To paraphrase a world-famous playwright, “To ESTA or not to ESTA, that is the question…” [1] In other words, for a would-be foreign traveler to the United States, what is the best option to legally enter and stay in the country for the planned period of time – obtaining a nonimmigrant visa (such as a B-1/B-2 visa) or taking advantage of the United States’ Visa Waiver Program via the Electronic System for Travel Authorization (ESTA)? The answer to that question depends on a large number of facts and circumstances unique to each travel situation. This article will outline the basic differences between these two very common options for foreign travelers to seek and obtain approval to enter the United States on a short-term basis. [2]
Background
For more than 100 years, the only practical solution for the vast majority of foreign travelers and visitors to legally enter and stay in the United States for any period of time was to obtain a visa (a “B” visa for business or leisure travel, for instance, or an “F” visa for approved institutional study, just to name a few examples of nonimmigrant visas). The process and procedure to apply for and obtain the appropriate visa is subject to several factors, however, and is often time-consuming, many times taking up to three months or more in certain circumstances. The very document-intense and time-consuming nature and process of obtaining the proper nonimmigrant visa may cause planning and scheduling headaches for would-be visitors to the United States, especially for short vacations or business trips.
If, however, a prospective visitor to the United States desires to visit for a (relatively) short vacation or tourism or for a business trip, a more convenient and viable option might be the Visa Waiver Program, which is sponsored by the United States and administered by the United States Department of Homeland Security (“DHS”) in consultation with the U.S. State Department.
This article will discuss each option and will address some basic legal aspects of each. It should go without saying that any prospective traveler to the United States will need his or her valid passport (and an e-passport is absolutely required for use with the Visa Waiver Program, in any event).
Visa
For most of the 20th century and until the late 1980s the only viable option (in most circumstances) for the resident of another country to legally visit the United States was to obtain a visa. A visa is an authorization that allows holders to enter and visit the United States for specific purposes, so long as such stays are temporary and have a clear departure date.
Obtaining an appropriate nonimmigrant visa (with all that entails) is a valid and powerful option to legally visit the United States, either for a short vacation or an extended, multi-year stay for school or work. Indeed, in the majority of instances, such a visa will be the only option to accomplish most travel purposes. The several visa types and options are so varied that this article does not have the space for a deep dive. Suffice it to say that prospective foreign visitors who plan or desire to stay in the United States for a period of time longer than just a few short visits should consider taking the steps necessary to obtain the appropriate visa for their planned visit or stay.
Visitors entering the United States under an appropriate nonimmigrant visa may be permitted to stay and remain in the United States for an extended period of time, albeit for the specified reason for travel (e.g., while enrolled at an educational institution for approved study, for an F-1 visa). Those reasons carry with them certain restrictions or conditions. A student in the United States on an F-1 visa cannot be employed off-campus while attending school, for example, while employees on an “H” visa (e.g., H-1B, H-1B1, H-2A, H-2B, H-3, etc.) will require sponsorship from a prospective employer and may only stay a fixed period of time.
Perhaps the most popular of nonimmigrant visas among travelers is the “B” visa (B-1 or B-2), for business or leisure travel. With the appropriate “B” visa, a traveler can visit the United States for either tourism or to engage in temporary business, such as visiting U.S. companies and contacts. A B-1 or B-2 visa will remain valid for a long period of time depending on the traveler’s nationality (for Japanese travelers it is 10 years). Although a B-1 or B-2 visa will remain valid for a specified period of time, that does not guarantee the length of a given stay. For that, a traveler will rely upon the travel authorization (I-94) he or she receives at the time of arrival in the United States. In any event, the maximum initial length of time for any given stay is six months, and this will be detailed in the traveler’s I-94 arrival/departure form, which is generally created and maintained electronically now, via an application (the CBP One mobile app) or website (https://i94.cbp.dhs.gov/I94/#/home), rather than on a physical piece of paper. It is possible to extend the six-month limit, but this must be carefully managed by making an application at least 45 days prior to the expiration of the initial period. Even then, an extension is not guaranteed.
Obtaining a B-1 or B-2 visa will require completing quite a bit of paperwork, including your form DS-160, which can be a time-consuming process. Travelers will also need to provide support documents (including, at the very least, a photograph, the form DS-160 confirmation page, proof of visa payment, and a printout of your interview appointment letter). A traveler may be required to also produce a detailed explanation as to the reason for the visit and itinerary, employment-related documents, and/or letters of invitation from family, friends, or businesses in the United States. These documents are important to prove “non-immigrant intent” and to demonstrate that the traveler has every intent to return to his or her home country after completing the visit to the United States. A good practice is to prepare all of these things and plan on producing them, even if one may not be asked for all of them right away. There is also a filing fee (usually USD $160.00 [3]). Following the submission of the DS-160 and the payment of the visa fee, an applicant will then need to schedule an interview with the United States Embassy or a local consulate. The schedule for such an interview is not always definite, and it could entail a wait time longer than an applicant may expect.
The upshot of the B-1/B-2 visa application process (as well as any other visa application process) is that it is time-consuming, intensive, and relies upon other parties when calculating the time outlay for completion and approval. These are only some of the reasons that gave rise to the Visa Waiver Program.
The Visa Waiver Program and the Electronic System for Travel Authorization
In 1986, the United States Congress passed legislation that created the Visa Waiver Program, with the aim to permit citizens from (now) 40 countries to travel to the United States for the limited purposes of business or tourism, with stays of up to 90 days without a visa. This agreement with the signatory countries is reciprocal, and those 40 countries must permit United States citizens and nationals to travel to their countries for a similar length of time without a visa for business or tourism purposes. See United States Customs and Border Protection – Visa Waiver Program, accessed at https://www.cbp.gov/travel/international-visitors/visa-waiver-program. Japan was the second signatory nation to this process (following only the United Kingdom), becoming active in December 1988. [4]
The permitted purposes for travel under the Visa Waiver Program are the same as those for the B-1 or B-2 visa described briefly above – tourism (such as a vacation, visiting family or friends), medical treatment, or business (such as consulting with business associates, attending conferences, short term training, or contract negotiations) to name a few purposes.
Travel authorization under the Visa Waiver Program is accomplished via the Electronic System for Travel Authorization, commonly referred to as ESTA. ESTA is a computerized and largely automatic system that is designed to determine the eligibility of visitors to travel to the United States under the Visa Waiver Program. It is vital to remember that receiving authorization to travel to the United States via ESTA does not constitute a determination as to whether a traveler is admissible to the United States. United States Customs and Border Protection (CBP) officers will make the determination of admissibility upon travelers’ arrival. In other words, the computerized system does not make the ultimate decision as to whether a visitor may actually enter the United States. ESTA is merely an information – a method to sort through a significant amount of information quickly and efficiently in order to facilitate a traveler’s anticipated busy travel schedule. And while ESTA is impressive in its capabilities, it is CBP officers who will make the ultimate decision as to whether one may actually enter the United States. They will do that right at the port of entry – usually at the airport in the United States.
The application process via ESTA is relatively simple, especially when compared with the laborious process of a traditional visa application. First, however, a prospective traveler must have a valid e-Passport – an enhanced secure passport with an embedded electronic chip. A traveler will know he or she has an e-Passport because it will have a unique international symbol on the cover.
Having his or her e-Passport, the traveler will enroll in ESTA via the website noted above, and complete the online application, which will include biographical and other answers to the Visa Waiver Program eligibility questions. All in all, the process generally takes less than an hour, and the fee is also quite small, especially when compared with the traditional visa filing fee – only USD $14.00 total between the processing and the authorization charges. ESTA applications may be submitted at any time prior to travel. A wise practice would be to apply as soon as a traveler begins preparing travel plans or prior to purchasing airline tickets. At a minimum, a traveler should apply at least 72 hours prior to travel.
Final notes regarding the difference between ESTA and B-1/B-2 visas
It is important to remember that while the ESTA is valid for two years, the maximum length of a stay in the United States is only 90 days, which cannot be extended. This is different from the B-1 or B-2 visas, which may be extended, as described above. Another significant difference is that while the B-1/B-2 visa is not a green card and does not give a traveler to the United States permanent resident status, one is allowed to enter the United States on the B-1/B-2 visa and then subsequently take actions to change one’s visa status inside the U.S. This is not permitted with ESTA. With ESTA, a traveler is representing that he or she only intends to remain in the United States for a short period of time and to not attempt any change of status. Finally, one may not apply for ESTA if one already holds a valid and current B-1/B-2 visa (or any other visa).
Conclusion
The answer to the initial question at the beginning of this article is complex and fact-determinative. Circumstances may dictate that a traveler apply for a B-1/B-2 visa instead of taking advantage of the relative ease of ESTA. However, for a short, uncomplicated pleasure or business trip, the convenience and flexibility of ESTA may often make that the default choice for many would-be travelers to the United States. Whatever the choice, both will ultimately work for the vast majority of travelers. The fact that both options exist and are viable is a major benefit for travelers in this day.
[1] Shakespeare, William. Hamlet, Act III, Scene I.
[2] This article will deal primarily with a comparison of the visa waiver program with nonimmigrant visas, such as the B-/B-2 visa. Immigrant visas (which generally require employment or family sponsorship) are not generally comparable with travel under the Visa Waiver Program due to the more permanent nature of such visas, and the common end goal of becoming a lawful permanent resident of the United States or a U.S. citizen.
[3] From June 17th 2023, the usual price changed to $186.
[4] Only these 40 countries are permitted under the Visa Waiver Program, with the list found at https://www.dhs.gov/visa-waiver-program-requirements. Also, travelers from these countries who have traveled to or been present in Iran, Iraq, North Korea, Sudan, Syria, Libya, Somalia and Yemen on or after March 1, 2011, will not be able to use ESTA or the Visa Waiver Program. In that event, they still can apply for a B-1 or B-2 visa.
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