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Enter US without a Visa: Visa Waiver Program (VWP)
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Planning a trip to the U.S. in the near future? Have you applied for your visa yet? If you are a citizen of certain countries, your trip is for business or pleasure, and you are planning to stay in the U.S. for less than 90 days, you will not need a visa.

The Visa Waiver Program, known by the acronym VWP, allows citizens of 36 qualifying countries to travel to the United States for tourism or business for stays of up to 90 days without having to obtain a visa.

Individuals those are eligible to travel under the Visa Waiver Program (VWP) may still apply for and be issued a visitor visa under certain circumstances. However, you cannot use the Visa Waiver Program (VWP) to enter the U.S. for any purpose other than as a tourist or business visitor.

Eligible Countries for Visa Waiver Program (VWP):

There are currently 36 countries designated under the Visa Waiver Program (VWP). They are:

Andorra Iceland Portugal
Australia Ireland San Marino
Austria Italy

Singapore

Belgium Japan Slovakia
Brunei Latvia Slovenia
Czech Republic Liechtenstein South Korea
Denmark Lithuania Spain
Estonia Luxembourg Sweden
Finland Malta Switzerland
France Monaco Taiwan
Germany the Netherlands United Kingdom
Greece New Zealand  
Hungary Norway  

Requirements for Visa Waiver Program (VWP):

To be eligible to enter the U.S. without a visa under the Visa Waiver Program (VWP) the traveler seeking admission must be a citizen of one of the countries that has been designated by the Secretary of Homeland Security, in consultation with the Secretary of State, as a "program country". Permanent residents of designated countries do not qualify, unless they hold a citizenship of another designated country.

Further, to enter the U.S. under the Visa Waiver Program, you must:

  • Be a nonimmigrant (you have a home in a foreign country you have no intention of abandoning)
  • Intend to enter the U.S. for 90 days or less
  • Have a Machine Readable Passport lawfully issued to you by a VWP country that is valid for six months beyond your intended visit
  • Be a national of the VWP country that issued your passport
  • Have been checked using an automated electronic database containing information about inadmissible aliens to the U.S.
  • Have a return trip ticket to any foreign destination other than a territory bordering on the U.S. or an adjacent island
  • Present to the Immigration Inspector a completed and signed Form I-94W, Nonimmigrant Visa Waiver Arrival-Departure Record 
  • Not pose a safety threat to the U.S.
  • Not have failed to comply with the conditions of any previous admission under the VWP or the previous VWPP

The requirements for the Visa Waiver Program (VWP) are as follows:
  1. Citizen of Visa Waiver Program Country: To enter the U.S. under the VWP, travelers from participating countries must be a citizen of a designated Visa Waiver Program (VWP) country.

  2. Machine readable and biometric passports: All travelers must have individual passports. It is not acceptable under the visa waiver program for children to be included on a parent's passport. Additionally, passport requirements (with respect to citizens of VWP countries designated before 2008) depend on the date the passport was issued or renewed:

    • Passports issued or renewed before October 26, 2005 must be machine readable

    • Passports issued or renewed after October 26, 2005 must be machine readable and contain a digitized photograph, or must be biometric passports

    • Passports issued or renewed after October 26, 2006 must be biometric
    • Citizens of VWP countries designated after 2008 must present a biometric passport

  3. Electronic System for Travel Authorization (ESTA): The ESTA was established in June 2008. All incoming travelers using the VWP are required to complete an I-94W form online before departure for the U.S. While a traveler can complete the ESTA application at any time before you come to the US the State Department prefers that it be done at least 72 hours (3 days) in advance. The ESTA was established to increase U.S. security by pre-screening participating VWP passengers against terrorist and/or no-fly lists and databases. Once completed the electronic authorization is valid for a two-year period. The authorization is mandatory for all VWP travelers before boarding flights destined to the United States. However, while the ESTA is required to be completed before travel to the U.S. it does not guarantee admission into the United States (final admission eligibility is determined at a U.S. port of entry by immigration inspectors).

  4. Valid Passport: in addition to being a biometric passport the passport must be valid for 6 months beyond the expected date of departure from the United States. While this is the standard requirement some country-specific arrangements are different.

  5. Return or Onward Ticket: If the individual is traveling on an electronic ticket they must have a copy of the itinerary to show the immigration inspector at the port of entry when they will be departing from the U.S.

    NOTE: Travelers with onward tickets terminating in Mexico, Canada, Bermuda or the Caribbean Islands must be citizens of or legal permanent residents of these areas.
CASE SCENARIO
Let’s look at two different situations and determine whether the individuals can or should travel under the VWP. Sarah, a UK national, is coming to the US to look at several colleges to determine which one she wants to attend. She will be coming in the 30 days before school is to start in hopes of finding the right match and starting school. Ben, also a UK national, has been to the US several times in the past. On one of his trips he came for business and pleasure. He anticipated it would take 60-75 days to complete the negotiations for his business. Unfortunately it took almost over 3 ½ months to get everything worked out and get the contracts signed. He stayed beyond the time on his I-94 so he could complete the work and not have to make another trip to the US. Can or should either Sarah or Ben travel under the VWP.

Let’s start with Ben. Because he over stayed his I-94 in the past he is ineligible to travel under the VWP. He will have to get visitor visa before he can travel to the US. Ben will have to convince the consular officer that he will obey the immigration rules in the future before he will get a visa.

Sarah, because she wants to stay in the US after visiting the colleges, should get a visitor visa, and should have it annotated as potential student. If she enters under the VWP she will not be able to change her status and would have to return to the UK to obtain a student visa. By having the visa annotated as a potential student she avoids any claim of entering the US for a purpose other than what her visa allows for (i.e., entering on a visitor visa with the intent of becoming a student. With the potential student annotation she can apply for a change of status as soon as she figures out which school she wants to attend.

Who Do Not Qualify for Visa Waiver Program (VWP)?

Not all citizens or nationals of Visa Waiver Program (VWP) designated countries can enter the U.S. under the VWP. Any traveler who has been arrested (even if not convicted), those with criminal records, those with certain serious communicable illnesses, those who have been refused admission into or have been deported from the United States, or have previously overstayed on the VWP are not eligible for the program. Such travelers must apply for a visa, and, if required, a waiver. If they attempt to travel without a visa, they may be refused entry into the United States.

When Does a National of a VWP Country Need to Apply for a Visa Instead of Using the Visa Waiver Program (VWP)?

Any national of a Visa Waiver Program (VWP) country that falls within the terms of the preceding section must apply for a visa.

In addition a visa must be requested if the foreign national:

  • Wants to remain in the United States for longer than 90 days, or envisions that they may wish to change their status (from tourism to investor, etc.) once in the United States;

  • Wants to work or study in the United States, wants to travel as a working foreign media representative, wants to come to the United States for other purposes not allowed on a visitor visa, or intends to immigrate to the United States;

  • Is a national of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, the Republic of Korea, or the Slovak Republic AND DOES NOT HAVE an electronic passport with an integrated chip;

  • Is a national of one of the VWP countries not listed above AND DOES NOT have a qualifying machine-readable passport;

  • Intends to travel by private aircraft or other non-VWP approved air or sea carriers to the United States;

  • Has a criminal record or other condition making them ineligible for a visa (see the previous section); or

  • Has been refused admission to the United States before, or did not comply with the conditions of previous VWP admissions (90 days or less stay for tourism or business, etc.).
Short trips to Canada, Mexico or Adjacent Islands while on VWP

Generally, VWP entrants may be readmitted to the U.S. after a departure to Canada or Mexico or adjacent islands [there is a pop-up to be displayed] for the balance of their original admission period, provided they are otherwise admissible and meet all the conditions of the VWP, with the exception of arrival on a signatory carrier – in which case the inspecting officers have the discretion to grant the applicants entirely new periods of admission.

Advantages and Disadvantages of the Visa Waiver Program (VWP)

The obvious advantage of entering the U.S. under the VWP is that you may travel to the U.S. spontaneously without obtaining a visa, unless you are otherwise inadmissible.

The disadvantages of the VWP are that you may not change or extend your nonimmigrant status after entering the U.S. If you are denied admission at the port of entry, you have no right to administrative or judicial review. Likewise, if you are found to have violated the terms of your admission, you also forfeit the right to contest a removal order.

Visa Waiver entrants, like all other foreign nationals in the U.S., who overstay their authorized stay by either six months or one year are subject to the three and ten-year bars as they are ‘unlawfully present’ in the U.S. Even though these entrants do not have visas, they have I-94Ws with a specific expiration date, and remaining in the U.S. beyond that date will trigger the bars on reentry.

Conclusion:

The Visa Waiver Program (VWP) has been a great benefit for travelers from VWP qualifying countries. It saves them the time and hassle of applying for a visa. However, travel without a visa does not include those who plan to study or work in the U.S., or who may need to remain in the U.S. for more than 90 days or change their status once they get here. Such travelers need visas. If an immigration inspector at a port of entry has reason to believe that a visa-free traveler is going to study, work or stay longer than 90 days, the officer will refuse to admit the traveler.


The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H-1B, K-1 Visa, K-3, L-1, Green Card, and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com/

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com/


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