• DHS Adds Security Precautions to Visa Waiver Program
  • June 29, 2008 | Authors: Pierre Georges Bonnefil; Robert S. Groban; Jang Hyuk Im; William M. Poole
  • Law Firms: Epstein Becker & Green, P.C. - New York Office ; Epstein Becker & Green, P.C. - San Francisco Office ; Epstein Becker & Green, P.C. - Atlanta Office ; Epstein Becker & Green, P.C. - New York Office
  • On June 9, 2008, the Department of Homeland Security (DHS), through the CBP, issued an interim final rule soliciting comments on its intention to add significant security protections to the Visa Waiver Program (VWP). Comments are due by August 8, 2008, and the CBP expects to implement the new system on or about January 12, 2009, sixty days after publication in the Federal Register.

    The VWP allows millions of visitors to come to the U.S. without first getting a visa. While this facilitates for international tourism and commerce, Congress has long been concerned that the VWP permits visitors to circumvent basic security and other protections that are incorporated into the State Department’s (DOS) visa issuance process. The DHS designed this interim rule to address security concerns by implementing the Electronic System for Travel Authorization (ESTA).

    The ESTA is an electronic website where FNs must register if they intend to visit the United States using the VWP. Currently, FNs traveling on the VWP complete a green I-94W Departure Record on the plane and then present it upon arrival at a U.S. port of entry. The CBP officer then quickly assesses the information it contains. Under the new ESTA process, the FN first will need to register on the CBP website prior to travel and provide the same information that he or she previously would have included on the I-94W upon arrival. The CBP then will evaluate the FN’s eligibility to enter the United States and determine if there is anything about his or her background that would render him or her ineligible to enter the United States. If not, the FN will receive Travel Authorization (TA). In this way, the CBP hopes to clarify any admissibility problems before the FN attempts to board his or her flight and thus shorten airport congestion. Once issued, a TA generally would be good for two years or for the time remaining on the FN’s passport, whichever is shorter.

    With the exception of emergency travel, all FNs will be expected to seek TA at least 72 hours before any trip. In assessing the new ESTA program, however, it is important for intending FN travelers to realize that receipt of TA will not guarantee admission. It simply is a certification that there is nothing in the FN’s background that would disqualify him or her from admission to the United States. The FNs still must convince the CBP officer at the airport that he or she is coming to this country for a permissible purpose.

    This new ESTA system represents a significant procedural change from the VWP. For this reason, the CBP has delayed implementation until at least January 12, 2009, so that it can educate the traveling public about these changes. This should allow sufficient time for employers with offices abroad to become familiar with the new ESTA procedures and to develop their own procedures for ensuring that VWP participants are eligible for TA. Further information about the new ESTA system can be found at: https://esta.cbp.dhs.gov.