New Challenges for the Visa Waiver Program
The Visa Waiver Program (VWP) enables citizens and nationals from 35 countries to travel to and enter the United States for business or visitor purposes for up to 90 days without obtaining a nonimmigrant visa.
The VWP was first established in 1986 with the objective of eliminating unnecessary barriers to travel to the U.S., stimulating the U.S. tourism industry, and permitting the Department of State (DOS) to focus consular resources in other areas.
Compared to other traditional U.S. entry visas, the VWP is a very convenient and quick option aliens to enter the U.S. While the VWP is convenient, it also has many restrictions, and abuses of the program can have long lasting consequences on the alien and his/her future visits to the U.S. It is extremely important for the alien to be aware of all VWP requirements and restrictions prior to entering the U.S.
To qualify for the VWP, the alien must satisfy the following requirements:
- The alien must be a national of the VWP country that issued his/her passport;
- The alien must have a passport lawfully issued by a VWP country that is valid for six month beyond alien’s intended visit;
- The alien must intend to enter the US for 90 days or less for temporary business or pleasure. Legitimate VWP activities include: tourism, social visits to relatives or friends, to engage in commercial transactions (not gainful employment), to negotiate contracts, to consult with business associates, to litigate, to participate in conferences or seminars and to undertake independent research.
- The alien must have received approval for travel under the VWP’s Electronic System for Travel Authorization (ESTA) prior to your travel to the US. ESTA is a free, automated system used to determine the eligibility of visitors who travel to the U.S. under the VWP. DHS recommends that travelers submit an ESTA application as soon as they begin making travel plans. You can submit the ESTA application online at https://esta.cbp.dhs.gov/esta/. The alien must have a return trip ticket to any foreign destination other than a territory bordering on the U.S. or adjacent island (exceptions apply);
- The alien must present to the U.S. Customs and Border Protection (CBP) Officer a completed and signed Form I-94W;
- The alien must not have failed to comply with the conditions of any previous admission under the VWP; and
- If arriving by air or sea, the alien must arrive aboard a carrier that is signatory to the VWP and he/she must waive any right to review, appeal or challenge a CBP Officer’s decision as to admissibility (other than Asylum or Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment applications).
As mentioned above, there are many VWP restrictions that need to be considered prior to the alien entering the U.S. First, it is important to note that the alien cannot extend their VWP stay. Nor can the alien change their VWP status to another nonimmigrant category after he/she has entered. Moreover, the alien cannot adjust his/her status to that of a legal permanent resident unless the alien is sponsored by a U.S. Citizen (USC) spouse, USC parent (when alien child is under 21 years) or USC child (>21 years old). In addition, the frequency of U.S. visitations is an important consideration because using the VWP too frequently calls into question the purpose of the alien’s visit. For example, if there are too many VWP visits to the US, the CBP Officer may believe that the alien is actually working, an activity that is not permitted under the VWP.
Finally, as mentioned above, there are severe consequences for violating the terms of your VWP admission. Immigration Law Associates, P.C. has seen visa applications denied where aliens have previously stayed over their 90 day VWP admission by only one (1) day. The CBP monitors the actions of the VWP participants very closely by cross-checking admission dates with departure dates. Thus, it is very important to make sure that the alien is not violating the terms of his/her VWP admission or it could negatively impact the alien forever.