The U.S. Department of Homeland Security will tighten screening measures on travelers who use the Visa Waiver Program in response to concerns over Islamist militants who hold U.S. or European passports.
U.S. Customs and Border Protection (CBP) announced on November 3 that it is putting in place additional security measures for travelers to the United States who use the Visa Waiver Program (VWP). Visa Waiver is available to citizens of principally Western European countries and enables such citizens to travel to the United States as visitors without first securing a visa from a U.S. consulate abroad. Under these new measures, those seeking to travel to the United States from countries in the VWP will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA). The new information sought includes additional passport data, contact information, and other potential names or aliases. These additional security measures are a response to growing concerns that foreign fighters who joined Islamist militants in Syria and Iraq may seek to travel to the United States. According to CBP, many of these individuals may possess valid European and U.S. passports or travel documents and pose a potential threat for committing terrorist attacks in Europe or the United States.
What does this mean for travelers?
Travelers who use the Visa Waiver Program to enter the United States as visitors will need to submit additional pretravel clearance information via the ESTA system. ESTA is an automated system that determines the eligibility of visitors to travel to the United States under the VWP. The additional questions that VWP travelers will be required to answer encompass the following:
Individuals with a current and valid ESTA clearance do not need to reapply. However, upon the expiration of that ESTA clearance or expiration of the individual’s VWP-country passport, a new ESTA clearance with the new data fields will be required for any future travel under the VWP.
As a result of these new clearance questions, it is possible that individuals who have passports from more than one country will require manual adjudication of ESTA clearance requests, leading to delay of ESTA processing. Similarly, an individual’s answers to the questions may, in some instances, lead to denial of ESTA clearance, which will require that those individuals apply for a visa at a U.S. consulate before they are eligible to travel to the United States as a visitor.
What should I do?
Travelers who use the VWP should apply for ESTA clearance at the earliest opportunity and should be prepared for an increased possibility that there will be a delay or a denial of ESTA clearance. In the event that ESTA clearance is denied, the individual will be required to apply for an actual visa at a U.S. consulate.
How can Morgan Lewis help?
Morgan Lewis assists companies of all sizes, from Fortune 20 industry leaders to promising start-ups, in navigating the labyrinth of U.S. immigration laws. We help companies and their employees identify the appropriate visa classification for their proposed activities in the United States, and we help them obtain the necessary visas. For VWP travelers who face ESTA complications, we can assist in addressing the substantive issues that led to an ESTA denial and can work toward identifying and implementing an alternative strategy.
For more information, or if you have any questions regarding the issues discussed in this Immigration Alert, please contact any of the following lawyers:
Lisa Stephanian Burton