By Parviz Malakouti-Fitzgerald, Esq.
At Malakouti Law, we like don't like "entry prohibited" signs like this
Any threat to the ability of a person to be ESTA eligible or travel to the United States on ESTA is an ESTA attack vector.
Electronic System for Travel Authorization ("ESTA") is a program that allows citizens from 41 countries to enter the U.S. visa-free for up to 90 days, after filling out a short online questionnaire.
Article Outline:
Any Ground of "Inadmissibility"
These 41 countries are the visa- waiver ("VWP) countries.
Here are eight common ways your ESTA eligibility can be jeopardized or ended, including a few ways you might be unaware of.
1. Travel to a Restricted Country (There are 8)
A simple visit to this historical sites in Yazd, Iran could sink your ESTA access
Nationals of VWP countries who have traveled to any one of Iraq, North Korea, Syria, Iran, Sudan, Libya, Somalia, or Yemen at any time on or after March 1, 2011 no longer qualify for ESTA.
A citizen of a VWP country who doesn’t qualify for EST and wants to visit the United States has to apply for a B2 tourist visa. This means filling out a DS-160, finding an appointment (hopefully it doesn’t take 7 months!), and schlepping to a U.S. consulate in person for an interview.
This extra application friction means less travel freedom for you.
2. Any Grounds of "inadmissibility"
Convictions for certain crimes can be a ground of "inadmissibility"
Any ground of "inadmissibility" under U.S. immigration law will be a threat to your ESTA, and your ability to enter the United States in general, if you’re a non-citizen.
Grounds of inadmissibility are things you’ve done or qualities you have as a person that, under U.S. law, can keep you from entering the U.S. They are found in section 212(a) of the immigration and nationality act.
Even though you're not applying for a visa with ESTA, you're still subject to these grounds of inadmissibility.
Common examples of inadmissibility grounds are:
certain criminal convictions,
making a material misrepresentation (i.e. lying to immigration authorities!),
having immigrant intent
If you do something listed in the grounds of inadmissibility, you can lose your ESTA.
3. Previous ESTA Overstay
ESTA entrants who stay past 90 days will have trouble
If you come to the U.S. on ESTA and overstay your allotted ninety days, you'll be ineligible for ESTA afterwards. To return to the U.S., you'll have to apply for a B2 tourist visa.
Be prepared to explain your previous overstay if you apply for a B2 tourist visa
In that new B2 tourist visa application, you’ll need to have a good reason at your interview to show you won't overstay again. If you end up in this situation, you'll likely want to consult a qualified U.S. immigration lawyer.
4. Denial of Admission to the U.S.
An entry denial to the U.S. will likely cause problems for your ESTA
If you're denied entry to the U.S. on any ground of inadmissibility (discussed in attack vector 2), not only will you be denied on that entry, but you should expect your ESTA to be revoked for future visits.
You'll likely have to apply for a B2 tourist visa and possibly “Hranka waiver” as well (depending on why you were inadmissible!)
5. Expired Passport.
Beware of the expiration date on your travel permission slip a.k.a. your passport
Your ESTA approval is generally good for two years or when your passport expires, whichever period is shorter. So if your passport expires first, you should apply again for ESTA on the new passport.
Note: In my experience, this is one of the top two things about ESTA that people with ESTA are unaware of.
6. Travel Within North America Counts Towards
the 90 Day Limit
Cayo Levantado in the Dominican Republic would be an example of a destination that qualifies as an "adjacent island"
Travel within N. America or "adjacent islands" from the United States counts towards your 90 days if you return directly to the U.S. Many people do not know this!
If you travel to the U.S. then to Mexico, Canada or "adjacent islands" (under 8 USC 1101(5) listed below), and then return to the United States, you'll generally be admitted for the time remaining on your 90 days. This includes a reduction in time for the days you spent in Mexico, Canada or the adjacent islands.
(5) The term "adjacent islands" includes Saint Pierre, Miquelon, Cuba, the Dominican Republic, Haiti, Bermuda, the Bahamas, Barbados, Jamaica, the Windward and Leeward Islands, Trinidad, Martinique, and other British, French, and Netherlands territory or possessions in or bordering on the Caribbean Sea.
Note: in my experience, this is the top thing that people with ESTA are unaware of the other one of the top 2 things about ESTA that people are UNAWARE of.
7. Citizenship in Certain Countries - Iraq, Syria, Iran, North Korea or Sudan
Coming on the radar as an Iranian citzizen in order to get an Iranian passport could jeopardize your ESTA .
Nationals of VWP countries who are also nationals of Iraq, Syria, Iran, North Korea or Sudan aren’t eligible to travel to the U.S. under ESTA.
These aren't very popular naturalization destinations for ESTA program participants, but some people get "recognized" as citizens in these countries in adulthood via verification (a form of citizenship by descent).
Beware of this attack vector.
8. Attempt to Re-enter Too Soon (Immigrant Intent)
If you travel to the U.S. on ESTA for a period that's closely approaching your 90 day limit, then leave North America for a short period of time then try to enter the U.S. again on ESTA, you could be refused under INA 214(b) for immigrant intent.
That refusal could result in a denial of your ESTA authorization. So make sure to have ample time chilling in your home country or traveling outside
You can come back to the U.S. after an ESTA visit...but not too soon
Believe it or not, there’s no statute or regulation from U.S. CBP stating exactly how many days you have to be outside the U.S. before you can visit again on ESTA. Every case has multiple variables and must be evaluated individually.
My general rule of thumb to start off with is that one should spend at least as much time outside of the U.S. as in their last trip to the U.S. before they attempt to return again on ESTA.
9. ESTA is Not a Right
ESTA is a fragile thing. U.S. immigration authorities can strip it from people and do so.
Don’t make the mistake of thinking your ESTA access to the United States is bulletproof.
Good luck!
Each immigration and citizenship case is particular and you should consult with a qualified immigration and citizenship lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.