COVID Flight Cancellations – Options for Visa Waiver Program/ESTA Extensions

 

Visa Waiver Program Extensions: “Satisfactory Departure”

The Visa Waiver Program allows individuals from participating countries to visit the U.S. for tourism or business for 90 days or less without obtaining a visa. The travelers must have a valid Electronic System for Travel Authorization (ESTA) approval prior to their scheduled travel and are not eligible for an extension of stay or a change of immigration status. Due to the COVID-19 outbreak and continued travel restrictions, foreign nationals admitted using VWP or ESTA may be unable to depart the United States prior to the end of their current period of admission.

Visitors in the U.S. utilizing ESTA may be able to delay their departure due to emergency situations. A period of “Satisfactory Departure” may be granted, giving VWP visitors up to 30 additional days to depart the country. The request must be made during the authorized period of admission and while the individual is still in valid status. If Satisfactory Departure is approved, the individual must depart the U.S. within the approved period to be regarded as having made a timely departure without overstaying the allowed time.

Requesting Satisfactory Departures

Requests for Satisfactory Departure are generally adjudicated by the U.S. Citizenship and Immigration Services (USCIS) at an in-person appointment. On March 18, USCIS suspended all routine in-person services until at least April 7, 2020.

In extraordinary circumstances, U.S. Customs and Border Protection (CBP) may adjudicate requests for Satisfactory Departure. Some individuals admitted under the VWP may be stranded at U.S. airports due to canceled flights. Where appropriate, CBP has the authority to grant Satisfactory Departure if the individual is awaiting a canceled flight and the period of VWP admission is expiring prior to the traveler’s ability to depart.

Extensions for Stranded Travelers (At Certain Airports)

Currently CBP will only adjudicate requests made by VWP/ESTA travelers admitted through certain airports, but the list continues to grow. Travelers can contact the Deferred Inspections office at the airport to request Satisfactory Departure for a period of up to 30 days.

At John F. Kennedy International Airport (JFK) and Newark Liberty International Airport (EWR), requests are limited to those whose ESTA period of admission will expire within 14 days. At Raleigh-Durham International Airport (RDU), requests are limited to those whose VWP/ESTA period of admission will expire within three days.

At a minimum, travelers must provide the following information to the Deferred Inspections:

  • Full Name
  • Date of birth
  • Passport information
  • Original flight itinerary
  • New flight itinerary
  • Reason for the Satisfactory Departure request

Officers may request additional information, such as I-94 number and expiration date, additional evidence to support the request, documentation from the airline about flight cancellation, etc.

It is unclear if or when CBP will implement a similar process at other ports of entry, or if additional periods of Satisfactory Departure will be available to travelers who are unable to depart the United States beyond the 30-day window due to COVID-19–related travel issues.

While these developments affect all U.S. businesses, they will be particularly impactful for business sectors that typically have a significant number of foreign nationals in their workforce, such as investment funds, IT businesses, and consulting companies.

Individuals in the United States under the VWP who had intended to travel out of the United States prior to the end of their admission period, but who are now unable to depart due to travel restrictions implemented in their destination country, should apply for Satisfactory Departure. If granted, travelers would be granted up to an additional 30 days to leave without overstaying their ESTA approvals.

Do you have questions on the procedure for a specific port of entry? Please contact us at info@challalaw.com for the latest updates.

Visit our COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates.