DHS issues final rule on Visa Waiver Program

The Department of Homeland Security has finalized interim rules governing the Visa Waiver Program’s (VWP) Electronic System for Travel Authorization (ESTA) and made one change to the regulations, which will allow DHS to change the ESTA validity period on a country-by-country basis.

An ESTA travel eligibility determination is normally valid for two years, but the new regulation gives the secretary of Homeland Security discretion to increase the validity period for an individual country to the maximum validity period of three years or less.

“The DHS believes that this change enhances the Secretary’s flexibility to recognize countries’ bilateral information sharing and further promotes compliance standards for member countries’ participation in the VWP,” according to the final rule published in the Federal Register today.

DHS noted that it has already implemented other changes since the interim rules, including eliminating the requirement that visa-waived travelers fill out paper I-94W forms upon arrival and sending email notifications reminding travelers when their ESTA travel authorization will expire. In addition, in November DHS added new data fields to the online ESTA questionnaire in an effort to increase security in the VWP.

The final rule, which is scheduled to take effect in 30 days, also finalizes the fees for each ESTA application and allows DHS to expand the ways it processes payment beyond the current Pay.gov system.

The VWP, currently available to nationals of 38 countries, allows eligible business travelers and tourists to enter the U.S. without a visa for visits of up to 90 days. ESTA is a mandatory online prescreening process for travelers using the VWP that was introduced in 2008 under interim rules. The rule announced today adopts as final the 2008 and 2010 interim rules, with the above changes.

BAL Analysis: The final rule does not represent significant major changes to the VWP. If DHS changes the ESTA validity period for a country, it will announce it in the Federal Register and on the ESTA website.

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