US Visa Waiver: Can You Travel to the US Visa-Free?
If you are a national of a US visa waiver country, you may be eligible to travel to the US without the need to secure a visa.
Under the US Visa Waiver Program (VWP), citizens of visa waiver nations are permitted visa-free entry to the US for up to 90 days for tourist or business-related purposes, or for transit.
To ascertain if you qualify for the VWP, you will need to satisfy the following:
1. You are a Visa Waiver national
If you are national of a VWP country, you meet the first requirement for visa-free travel.
38 countries from across the globe currently participate in the US visa waiver program.
The visa waiver countries as at October 2018 are:
- New Zealand
- San Marino
- Czech Republic
- South Korea
The list is subject to change, and you are advised to double check your country’s participation at the time of your travel.
2. How long will you stay?
The VWP does restrict the length of time you can stay in the US. If you enter the US visa-free, you can stay for up to a maximum of 90 days.
If your plans require a longer stay, you will need to look at applying for a visa that permits you to do so.
3. What is the purpose of your visit?
Travelling under the VWP does restrict the type of activity you are permitted to undertake while in the US.
Permissible activities include short-term (as above – up to 90 days) tourism and business-related purposes, medical visits and transit.
Activities which would not be permitted under the VWP include business travel and tourism for stays of more than 90 day and studying.
While some business activities may be permitted, such as job seeking or attending a business conference, you may not enter the US under the VWP to undertake gainful employment. If you are looking to come to the US as one of the following, you would need to apply for the appropriate visa:
- Exchange visitors
- Temporary workers
- Intra-company transfers
- Treaty traders
- Performers and artists
- Representatives of the foreign media who will work in their profession as media or journalists while in the US
How to travel under the VWP: Applying for ESTA
If you satisfy the above criteria, the next step will be to apply for ESTA (‘Electronic System for Travel Authorization’) approval prior to your date of travel.
ESTA approval is a security pre-screening application. You will need to complete an online application form and pay the requisite application fees. The form will ask you to provide information on areas such as travel history. Each traveller will require individual ESTA approval, including minors.
You should apply for ESTA at least 72 hours before your intended time of travel. You must hold an approved ESTA at the point of travel to the US, by air or sea. If you enter the US by land from Mexico or Canada, ESTA is not required, but entry will be expedited if you have ESTA. If you do not have ESTA, you will be required to complete form I-94W at the land border.
To enter the US under the VWP, you must have a valid e-passport with at least 6 months before it expires. You will also need to have a return or onward ticket for your travel. VWP travel is not allowed to end in any country sharing a border with the US or an adjacent island unless you are a resident of one of these territories.
Travel restrictions affecting VWP travelers have become more stringent in recent years, and it will be important to confirm your eligibility, and ensure ESTA authorization is in place before you travel to the US.
A failed ESTA application means you cannot travel under the VWP, and you will be required to apply for the appropriate nonimmigrant US visa.
For example, you will usually not be eligible for ESTA authorization if you overstayed on a previous Visa Waiver Program visit.
Travelling under the VWP
Having travel authorization does not guarantee you entry to the US, you will need to prove you are eligible under the visa waiver program at border control and will be inspected by a Customs and Border Protection Officer. This officer will determine if you are eligible to enter the US under the visa waiver program.
With ESTA authorization, you will continue to be subject to admissibility checks after the ESTA has been approved. This means you will not necessarily be granted admission to the US at the port of entry, for example if you fail a subsequent immigration check.
Traveling under the visa waiver program means that you waive your right to appeal should entry be denied upon entry to the US. You also cannot appeal if you break the terms and conditions of your admission and are removed from the US.
Note that travel authorization is not a visa, if you have a relevant visa, you do not need to apply for additional travel authorization.
How long does ESTA approval last?
An approved ESTA is valid for two years after approval or on the date of your passport’s expiry, whichever is the earlier date.
It would usually not be a problem if your ESTA expires prior to you leaving the US, as ESTA approval is required to enter the US.
This is however provided your details all remain the same and there are no changes to any of the questions in the ESTA application. If you obtain a new passport or change your name, gender or country of citizenship, you will be required to update your ESTA travel authorization.
You may enter the US multiple times on the same ESTA as long as you do not stay longer than 90 days each time. The 90 days begin the day you arrive in the US.
What if your ESTA application is refused?
If you are not eligible for the VWP, or your ESTA application is rejected, you will need to apply for the relevant nonimmigrant visa prior to travel. For example, are you eligible to apply for the B1 or B2 tourist visas? If you are not eligible by reason of a criminal conviction, you may look at applying for a waiver of inadmissibility and an appropriate visa.
It is advisable to seek legal counsel to ensure you are applying for the correct travel documents to ensure entry to the US for your specific purpose.
What if you have a criminal record?
If you have been arrested, cautioned or convicted of a crime anywhere in the world, you will need to declare this on your ESTA application. This is true of spent convictions as well.
Failure to declare constitutes visa fraud and is likely to impact future US visa applications.
You may need to make a separate application for a waiver of inadmissibility.
This article does not constitute direct legal advice and is for informational purposes only.