Effective May 2, 2022, eligible noncitizen visitors traveling under the Visa Waiver Program (VWP) through land ports of entry will no longer be required to complete a paper Form I-94W upon arrival and instead, as they have done for the last seven years for air and sea entries, must first successfully register with U.S. Customs and Border Protection (CBP) through the Electronic System for Travel Authorization (ESTA). This change does not affect Canadian citizens, who enter visa-free for almost all nonimmigrant classifications based on a different waiver authority than the VWP. The rule is intended to further efficiencies in screening international travelers and increase national security by vetting subjects of potential interest before their admission into the United States.
Apply early
If a VWP visitor arrives at a U.S. land port of entry without a valid travel authorization and wants to apply for one, the traveler will be permitted to withdraw his or her application for admission, return to Mexico or Canada, submit an ESTA application there, and await receipt of a travel authorization in Mexico or Canada before returning to a U.S. port of entry. If the ESTA application is approved, the traveler may return to a U.S. land port of entry to seek admission. If the ESTA application is denied, the traveler is not eligible to seek admission to the United States under the VWP and would need to apply for a nonimmigrant B visa from a consular post abroad before reapplying for admission to the United States.
ESTA Process
ESTA applications are submitted through the ESTA website. The application captures all data elements previously included on the paper Form I-94W. CBP will check information submitted by the traveler, or on behalf of a traveler, in his or her ESTA application against all appropriate databases, including lost and stolen passport databases and appropriate watch lists. CBP may deny the traveler's ESTA application if:
1. a noncitizen does not provide the required information;
2. a noncitizen provides false information;
3. any evidence exists indicating ineligibility to travel to the United States under the VWP; or
4. the travel poses a law enforcement or security risk.
If a noncitizen's travel authorization application is denied, the noncitizen may still apply to obtain a visa to travel from an appropriate U.S. embassy or consulate. To verify travel authorization approval, the traveler must return to the ESTA website to view his or her ESTA status. CBP requires a minimum of two hours to make an ESTA application determination, but some determinations may take longer. In most cases, the applicant will receive an ESTA decision within 72 hours. An applicant may contact the ESTA Help Desk at the Traveler Communications Center by telephone at 1-202-325-5120 for assistance in processing his or her pending application.
Validity and Amendments
Once approved, ESTA is generally valid for a period of two years for multiple entries at U.S. air, sea, and now land ports of entry. A VWP traveler must obtain a new ESTA approval if any of the following conditions occurs:
1. the noncitizen is issued a new passport;
2. the noncitizen changes his or her name;
3. the noncitizen changes his or her gender;
4. the noncitizen changes his or her country of citizenship; or
5. the circumstances underlying the noncitizen's previous responses to any of the ESTA application questions requiring a "yes" or "no" response (eligibility questions) have changed.
Please contact Baker Donelson's Immigration Team if you have any questions or concerns about how this new ESTA requirement will impact your upcoming travel. A full copy of the interim final rule is available here.