As the U.S. continues to face the spread of COVID-19 (“coronavirus”), for those visitors currently in the U.S. who have entered using the Visa Waiver Program (VWP), it is important to understand U.S. immigration law related to your entry. The VWP is commonly referred to as “ESTA” in Australia (Electronic System for Travel Authorization) or “Visa Waiver” more broadly.
The Visa Waiver Program (WVP), allows qualifying foreign nationals from 37 countries to enter the U.S. for pleasure or business visitor purposes of up to 90 days. A qualifying foreign national must obtain an approved ESTA prior to travel to the U.S.
It is important to consider the following immigration law concerns and implications when determining if you should now depart the U.S. 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 U.S. Now on the Visa Waiver (ESTA)?
For those who are currently in the U.S. on the Visa Waiver (ESTA), the first step is to understand your period of admission. This is the maximum date you have been given to stay in the U.S. Generally, on the Visa Waiver Program that is 90 days from the date of your entry in the United States.
This information on admission period is stated on the I-94 provided by U.S. Custom and Border Protection (CBP). The I-94 status should always be checked upon each entry into the United States. The I-94 can be accessed online here. Click on the link for “Get Most Recent I-94”. The I-94 will contain your date of entry and importantly the date you must leave the U.S.
What Happens During the Current Covid-19 Pandemic to Visa Waiver (ESTA) Travelers?
It important to consider if you can safely depart the U.S. and return to your home country. For example, on March 26, 2020 the Australian government has recommended the following, including relating to those in the U.S.:
- If you’re trying to get home, and can still book commercial flights, do so as soon as possible.
- 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 decision is made to stay in the United States or you cannot leave the U.S., then you need to understand the implications under U.S. immigration regulations related to your admission period up to 90 days.
It is important to understand there are no provisions to extend a Visa Waiver (ESTA) entry. Generally, a foreign national cannot change status to a different visa status from the Visa Waiver (ESTA) entry. For example, someone who has entered the U.S. with the Visa Waiver Program (ESTA) entry cannot change to a student or work visa.
The only available option would be “satisfactory departure” from the United States. Satisfactory Departure allows foreign nationals in Visa Waiver (ESTA) status an additional 30 days to depart the United States in an emergency. This is provided that the foreign national is currently in valid status and within their current 90-day admission period. The final decision on the additional 30 days is completely discretionary.
How Does Satisfactory Departure Work?
Currently, USCBP (U.S. Customs and Border Protection) adjudicates requests for satisfactory departure. The process for how to make such a request will vary depending on the place of admission. There is not currently national or
standardized guidance on these requests.
For example, someone admitted at Los Angeles International Airport (LAX) can only contact CBP deferred inspection at LAX specifically within 14 days of their expiration of period of stay (90 days) to request satisfactory departure.
An applicant may need the original flight arrangements and other basic documents when making the request. Additionally, the applicant may need to demonstrate that their flight was canceled, and 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 U.S. Longer Than 90-day Period or the Satisfactory Departure Period?
There are potentially serious U.S. immigration consequences potentially for overstaying a granted period of admissions.
The consequences vary depending on the length of the overstay and possibly acquiring “unlawful presence”. For unlawful presence of less 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 travel.
For unlawful presence of more than 180 days, there are more serious consequences to being able to return to the U.S. For staying unlawfully in the United States over 180 days, a foreign national may be barred by statute from returning to the U.S. for three years or even ten years for those who overstay longer than one year.
As the current situation unfolds and international travel becomes more and more limited, it is important to understand possible implications of remaining in the United States in your specific case. Please contact Nevett Ford to discuss your current situation and understand the stress and current considerations at the current time with one of our U.S. immigration lawyers.