In our Client Alert of December 2008, we explained that under new rules that went into effect in January 2009, foreign nationals traveling to the United States under the Visa Waiver Program first have to receive electronic travel authorization from Customs and Border Protection (CBP). Under the rules, all VWP travelers who intend to enter the United States have to receive an electronic travel authorization through an Electronic System for Travel Authorization (ESTA). To apply, a traveler has to log on to the ESTA web-based system and complete an application online. Once the application has been successfully completed, the application is queried against law enforcement databases. In most cases, ESTA provides an immediate determination of eligibility for travel. Responses are: (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.  

In March 2010, President Obama signed the Travel Promotion Act (TPA) into law, which imposes a $14 operational and travel promotion fee on applicants applying for travel authorization through ESTA: $4 will cover the cost of administering the ESTA system, and $10 is the fee mandated in the TPA. The fee will go into effect on September 8, 2010, and must be paid by new ESTA registrants using Mastercard, Visa, American Express, or Discover credit cards, or with debit cards holding the Mastercard or Visa symbol. Those travelers who already have a valid ESTA do not have to re-register or pay the fee at this time. Existing ESTA registrations will remain valid for travel through their expiration date (or through the passport expiration date, whichever comes first).