Visa Waiver Program

Terms:

Visa:
A visa stamp in a foreign national’s passport is just a key to entering the United States; it does not necessarily indicate the foreign national’s status in the U.S.

I-94 Card/Status:
The I-94 card or other documentation that a nonimmigrant receives when admitted controls how long that foreign national may remain in the United States, not the visa stamp or expiration date on the underlying petition for visa classification. Status determines how long someone can stay in the U.S.

Admission:
Admission is the lawful entry of a foreign national into the country after inspection. See INA § 101(a)(13), 8 U.S.C. § 1101(a)(13). Admitted foreign nationals have greater rights than non-admitted foreign nationals under U.S. immigration law.

The Visa Waiver Program (VWP) (see generally INA § 217, 8 U.S.C. § 1187) enables citizens of certain countries to travel to the United States for tourism or business for 90 days or less without obtaining a visa. See INA § 217(a)(1). Not all countries participate in the VWP and the program has some exceptions. For instance, representatives of the foreign press, radio, film, journalists or other information media, engaged in that vocation while in the U.S. cannot travel to the U.S. under the VWP or on a visitor visa. Rather, they require a nonimmigrant Media (I) visa to gain entry.

Currently, 27 countries participate in the VWP, as shown below:

Chart 1

Visa Waiver Program—Participating Countries

Andorra (MRP)	Iceland	Norway
Australia	Ireland	Portugal
Austria	Italy	San Marino
Belgium (MRP)	Japan	Singapore
Brunei (MRP)	Liechtenstein (MRP)	Slovenia (MRP)
Denmark	Luxembourg	Spain
Finland	Monaco	Sweden
France	the Netherlands	Switzerland
Germany	New Zealand	United Kingdom

Note: Countries in bold above with the (MRP) designation are required to have machine-readable passports (MRP) (effective October 1, 2003) for their citizens to enter the U.S. on the VWP. All other countries’ VWP travelers above must have a MRP by October 26, 2004 except Belgium, which has had an MRP requirement for VWP travelers since May 15, 2003. See INA § 217(a)(3).

Example: Giuseppe and his family are Italian citizens. He wants to take his family to Disneyland for their summer vacation in August. They plan to stay in California for three weeks. Since they are citizens of one of the countries on the VWP participation list and they intend to stay in the U.S. for less than 90 days, Giuseppe and his family do not need to obtain visas before coming to the U.S. They are eligible to participate in the VWP.

To enter the U.S. under the VWP, travelers from participating countries must:

Be a citizen of a VWP country;
Have a valid passport issued by the participating country that is valid for six months beyond the intended visit; have a machine-readable passport (MRP), following the required due dates for MRPs explained above (see Chart 1);
Be seeking entry for 90 days or less, as a temporary visitor for business or pleasure. An extension or a change to another visa category is not permitted under the VWP.

Example: Hiroshi is a citizen of Japan. He wants to travel to the U.S. to study in a six-month English language program in San Francisco. He is not eligible to enter the U.S. under VWP because he plans to stay in the U.S. for more than 90 days and his purpose is to study, rather than for pleasure.

Business visitors can engage in the following types of activities while in the U.S. under the VWP:

Participate in commercial business transactions which do not involve gainful employment in the U.S., for example, negotiating contracts or consulting with business associates. The visitor cannot receive a salary or wages from a U.S. source.
Participate in scientific, educational, professional or business conventions, conferences or seminars.
Conduct independent research.
Appear as a witness in a court trial.

Visitors to the U.S. as tourists or for pleasure are usually permitted to participate in the following types of activities while in the U.S.:

Visit friends and relatives, tour, or visit for rest;
Visit for medical treatment; or
Participate in conventions, conferences or convocation of fraternal or social organizations.

Furthermore, amateurs participating in sports, musicals, and other events or contests, who will receive no money or other remuneration in return, can also participate in the visa waiver program.

VWP participants must meet the following requirements (see INA § 217(a)(5)):

If entering by air or sea, the participant must have a round-trip ticket issued on a carrier that has signed an agreement with the U.S. government to participate in the VWP, and arrive in the U.S. aboard such a carrier.
Hold a completed and signed Nonimmigrant Visa Waiver Arrival-Departure Record, Form I-94W, on which he/she has waived the right of review or appeal of an immigration officer’s determination about admissibility, or deportation. These forms are available from participating carriers, from travel agents, and at land-border ports-of-entry.
Have no visa ineligibilities. Specifically, if the participant has been refused a visa before, has a criminal record or is ineligible for a visa, the person cannot travel on the VWP. Rather, the person must apply for a visa to the U.S.

There is a $6 fee to process the I-94W—Nonimmigrant Visa Waiver Arrival-Departure Record.

Example: Derek is a citizen of Denmark. While he was a university student, he was convicted of selling marijuana. His current employer wants to send him to the company’s annual retreat, which is taking place in Boston this year. Unfortunately, Derek is ineligible to participate in the VWP due to his criminal conviction. If he still wants to travel to the U.S. for the retreat, he will have to apply for a business visa instead.