Updated April 21, 2020
The Visa Waiver Program (VWP) enables eligible citizens or nationals of certain countries to travel to the United States for tourism or business for stays of up to 90 days without obtaining a physical visitor visa. Citizens and nationals of VWP countries must obtain approval through the Electronic System for Travel Authorization (ESTA) prior to traveling to the United States under the VWP.
The American Immigration Lawyers Association (AILA) advised on March 14, 2020 that certain ESTA registrations were being revoked by the Department of Homeland Security (DHS). This was part of a planned U.S. government action to prevent travelers outside of the United States who are barred under the COVID-19 travel bans from attempting to travel to the United States. These revocations are without prejudice and those travelers will be able to apply for ESTA in the future.
VWP travelers are typically granted a stay of 90 days from the date of their U.S. entry. There are adverse legal consequences to remaining in the United States after that stay expires (commonly known as “overstaying”). However, travel restrictions put in place around the world in response to the COVID-19 pandemic may make overstaying impossible to avoid. A pre-existing federal regulation at 8 CFR § 217.3 provides relief known as “satisfactory departure.” The regulation provides that if an emergency prevents a VWP visitor from departing the United States within their period of authorized stay, the U.S. Citizenship & Immigration Services (USCIS) office with jurisdiction over the place of the visitor’s U.S. location may grant a period of “satisfactory departure” not to exceed 30 days—and if departure is accomplished during that period, the traveler is not regarded as having overstayed.
On April 13, 2020, USCIS announced that “satisfactory departure” may be requested from USCIS by contacting the USCIS Contact Center. The Contact Center will collect information from the requestor, including an image of their passport biographic page, and forward the request to the USCIS field office closest to the requestor, which will then process the request. Per the regulations, USCIS may grant a period of satisfactory departure for up to 30 days. USCIS also stated that it may grant an additional 30-day period of satisfactory departure to VWP visitors already granted satisfactory departure who are unable to depart within the initial 30-day period due to COVID-19 related issues. Therefore, at this time, VWP visitors may seek up to 60-days of relief, presumably requiring two 30-day requests, by contacting the USCIS Contact Center.
Similarly, on April 17, 2020, U.S. Customs and Border Protection (CBP) issued guidance to all ports of entry and deferred inspection sites regarding the process for VWP visitors to apply for satisfactory departure. Therefore, it appears that VWP visitors may apply for satisfactory departure with either USCIS or CBP.
© Jewell Stewart & Pratt PC 2020