Talks About ESTA – Electronic System for Travel Authorization

Understanding the Visa Waiver Program and “ESTA”

For many years the US government entered into special relationships with a select number of countries around the world so that aliens from these countries could travel freely into the US without the need to go to an American Embassy and apply for a visa that would be subsequently stamped into their passports.  This special arrangement was called the Visa Waiver Program (VWP); the requirement for the alien to have a visa in order to enter the US is waived. Even today many aliens believe that the VWP is a visa, despite its name.

An interesting point to raise here when discussing the VWP is that when the alien agrees to travel to the US under the VWP they are actually waiving certain fundamental rights.

“During the processing upon arrival in the United States [the alien] shall reaffirm the waiver of any rights to review or appeal of a U.S. Customs and Border Protection Officer’s determination as to admissibility, or to contest, other than on the basis of an application for asylum, any removal action arising from an application under the Visa Waiver Program”.

CBP Publication No. 0000-0717; January 2009.

So in other words, for all aliens entering under the VWP it is agreed and understood by the alien that when they arrive they can be denied entry and that decision cannot be appealed, unless the alien is actually claiming asylum. This waiver of such fundamental rights to due process is very under publicized for obvious reasons, (so as to not discourage tourism one might imagine).

The VWP was designed to encourage tourism and trade to enable aliens from qualifying countries to visit freely for up to 90-days providing, under 214(b) INA, they had every intention of returning to their home country within that period and the purpose of their visit was for business and/or pleasure only. With reference to the business nature of this visit, in its simplest terms, business to be conducted would be to take meetings, attend conventions and such like. The alien could not enter the US to seek or commence employment without first obtaining a visa that would specifically allow them to do so.

Countries Currently Enrolled in the Visa Waiver Program: (Up to date as of January 2009)

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

U.S. Customs and Border Protection (CBP): The US Gate Keepers

The CBP are the “Gate Keepers” of the US, their role is to let in all the law-abiding, “good” people into the US and keep all the “bad” people out. They are responsible for monitoring every access point into the US by land, sea and air.  In addition to protecting US citizens from “bad” people, CBP have the responsibility of making sure that no harmful products, drugs, weapons, contaminants, animals, and certain types of food enter the US without due inspection and authorization.

With over 400 million people entering the US last year alone, its almost a thankless task as everyone has to be screened entering and leaving thus everyone is subject to the risk of not being let into the US or at the very least being subject to probing questions as to the nature of their visit.  Sometimes, this screening process can include searches of the person, luggage and confiscation of any prohibited items and the possibility of either being detained or deported after a very long flight.  It is very safe to assume that CBP do not get it right in every case and as a result some innocent aliens are deported while others with criminal intent are allowed into the US.  We would encourage all travelers’, seasoned or not, to educate themselves as to what they can and cannot do when entering the US under the VWP.

One final point to make here on the role of the CBP, is that they can deny anyone entry into the US, whether they have a bona fide visa or not, green card, or travelling under the VWP. It should never be taken for granted that your admission into the US is an absolute right despite any prior authorization to travel. The CBP is the final line of defense of the US border, therefore it is quite possible that a “bad” person may have defrauded his way thus far through the Embassy system, therefore the CBP have that final discretion before allowing anyone to enter the US.

ESTA: Electronic System for Travel Authorization

Ever since 9/11, CBP has argued that the VWP is a gaping weakness in border protection.  The CBP have no advance idea as to who is on their way to the US until either they arrive at the border or after a vessel or plane has submitted its manifest of the passengers aboard. When considering the matter from CBP’s viewpoint, it’s very easy to concede that this notice is far too late. [Personally speaking, it is doubtful whether an early warning system could have prevented the horrific events in New York on 9/11 since, from what is generally understood regarding the hijackers, they all had valid visas and were residing in the US and had been for some time prior to the event]. Nevertheless the CBP is required to look at all areas of potential vulnerability across the spectrum.

The ESTA program has been designed to provide the CBP with a basic early warning system to notify CBP of everyone who is travelling to the US without a valid visa.  The VWP traveler from January 12, 2009 is required to register their intention to travel by entering the passport and personal information on the official ESTA website. Given the sensitivity of the personal information required to be submitted, readers are strongly cautioned against inadvertently putting such information onto a rogue site.

If you already have any kind of current and valid American visas then you are not required to register under ESTA, as ESTA is only intended for VWP travelers.

Quick Additional Facts:

Once authorized to travel under ESTA, the authorization is typically good for up to two years, unless your passport expires within that time. ESTA revokes any previous authorization. ESTA authorized travel is good for multiple entries so you do not have to repeat the process each time you travel if you are a frequent flyer.

When you register under ESTA there are three possible outcomes you will receive notification of: your registration will go through without a hitch and you will be approved within moments of you hitting the submit button.  ESTA quickly checks all of the various databases available about you, for example Interpol, US government state and federal agencies, and certainly other databases we have no knowledge of.  If nothing comes up at all then it will respond declaring you “Authorized to Travel”.  Please note this does not mean that your entry into the US is guaranteed, it just means that they’ve found nothing at this point to indicate you should not even bother boarding a plane.  In fact, if your ESTA registration comes back denied, then no carrier is allowed to even let you board their transportation.

If ESTA discovers anything on your record that they need to look further into internally, the system will advise you “Authorization Pending” and ask you to keep checking the site for updates for up to 72 hours after that time. ETSA will post an approval or denial notice accordingly and refer you to your US Embassy if indeed you are denied authorization to travel.  It is too early to say that even if you try to call the US Embassy on their highly expensive premium rate telephone number, that they will be able to give you any kind of specific answer as to why your case was denied. Since this system is very new indeed, we’d like to hear from you about your experience using it.  For the Official US Government ESTA Info Page click here.

Needless to say, there will be a very small percentage of travelers who will be denied, however, given the millions of people now having to apply there will be thousands of people who will be denied daily.

We would advise any of our readers that before they make an appointment to visit the Embassy that they first take advantage of a consultation with the Law Offices of Chris M. Ingram. There are many reasons for doing this; firstly, the traveler will need to have their travel history examined (not only visits the US but to other countries too). Also, the traveler’s personal background will need to be checked to consider whether or not there is some legitimate reason for their registration to be denied.  Maybe the traveler previously overstayed in the US on their VWP or any US visa, or maybe they failed to pay a parking ticket or any seemingly minor infraction of the law in the US previously, or they may have a criminal conviction in their home country or elsewhere abroad in the past that may be triggering the ESTA rejection. There could be any number of reasons that should be discussed with an attorney before proceeding to make any formal application or approach to their US Embassy.

Working with the Law Offices of Chris M. Ingram could prove very helpful because during the consultation we would have an opportunity to comprehensively review your situation and discuss alternative and proactive strategies that might be developed to help you legitimately make an Embassy-based application. For a consultation please contact us directly.

ECI

US Immigration Law Offices of Chris M. Ingram
Chris M. Ingram LL.M., ESQ – Immigration Attorney
Admitted in New York.
Practice Specializing in US Immigration Law
520 Broadway, Suite 350,
Santa Monica,
California 90401
Tel: 310 496 4292