Visa Waiver Program ESTA Travel and COVID-19 Pandemic

Visa Waiver Program ESTA Travel and COVID-19 Pandemic

As the US continues to face the spread of COVID-19, for visitors in the US who have entered using the Visa Waiver Program (VWP) it is important to understand US immigration law related to your entry. The Visa Waiver Program is commonly referred to as “the ESTA” in Australia or “Visa Waiver” more broadly. The Visa Waiver Program allows qualifying foreign nationals from 37 countries to enter the US for pleasure or business visitor purposes of up to 90 days, (not to be confused with "3 months"). A qualifying foreign national must obtain an approved ESTA prior to travel to the US.

It is important to consider the following immigration law considerations when determining if you should now depart the US while using the Visa Waiver Program (ESTA) at this time. The best advice may be to simply leave and return to your home country immediately if travel is available.

What if I am in the US now on the Visa Waiver (ESTA) and in the US?

For those who are currently in the US after a valid admission on the Visa Waiver (ESTA), the first most important step is to understand your period of admission. This is the maximum date you have been given to stay in the US. Again, on the Visa Waiver Program that is 90 days on entry.

The information on the admission period is stated in the Form I-94 provided by US Custom and Border Protection (CBP). A foreign national should always check this date regardless of the date on your entry stamp in your passport. Foreign nationals can find their I-94 here and then click on the link for “Get Most Recent I-94”. The I-94 will contain your date of entry and importantly the "Admit Until" date which is the date you must leave the US by.

What happens during the current COVID-19 pandemic to Visa Waiver (ESTA) travelers?

First, it is important to consider if you can safely depart the US and return to your home country. For example, as of March 26, 2020 the Australian government has recommended the following, relating to those in the US:

1. If you’re trying to get home and can still book commercial flights, do so as soon as possible.
2. If you cannot leave or prefer to stay where you are, make plans to remain for an extended period. Ensure you have a safe place to stay, follow the advice of local authorities and minimise your risk of exposure to COVID-19. Stay in touch with family and friends so they know you are safe.

If a foreign national decides to stay in the US or cannot leave the US, then you need to understand US immigration law related to your stay, keeping in mind your admission period of up to 90 days.

It is important to understand there are no provisions to extend a Visa Waiver (ESTA) entry. Furthermore, generally a foreign national cannot change status to a different non-immigrant visa status from a Visa Waiver (ESTA) entry. For example, a foreign national after a Visa Waiver (ESTA) entry cannot change to student status, (generally requiring an F-1 or M-1 visa).

The only option would be called "satisfactory departure" from the US, which would give a foreign national, (after a Visa Waiver (ESTA) entry), up to an additional 30 days to depart the US in an emergency. This is provided the foreign national is currently in status and within their current 90-day admission period. This is the only relief available and the final decision is a matter of discretion.

How does "satisfactory departure" work?

Currently, CBP has been tasked with adjudicating requests for satisfactory departure. The process for how to make such a request may vary depending on the place of admission. There is not currently national or standardised guidance on these requests.

For example, a foreign national admitted at Los Angeles International Airport-LAX can only contact CBP LAX deferred inspection within 14 days of their expiration of the period of stay (90 days) to request satisfactory departure.

A foreign national may need the original flight arrangements and other basic documents when making the request. Also, a foreign national may need to demonstrate that their flight was cancelled, and that they are awaiting a new flight that is beyond their 90-day period of admission.

Should you need assistance or have questions with satisfactory departure please contact us immediately.

What happens if I stay in the US longer than 90 days or the satisfactory departure period?

There are potentially serious immigration consequences for overstaying a granted period of admission.

The consequences can range depending on the length of the overstay of the granted admission period and thus acquiring unlawful presence. For unlawful presence of fewer than 180 days, there is likely inability to use the Visa Waiver Program (ESTA) in the future, which would require a foreign national to apply for a visitor visa (B visa) for such future travel.

For unlawful presence of more than 180 days, there are possibly serious consequences to being able to return to the US, known as the three- and ten-year bars that prevent a foreign national from returning for a statutory period. The three-year bar applies to those who have been in the US beyond their admission period for more than 180 consecutive days, while the ten-year bar applies to those who have been there for one year or longer.

We are happy to discuss your current situation and understand the stress and considerations given at the moment. Please reach out to our team to discuss your situation and develop the best strategy possible.