Integrity Legal

Posts Tagged ‘Electronic System for Travel Authorization’

15th May 2016

It recently came to this blogger’s attention that those attempting to travel to the United States on the Visa Waiver Program may find themselves being denied  admission to the USA due to the fact they do not have a biometric passport (also known as an electronic passport or an e-passport). A recent posting on the official website of the United States Customs and Border Protection service notes that as of April 1, 2016 those traveling to the USA without a biometrically encoded electronic passport will be denied entry to the United States.

In most countries, electronic passports have been in wide use for some time, but some older travel documents and those issued by certain countries may not have the biometric chip. Therefore, one should look at one’s passport and use the link above to decipher whether or not one’s passport has biometric encoding and therefore complies with recently issued rules and regulations.

It should be noted that the visa waiver program requires that most travelers traveling to the USA on a waiver utilize the Electronic System for Travel Authorization (or ESTA) before they travel to the USA. In a way ESTA is a sort of pre-travel authorization although not a visa per se.

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14th May 2011

It recently came to this blogger’s attention that some have criticized the current process associated with adjudication and issuance of United States visas. Notably, it would seem that this criticism is mostly concerned with non-immigrant visas such as the B-2 visa (US tourist visa) and the B-1 visa (US business visa). To quote directly from a Reuters story posted on the website airwise.com:

The complicated US visa system hurts tourism and must be reformed if the United States wants to attract lucrative tourism from countries such as China, India and Brazil, travel industry officials said…

Readers of this blog are encouraged to click upon the hyperlinks noted above to read this story in detail and also gain greater insight into this developing issue.

At the time of this writing the United States maintains a system which allows for some nations to receive admission to the USA through a visa waiver program. As noted above: China, India, and Brazil are not included in the visa waiver program. This situation exists notwithstanding the fact that these three nations in association with two others (South Africa and Russia) compose the so-called BRICS group of developing countries with what some would claim is a virtually unlimited capacity for economic growth in the future.

This visa waiver program also entails the so-called “ESTA” (Electronic System For Travel Authorization) program, which requires foreign nationals to pre-register for admission to the United States before beginning their journey to America. It should be noted that in its current form the ESTA program only pertains to nationals from visa waiver participating countries. Therefore, nationals from countries such as China, India, Brazil, Indonesia, and the Kingdom of Thailand cannot benefit from the visa waiver program and the ESTA program as of the time of this writing.

Those interested in further information on such topics are encouraged to visit a few official websites: HERE and HERE. To quote further from the aforementioned piece:

“The challenge we have is the unnecessary, burdensome US visa system,” said USTA president Roger Dow. “It’s really self-imposed barriers that we put on ourselves as a country that have caused us to lose international travel and that have stymied international growth.”

This blogger has heard this argument made in the past and it is certainly salient especially at a time when tourism income is in high demand in an international context. To continue quoting further:

The US visa process from beginning to end can take as long as 145 days in Brazil and 120 days in China, a USTA report said. In contrast, Britain takes an average of 12 days to process visas in Brazil and 11 days in China…

Clearly, the visa processing time differential between the United States and the somewhat similarly socioeconomically situated United Kingdom is a stark contrast. To quote further:

US Senator Amy Klobuchar, a Democrat who chairs a subcommittee focused on export promotion and competitiveness, said the travel industry was important to help President Barack Obama meet his stated goal of doubling exports by 2014. “We see it as part of our economic recovery. I see this as a way to get jobs in our country,” Klobuchar said…

It is refreshing to see a federal legislator like Senator Amy Klobucher from the sovereign State of Minnesota taking the time to investigate an issue that may, at first glance, seem mundane. In point of fact, matters pertaining to United States non-immigrant visas are extremely important as they can have a significant impact upon foreign direct investment in the United States and the amount of money raised by American companies and enterprises offering services to foreign nationals both in the USA and abroad. Finally, a legislator trying to find reasonable solutions to American economic concerns in a reasonable manner! America: Let us not forget, we are one of the most historically fascinating and economically dynamic nations ever to have made our voices heard in the chorus of history. Why do we forget this? We seem to find ourselves constantly debating the minutia of our past transgressions or the history of our geopolitically unique grouping of jurisdictions. We do this when solutions to some of the current economic problems stare us in the face. The reality is that there are many around the world who wish to do business with those in the United States of America. There are many who want to buy our products. There currently exists the distinct possibility that the continent of Asia will have a constantly growing middle class of prospective international travelers for decades into the future. These travelers will likely be traveling for both business as well as pleasure. It stands to reason that many prospective tourists from Asia will make their initial international travel decisions with great care. Therefore, America should continue to be mindful of the fact there exists an international competitive market for income generated from tourism.  It stands to reason that more tourists in America means more tourism income.

From a legal perspective there is something to be said for allowing further membership in the United States visa waiver program as it would lead to fewer overall denied visa applications based upon section 214(b) of the United States Immigration and Nationality Act. Currently, many tourist visa applications are denied pursuant to a presumption in the aforementioned section of U.S. law. This section requires Consular Officers to make the factual presumption that a tourist visa applicant is actually an intending American immigrant unless the applicant can produce sufficient evidence to overcome this presumption. The visa waiver program gets around this 214(b) presumption by waiving the need for an American visa. Simultaneously, the visa waiver program also restricts those foreign nationals admitted into the United States from adjusting status to lawful permanent residence. One may adjust one’s status to lawful permanent residence (Green Card status) from tourist visa status in the U.S.A. under very limited circumstances. The visa waiver program does not permit such adjustment and therefore requires those foreign nationals seeking immigrant status to depart the United States and undergo Consular Processing abroad.

It remains to be seen whether or not US visa policy regarding non-immigrant visas such as those described above will be changed, but clearly there is some momentum behind this rather important issue in Washington D.C.

For related information please see: K-1 visa system, K-3 visa system, or US Company Registration.

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14th March 2011

For those who are unaware, the United States Customs and Border Protection Service (USCBP) is responsible for monitoring the ports of entry to the United States of America. For some, it may be possible to receive a sort of pre-approval for expedited admission at the various ports of entry in and around the United States.  To quote directly from the homepage of the website GlobalEntry.gov:

Global Entry is a U.S. Customs and Border Protection (CBP) program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Though intended for frequent international travelers, there is no minimum number of trips necessary to qualify for the program. Participants may enter the United States by using automated kiosks located at select airports.

As noted in the citation above, it may be possible for those who are in the program to enter the United States using an automated kiosk rather than the standard method of entering the USA through a classic immigration checkpoint. In order to better understand this it may be best to quote directly from the “About” page of the website GlobalEntry.gov:

At airports, program participants proceed to Global Entry kiosks, present their machine-readable U.S. passport or permanent resident card, place their fingertips on the scanner for fingerprint verification, and make a customs declaration. The kiosk issues the traveler a transaction receipt and directs the traveler to baggage claim and the exit.

Travelers must be pre-approved for the Global Entry program. All applicants undergo a rigorous background check and interview before enrollment.

While Global Entry’s goal is to speed travelers through the process, members may be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in appropriate enforcement action and revocation of the traveler’s membership privileges.

The Customs and Border Protection Service has a broad mandate to monitor the ports of entry to the United States as well as enforcing relevant customs law. Meanwhile, USCBP recently held the chair of a subcommittee of the Asia-Pacific Economic Cooperation (APEC) organization, which is dedicated to economic coordination of the various Asia-Pacific countries. Currently, the United States of America chairs APEC since the chair was turned over to the United States from the Japanese in November of 2010.

Those reading this posting should not confuse the global entry program with the Electronic System for Travel Authorization (ESTA) nor the visa waiver program (VWP, which itself should not be confused with the I-601 waiver or the I-212 waiver) as these are different programs and may not be relevant to those seeking information regarding ESTA and the VWP.

For related information please see: USCIS.

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30th November 2010

Those who are regular readers of this blog will no doubt be aware that the issue of 221(g) denials promulgated in relation to visa applications brought before at US Missions, Embassies, and Consulates outside of the United States can be very concerning for those seeking American Immigration benefits for a foreign loved one. In the case of the US Embassy in Vietnam, most US family visa cases are processed out the US Consulate in Ho Chi Minh City. It would seem that the American Consulate in HCMC is considered by State Department officials to be a “high volume” Post as a significant number of visa applications are adjudicated in that jurisdiction each year. Meanwhile, as is the case for any US Mission abroad, the officers at the US Consulate in HCMC take visa fraud seriously and therefore heavy scrutiny is placed upon pending visa applications in an effort to ensure that those receiving visa benefits are legally entitled to such benefits. Furthermore, Consular Officers also review US family visa applications very carefully in order to ascertain whether or not a prospective foreign beneficiary has the requisite subjective intent. Subjective intent is often of great concern in K1 visa applications as the applicant must have a genuine intention to marry their American fiance within 90 days of entering the USA.

The culmination of the US visa process is usually the visa interview which is generally conducted at the US Mission with Consular jurisdiction to adjudicate the visa application. However, in some cases, a Consular Officer may feel that further documentation is necessary in order to complete the adjudication. The American State Department refers to the 221(g), which is a reference to section 221(g) of the United States Immigration and Nationality Act, as a refusal although for purposes of the Department of Homeland Security the 221g is considered a denial. This can be an important distinction for foreign nationals holding the passport of a country which participates in the US Visa Waiver Program as the United States Customs and Border Protection Service (USCBP) considers 221g refusals to be denials which must be disclosed by travelers through the Electronic System for Travel Authorization (ESTA). It should noted that Vietnam is not currently a participant in the Visa Waiver Pilot Program.

In some cases, 221g denials are highly complex and may cause frustration to the applicant and/or their American counterpart. Some find that attorney assistance can be beneficial. An American Immigration attorney can provide insight into the overall process and also assist in making a follow-up with the US Consulate regarding a 221g denial. Furthermore, American Immigration attorneys based in South East Asia can deal with such matters before the Consulate in real time. This can be especially beneficial if the 221g evolves into a situation in which the visa application is denied due to a legal finding of inadmissibility. This can sometimes occur and in such an event the finding of inadmissibility may only be overcome through use of an I-601 waiver. In some cases, there may be no remedy if the applicant is found inadmissible for reasons that cannot be waived. Those thinking about filing for immigration benefits should always be aware that putting on the best case at the outset is the most efficient way of attempting to ensure visa issuance.

For related information please see: US Visa Vietnam or US fiance visa.

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24th August 2010

Those familiar with this blog may recall that new measures have been implemented that can have an effect upon those traveling to the United States on the Visa Waiver Program. The Department of State (DOS) recently released a cable which outlines soon-to-be implemented changes to the Electronic System for Travel Authorization (ESTA). The following is quoted directly from the Department of State Cable as distributed by the American Immigration Lawyers Association (AILA):

Summary: This cable provides additional information on implementation of the Travel Promotion Act of 2009 (TPA) and fee collection for the Electronic System for Travel Authorization (ESTA), requests posts to engage in outreach, and provides talking points. End summary.


3. As previously reported (Ref a), President Obama signed the TPA into law on March 4, 2010. The TPA will create a partnership between the U.S. government and the private sector to market the United States as a travel destination for international visitors. Fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.


4. On August 6, 2010, DHS announced an interim final rule that amends DHS regulations to require travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14.00, with $4.00 to recover the cost of administering the ESTA system and $10.00 as mandated in the TPA.


5. The Department is working with DHS and the Department of Commerce to notify foreign and domestic media, the travel industry, and other stakeholders about this change. The Department requests that consular officers in VWP countries, in coordination with DHS and Commerce representatives, meet with host government officials, and airline, tourism, and other stakeholders to inform them of the new fee provisions connected to ESTA. Please contact the ESTA Program Management Office [redacted] for outreach materials or requests for ESTA representatives to travel in-country. They will do their best to accommodate. This cable is being sent as an ALDAC to facilitate all posts answering questions from citizens of VWP countries and the general public.


6. The Department supports the TPA goal of attracting international visitors to the United States. Our greatest diplomatic tool for sharing American values is America itself, and we recognize the critical importance of travel and tourism to our economy and job creation. The Department looks forward to working with the Corporation for Travel Promotion to ensure that prospective visitors to the United States receive comprehensive, up-to-date information on travel documents and requirements for entry.

The Travel Promotion Act mentioned above will likely have significant consequences for those foreign nationals traveling to the United States pursuant to the conditions of the visa waiver program. Therefore, those originating in a country that has visa-free travel privileges to the USA may be wise to research both the US Visa Waiver Program and the ESTA program. Fortunately, the aforementioned cable also included a Frequently Asked Questions Section. The following FAQ’s were quoted from the previously mentioned DOS cable distributed by AILA:

Q. What is the new fee charged to travelers?
A. It is $14.00. Since the implementation of ESTA, DHS has had discretion to charge a fee to cover administrative costs. DHA determined that cost to be $4.00 per registration. The TPA fee adds an additional $10.00.


Q. When will the fee go into effect?
A. ESTA registrations on or after September 8, 2010, will be subject to the fee.


Q. How do travelers pay the fee?
A. At this time, payment is required through the following credit cards: Mastercard, Visa, American Express, and Discover. Payments can also be made with a debit card that holds the Visa or Mastercard symbol. Please check with your bank on the compatibility of your debit card. We are continuing to explore other payment measures. The ESTA registration form already in use will walk users through the payment process.


Q. What types of privacy protection exist on the website?
A. “Pay.gov” uses advanced encryption to protect transactions while applicants are logged in. When accessing a profile, any account numbers entered will be masked on-screen.


Q. How long are ESTA approvals valid?
A. Each approved ESTA application will be valid for a period of two years unless the traveler’s passport expires sooner. It allows for multiple visits to the United States within that application.


Q. If I have a valid ESTA, will I have to re-register when the new fees go into effect?
A. No, existing ESTA registrations remain valid for travel through their expiration date.


Q. Is ESTA approval like a visa?
A. An ESTA approval is not a visa under U.S. law, nor does it confer the same benefits as a visa.


Q. Will this attract more international visitors to the United States?
A. Oxford Economics, a leading economic forecasting consultancy, estimates that the TPA program will generate $4 billion in new visitor spending, and lead to the creation of 40,000 new jobs.


Q. Why do VWP countries have to fund this travel promotion program through ESTA fees?
A. Some countries fund tourism promotion through airline or hotel taxes. The Travel Promotion Act legislation specified that the U.S. government fund this program through a $10 fee added to ESTA registration.


8. The following are Visa Waiver Program member countries: 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, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom…

At the time of this writing, the Kingdom of Thailand is not a member of the United States Visa Waiver Program. Therefore, ESTA rules have little impact upon most Thai nationals. That said, as pointed out in previous blog posts, relevant regulations may require those who have been issued a 221g refusal to disclose this refusal as a “visa denial” for purposes of travel to the USA on the Visa Waiver Program. It would seem that at the time of this writing the Department of State and the United States Customs and Border Protection Service (USCBP), an agency under the authority of the US Department of Homeland Security, view 221(G) refusals differently. Those who have been issued a 221g who still wish to travel to the United States may be wise to contact a US lawyer in order to deal with a pending 221g refusal.

Those who are from countries that do not participate in the Visa Waiver Program should seek a US visa before traveling to the USA. For information about the US Tourist Visa please see: B2 visa.

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6th March 2010

Since the recent worldwide economic downturn the global tourism industry has suffered a great deal. Much can be attributed to the fact that people have less disposable income, but others are of the opinion that increased promotion may be the key to dealing with this issue. In the United States, the government and business leaders have devised a plan to promote more travel to the USA. To quote a recent posting on CNN’s website:

“President Obama signed legislation into law Thursday to create the United States’ first national travel promotion program…The act will create a nonprofit Corporation for Travel Promotion that will promote the United States as a travel destination and explain travel and security policies to international visitors…”

One aspect of the new program that is stirring up some resentment is the addition of a $10 fee that much be paid by those wishing to enter the United States on the visa waiver program (not to be confused with an I-601 waiver of inadmissibility):

“A $10 fee charged to visitors from countries included in the Visa Waiver Program will partially fund the public-private organization. These visitors will pay the fee every two years when they register online using the Department of Homeland Security’s Electronic System for Travel Authorization…”

As readers may recall, The Electronic System For Travel Authorization (ESTA) is used by those who wish to seek entry into the USA on a visa waiver. This system pre-screens foreign entrants for security purposes. As mentioned previously, tourism around the world is declining, but this program may provide stimulus to this sector of the US economy:

“Despite strong global growth in long-haul international travel between 2000 and 2008, the U.S. welcomed 633,000 fewer overseas visitors in 2008 than it did in 2000, according to figures from the U.S. Department of Commerce. Oxford Economics, an economic consulting and forecasting company, estimates a well-executed promotional program would draw 1.6 million new international visitors annually and generate $4 billion in new visitor spending.”

It remains to be seen how this program will work, but certainly encouragement of tourism is necessary. However, some have questioned how requiring a new fee for travel to the United States will encourage tourism. This is certainly a valid point as increased restrictions on travel for so-called “visa waiver countries” may be one of the reasons behind decreased tourism. There are those who have called ESTA a new type of visa and now that there is a charge for the service it is beginning to become a sort of online visa. That being said, balancing security and economic concerns is difficult.

This new law will likely have very little impact for those from Thailand as Thai nationals do not enjoy “visa waiver” privileges. For this reason Thai nationals must apply for a US tourist visa if they wish to enter the US for recreational purposes. Further, Thais wishing to travel to the US to be with a fiance or spouse must apply for either a K1 visa or a US marriage visa before they will be able to be lawfully admitted.

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30th June 2009

There are some countries whose nationals have the right to travel to the United States of America without first obtaining a visa. The US Visa Waiver Program (VWP) was designed to allow certain foreign nationals visa-free travel to the United States. The visa waiver program should not be confused with an I-601 waiver of the grounds of inadmissibility.

Since September 11, 2001 the the Department of Homeland Security, United States Customs Department, United State Immigration and Citizenship Service (USCIS), the Transportation Safety Authority, and other United States Federal agencies have been formulating ways to better maintain security with regard to international travel. It was determined that the Visa Waiver program might be used by possibly hostile parties as a method for entering the United States in order to conduct harmful activity. As a result of this policy decision, the US authorities have attempted to implement a precreening process for thse entering the United States via the Waiver Program. This process is known by its acronym: ESTA.

The Electronic System for Travel Authorization (ESTA) was made operational under Section 217 of the Immigration and Nationality Act, as amended by Section 711 of the “Implementing Recommendations of the 9/11 Commission Act of 2007,” Pub. L. No. 110-53. The Act compelled the Department of Homeland Security to institute a systematic method to verify the fitness of travelers to the USA and make sure such travelers pose no imminent threat to American safety.

The ESTA is a no-cost, fully computerized program used to ascertain the qualifications of those traveling to the United States of America through the use of the American Visa Waiver Program. The Electronic System for Travel Authorization gathers similar information as that required on Form I-94W. An ESTA application can be tendered at any point before traveling to the United States of America. That being said, the United States Customs and Immigration Service (USCIS) and the Department of Homeland Security advise that travelers submit an ESTA application when they begin setting a travel itinerary.

As of January 12, 2009, those who are citizens of any country that participates in the Visa Waiver Program must obtain travel approval from ESTA before they will be allowed to enter the USA under VWP.

Some people are under the misconception that ESTA is a visa.  An ESTA approval is not a visa. Instead it is a prescreening for entry into the United States visa free.

For those who have trouble with the English language, the website has been translated into Czech, Danish, Dutch, Estonian, Finnish, French, German, Hungarian, Icelandic, Italian, Japanese, Korean, Latvian, Lithuanian, Norwegian, Portuguese, Slovak, Slovenian, Spanish, and Swedish.

(Please note: this is intended for educational purposes only and does not constitute legal advice. No attorney/client relationship is created between author and reader).

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29th June 2009

Visa Waivers are often accorded to nationals from countries that have a long standing relationship with the USA. Currently, the Kingdom of Thailand is not a participant in the US Visa Waiver Program, therefore, anyone wishing to travel to the USA on a Thai passport must obtain some sort of American Visa.

The US Visa waiver program should not be confused with a waiver of excludability which is usually necessity after a US visa denial based upon a legal ground of inadmissibility. The US Visa Waiver Program (VWP) was created to allow certain foreign nationals entry into the United States visa-free.

In the mid-1980′s, the US Immigration Reform and Control Act integrated the Visa Waiver Pilot Program into the United States Immigration and Nationality Act (INA). The Visa waiver initiative remained a pilot program until October 30, 2000. At that time, the Visa Waiver Permanent Program Act made the program a permanent fixture of immigration law. The Visa Waiver Program’s legal foundation is stipulated in section 217 of the United States Immigration and Nationality Act. In 2007, the addition of section 711 of the INA created measures to strengthen the security of the Visa Waiver Program.

The Secretary of Homeland Security and the Secretary of State, may assign a nation as a participant in the Visa Waiver program if:

  1. The nation grants similar travel rights to Americans;
  2. The nation has attested that it dispenses electronic passports that contain data storage chips;
  3. The nation started issuing such Passports to its citizens on or before October 26, 2006.
  4. The Secretary of Homeland Security and the Secretary of State prepare a report calculating the effect the country’s VWP authorization upon US security; and
  5. The Secretary of Homeland Security and the Secretary of State decide that the nation’s inclusion in the program will not damage American security interest, this includes issues involved in the enforcement of US Immigration law.

Who can enjoy the Visa Waiver Program?

The nationals of the following countries are eligible to enter the USA under the Visa Waiver Program: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (With regard to United Kingdom Passports, Only UK passports denoted as “British Citizens” and/or “with unrestricted right of abode in the United Kingdom” are eligible for entrance to the USA under the Visa Waiver Program. Those holding passports designating that the bearer is a “British Subject,”  “British Dependent Territories Citizen,” “British Overseas Citizen,” or “British National [Overseas],” cannot enter the United States through the Visa waiver program.)

In order to enter the USA visa-free on the Visa Waiver Program an entrant must first use the Electronic System for Travel Authorization.

(Please note: Nothing contained herein should be used as legal advice. No attorney-client relationship is created by reading this piece.)

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