Enhanced Electronic Security Measure for Visa Waiver Program
Posted Jun 13, 2008
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The U.S. Department of Homeland Security (DHS) published an Interim Final Rule that permits foreign travelers from countries participating in the Visa Waiver Program (VWP) to register via the new Electronic System for Travel Authorization (ESTA) at least 72 hours before departure to the U.S. The interim final rule was published in the Federal Register on June 9, 2008 and will be effective August 8, 2008. Under the interim final rule, the use of ESTA is optional. There will be a later notice in the Federal Register mandating the use of ESTA for VWP travelers. The interim final rule states that DHS expects to publish a notice in November 2008 for implementation of the mandatory ESTA requirements on or before January 12, 2009.
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Current VWP System
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Under the current system, a citizen of a VWP country fills out an I-94W form and presents it to the CBP officer at the Port of Entry upon arrival in the United States. Once ESTA becomes mandatory, the automated system will be able to determine, in advance of travel, if the foreign national is eligible for VWP travel, and if s/he poses any law enforcement or security risks.
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Regular MurthyDotCom and MurthyBulletin readers will recall a description of the VWP and a list of participating countries included in our April 4, 2008 article, Visa Waiver Program Likely to Expand to Five More Nations. VWP allows eligible travelers to visit for up to 90 days without obtaining a visa.
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Increased Security in U.S. and Europe
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DHS officials have stated that this added security measure conforms to the requirements under the Implementing Recommendations of the 9/11 Commission Act of 2007. Secretary Chertoff has also stated that ESTA travel authorization will make it more difficult for terrorists who are nationals of VWP countries to enter the United States. The U.S. Department of State (DOS) issued a June 3, 2008 press statement, indicating that the European Commission is discussing the creation of a European electronic travel authorization system, similar to ESTA, and that DOS would not be opposed to such a system.
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Applying for ESTA
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Although ESTA is web based, it requests information similar to the I-94W Form - including name, birth date, passport, health and criminal background information, and travel details. An eligible traveler must apply for ESTA within 72 hours prior to her/his first visit to the United States. ESTA will approve, deny, or give a pending response. If denied, the applicant will be referred to the U.S. Department of State (DOS) for information on applying for a visa to enter the U.S.
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These responses are similar to the current practice at the Port of Entry, but ESTA makes it more convenient for VWP travelers by informing them of the decision prior to departure. Once an authorization is received, VWP travelers can use their ESTA approval for multiple entries for up to two years before applying again. It should be noted that the ESTA authorization is not a guarantee that the traveler will be allowed into the US. This decision continues to be in the control of the CBP officer at the port of entry to the US. There is currently no cost for an ESTA application, but DHS has indicated this could change.
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Timeframes
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As explained, the interim final rule makes ESTA available, but not mandatory. This option is available upon the effective date of the interim final rule, which is August 8, 2008. Sometime in November, the DHS expects to publish a Federal Register Notice that will make ESTA mandatory. This notice must be published 60 days in advance of the effective date. The effective date is expected to be on or before January 12, 2009.
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Conclusion
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Foreign nationals from VWP countries, who plan to travel to the U.S. after August 8, 2008, are directed to apply for ESTA authorization online. As of this writing, this portion of the CBP website is under construction. Those traveling to the U.S. between August 8, 2008 and early January 2009 may still be required to complete the I-94W Form until ESTA becomes mandatory.