The United States Department of Homeland Security has introduced the Electronic System for Travel Authorization (ESTA) under which a person traveling to the United States on the Visa Waiver Program obtains electronic travel authorization prior to boarding a carrier to travel by air or sea to the United States. The new system does not guarantee admissibility to the United States at the US port of entry, but rather authorizes a traveler to board a carrier destined for the United States.
ESTA became available as of 01 August 2008, and effective 12 January 2009, all travelers on the Visa Waiver Program will be required to obtain prior authorization through ESTA before traveling to the United States.
Whether travel authorization is required depends on whether the traveler is seeking admission to the US under the Visa Waiver Program based on their country of nationality, not the country of embarkation. Individuals with a valid United States visa are not required to obtain travel authorization through ESTA.
To obtain authorization through ESTA, travelers should visit the ESTA website at esta.cbp.dhs.gov, where they will be prompted to complete biographical and passport information, and answer the following series of questions similar to those found on the Form I-94W:
A) Do you have a communicable disease; physical or mental disorder; or are you a drug abuser or addict?
B) Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?
C) Have you ever been or are you now involved in espionage or sabotage; or in terrorist activities; or genocide; or between 1933 and 1945 were you involved , in any way, in persecutions associated with Nazi Germany or its allies?
D) Are you seeking to work in the U.S.; or have you ever been excluded and deported; or been previously removed from the United States or procured or attempted to procure a visa or entry into the U.S. by fraud or misrepresentation?
E) Have you ever detained, retained or withheld custody of a child from a U.S. citizen granted custody of the child?
F) Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?
G) Have you ever asserted immunity from prosecution?
Contrary to popular myth, not all arrests or convictions must be disclosed. Instead, only arrests and convictions involving moral turpitude or controlled substances must be revealed. However, given that determination of whether a particular arrest or conviction is considered a crime involving moral turpitude can only be made by referral to the appropriate controlling US statutes and case law, it is strongly recommended that all persons who have suffered one or more arrests or convictions, regardless of how long ago they occurred, should consult with a US immigration lawyer before submitting an application through ESTA.
Direct contact with either USCIS or the US Embassy regarding the issue or prior arrests or convictions is discouraged, as the customer service representatives of both of these agencies have been instructed to refer any and all individuals with prior arrests or convictions of any variety to make an application for a visa, which will significantly delay ones travel, and will place on ones permanent record even the most minor arrests or convictions.
It is highly recommended that travelers apply through ESTA at least 72 hours in advance of travel, as some applications may take up to 72 hours to process.
Once the traveler submits an application, one of the following responses should appear within seconds:
1. Authorization Approved: Travel authorized.
2. Travel Not Authorized: Traveler must obtain a non immigrant visa at a U.S. Embassy or Consulate before traveling to the U.S.
3. Authorization Pending: Traveler will need to check the ESTA Web site for updates within 72 hours to receive a final response.
Once received, travel authorization is valid for multiple entries into the United States for up to two (2) years, or until the traveler’s passport expires, whichever comes first. However, travelers must update their itineraries and US destinations on the ESTA website as they are planned.
As the system is done electronically, travelers are not required to carry a paper copy of their travel authorization; however, this is recommended, and travelers should ensure they have record of their ESTA application number.
After 12 January 2009, any traveler who does not apply through ESTA or is not authorized prior to travel may be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry.
Once ESTA is mandatory, a traveler with valid ESTA authorization will not be required to complete the paper Form I-94W when arriving on a carrier that is capable of receiving and validating messages pertaining to the traveler’s ESTA status as part of the traveler’s boarding.
If an ESTA application is not approved (“Travel Not Authorized”), a traveler may reapply for ESTA authorization after a period of ten days, but unless the traveler’s circumstances have changed, the traveler will likely be again denied authorization. A traveler who is not authorized through ESTA must obtain a visa from the appropriate US Embassy or Consulate before traveling to the United States.
US Embassies and Consulates are unable to provide the reason why authorization through ESTA was denied. The ESTA Web site will provide a link to the DHS Travel Redress Inquiry Program (TRIP); however, there are no guarantees that a request for redress through TRIP will resolve the reason that authorization was denied.
Additional notes on ESTA:
– Travelers that are only transiting through the United States must still obtain authorization through ESTA. “In transit” should be entered as the address in the United States.
– Citizens of Bermuda, Canada, the Marshall Islands, and Micronesia do not need to apply through ESTA.
– Any traveler who is denied authorization while ESTA is only voluntary until 12 January 2009, may still be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry.
– There is currently no fee to obtain authorization through ESTA.
– ESTA does not affect the current processing of travelers seeking to enter the United States through a land border.
– Entering false information into ESTA may render a traveler permanently ineligible for travel to the US.
Copyright 2008, Ortega-Medina & Associates Ltd. All Rights Reserved.
Orlando Ortega-Medina is lead counsel for the US business immigration law firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex U.S. business immigration cases, and is frequently engaged by other counsel to troubleshoot visa denials.