In a June 2008 Client Alert, we explained that the Department of Homeland Security had published a rule concerning the very popular Visa Waiver Program (VWP). Under the VWP, nationals from 27 countries, mostly in Europe but also from Japan, Singapore, Australia, and New Zealand, can come to the United States for business or tourism for up to 90 days without a B-1 or B-2 visa.

Under the new rule, which goes into effect on January 12, 2009, foreign nationals traveling to the United States under the VWP must first receive electronic travel authorization from Customs and Border Protection (CBP). Beginning on August 1, 2008, CBP began accepting applications for this new program.

What is the rule all about?

Under the rule, all VWP travelers who intend to enter the United States will first have to receive an electronic travel authorization through ESTA. To apply, a traveler will log on to the ESTA web-based system and complete an application online (in English) providing the biographical and eligibility information currently required on the (green) I-94W form. (Eventually, ESTA authorization will replace the I-94W.) Once the application has been successfully completed online, the application will be queried against law enforcement databases. In most cases, ESTA will provide an immediate determination of eligibility for travel. Responses will be: (1) Authorization Approved; (2) Travel Not Authorized; or (3) Authorization Pending.

An approved ESTA travel authorization is valid for two years, or until the traveler’s passport expires, whichever comes first. During that time, a traveler may come to the United States repeatedly without having to apply for another ESTA. Note, however, that ESTA travel authorization is no guarantee of admissibility into the United States; ESTA approval only authorizes a traveler to board a carrier. Once the traveler arrives here, CBP officers make admissibility determinations at the port of entry.

Children, regardless of age, will be required to obtain an independent ESTA authorization, and a third party, such as a relative or travel agent, will be permitted to submit an ESTA application on behalf of any VWP traveler.

When Will the Rule Go into Effect?

The rule will become mandatory 60 days after publication in the Federal Register. DHS expects to publish the rule in November 2008, and the mandatory ESTA requirements should be implemented by January 12, 2009. However, voluntary applications began to be accepted on August 1, 2008.

At What Point Should a Traveler Apply for ESTA Authorization?

Travelers are not required to have firm plans to travel to the United States before they apply for an ESTA authorization. DHS recommends that if one does have specific plans, the ESTA approval be obtained as soon as the plans are made and no later than 72 hours before departure. However, the system has been designed to accommodate last minute and emergency travelers.

How Do You Apply for an ESTA Travel Authorization?

In order to apply, go to https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_cE04F1617- 72CA-07B6-4457-C0DC7472A4A2_k65FEDCDC-770D-6187-C164-5B3ECA7EFA2B and follow the instructions. At this time, the application is free of charge.

Again, voluntary applications began to be accepted on August 1, 2008, but mandatory applications will not be required until the rule’s effective date, which DHS thinks will be on January 12, 2009.