Important Information For Australians Using ESTA for Travel to the US [Update Jan 2021]

Due to the COVID-19 pandemic, many Australians and Australian Permanent Residents travel plans to the U.S. have been disrupted.  Families and couples have been split apart and business visitor travelers may have not been able to attend to critical business meetings in the U.S. 

The interplay of the Visa Waiver Program (ESTA), and Australia’s International Travel Ban and its exemptions is something that requires careful consideration before travel.  We have previously covered the details of the Australian government’s travel ban and exemption request.  Also, we have looked at aspects of Visa Waiver Program (ESTA) travel and specifics on satisfactory departure requests for those travelers that could not get back to Australia within 90 days of entry on the Visa Waiver Program. 

Understanding Australia's Travel Ban and ESTA

It is important to cover the interplay between these two sets of laws as it relates to any planned travel to the U.S.  We increasingly have seen reports of Australians being refused entry to the United States when entering on the Visa Waiver Program (ESTA) based upon the nature of their specific exemption given by the Australian Border Force (ABF).  Most of these refusals were because the exemption was issued for “compelling reason to remain overseas for at least three months.”  

Recently in January 2021, the ABF provided further clarification, announcing additional documentation and information required for travel overseas, specifically the exemption requests relying on overseas travel for at least three months.  The ABF has indicated this exemption should only be used if the traveler has “a compelling reason and it is essential that you travel now.” 

New Regulations for Australian Travelers

First and foremost, the ABF are now requiring a Commonwealth Statutory Declaration.  This declaration must state that you are making an exemption request on the “basis that you intend to be absent from Australia for more than three months.”  As noted in the ABF guidance, “A person who makes a false statement in a statutory declaration is guilty of an offence – refer to section 11 of the Statutory Declarations Act 1959.” 

Furthermore, the ABF has indicated additional types of evidence that may be submitted with the Statutory Declaration with official English translations for foreign language documents:

• Confirmed flight itinerary, with return date of at least three months after departure date
• Confirmation of leave from employment for three months
• Enrollment confirmation for study
• A doctor’s certificate to support your claim you are travelling in order to provide care for sick family members
• Any other matter you wish to raise in support of your request for exemption.

Lastly note, the ABF has indicated that “requests may be finalized without further consideration if insufficient evidence is provided, or is not provided in a Statutory Declaration,” and thus potentially denied as requests submitted “without appropriate documentary evidence to support your claim will not be approved.”  Lastly, it appears the AFB is warning travelers that they “will monitor compliance with periods of declared travel.” 

This exemption category provides for travel that is likely very problematic as the Visa Waiver Program (ESTA) is specifically for temporary visitor travel that for travel less than 90 days.

Problems with Travel Exemptions at US Entry Points

US Customs and Border Protection (CBP), have been requesting to review Australian travelers’ exemption approvals to view the reason for the permission to depart Australia.  Upon inspection, if the exemption approval relates to travel overseas for at least three months, this could be a reason for US CBP officers to question the intent of the US visit and/or refuse entry for certain travelers.

Actions by US CBP indicate that travel under the Visa Waiver Program (ESTA) would be scrutinized where the intent of travel, as provided to the Australian Border Force, may be interpreted that the traveler is intending to stay in the US (or another country) longer than the 90-day visa waiver period.  US CBP officers in numerous locations are aware of the requirements for exemptions for travel by Australians.

We need to stress that this is not happening with every Australian passenger; however, CBP officers are scrutinizing many Australian passengers’ ABF exemption requests looking for any inconsistency between their exemption request and their stated purpose of travel to US immigration.  It is the inconsistency, and the potential for untruthful admissions, that is potentially causing issues.  If you have an onwards ticket to a third country within the 90 day ESTA permitted stay and not a round trip ticket back to Australia, this may alleviate some of CBP’s concerns about any inconsistency with the intent of travel.

Australians Refused Entry by US CBP

Since the start of Australian government’s travel restrictions in March 2020, our office has received numerous first-hand reports of Australians who have been refused entry by CBP under these circumstances.  While the reason for the refusal of entry may be pursuant to INA Section 212(a)(7)(A)(i)(I) as an “immigrant without an immigrant visa”, the inconsistency with information provided to the ABF and then to CBP may cause an officer to believe that a traveler has not been truthful in their answers to either government agency – as these two requirements conflict with timing.

We received a recent report that numerous individuals on a single flight originating from Australia were refused entry under similar circumstances.  These entry refusals usually come after a formal interview and questioning with CBP in a secondary inspection, sometimes lasting several hours. We have not been able to independently verify this information with each affected passenger, but we are looking into getting the transcripts of these interactions with CBP and reviewing them for clarity.  Previous secondary inspection transcripts that we have reviewed showed a line of questioning by CBP consistent to the information provided here.

The good news is that we are not seeing individuals refused entry if their exemption request was granted under other exemption categories, such as for compassionate reasons, or urgent and personal business.

What Happens if Entry is Refused?

After being refused entry, the individuals are typically put on the next available flight back to Australia – or wherever they embarked from.  If this occurs, then the passenger is required to enter quarantine at their own expense once back in Australia. CBP officers have complete discretion to deny a non-US citizen’s entry.

In most cases, if an Australian is denied entry on the Visa Waiver Program (ESTA) then the individual will be processed as a “refusal of admission”, and will be permitted to withdraw their application for admission.

If this occurs, the individual can no longer use the Visa Waiver Program (ESTA) and may have difficulty applying for a visa to return to the United States, particularly in the short term. In some circumstances, the traveler may unfortunately receive an order of expedited removal (deportation) at the discretion of the CBP officer. If an order of deportation is issued, the individual will likely face a minimum five-year ban to re-entering the United States.

We will update this information as new facts or changes come to the attention of our office.

Careful Planning Is Now More Important Than Ever

Please note, as mentioned above, that if you are denied entry under the Visa Waiver Program (ESTA), you are forever barred from visa-free travel to the United States after that point. This can be extremely problematic for some travelers. Therefore, it is important to review and carefully plan any travel that may be undertaken as a visitor to the US on the Visa Waiver Program when applying for an exemption. 

If the travel was to visit a partner in the U.S., you may want to review your options related to more permanent relocation to the U.S., or review your options for your partner to relocate to Australia.  

With all the extra complexity of travel at the current time, it is important to review your travel to the U.S. with our team of U.S. immigration lawyers and Australian migration agents.  Your circumstances may require our team to work together to help you to navigate both Australian and U.S. law.  

Please contact us to discuss your needs for travel to the U.S. and departure from Australia.