The Visa Waiver Program

Visa Waiver for Tourism or Business

The visa waiver program allows visa free travel to the United States for citizens of certain countries, if the person meets certain requirements. A visitor coming to the United States as a business visitor or a tourism from a list of countries designated by the Attorney General for inclusion in the Visa Waiver Program (VWP), may not need a visa (B visa) if he or she intends to come to the United States for 90 days or less to transact business (WB status) or for tourism (WT status).

Visa waiver program eligibility

To be eligible for the visa program the visitor coming for 90 days or less must present

  1. A valid unexpired Machine Readable Passport (MRP) from a visa waiver program country
  2. A non-transferable round-trip ticket
  3. Arrive in the United States by a carrier with an agreement with the Attorney General of the United States to electronically transmit passenger data before the carrier arrives in the United States, and
  4. Execute immigration I-94W (front and back) and customs forms before entry into the United States. 8 USCS § 1187.

The visitor must still be able to show that they can financially support themselves while in the United States and are not a safety threat to the United States.

What countries take part in the Visa Waiver Program?

The countries that the attorney General has designated for inclusion in the Visa Waiver program are those nations that present little law enforcement challenges to the United States (e.g. low rates of fraud, high counter-terrorism co0peration) and have low rates of disqualification for non-immigrant entry into the United States. At present the visa waiver program is applicable to the following 38 countries:

AndorraHungaryNew Zealand
AustraliaIcelandNorway
AustriaIrelandPortugal
BelgiumItalySan Marino
BruneiJapanSingapore
Czech RepublicLatviaSlovakia
ChileLiechtensteinSlovenia
DenmarkLithuaniaSouth Korea
EstoniaLuxembourgSpain
FinlandMaltaSweden
FranceMonacoSwitzerland
Germanythe NetherlandsTaiwan
Greece United Kingdom

The visa waiver program does not apply to British overseas citizens, British defendant territories’ citizens, or citizens of British Commonwealth countries.

If I entered the US under the Visa Waiver program am I eligible to extend my stay, change to another visa class or adjust status?

No. Persons in WB or WT status are not eligible to apply to the United States Citizenship and Immigration Services (USCIS) for an extension of status, change of status or adjustment of status. Adjustment of status (getting US green cards) is only permitted based upon a petition by an immediate relative such as a spouse. But if the visitor seeks to adjust status while in removal because he has violated his status, he is barred from adjusting status.

What rights do I waive by participating in the Visa Waiver program?

If a visitor from a visa waiver country who is inadmissible or deportable after admission, the person waives the right to a removal hearing except for an asylum-only hearing (if the visitor expresses a fear of returning to her country). Generally asylum is the only relief to which a visa waiver entrant is eligible once in removal and detention is mandatory (no immigration bond or voluntary departure) until removal. A person who fraudulently enters under the Visa Waiver program (e.g. an Algerian using a fake French passport) is bound by the terms of the visa waiver program and asylum is the only relief available.

I came in on the visa waiver program, can I file a visa waiver program adjustment of status?

Yes, but only if you are not in removal and based upon an immediate relative petition. If you are married to a US citizen, you can adjust status, i.e. get a green card without leaving the United States.

Conclusion

US immigration law issues can be complex and confusing. Put the matter into the hands of an experienced immigration professional. If you have any questions about your immigration options under the US visa waiver program call us at 702-423-2721 or email us to schedule legal consultation.

Gary Goodin, Las Vegas Immigration Lawyer