Recently, the Department of Homeland Security gave notice of their intent to implement new programs to “further strengthen the already robust national security and immigration enforcement elements of the Visa Waiver Program (VWP).”
DHS plans to take a number of measures including requiring certain foreign counties that participate in the VWP to implement new safeguards, initiating public information campaigns deterring people from staying in the U.S. unlawfully and requiring foreign travelers applying to enter the U.S. at land border crossings to first apply for admission to the U.S. electronically using the Electronic System for Travel Authorization (ESTA) system.
The intent of DHS’s new initiative is to reduce the number of people who enter the U.S. lawfully and “overstay,” or remain in the U.S. longer than their period of authorized travel.
What is the Visa Waiver Program?
The VWP was implemented in 1986 to allow citizens from certain countries to enter the U.S. for a visit without needing to apply for a visa and attend an interview at a U.S. consulate abroad first – a time consuming task that requires an application fee of no less than $160 to merely be considered for entry to the U.S.
Nationals entering the U.S. through the VWP may remain in the U.S. for a maximum of 90 days. With that in mind, nationals from VWP countries that have reason to stay in the U.S. longer than 90 days, as well as those from countries not included in the VWP, must obtain a visa from a U.S. Consulate prior to traveling to the U.S.
Who is Impacted by the Visa Waiver Program and ESTA Expansion?
Currently 38 countries across Europe, Asia and South America participate in the VWP and more than 21.6 million visitors entered the U.S. through the VWP in 2016. Canada is
Foreign nationals entering the U.S. by air or sea have been subject to ESTA registration since 2008, but DHS’s notice of its intent to expand this requirement to all travelers entering the U.S. is likely to disproportionately impact Canadian visitors as Mexico is not a visa-free or Visa Waiver country.
This is not surprising. In May 2017, DHS reported that data gathered through ESTA revealed that 739,478 foreign nationals who entered the U.S. via air or sea overstayed their visas in FY2016. Of those, 129,311 were Canadian and 52,958 were Mexican.
What to Expect
The most obvious impact of these changes on U.S. business will be the requirement that all foreign nationals traveling through U.S. land border crossings must first register with ESTA.
How the ESTA and VWP will be implemented at the nation’s busiest border crossings is unknown. Traffic leading to the point of inspection in some cities has been a major problem for years. So much so, that U.S. Customs and Border Protection (CBP) launched a mobile app in 2014 to allow drivers to check congestion at different ports of entry to encourage people to adjust their schedules or enter at alternative crossing points.
A Real-World Perspective
Growing up in Michigan made me intimately familiar with border traffic. Windsor, Ontario was a mere five-minute drive when the roads were clear and a sufficient number of Officers were on post, but I’ve also waited for more than 2 hours to get back to Detroit after dinner with friends on more than one occasion.
Having also attending law school in downtown Detroit, a number of my classmates were Canadian and lived in Windsor. It wasn’t unusual for them to walk into class late asking to be excused due to “tunnel traffic” and it wasn’t unusual for them to complain that they left home an hour early but ended up missing class all together.
One empathetic professor started referring to her cell phone as the Canadian Commuter Hotline and offered to conference call students sitting in border traffic.
Many questions remain unanswered
It is unknown when this new border crossing rule will take effect or whether the U.S. will be providing funding for these imposed measures. It is further unclear how DHS will obtain the buy-in and compliance of VWP countries that will make measures such as campaigns against overstaying U.S. visas effective.
More information is expected to be released in spring.
About the Author
Prior to joining Envoy Global, Inc. Allison Kranz practiced immigration law. She was a Managing Attorney at Maney & Gordon, P.A. and an Associate Attorney at Ogletree Deakins. In these roles she gained significant experience handling all aspects of corporate/employment-based immigration law and created strategy to address the visa, work, permanent immigration and citizenship goals of her clients. She represented fortune 500 companies in business immigration matters and acquired critical experience in H-1B, L, TN, O and permanent resident cases, as well as U.S. Department of Labor audits. Her immigration law practice emphasized the representation of universities, in addition to the information technology, financial, national security, and healthcare fields.More Content by Allison Kranz