Visa Waiver Program (VWP) Travel Challenges – Don’t Forget!

  1. What is the VWP? 

The VWP is administered by the Department of Homeland Security (DHS) in consultation with the State Department.  Currently, the program permits citizens of 38 countries[1] to travel to the United States (U.S.) for business or tourism purposes for up to 90 days without a visa, which is a major convenience.  In return, these 38 countries must permit U.S. citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes. On October 4, 2019, President Trump recommended the inclusion of Poland to the VWP.

Travelers in the following categories are not eligible to travel or be admitted to the U.S. under the VWP:

  • Nationals of VWP countries who have traveled to or been present in Iran, Iraq, North Korea, Sudan, Syria, Libya, Somalia and Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  • Nationals of VWP countries who are also nationals of Iran, Iraq, North Korea, Sudan, or Syria.

As noted above, there are some exceptions to these travel restrictions.  For example, if you have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen to represent your VWP country on official military orders or official government business, you may qualify for an established exception to the new eligibility requirements. These exceptions do not apply to the restriction for dual nationals of one of the subject countries (“dual national restriction”). DHS may waive these travel-related VWP restrictions, if it determines that a waiver is in the law enforcement or national security interests of the U.S.  A waiver may only be granted on a case-by-case basis

  1. May a qualifying citizen use the VWP by presenting a passport only?

No.  Any VWP admission request requires the e-passport holder to register for travel under the VWP via the Electronic System for Travel Authorization (ESTA).  The ESTA online registration, if approved, only serves as a preliminary step to complete before applying for VWP admission.  There is no guarantee of admission with a valid ESTA registration.  ESTA is used as an extra layer of security for VWP admission.  An ESTA registration is NOT a visa or visa equivalent.  ESTA registration may be completed at any time before travel under the VWP, but it is advisable to register at least 72 hours before VWP travel.  VWP travelers without an approved ESTA may be denied boarding.

As of April 1, 2016, all VWP country nationals must present an electronic passport (e-passport) for travel to the U.S.

  1. What if you have dual citizenship and a passport for more than one country?

If you have dual citizenship and have registered with ESTA for VWP travel, you should use your VWP-eligible passport to board the plane when you leave your country of departure and when you arrive in the U.S. If both your countries of citizenship are VWP-eligible, then DHS strongly recommends that you choose which passport you want to use for purposes of travel to the U.S., and use that country’s passport each time you travel. One person with two different ESTA authorizations creates confusion that will only delay travel.

If you are a citizen of the U.S. and also of a VWP country, do not apply for ESTA. One of the requirements of being a naturalized U.S. citizen is to use a U.S. passport for travel to the U.S. DHS is aware that naturalized U.S. citizens may use their alternate country’s passport to travel internationally.  DHS expects that you will use the U.S. passport to travel from another country to the U.S. at both points of travel: departing the foreign country and arriving into the U.S. 

  1. How long is an ESTA registration valid?

An ESTA registration may be valid for up to two years or until the applicant’s passport expires, whichever is earlier.  A new ESTA registration is required when:

  • The traveler is issued a new passport.
  • The traveler changes his/her name.
  • The traveler changes his/her gender.
  • The traveler’s country of citizenship changes.
  • Any of the traveler’s prior responses to ESTA application questions requiring a “yes” or “no” answer changes.

Note that if the ESTA registration expires before the VWP traveler leaves the U.S., the VWP traveler does not have to obtain a new ESTA before departing.  A new registration is required before returning to the U.S. as a VWP traveler.

  1. Are there restrictions beyond the 90-day maximum period of stay for VWP admission?

 Those admitted under the VWP may not:

  • Apply for a change of nonimmigrant status after admission;
  • Apply for an extension of nonimmigrant status after admission; or
  • Apply for adjustment of status to temporary or permanent status, unless eligible under section 245(c)(4) of the Immigration and Nationality Act, as amended (INA).
  1. What are the consequences of staying in the U.S. longer than 90 days under the VWP?

Remaining in the U.S. beyond the authorized period of ESTA admission may subject the VWP traveler to removal from the U.S.  In addition, an overstay will prohibit return travel to the U.S. under the VWP and the VWP traveler will have to apply for a visa at a U.S. consular post and explain the circumstances of the overstay.  A VWP overstay can result in refusal of a visa at a U.S. consular post.

  1. What documents must VWP applicant for admission to the U.S. present to a Customs and Border Protection (CBP) officer?

The ESTA registration process allowed DHS to end the requirement of completing the green paper I-94W form before admission to the U.S.  Typically, CBP officers will still place a stamp in a VWP traveler’s passport upon admission and the VWP traveler can obtain his/her I-94 (waiver business-WB or waiver tourist-WT) admission record online at: VWP travelers should print out their I-94 admission record to carry with them.  (In addition, maintaining a screenshot or file on your cell phone for ready access is advisable.) Recently, some CBP officers have been offering the “option” of an admission stamp to VWP travelers.  At present, always request the admission stamp record to show authorized admission to the U.S. In addition, it is important for applicants to print out their current ESTA registration or at least save it to their cell phone for ready access.

  1. What happens if a VWP traveler is admitted at an airport, leaves the U.S. to Canada or Mexico, and returns to the U.S. within 90-day VWP admission period?

Based on recent experiences, it appears that if a CBP officer did not place an admission stamp in the VWP traveler’s passport upon arrival in the U.S. at an airport, the CBP officer at the land border may require the VWP traveler to obtain a new I-94 admission record at the land border, which can add many minutes to over an hour of travel time.

So, how to be best prepared to request readmission at a land border using the airport I-94 record during its validity period of 90 days?

  • Make sure to request an admission stamp from the CBP officer at the airport due to anticipated travel through the land border between the U.S. and Mexico or Canada during the 90-day VWP admission period.
  • Carry a screenshot/file on your phone or a printout of the current ESTA registration.
  • Carry a screenshot/file on your phone or a printout of the I-94 admission record from the CBP website.
  • Carry a letter regarding the purpose of the business travel from your company, as applicable.

Note that for admission under the VWP at an airport, DHS has stated that it is not necessary to bring a paper printout of the ESTA registration; BUT DHS recommends that VWP travelers print out the ESTA application response as a record of their ESTA application number to confirm their ESTA status. VWP travelers are often saving this record as a file or screenshot on their phone as well.

  1. If I am in Canada or Mexico and want to drive to the U.S., do I need to register for ESTA?

If you are a citizen of a VWP country and you enter the U.S. by land from Mexico or Canada, an ESTA is not required.  For the first entry via land border to the U.S. without a valid ESTA – you will be required to complete the paper I-94W form for admission to the U.S. For the first entry via the land border with a valid ESTA, you will not be required to complete the paper I-94W form, but you must still apply for regular admission at the land border crossing.

For reentry via a land border with a valid I-94W or valid stamp in passport from a previous VWP admission, if you reenter the U.S. after a trip of less than 30 days to Mexico or Canada, you will not be required to obtain a new I-94W and your entry process is expedited.  Note: VWP citizens do not need an ESTA to travel on the ferries between Vancouver and Victoria, BC and Washington State. These locations are treated as a land border port.

  1. How long is ESTA data stored?

The record of VWP admissions is retained for 75 years, while the ESTA application data is maintained for the period of its validity, which is normally two years.  DHS then maintains the ESTA information for an additional year, after which it is archived for 12 years to allow retrieval for law enforcement, national security, and investigation purposes.

  1. Can my ESTA registration be revoked?

Yes.  It is always advisable to check the ESTA registration validity online before VWP travel to the U.S.   Arrests records, overstays, failure to comply with status, placement on a watch list are examples of many reasons that an ESTA registration could be revoked and end VWP travel privileges.  This revocation normally ends future VWP travel requiring a visa application at a U.S. consular post.

  1. Can a Business Visitor work whether under a B-1 or VWP admission?

The simplest answer to this question is no. VWP status allows admission as a business visitor or tourist.  WT or B-2 admission does not allow business activities.  Determining permissible activities as a business visitor is challenging.  In August of 2019, an Indian management consulting firm based in Chicago agreed to a $2.5 million settlement for visa fraud and inducing foreign nationals to enter and remain in the U.S. in violation of their immigration status.  The company, Mu Sigma, an advanced analytics service provider, was unlawfully circumventing U.S. government H-1B regulations by actively employing B-1 visa holders under contract within the U.S. as well as misrepresenting the activities to be performed by B-1 visa applicants in invitation letters submitted to the U.S. consulate.  Mu Sigma B-1 visa holders illegally working in the U.S. were also paid in India with India based wages, which were substantially less than their U.S. counterparts.  These considerations apply in VWP or B-1 admission for business purposes. CBP has provided some general guidance about permissible business activities and the Foreign Affairs Manual (FAM) of the Department of State also provides information as to permissible business activities at  9 FAM 402.2.

The normal B-1 permissible activity analysis focuses on whether productive work is being performed in the U.S., how is the individual compensated for the work, and does the work benefit the U.S. entity.  It is advisable to seek legal counsel regarding permissible B-1 activities.

About the Author:

Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.  She serves on the AILA Board of Governors.  In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.

[1] Andorra (1991), Australia (1996), Austria (1991), Belgium (1991), Brunei (1993),Chile (2014), Czech Republic (2008), Denmark (1991), Estonia (2008), Finland (1991), France (1989), Germany (1989), Greece (2010), Hungary (2008), Iceland (1991), Ireland (1995), Italy (1989), Japan (1988), Korea, Republic of (2008), Latvia (2008), Liechtenstein (1991), Lithuania (2008), Luxembourg (1991), Malta (2008), Monaco (1991), Netherlands (1989), New Zealand (1991), Norway (1991), Portugal (1999), San Marino (1991), Singapore (1999), Slovakia (2008) Slovenia (1997), Spain (1991), Sweden (1989), Switzerland (1989), Taiwan (2012), and  the United Kingdom** (1988).  [**NOTE: The citizens of the new countries of Curacao, Bonaire, St Eustatius, Saba and St Maarten (the former Netherlands Antilles) are not eligible to travel to the U.S. under the VWP, if they are applying for admission with passports from these countries.]