US Visa Waiver Program goes electronic with ESTA

UK visitors to LegalTech in February should be aware of a change to the method of applying for authorisation under the US Visa Waiver Programme. The familiar old green form, completing which used to fill up some of the time spent queueing in the immigration hall, has been replaced as of 12 January by an electronic system called Electronic System for Travel Authorization or ESTA.

ESTA sounds a nice girl, but she is pretty strict, as you might reasonably expect. You find the electronic form on the US Customs and Border Protection web site, unless of course you do not have a computer, in which case you are stuffed. You will have to go to the US Embassy – but better hurry, because that is soon moving down to the southern suburbs of London. It will not only be the hardest building in London to get into, but the hardest one to find as well.

The questions are much the same as before. The reduction of these to electronic tick-boxes does at least remove the temptation to write “Sole purpose of visit” as the English broadcaster Gilbert Harding once did against the earnest questions about his plans for espionage or terrorism.

For most people the approval comes through in seconds, although you are advised to allow at least 72 hours in case questions arise. Once obtained, the authorisation lasts for two years or until your passport expires, whichever comes first. There is, for now, no fee.

Before you complain about it too much, do bear in mind that completing this process gives you an exemption from the requirement for the visa which would otherwise be required, and allows you to stay in the US for up to 90 days.

The new electronic system will perhaps make it easier for the US authorities to confirm that you have complied with the 90 day limit. When I came back from LegalTech last year, the airline forgot to remove from my passport the little green slip which should have been married up with the form completed on entry. I went in and out of the US in May without anyone noticing, but it was picked up in LA in August.

They were very decent about it and let me through. All I had to do, they said, was to write proving I had left the US within 90 days of my arrival in February. Easily done, you would think, especially as the advice letter included several suggestions as to what would be acceptable proof – the original outbound boarding pass, a letter from your employer or educational establishment or a signed credit card slip would be fine.

It quickly dawned on me that this was not the trivial exercise it appeared to be. No-one keeps boarding passes, I have no employer, I am not in education and the UK no longer uses signed credit card slips. I could produce several UK conference brochures showing that I was booked to speak, but the only written evidence that I had actually done so was my own account.

I was rather alarmed at how difficult it is to show where you were over such a period. Perhaps as New Labour rolls out its plans to keep us all under close surveillance, we will see a reversal of old habits. Where now Mr Plod says “Now then, now then, where were you on the night of the 13 March between 10.00 and 10.15 pm?” we will be asking him, to help us prove to our wives that we were in fact in the office that evening, to remind us where we might have left our keys, or to fill in the gaps after a heavy night out.

Anyway, I sent off the best I could assemble in the form of copy documents and was duly allowed back in when I next passed through LA, and not sent back whence I had come (just as well, since that was Sydney). Only later did it occur to me that I did in fact have a means of proving, at least on the balance of probabilities, that I had left New York when I said I had. My mobile phone breakdown showed my last call home from New York before I took off and my first call from Heathrow to say I had arrived. No-one parts company with their BlackBerry, do they?

All in all, it is worth taking immigration formalities seriously, or at least finding out what they are. Did you know, for example, that you need a visa to enter Australia? Nor did I, till I reached the front of the check-in queue at Heathrow en route for Sydney last October. Fortunately, the airline was able to fix it there and then. Two weeks later, that facility was withdrawn, so it was luck rather than planning which got me by.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in eDisclosure, eDisclosure Conferences, LegalTech. Bookmark the permalink.

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