USA: ESTA's and National
Interest Exceptions

13 August 2021

The Electronic System for Travel Authorization (ESTA) is an automated system used to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP), and whether such travel poses any law enforcement or security risk.

All nationals or citizens of VWP countries who plan to travel to the US on a plane or cruise ship for temporary business or pleasure for 90 days or less under the VWP will need to obtain authorisation via ESTA. There should be a reasonable amount of time between visits to confirm you are not living in the United States. If a traveller is planning to transit through the United States enroute to another country, an authorisation via ESTA is still required.

How to apply for ESTA

To apply for ESTA authorisation, you should visit the official government website at https://esta.cbp.dhs.gov. You will need to answer all required questions and submit your application for travel authorisation online.

When do I need to reapply for a new ESTA?

A new travel authorisation via ESTA is required when:

• The traveller is issued a new passport
• The traveller changes his or her name

National Interest Exceptions

Pre-covid, an individual could travel to the United States with just an approved ESTA. However, the travel bans imposed by the US government during the pandemic created enormous logistical challenges for anyone seeking to fly to the US from a country on the travel ban list.

For this reason, National Interest Exceptions were introduced, allowing travellers to request exemption from the travel ban and enter the US if their reason for travel is considered to be of national interest.

Even today, there is still a great deal of confusion regarding who is subject to the travel ban, what are the exceptions, and how to go about applying for a NIE waiver.  On 6 July 2021, the US State Department publicly announced that the travel ban waivers related to the worldwide pandemic will now be valid for 1 year and multiple entry.

The effective date of this new decision is 29 June 2021.  Previously, they were only valid for 30 days and a single entry.  In addition, those that have received a waiver in the past may now use it for 12 months if it was granted after 29 June 2020.

NIE Checklist

Our NIE checklist below sets out all you need to know about applying for an exception.

• Applicants must be physically present in the countrywhere the NIE will be filed at the time of submitting the NIE request to the US embassy or consulate.
• As of 6 July 2021, NIEs are valid for multiple entries within 365 days of issuance.  Previously, they were only valid for a single entry within 30 days of issuance.
• Family members are unlikely to get an NIE.  Spouses and children seeking a NIE waiver to travel on ESTA are not likely to be approved since the spirit of the rule is to support critical business travel.
• The following countries are currently part of the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Holland, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and England.
• Check the local US Consulate for NIE filing instructions. Make sure your ESTA registration is current.  They are valid for 2 years at a time.  If your ESTA is expiring, you may apply for a new 2-year period at any time but once you do so it will cancel out your current ESTA registration.
• Ensure that your passport is valid for at least 6 months beyond the intended stay, otherwise US Customs and Border Protection (CBP) may deny entry or severely limit the period of stay.

Support with US immigration

If you have any US immigration queries, Smith Stone Walters would be delighted to help.

Our Global Immigration team can offer full end-to-end support with your visa application process. Plus, our team based in New York is on hand to provide any assistance you may need post-arrival. To speak to a member of the team, please contact us today.

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