Pitfalls of Electronic System for Travel Authorization (ESTA)

The Electronic System for Travel Authorization (ESTA) was established in 2009 to screen Visa Waiver Program (VWP) applicants before allowing them to travel to the United States.  These prospective travelers are required to demonstrate their eligibility for the Visa Waiver Program by applying for travel authorization via ESTA prior to boarding a plane or vessel bound for the US.  Through ESTA, the US government compares the applicant's personal information against various databases in order to determine whether there is a law enforcement or security reason to deem that person ineligible to travel to the US under the Visa Waiver Program (VWP).  ESTA denials result in a notice to the applicant that they may not enter the US under the VWP, although the traveler may still be eligible to enter on a non-immigrant visa.  However, ESTA approval is not a guarantee of admission into the US, as travelers must (again) establish eligibility during inspection by a government official at the US port of entry.

 The ESTA online form is meant to be completed by the applicant.  However, in practice, travel agents may be helping their customers to fill out the form, and they are failing to explain the ESTA program and its constraints.  Moreover, it appears that travel agents are writing letters to their customers which may actually contain incorrect information, intentional or not, with regard to the ESTA validation period.  It is important to understand that while the ESTA approval is valid for two years, the actual permitted time in the US on the Visa Waiver Program is just 90 days.

From a recent client, I learned that she believed that ESTA validity period was indeed the same as the time she would be permitted to visit the US.  She thought that she had been authorized to remain in the US for up to two years.  Therefore, she overstayed, as she didn't understand the stamp in her passport was the ruling factor.  She relied on a letter from her travel agent, which contained the misinformation.
Not surprisingly, a simple trip to Canada turned into a small nightmare for her.  Since she had overstayed her visa waiver, she was refused re-entry to the US and had to return to her home country.  She will not be able to travel into the US very easily anymore.

While it is true that it was her responsibility to know the validity period of her visa in the US, it is clear that such vulnerable people may be exploited.  The travel agent had no problem taking money and extending the ticket for another three months!

Travelers must be aware of the issue, and wary of relying on legal advice from travel agents.  If you or your loved one is traveling to the US on the VWP, please be sure to check the ESTA rules!

Tahmina Watson is the founder of Watson Immigration Law based in downtown Seattle.  She was a practicing barrister in London, UK, before immigrating to the United States herself.  Tahmina has been practicing exclusively in the area of US Immigration and Naturalization law since 2006.