests of the U.S., specifically addressing the nominee country's interest in enforcement of U.S. immigration laws, and the existence and effectiveness of extradition agreements with the U.S., including extradition of its own nationals who violate U.S. laws. The AG must submit a report to Congress on the country's qualification for designation that includes an explanation of a favorable determination.

Deadline for Issuance of MRPs

When originally implemented, the VWP required that all aliens who wished to enter the United States under the VWP, on or after October 1, 2003, required MRPs. The deadline was subsequently extended for some (but not all) VWP countries. As of October 1, 2003, nationals of Andorra, Brunei, Liechtenstein, and Slovenia were required to present an MRP for admission under the VWP. As of May 16, 2003, nationals of Belgium were required to present an MRP for admission under the VWP. However, the deadline for the remaining VWP countries was extended to October 26, 2004. As this date has since passed, all VWP aliens now require MRPs.

United States Customs & Border Protection ("USCBP") began enforcing this requirement as of October 26, 2004. However, according to a recent press release, a USCBP officer is permitted to grant a one-time exemption to admit a VWP traveler to the United States. The traveler will be issued a letter explaining the U.S. entry requirements and his or her passport will be annotated that a one-time exemption has been granted. When granting the exemption, USCBP officers will notify the traveler of the requirement for a machine-readable passport or that they can obtain a non-immigrant visa for subsequent visits. If a traveler fails to obtain a machine-readable passport or a non-immigrant visa for subsequent visits, they may be refused entry under the VWP.

Congress previously imposed an additional requirement that all VWP-country passports also contain biometric information. However, on August 9, 2004, the deadline for the inclusion of biometrics in VWP-country passports was extended until October 26, 2005.

Implementation of the Electronic System for Travel Authorization ("ESTA") Program

As of January 12, 2009, all VWP applicants are required to obtain approval through the ESTA prior to traveling to the United States. ESTA is a web-based system, initially launched in August 2008, that determines the preliminary eligibility of visitors to travel under the VWP prior to boarding a carrier to the United States.

According to DHS, the ESTA program is supposed to gather data currently requested on the Form I-94W Arrival/Departure Record for aliens seeking admission to the United States under the VWP. This data collected is evaluated by United States Customs & Border Protection ("USCBP") to determine the eligibility of citizens and eligible nationals of VWP countries to travel to the United States and whether such travel poses a law enforcement or security risk. This determination will be made by USCBP before such persons travel to the U.S. A travel determination made under ESTA will remain, with certain exceptions, valid for two years and may be used for multiple applications for admission.

DHS notes that a travel authorization issued under ESTA is not a determination of admissibility to the United States, nor is it a determination of eligibility to receive a visa. Aliens refused a travel authorization under ESTA will not be eligible to travel to the U.S. under the VWP. However, they remain eligible to apply for a visa at a United States consulate. An alien planning to travel to the U.S. with a visa will not be required to obtain an ESTA determination.

The ESTA website began accepting voluntary applications for ESTA determinations on August 1, 2009. However, ESTA determinations are now mandatory for all VWP applicants.

On August 6, 2010, USCBP announced an interim final rule that amends Department of Homeland Security regulations to require payment of operational and travel promotion fees when applying for an ESTA registration; the additional fees became effective on September 8, 2010. A fee of $4.00USD will recover the costs incurred by USCBP of providing and administering the ESTA system and is in addition to the mandatory $10.00USD travel promotion fee established by the Travel Promotion Act of 2009, enacted as Section 9 of Public Law 111-145, the United States Capitol Police Administrative Technical Corrections Act of 2009. The total fee for a new or renewed ESTA will be $14.00USD.

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