Author: Jacob Morgan
Introduction/Overview
The Visa Waiver Program (VWP) allows citizens of (currently) 42 countries to travel to the U.S. for business or tourism for up to 90 days without a visa, as long as U.S. citizens can travel to their countries in the same way. The Electronic System for Travel Authorization (ESTA) is an online system which travelers from VWP countries must use to get pre-approval before visiting the United States.
Applying for ESTA does not guarantee entry into the U.S. and does not give any legal immigration status. U.S. Customs and Border Protection (CBP) officers make the final decision when travelers arrive at the border or airport.
Travelers can apply online or through the ESTA mobile app, paying the required fee and providing personal information. Applications can be submitted at any time before travel, but it is best to apply as early as possible, ideally before buying airline tickets.
ESTA authorization is typically valid for two years or until the traveler’s passport expires, whichever comes first. Travelers must update their authorization if any biographic or eligibility information changes.
Official ESTA applications and status checks can be done here: https://esta.cbp.dhs.gov.
What ESTA Is — and Is Not
ESTA is an automated system that determines, in advance of travel, whether a traveler is eligible under the VWP and poses no law enforcement or security risk. It is not a visa, does not guarantee admission, does not confer lawful immigration status, and provides no substantive immigration benefits.
Travelers entering under the VWP/ESTA are not authorized to work or receive payment in the United States. Permissible activities are generally limited to tourism, business meetings, conferences, or similar short-term professional activities. Engaging in employment, contracting, or other compensated work can result in future denial of entry, revocation of ESTA, and potential bars to future U.S. travel, in addition to removal under expedited procedures.
Countries Eligible for ESTA
Currently, there are 42 VWP-designated countries. Travelers from these countries may apply for ESTA to travel to the U.S., and U.S. citizens are generally permitted to travel to these countries for business or tourism for up to 90 days without a visa. A current list of eligible countries is maintained by CBP here: https://www.cbp.gov/travel/international-visitors/visa-waiver-program. Travelers should always confirm country eligibility via CBP updates before travel.
Grounds for ESTA and VWP Ineligibility
Travelers may be found ineligible for ESTA or VWP participation for a variety of reasons, including criminal history (e.g., crimes involving moral turpitude or controlled substance violations), prior immigration violations or overstays, previous visa refusals, travel to restricted countries such as Iran, Iraq, or Cuba, and misrepresentation or fraud on prior applications.
Waiver of Rights and Due Process Implications
Participation in the Visa Waiver Program (VWP) requires travelers to waive most procedural and removal-contestation rights, except for asylum claims. Courts have consistently upheld these waivers when they are knowingly and voluntarily executed.
VWP travelers are generally ineligible to adjust status to lawful permanent resident, except for immediate relatives of U.S. citizens. VWP travelers who are not immediate relatives of U.S. citizens are generally ineligible to adjust status to lawful permanent resident e in the U.S., unless a special statutory exception applies.
Travelers should also be aware that expedited removal procedures apply, limiting standard immigration court protections.
Consequences of Errors or Misrepresentation
Providing false statements on an ESTA application may constitute misrepresentation under Such errors can result in denial or revocation of travel authorization, even after travel has begun, and may lead to increased secondary inspections at ports of entry. Administrative remedies are limited, though affected travelers can submit inquiries through the DHS Travel Redress Inquiry Program (TRIP).
Travelers who encounter denials, revocations, or misidentification issues can submit inquiries via the DHS Travel Redress Inquiry Program (TRIP): https://www.dhs.gov/dhs-trip
Recent Changes to ESTA Applications
- Expansion to Land Borders
- Since May 2, 2022, ESTA is required for VWP travelers entering the U.S. by land from Canada or Mexico, eliminating reliance on paper Form I-94W.
- Mobile Application Submission
- CBP also accepts ESTA submissions via a mobile app—“ESTA Mobile”—for smartphones and tablets, available in 24 languages.
- The app allows travelers to submit applications, scan passports, verify identity via selfie, update personal/travel details, answer eligibility questions, track status, and store preferences for future applications.
- Enhanced Data Collection & Proposed Social Media Disclosures
- Current requirements include additional biographic data, aliases, employment info, emergency contacts, and selfies.
- Travelers must update their ESTA if they obtain a new passport, change name, gender, citizenship, or other eligibility answers.
- Proposed changes would make social media identifiers (usernames/handles used in the past five years) a mandatory field for all applicants, with public comment ongoing. Travelers should monitor CBP announcements for final implementation.
- Additional Proposed ESTA / I‑94 Revisions
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- In addition to the proposed mandatory social media disclosure discussed above, CBP published a notice on December 10, 2025 (90 FR 57208) requesting public comments on broader revisions to the ESTA and related systems. These proposals would require ESTA applicants to submit a current facial photograph (selfie) with all applications, align the ESTA website and mobile app processes, and potentially transition to a mobile‑only application platform. CBP also seeks comment on expanding ESTA data collection to include additional “high‑value” information such as phone numbers, email addresses, IP addresses, and expanded family data, and on related updates to the Form I‑94/entry‑exit record process. These proposals remain under review and are not yet final.
Fees
- The current ESTA fee is $40.27, effective January 1, 2026, due to inflation adjustments. This fee includes:
- $17 travel promotion fee
- $10 operational fee
- $13.27 Treasury General Fund fee
- The fee increased from $21 to $40 on September 30, 2025. Travelers should check the official ESTA site for the most up-to-date fee before applying.
Practical Takeaways for Clients
For businesspeople and families looking to travel Visa-free, be sure to check the ESTA site frequently for updates as established norms are under review and changing. When preparing for travel under the Visa Waiver Program (VWP), it is important to submit your ESTA application at least 72 hours before your departure. Make sure to keep your authorization updated if any of your personal or travel circumstances change. Always verify your country’s eligibility, as VWP participation can change unexpectedly, as was the case with Romania and Hungary. Be honest in all your responses, since any misrepresentation may result in denial, revocation, or additional scrutiny. Finally, be aware that aside from asylum claims, VWP travelers have limited recourse and waive most procedural rights.
Conclusion
CBP’s recent updates make ESTA compliance more comprehensive than ever, including mobile application use, enhanced screening, and expanded data collection. While the process remains pre-admission authorization rather than a visa or status, travelers must exercise care to meet eligibility requirements, submit accurate information, and monitor any policy changes that may affect travel under the VWP.
Please contact Messner Reeves LLP to consult with an immigration attorney regarding ESTA compliance and travel under VWP or any other matter related to visas and immigration.
Helpful Links:
- Submit or check your ESTA: https://esta.cbp.dhs.gov
- VWP Country Eligibility: https://www.cbp.gov/travel/international-visitors/visa-waiver-program
- DHS Travel Redress Inquiry Program (TRIP): https://www.dhs.gov/dhs-trip
- Federal Register Notices: https://www.federalregister.gov
