Update on Changes to Visa Waiver Program

The Visa Waiver Program ("VWP") has been important to facilitate international commerce between the United States and foreign nationals (FNs) from countries eligible to participate in the VWP. It allows these FNs to enter the United States quickly, inexpensively and efficiently by permitting them to bypass the consular visa application process if they are visiting the United States for a permissible purpose. Because the VWP allows these FNs to circumvent the security reviews that are part of the consular visa application process, the United States recently has added security safeguards to the program. Two of these were announced earlier this year, but it is useful to review them.

A. Electronic System for Travel Authorization (ESTA):

On August 1, 2008, the Customs and Border Protection (CBP) introduced the Electronic System for Travel Authority (ESTA). When it becomes effective on January 12, 2009, ESTA requires foreign nationals seeking to use the VWP to apply online for advance authorization to travel to the United States. Those who fail to secure this advanced authorization will not be allowed to board the plane.

In anticipation of a large number of last-minute authorization requests, CBP made the ESTA authorization system operational in August 2008, so that potential VWP users could secure ESTA authorization in advance of their anticipated travel. ESTA authorization is valid for two years or until the passport expires, whichever comes first. When the ESTA becomes mandatory on January 12, 2009, VWP travellers will not be allowed to board a US-bound aircraft or ship unless they have first secured ESTA authorization. At present, information is available only in English, and there is no charge for this service. To complete an online application, please visit https://esta.cbp.dhs.gov. Once the application is submitted, the applicant will receive one of the following responses: Authorization Approved: Applicant’s travel is authorized; Travel Not Authorized: Applicant must obtain a non-immigrant visa at a U.S. Embassy/Consulate before travelling to the U.S.; or Authorization Pending: Applicant will need to check the ESTA Web site for updates within 72 hours for a final response.

Instructions on how to obtain an electronic travel authorization are available now in 13 additional languages: Danish, Dutch, Finnish, French, German, Icelandic, Italian, Japanese, Norwegian, Portuguese, Slovene, Spanish and Swedish.

For additional information on the Electronic System for Travel Authorization, please visit: http://www.cbp.gov/linkhandler/cgov/travel/id_visa/esta/esta_tear_sheet.ctt/esta_tear_sheet.pdf

B. VWP Passport Requirements:

As part of the enhanced security features now applicable to the VWP, the DHS also has added a timeline for new passports. These rules can be summarized as follows:

1. Passports issued on or after October 26, 2006, must be "e-Passports." This means that they contain an integrated computer chip capable of storing biographic information from the passport data page, as well as other biometric information, such as a digital photograph of the passport holder.

2. Passports issued between October 26, 2005, and October 25, 2006, must include a digital photo printed on the data page.

3. Passports issued before October 25, 2006, must have a machine-readable zone.

Those seeking to use the VWP who have passports that do not satisfy these requirements will be required first to secure a visa before they will be allowed to travel to, and be allowed entry into, the United States.