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Immigration Law Advisory - Entering The United States After International Travel – New Travel Document Requirements And Procedures At U.S. Air, Land And Sea Ports Of Entry

February 23, 2009

The Department of Homeland Security (DHS) recently published several new federal regulations changing the travel document requirements and procedures for entry into the United States after international travel abroad.  These changes are based on three border security programs recently rolled out by DHS: the Western Hemisphere Travel Initiative (WHTI); the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program; and the Electronic System for Travel Authorization (ESTA) program.  The new regulations change the travel documentation requirements and certain border entry procedures for U.S. citizens, U.S. legal permanent residents (green card holders), non-immigrant visa holders, and other international visitors entering the United States. 

What is the Western Hemisphere Travel Initiative (WHTI)?

DHS established WHTI for the purpose of strengthening border security and facilitating the entry of U.S. citizens and non-U.S. citizens arriving in the United States by air, land or sea from any part of the Western Hemisphere (Canada, Mexico, Bermuda, the Caribbean, and Central and South America).  The first phase of WHTI, focusing on documentation requirements for international air travel to and from the United States, has been in effect since January 23, 2007.  An additional phase of WHTI, with a more substantial and wide-reaching impact, focuses on the documentation requirements for international travel to and from the United States via land and sea ports of entry.  This additional phase goes into full effect on June 1, 2009.

Who is Affected by WHTI?

The new travel document requirements under WHTI apply to U.S. citizens, and citizens of Canada, Mexico and Bermuda.  The travel document requirements for citizens of other countries have virtually remained the same.  An important change under WHTI requires that all children must now present their own passport when arriving in the United States by air. 

It is also important to note that the new travel document requirements under WHTI do not apply to travelers arriving in the continental United States by air after departing solely from U.S. territories, including Puerto Rico and the U.S. Virgin Islands.

What are the new travel document requirements under WHTI?

The following summarizes the travel document requirements under WHTI: 

Travel by Air

(in effect as of 1/23/07)

Travel by Land or Sea

Current Requirements

(in effect as of 1/31/08)

New Requirements

Starting 6/1/09

U.S. Citizens

U.S. passport

OR

**NEXUS air card (only at NEXUS air kiosk)

or U.S. military I.D. and travel orders

or merchant mariner document and travel on maritime business

Children must have their own passport

U.S. passport

OR

**NEXUS, SENTRI or FAST card

OR

i) State driver’s license or other I.D. issued by civil authority

AND

ii) Evidence of U.S. citizenship (birth certificate, naturalization certificate, etc.)

U.S. passport

OR

***U.S. passport card

or **NEXUS, SENTRI or FAST card

or state issued enhanced driver’s license (when available)

or U.S. military I.D. and travel orders

or merchant mariner document and travel on maritime business

Legal Permanent Residents

(U.S. green card holders)

Foreign passport and I-551 permanent resident card (green card)

Foreign passport and I-551 permanent resident card (green card)

(passport not required with I-551, but highly recommended)

Foreign passport and I-551 permanent resident card (green card)

(passport not required with I-551, but highly recommended)

Citizens of Canada

Canadian passport

OR

**NEXUS air card (only at NEXUS air kiosk)

Canadian passport

OR

**NEXUS, SENTRI or FAST card

OR

i) Provincial driver’s license or other I.D. issued by civil authority

AND

ii) Evidence of Canadian citizenship (birth certificate, citizenship card, etc.)

Canadian passport

OR

**NEXUS, SENTRI or FAST card

or province issued enhanced driver’s license (when available)

Citizens of Mexico

Mexican passport and valid U.S. visa issued by U.S. Embassy or Consulate abroad (if applicable)

Mexican passport and valid U.S. visa issued by U.S. Embassy or Consulate abroad (if applicable)

OR

Mexican passport and border crossing card (DSP-150)

Passport not required when admitted from Mexico for the sole purpose of applying for Mexican passport or other documents at Mexican Consulate in border-crossing zone

Mexican passport and valid U.S. visa issued by U.S. Embassy or Consulate abroad (if applicable)

OR

Mexican passport and border crossing card (DSP-150)

Passport is required for admission for the sole purpose of applying for Mexican passport or other documents at Mexican Consulate in border-crossing zone

Citizens of Bermuda

Bermuda or United Kingdom passport

Bermuda or United Kingdom passport

OR

Government issued I.D. document and evidence of citizenship

Bermuda or United Kingdom passport

Citizens of Other Countries

(no change in requirements)

Passport and valid visa issued by U.S. Embassy or Consulate abroad (if applicable)

(visa not required for certain citizens of visa waiver countries)

Passport and valid visa issued by U.S. Embassy or Consulate abroad (if applicable)

(visa not required for certain citizens of visa waiver countries)

Passport and valid visa issued by U.S. Embassy or Consulate abroad (if applicable)

(visa not required for certain citizens of visa waiver countries)

U.S. Citizens who are closed-loop cruise ship passengers

(departing from and returning to U.S. domestic seaport)

N/A

U.S. passport

OR

**NEXUS, SENTRI or FAST card

OR

i) State driver’s license or other I.D. issued by civil authority

AND

ii) Evidence of U.S. citizenship (birth certificate, naturalization certificate, etc.)

U.S. passport

OR

***U.S. passport card (when available)

or **NEXUS, SENTRI or FAST card

or state issued enhanced driver’s license (when available)

or U.S. military I.D. and travel orders

or merchant mariner document and travel on maritime business

**NEXUS, SENTRI and FAST are trusted traveler programs for pre-screened and approved travelers from Canada, Mexico or the United States.  Each program has its own requirements for qualification.  For more information about trusted travel programs visit http://www.cbp.gov/xp/cgov/travel/trusted_traveler/.

***The U.S. Department of State (DOS) began producing the U.S. Passport Card on July 14, 2008.  Since then, DOS has issued over 700,000 passport cards.  For more information on U.S. passport cards visit http://travel.state.gov/passport/ppt_card/ppt_card_3926.html.

 

What is the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program?

US-VISIT is an electronic database maintained by DHS for the collection and analysis of digital biometric data, specifically fingerprints and photographs.  The purpose of US-VISIT is to establish a database of non-U.S. citizens entering the country, in order to verify the identity of international travelers, prevent immigration document fraud, and avoid the admission of certain unwanted persons. 

US-VISIT entails the electronic capture of biometrics (digital, inkless fingerprints and photographs) of certain non-U.S. citizens entering the United States by air, land or sea.  Starting January 18, 2009, with certain few exceptions, all non-U.S. citizens entering the United States by air, land or sea are now subject to US-VISIT. 

Who is Affected by US-VISIT?

It is important to note that US-VISIT entry requirements do not apply to U.S. citizens at any port of entry.  With certain few exceptions, US-VISIT applies to all non-U.S. citizens entering the United States by air, land or sea, including U.S. legal permanent residents (green card holders).  This is an important change because previously, US-VISIT applied only to certain nonimmigrant visa holders.  Another important change is that all Canadian citizens who are U.S. legal permanent residents (green card holders), or who require Form I-94 or a waiver of inadmissibility when entering the United States, are now subject to US-VISIT entry requirements.

US-VISIT does not apply to the following persons and visa classifications:

U.S. citizens;

U.S. legal permanent residents (green card holders) at land border crossings who are NOT referred to secondary inspection by an inspections officer;

U.S. legal permanent residents (green card holders) returning from a closed-loop cruise (departing from and returning to a U.S. domestic seaport);

Canadian citizens who enter the United States as tourists or business visitors and do not require Form I-94;

Mexican citizens entering the United States using a border crossing card (DSP-150) and traveling within the border-crossing zone UNLESS they are referred to secondary inspection by an inspections officer;

Persons holding valid visas and are admitted in the following classifications: A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO 5, NATO-6;

Persons from Taiwan holding E-1 visas and their family members also holding E-1 visas;

All children under the age of 14 and adults over the age of 79; and,

Certain other classes of visitors specifically exempted by DHS or other federal government officials.

Currently, there are no US-VISIT exit procedures for persons departing the United States. 

What is the Electronic System for Travel Authorization (ESTA) program?

ESTA is an internet-based, pre-travel registration system provided by DHS to “screen” certain eligible citizens of visa waiver program countries prior to traveling to the United States under the visa waiver program.  Under the visa waiver program, certain eligible citizens from visa waiver countries can travel to the United States as tourists or business visitors for a period of no more than 90 days without first obtaining a visitor’s visa from the U.S. Embassy or Consulate abroad. 

Prior to the ESTA program, eligible visa waiver program travelers could travel to the United States and present a passport and Form I-94W at a U.S. port of entry without any pre-travel authorization.  However, beginning January 12, 2009, all visa waiver program travelers must now first electronically register and obtain authorization from the ESTA program prior to traveling to the United States.  Failure to obtain ESTA approval prior to travel in the visa waiver program may result in traveler’s inadmissibility to the United States. 

Who is Affected by ESTA?

ESTA applies only to citizens or nationals of countries enrolled in the visa waiver program who seek to travel to the United States using the visa waiver program.  Citizens or nationals of visa waiver program countries who hold a valid U.S. visa stamp, and intend to travel to the United States for the purpose of the valid visa, are not required to register in the ESTA program.

Currently, the countries enrolled in the visa waiver program are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

ESTA does not apply to U.S. citizens, green card holders, or any other person who is not a citizen or national of a country enrolled in the visa waiver program. 

What are some Frequently Asked Questions about the ESTA program?

Which countries are currently in the visa waiver program?

Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.

How do I obtain ESTA approval prior to traveling to the United States?

To obtain travel authorization from ESTA, go to https://esta.cbp.dhs.gov/.  Answer all questions and follow the instructions to submit the application online.

Is there an application fee for ESTA?

No.  There is no application fee to register with ESTA.

How far in advance of my trip do I need t apply for travel authorization?

Applications can be submitted any time prior to travel.  DHS recommends that travelers submit ESTA applications as soon as travel is planned.

How long does it take to obtain an approval from ESTA?

After successful submission of the application, in most cases, ESTA will make an immediate determination of travel eligibility.

What are the possible responses I may receive from ESTA?

i) Authorization Approved:

This means that travel is authorized.

ii) Travel Not Authorized:

This means that the traveler must obtain a nonimmigrant visa at a U.S. Embassy or Consulate before traveling to the United States.

iii) Authorization Pending:

This means that traveler should check the ESTA web site for updates within 72 hours to receive a final response.

After ESTA approval, what documents do I need to present to the inspections officer at the U.S. port of entry?

After ESTA approval, a visa waiver program applicant must present a valid passport and a completed Form I-94W at the U.S. port of entry.  There is no need to present a printout of the ESTA approval, but it is recommended that the applicant keep a copy available during his or her visit to the United States.

How long is an ESTA approval valid?

Travel authorizations are generally valid for two years, or until the traveler’s passport expires, whichever comes first.  A visitor may travel to the United States repeatedly during the validity period without having to apply for additional ESTA approval.

If I am approved through ESTA to travel to the U.S., does that mean that I can assured entry into the country?

Not necessarily.  ESTA approval only authorizes a traveler to board a plane or vessel for travel to the United States without a visa.  In all cases, U.S. Customs and Border Protection (USCBP) officers make admissibility determinations at ports of entry or pre-clearance facilities. 

I am a citizen of a visa waiver program country and I have a current and valid visa stamp.  Must I apply for ESTA travel authorization as well?

No.  Citizens of visa waiver program countries who possess a valid visa may travel to the United States with that visa for the purpose it was issued and will not be required to first apply for ESTA travel authorization. 

 

If you have any questions or would like additional information about travel document requirements or entry procedures under WHTI, US-VISIT or ESTA, or require assistance with any other immigration matters, please contact Lynda Zengerle at (202) 429-8170 or lzengerle@steptoe.com; Joan Claxton at (202) 862-5733 or jclaxton@steptoe.com; or Glenn Girdharry at (202) 429-1351 or ggirdharry@steptoe.com