For decades, the US government has made it relatively simple for citizens from certain countries to travel to the U.S. as visitors for short periods without a visa, through its Visa Waiver Program (VWP) [1]. More recently, this program has become commonly known now as ESTA (Electronic System for Travel Authorization) [2], for the electronic system used to determine if you are eligible to travel to the U.S. under the Visa Waiver Program.
Visa Waiver Program / ESTA Advantages
Benefits to the Visa Waiver Program include, not having to obtain a visa from a US consulate prior to travel, which generally takes a substantial amount of time, even before the recent pandemic.
Also, those admitted to the US under the Visa Waiver Program may take a short trip to Canada, Mexico, or a nearby island and generally be readmitted to the U.S. under the VWP for the remainder of the original 90 days granted upon their initial arrival in the United States. The length of time of the person’s stay, including the short trip, must be 90 days or less.
In addition, individuals from Visa Waiver Program countries [3] are able to process the ESTA Travel Authorization from any country or location, not just the country where they reside as it is the case for visa applications.
Visa Waiver Program / ESTA Disadvantages
There are however, some substantial limitations for anyone entering the United States through the ESTA / Visa Waiver program worth considering. For example, unlike virtually all other non-immigrant statuses, persons that entered with ESTA, are not allowed to change their status while in the United States, with few exceptions, to other non-immigrant visa status. This means, that a person who entered under ESTA may not file to change their status to another non-immigrant visa such an F-1 student visa or H-1b working visa; instead, they would have to travel outside the U.S. and process the visa at a U.S. consulate.
While ineligible to change to most non-immigrant statuses, ESTA does allow an individual to file for U.S. legal permanent residency in certain situations, with an I-485 petition, such as through a marriage to a U.S. citizen.
Another limitation for individuals entering under ESTA, is that they will be ineligible to have any claim or denial of a petition reviewed by the immigration court, except for asylum-related claims. This can be significant because if for instance, someone is married to a U.S. citizen and has their U.S. residency petition denied by the USCIS official, there is no legal avenue to have that decision reviewed by an immigration judge.
In addition, the length of stay allowed upon entry through ESTA cannot be greater than 90 days (vs. the maximum under a tourist visa being 6 months) and the permitted length of stay cannot be extended for any reason. This can create a number of problems when travel plans change not only due to something as serious as an illness or a pandemic but also something as simple as a weather-based travel cancellation, airline delays, missed connections, or over booked flights. Any of these could cause a person to remain in the U.S. longer than permitted resulting in unlawful presence (and should be addressed promptly with CBP- US Customs and Border Protection), which may be problematic for any other future visa applications or travel to the United States.
Finally, under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, Nationals of Visa Waiver Program (VWP) countries, who have traveled or been present on or after March 1, 2011 in Democratic People’s Republic of Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen (with certain exceptions like military or diplomatic service of a VWP country) eligible to enter the U.S. under ESTA and are required to obtain a visa instead. The same applies to individuals who are also nationals of Democratic People’s Republic of Korea, Iran, Iraq, Sudan, or Syria.
Traveling through ESTA may not require the long-term planning that a traditional visa would, however, it still requires the traveler to be vigilant and mindful of their status and the limitations it has. If you have any questions about ESTA, non-immigrant or immigrant visas, do not hesitate to call our office and schedule an appointment with one of our experienced immigration lawyers, at: 617-303-2600 [4], or fill out our online appointment request form [5].
Our attorneys can also help with any other immigration [6], criminal defense [7] or personal injury matter [8].