U.S. Visa Waiver Program - I.N.A. § 217 [8 U.S.C. § 1187]

The U.S. Visa Waiver Program (VWP) grants citizens of selected countries the right to enter the United States as visitors for business or pleasure for a period not exceeding 90 days.  The legal basis is the "waiver" of the requirement that all nonimmigrants have in their possession an unexpired visa at the time they apply for admission.  In other words, visitors must all have visas except visitors from countries approved by USCIS in consultation with the Department of State (and under some other limited circumstances not relevant to this discussion).

Participation in the VWP imposes significant limitations on the traveler and waiver of some important rights.  Nonetheless it is by far the entry most commonly used by eligible travelers.  If you are from a VWP country and need to stay longer than 90 days you can still apply for a B1/B2 visa at the local U.S. Embassy (consular affairs section) or Consulate.

Limitations:

• 90 day entry as a tourist for business or pleasure,
• Period of stay cannot be extended see, 8 C.F.R. § 214.1(c)(3)(i);
• Is not eligible to adjust status to permanent resident see,  I.N.A. § 245(c)(2) [8 U.S.C.1255(c)(2)];
• Execute (complete and sign) all required forms;
• Machine readable passport;
• Not a safety threat;
• No previous violation of conditions of any nonimmigrant admission;
• Round-Tript-Ticket in the nonimmigrants possession.
• Automated Identity check completed - this is transparent to the traveller but imposes obligations on carriers.

Waivers:

• The traveler waives any right to appeal or for review of an adverse decision made by an immigration officer at the time of admission; and if entrance is denied the traveler must obtain a U.S. visa prior to being allowed to enter in the future; and
• The traveler waives any and all defenses to deportation except on the basis of asylum.

Electronic System for Travel Authorization:

Effective January 12, 2009 All VWP travelers must pre-register with the US Customs and Border Protection and obtain advance travel authorization.  To do this go to the CBP web site: http://www.cbp.gov/xp/cgov/travel/id_visa/esta/