Law360, New York (February 22, 2017, 11:38 AM EST) -- The traveler is issued a new passport;This year, traveling to the United States, with its new immigration enforcement-minded administration, requires foreign travelers to be aware of the rules governing border protection, and take advantage of the many travel programs still available to ease the inspections process at entry into the United States while President Donald Trump's travel ban is suspended and under review by the U.S. federal courts. This article discusses these programs — some mandatory, some voluntary — and provides their advantages and disadvantages. All travel programs outlined below are still operating and not the subject of Trump's executive order issued on Jan. 27, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”
As the U.S. federal courts review the legality and constitutionality of the EO, the programs below should be considered by foreign nationals who may be eligible under the criteria specified. These programs may alleviate the need to process a formal visa stamp at a U.S. Consulate overseas, where delays are expected and confusion may reign. These programs are useful to foreign travelers entering the United States. However, foreign nationals from the seven countries listed in the suspended EO (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) should not travel outside the United States during the next 30 days, and should remain in the country until there is clarity and a formal U.S. court decision on the EO’s scope, legality and constitutionality.
Mandatory Travel Systems for Travel Authorization
1. Electronic Visa Update System (EVUS)
EVUS is an online system used solely by nationals of China who hold a 10-year B-1/B-2, B1 (business) or B-2 (tourist) visa in a People’s Republic of China-issued passport. They must now enroll in EVUS to travel to the United States and be admitted. This program took effect Nov. 29, 2016. Travelers who are subject to the EVUS requirements but who do not have the valid enrollment will not be able to obtain a boarding pass or enter through a land port of entry.
Practice Note: Employers who have had business visitors from China and who have traveled to the United States in the past 12 months should provide instructions on the mandatory enrollment in EVUS for future travel to the United States. Employers can add such an advisory to their internal website or human resources pages on EVUS. In all correspondence, attorneys with clients from China should advise of the EVUS enrollment requirement when traveling on a B-1/B-2, B-1 or B-2 visa into the United States.
How to Enroll: To enroll, the traveler will need their People’s Republic of China passport with a maximum validity (10-year) B-1/B-2, B-1 or B-2 visa, and internet access. The enrollment questions are basic and address biographical and employment information, emergency contact and traveler eligibility. There is no photo or biometrics requirement, and all travelers regardless of age must complete the EVUS enrollment. The enrollment questions are in English or Mandarin, and the enrollment can be done by a third party on behalf of the traveler as long as the responses, which must be completed in English, are truthful and accurate. The enrollment can be completed within minutes after submission but some responses can take up to 72 hours.
The traveler cannot make corrections on the enrollment form and should just begin a new enrollment to correct any error. Updates of job or address information can be made on the EVUS system without a new enrollment. It is worth noting that, as of Nov. 29, 2016, airlines receive EVUS information through their internal networks and will not provide a boarding pass to a traveler who has a maximum validity (10-year) B-1/B-2, B-1 or B-2 visa in a People’s Republic of China-issued passport who does not have a valid EVUS enrollment recorded in their system.
Furthermore, travelers with People’s Republic of China-issued passports residing outside China but traveling to the United States, will need to enroll in EVUS prior to travel to the United States. Thus, travelers from Canada using People’s Republic of China-issued passports must enroll in EVUS when traveling into the United States, even if driving into the United States.
Timing: It is prudent to enroll well in advance of any travel plans and certainly at least one week before departing to the United States. EVUS enrollment is free of charge with a validity of two years or until the traveler’s visa or passport expires, whichever comes first. When enrollment expires, the traveler will need to update their information before traveling to the United States again.
EVUS Resources: Travelers can find more information at cbp.gov, and can complete the enrollment process on this site as well. The EVUS platform is mobile-friendly. An EVUS call center (1-202-325-0180) staffed with Mandarin speakers is available 24 hours a day, seven days a week, but closed on U.S. federal holidays. Questions can also be addressed to evus@cbp.dhs.gov. This is not a U.S. Department of State system and as such, U.S. Consulates cannot resolve enrollment issues or delays. The U.S. Customs and Border Protection is the U.S. government agency responsible for EVUS and can assist with enrollment questions.
Who is Not Subject to EVUS Enrollment? EVUS enrollment is not required of travelers using travel documents other than a People’s Republic of China-issued passport. Travelers using a Hong Kong SAR, Macau SAR or Taiwan passport may continue to travel to the United States without an EVUS enrollment.
2. Electronic System for Travel Authorization (ESTA)
ESTA is an automated system that determines the eligibility of travelers to the United States under the Visa Waiver Program (VWP). The VWP allows travelers from 38 participating countries, for an updated list see https://travel.state.gov/content/travel.html to travel to the United States for business or pleasure for 90 days or less without a visa stamp when arriving via plane or cruise ship.
Practice Note: Employers/attorneys should identify their employees who hold dual nationality with one of the seven countries (also known as a “barred country under the EO”) and one of the 38 participating ESTA countries. Employers/attorneys should provide advisories to travel into the United States on a valid passport from a nonbarred country and participating ESTA country. Further, note that there are currently no ESTA requirements to enter the United States via a land border port of entry, but the CBP does require completion of a paper I-94W and a $6 processing fee at land border ports of entry.
ESTA authorization does not guarantee entry into the United States. The CBP officers at airport inspections or at land ports of entry determine whether a traveler can be admitted into the United States.
The ESTA online application collects biographical information and responses to VWP eligibility. It is recommended that ESTA applications be submitted when travel is planned, and even before purchasing airline tickets to ensure the traveler will be successful in the ESTA application processing.
Practice Note: If the ESTA application is denied, the traveler may need to apply for a B-1 or B-2 visa, or B-1/B-2 visa from the U.S. Consulate in their native or home country prior to travel to the United States. It is for this very reason the ESTA application should be completed well before travel plans are made and tickets purchased.
ESTA adds a layer of security that allows the U.S. Department of Homeland Security to determine in advance of travel, whether an individual is eligible to travel to the United States under the VWP and whether such travel poses a law enforcement or security risk. Thus, answering the ESTA questions accurately and truthfully is critical. Travelers simply planning to transit through the United States en route to another country must complete an authorization via ESTA.
How to Apply: ESTA is accessible at esta.cbp.dhs.gov. Third parties can complete the ESTA application on behalf of the traveler, and up to 50 travelers at a time. The ESTA application includes questions regarding communicable diseases, arrests and convictions for certain crimes, and past history of visa revocations or deportations. Positive answers to these questions will render the traveler ineligible to use the VWP to enter the United States, and will require that the traveler apply for a B visa stamp from a U.S. Consulate.
Timing: ESTA will typically respond within minutes of submission with one of three possible responses: (1) authorization approved; (2) travel not authorized, requiring the traveler to apply for the B visa; or (3) authorization pending requiring the traveler to check within 72 hours for a final response. The ESTA system provides no email notifications. Note that there is a total $14 ESTA fee comprised of the $4 processing charge and a $10 authorization charge when the application is approved. Payment is by credit or debit card only. The name on the card need not match the name of the traveler on the ESTA application.
A new travel authorization via ESTA is required when:
- The traveler changes his or her name;
- The traveler changes his or her gender;
- The traveler’s country of citizenship changes; or
- The circumstances underlying the traveler’s previous responses to any of the ESTA application questions requiring a “yes” or “no” response have changed.
Practice Note: Travelers using ESTA must have an e-passport, which is an enhanced secure passport with an embedded electronic chip.
- Nationals of the 38 VWP-eligible countries who have been in Iraq, Syria, Libya, Somalia, Yemen, Iran or Sudan (the countries listed in the suspended EO) at any time on or after March 1, 2011, are no longer eligible to use the VWP to enter the United States regardless of whether their ESTA applications are still valid. They must now apply for a B visa stamp to travel to the United States.
Note, these restrictions do not apply to VWP travelers whose presence in Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen was to perform military service in the armed forces of a program country, or to carry out official duties as a full-time employee of the government of a program country. It is recommended that such travelers who have traveled to the seven countries listed above for military or official purposes bring with them appropriate documentation when traveling through a U.S. port of entry on the VWP program.
Voluntary Travel and Trusted Traveler Programs
Global Entry
Global Entry is a CBP program that allows expedited clearance for preapproved, low-risk travelers when they arrive in the United States.
How to Apply: Travelers can apply at cbp.gov, pay a $100 nonrefundable fee and create a Global Online Enrollment System (GOES) account, regardless of age. Once the completed application is accepted on condition of an interview, each traveler applicant can schedule an interview at a global entry enrollment center. All applicants must pass a strict background check and appear for a personal interview before enrollment is approved.
Who Can Apply? U.S. citizens, lawful permanent residents and travelers with tourist, work or student visas from one of these countries: Colombia, the United Kingdom, Germany, the Netherlands, Panama, Singapore, South Korea or Mexico, can enroll in global entry.
Special Note: Citizens of Switzerland were able to apply for global entry on Feb. 1, 2017.
In addition to membership in the global entry program, U.S. citizens and lawful permanent residents are also issued a global entry card which has a radio frequency identification chip. These cards enable travelers to use them at land and sea ports of entry, and to participate in the "Secure Electronic Network for Travelers Rapid Inspection" (SENTRI) program.
SENTRI is a program for travelers entering the United States at southern land border ports. These ports offer dedicated primary lanes into the United States.
NEXUS is a travel program for Canadian travelers who can use NEXUS travel lanes, dedicated to Canadian residents or citizens who gain global entry benefits through membership in the NEXUS program.
Practice Note: The global entry card is solely for travel into the United States and cannot be used for entry into Canada via the NEXUS lanes
Who is Ineligible for the Global Entry Program? Travelers are ineligible to enroll in the Global Entry program if they:
- Provide false or incomplete information on the application;
- Have been convicted of any criminal offense or have pending criminal charges or outstanding warrants (driving under the influence is included);
- Have been found in violation of any customs, immigration or agriculture regulations or laws in any country;
- Are the subject of an ongoing investigation by any federal, state or local law enforcement agency;
- Are inadmissible to the United States under immigration regulation, including applicants with approved waivers of inadmissibility or parole documentation;
- Cannot satisfy CBP of their low-risk status; or
- Not from one of the listed countries above.
Once enrolled, a traveler can enter the United States through the global entry automatic kiosks located in select U.S. airports (currently 52) or at one of 15 preflight inspection facilities in Abu Dhabi, Aruba, Canada or Ireland. For a complete list of airports, see cbp.gov.
Practice Note: The numerous advantages to enrolling in the global entry program include: no processing lines at time of entry; no paperwork; access to expedited entry benefits in other countries; availability at major airports (check cbp.gov for locations); and reduced wait times.
While the Trump administration stated that it issued the EO to secure our borders and protect the country, it is worth noting that all of the above programs are meant to ease foreign travel into the United States, while ensuring national security and safety at the land and sea ports of entry. These trusted traveler programs have vetting procedures in place and disqualify those who do not meet the criteria listed above for each program. These travel programs can be further reviewed at the CBP website. The CBP is the unified border agency within the DHS charged with the management, control and protection of U.S. borders at and between official ports of entry.
It is always prudent to consult with an immigration attorney before choosing and enrolling in a program to use to travel to the United States, or if you experience any difficulties or rejections during the enrollment process. Because additional executive orders may be issued in the near future that seek to curb travel into the United States, it is especially wise to consult with an immigration attorney, and review the CBP website for guidance on travel into the country.
Republished with permission by Law360 (subscription required).
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