Visa Waivers

Certain visitors (tourists and business visitors) may enter under one of several waiver programs allowing entry without any visa:

Canadian citizens, who need no visa to enter and often receive no departure card with the understanding that they are allowed a 6 months stay. Thus, at the present time they can enter by land or sea with as little as a photo I.D. and birth certificate (which often doubles as a photo I.D.) or other evidence of Canadian citizenship (or British citizenship and Canadian residence). If entering the U.S. from outside the Western Hemisphere, even a Canadian citizen requires a passport.

Under the recent Western Hemisphere Travel Initiative (“WHTI”), however, all travelers by air to and from the Americas, the Caribbean, and Bermuda are now required to have a passport or other accepted document that establishes the bearer’s identity and nationality to enter or re-enter the United States. Other accepted documents include the new State Department “passport card,” an “enhanced drivers license” now offered by certain border states in cooperation with DHS, a trusted traveler program card (FAST, NEXUS, or SENTRI), a Military ID with official travel orders, or a U.S. Merchant Mariner Document. On June 1, 2009, the passport requirements of WHTI will extend to travelers entering the U.S. by land or sea. Canadian citizens are eligible to make business visits for a number of purposes listed in the North American Free Trade Agreement (NAFTA), but that list is only reflective of the activities appropriate for a B-1 business visitor from any country.

Landed immigrants in Canada and British subjects residing in Canada, who may seek a border crossing card with varying conditions in lieu of a visa. In the past Mexicans have been able to obtain border crossing cards, which allowed visits of 72 hours within 25 (sometimes 75) miles from the border, but Congress has invalidated those cards, and now Mexicans generally obtain a “laser visa” that doubles as a visa and a border crossing card.

Certain other persons generally not requiring visas, including certain people entering from Guam.

Visa Waiver Program— Citizens of 35 countries designated under the visa waiver program may use their passports without visa to enter the U.S. for 90 days. Before traveling they must register online with CBP’s Electronic System for Travel Authorization (ESTA) program. After Customs and Border Patrol inspection at a port-of-entry they receive a green “I-94W” card (not to be confused with a “green card” for permanent residence!). The trade-off for the convenience of not having to obtain a visa is the set of limitations described on the back of the I-94W: no right to a hearing if the immigration inspector finds the person inadmissible (even on the basis that the person has not convinced the officer of his “nonimmigrant intent”), and no eligibility for extension of stay or for change of status. The eligible countries are Andorra, Austria, Australia, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Moldova, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovak Republic, Slovenia, Republic of South Korea, Spain, Sweden, Switzerland, and The United Kingdom.

All Visa Waiver Program entrants must have a “machine readable passport,” which contains two lines of text as letters, numbers and chevrons (<<<) at the bottom of the personal information page, along with a photo that need not be digital. Certain additional requirements for Visa Waiver Program requirements have been getting imposed based on when the passport was issued:

  • 10/26/05 through 10/25/06: A digital photograph printed on the passport data page is required OR an integrated chip containing information from the data page (“e-passport”). A digital photo is one that is printed on the page, not a photo that is glued or laminated into the passport.
  • 10/26/06: Machine-readable passports issued or renewed/extended on or after this date are required to be e-passports. An e-Passport has an integrated computer chip that holds the same information printed on the passport’s data page: the holder’s name, date of birth and other biographic information. These e-Passports must comply with international technical standards established by the International Civil Aviation Organization.
  • Temporary, emergency, official and diplomatic passports are exempted from digital photo and electronic chip requirements, but must be machine-readable. This rule applies to all VWP countries except for Germany. Temporary or emergency German passports are not valid for VWP travel, and must contain a visa for admission to the United States.
  • VWP travelers with non-compliant passports do not have a valid travel document for admission under the VWP, and will need to obtain a visa to travel to the United States.
  • Travelers from recently added countries must have an e-passport, regardless of issuance date. Those countries include Czech Republic, Estonia, Hungary, Latvia, Lithuania, Moldove, Slovak Republic, and Republic of South Korea.

How We Can Help

We assist clients in evaluating and comparing the seemingly innumerable visa classifications for which they might be qualified, whether a visa will be required (and if not required whether it should be obtained anyway), where and how to apply, and how best to accomplish entry. We advise clients about inadmissibility grounds that may apply and assist in waiver applications and appeals from denials of them. We assist clients in seeking review of visa denials. We represent clients in removal proceedings, where available if they are found inadmissible. We help clients seek remedies even when they have been removed at the border without a hearing. We help clients maintain their status and extend and change it to meet new goals. We also plan and take appropriate steps toward permanent residence, coordinating such plans and steps with the temporary status.

C0nsult with us for assistance with a case.


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