Visa Waiver Program: New Eligibility Rules

July 12, 2010 by Lena Korial-Yonan, Esq.

Most people are not aware that effective on or about January 2010, major changes took place that have significantly changed the eligibility requirements for travel under the Visa Waiver program (VWP). Before these changes, anyone that is a resident of certain countries can present his or her passport and be allowed entry into the US. Now, an application must be made electronically via ESTA at least 72 hours in advance before travel, and the applicant must be approved before he or she can enter the US. In fact, even if an applicant is approved through ESTA, that applicant can still be denied entry into the US as per the Customs and Border Patrol (CBP) Officer's discretion.

The ESTA application can be found online at each individual's US Embassy's website. The ESTA application website can also be found at the following link: ESTA application website.

I-94W May No Longer Be Used After July 2010

One major consequence of the ESTA program is that now the I-94W card (a little green colored paper card that gets placed in one's passport) will be phased out, as DHS will eliminate the requirement for travelers to complete an I-94W card prior to entering the US. Customs and Border Patrol (CBP) has begun a transition to paperless processing for Visa Waiver Applicants who have already obtained travel authorization.

This automated processing and discontinuation of the use of the I-94W will be fully implemented by all US international airports by the end of July 2010.

Questions that May Disqualify some Applicants from Approval under VWP

The ESTA application has questions that can cause some travelers, who would otherwise have been allowed legal entry into the US, to be denied entry via the Visa Waiver Program. If an individual's ESTA application is denied, then the solution offered by DHS is that the individual can apply for a visa at his or her US Embassy. Some of the questions on the ESTA application that can disqualify applicants are as follows:

1. Have you ever been arrested (even if not convicted) for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities? Please see VWP Quick Reference Guide.

2. Have you ever denied custody of a child from a U.S. citizen who was granted custody of the child by a Judge or any other order granting custody?

3. Have you ever been excused from a crime because you sought immunity from prosecution?

4. Do you have a communicable disease or a mental disorder or are you a drug abuser? [for more details on what constitutes these disorders and diseases, please refer to the main ESTA application page for an exact list].

5. Are you planning on working in the US; or have you ever been deported or removed from the US; or have you ever attempted to or actually obtained a visa to the US by fraud or misrepresentation?

Previous Visa Denials May Affect ESTA Approvals

It is important to note that some reports have indicated that individuals who were previously applicants for visas at US Embassies and who were refused a visa for reasons other than fraud or misrepresentation may also be denied entry under ESTA. In addition, even individuals who previously applied for visas to the US and received 221(g) notices that allow applicants up to 1 year to address issues in their case or to provide additional documents may also be denied entry under ESTA. Please refer to the following link for details: I was denied a visa on a recent visa application, may I use the VWP?

Passport Requirements – Important

Some of the other rules under ESTA relate to the passport requirements for entry into the US. For instance, citizens from the following countries are required to have e-passports:

*Czech Republic, Estonia, Slovakia, Hungary, Latvia, Lithuania, Republic of Malta, South Korea, and Greece.

Citizens from other countries are required to have a machine-readable passport and still there are other passport requirements that applicants must carefully read and comply with to secure entry into the US. For details please refer to ESTA Screen-Level Online Help.

Important Notice: Effective 2009, all emergency and temporary passports must be e-passports. For details, see the following public notice: Visa Waiver Program Passport Requirements.

Limitations of VWP: Entry Limited to 90 Days or Less & Other Factors

As always under the Visa Waiver program, applicants are only allowed to enter the US for a maximum of 90 days. Applicants cannot file any extension request here in the US and must depart before the 90 days are completed.

If you enter the US under the Visa Waiver Program, you may not change your non-immigrant in the US. Also if your ESTA application is denied, you have no right to appeal the denial.

If you have previously reported your passport as lost or stolen, you may also be denied entry under ESTA.

Countries that Qualify for VWP

Below is the list of countries that qualify for the Visa Waiver Program as of July 2010:

Andorra	France	Liechtenstein	Slovakia
Austria	Greece	Latvia	San Marino
Australia	Germany	Luxemburg	Singapore
Belgium	Hungary	Monaco	Slovenia
Brunei	Iceland	Netherlands	Spain
Czech Republic	Ireland	New Zealand	South Korea
Denmark	Italy	Norway	Sweden
Estonia	Japan	Portugal	Switzerland
Finland	Lithuania	Republic of Malta	United Kingdom

For more details including where and how to apply for ESTA and FAQ’s regarding ESTA, please refer to the following link as the links mentioned throughout this article: Electronic System for Travel Authorization.

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This article on "Visa Waiver Program: New Eligibility Rules" is written by US Immigration Law Attorney Lena Korial-Yonan, Esq. of Lena Korial-Yonan, P.A. Lena Korial-Yonan, Esq. has been practicing only US Immigration Law for almost 10 years in Jacksonville, Florida. She graduated from the University of Florida Levin College of Law located in Gainesville, Florida in 2000. She is an immigrant herself, as she came to the US when she was about 7 years from Iraq. Any comments or questions can be emailed to her at lena@needimmigrationhelp.com or you may call her office directly at (904) 448-6646. Lena Korial-Yonan, Esq. accepts and handles cases from all over the US.

You can read her entire profile at Law Firm Profile page.
Her immigration law firm's website is http://www.needimmigrationhelp.com.

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