September 2008 Immigration Updates

Upcoming Changes To The Visa Waiver Program

Preregistration Expected To Become Mandatory By January 12,

2009

A major change is taking place with the Visa Waiver Program

(VWP). It is expected that by January 12, 2009 everyone using the

VWP must have received electronic travel authorization from Customs

and Border Protection (CBP).

Indeed, on August 1, 2008, Customs and Border Protection began

accepting online applications for the Electronic System for Travel

Authorization (ESTA), an automated system that will assist in

determining eligibility to travel to the United States under the

existing VWP, as well as determining whether such travel poses any

law enforcement or security risk. Upon completion of an ESTA

application, a VWP traveler will be notified of his or her

eligibility to travel to the United States under the VWP. The

Department of Homeland Security plans to publish the final rule in

the Federal Register in November 2008, with the intention of making

the travel authorization mandatory for all VWP travelers intending

to enter the United States on or after January 12, 2009. It is

recommended that travelers submit their ESTA applications as early

as possible and no later than 72 hours prior to the expected

travel.

The ESTA program asks applicants to register online in order to provide

biographical data and assess Visa Waiver Program eligibility. The

information sought is the same as that currently requested on the

Form I-94W Arrival/Departure Record an applicant fills out when

seeking admission to the United States under the VWP. This data

will be evaluated by CBP to determine the eligibility of citizens

and eligible nationals of VWP countries to travel to the United

States and whether such travel poses a law-enforcement or security

risk. This determination will be made by CBP before such persons

travel to the U.S. A travel determination made under ESTA will

remain, with certain exceptions, valid for two years and may be

used for multiple applications for admission.

Please note, ESTA is EM>not a new visa

category. The ESTA program is a "pre-clearance" program

covering those travelers seeking to enter the United States using

the Visa Waiver Program only. Travelers holding

valid travel visas of all types will not be required to register

through ESTA. However, once the program becomes mandatory,

those travelers who are simply transiting through the

United States will be required to register with ESTA, a significant

departure from previous U.S. transit practices. If a traveler is

only planning to transit through the United States en route to

another country, when he or she completes the ESTA application, the

traveler will simply need to enter the words "In Transit"

and his or her final destination location in the address lines

under the heading "Address While In The United

States."

The CBP's "Frequently Asked Questions about ESTA"

can be found here. We will provide updates as further

details become available and when the final rule is released.

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