UNCLASSIFIED (U)

9 Fam 200
(U) travel to the united states with other documents, non-visa travelers

9 FAM 201
(U) exemptions and waivers of visa and/or passport requirements

9 FAM 201.1

(U) Nonimmigrant Travel Without a Visa and/or Passport

(CT:VISA-891; 07-15-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 201.1-1 (U) Statutory and regulatory authorities

9 FAM 201.1-1(A) (U) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 212(a)(7)(A) (8 U.S.C. 1182(a)(7)(A)); INA 212(a)(7)(B) (8 U.S.C. 1182(a)(7)(B)); INA 212(d)(3)(B) (8 U.S.C. 1182(d)(3)(B)); INA 212(d)(4) (8 U.S.C. 1182(d)(4)); INA 212(d)(7) (8 U.S.C. 1182(d)(7)); INA 212(d)(8) (8 U.S.C. 1182(d)(8)); INA 212(l) (8 U.S.C. 1182(l); INA 248 (8 U.S.C. 1258); INA 284 (8 U.S.C. 1354); INA 289 (8 U.S.C. 1359).

9 FAM 201.1-1(B) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.1 and 22 CFR 41.2.

9 FAM 201.1-2 (U) NIV Travel without a Visa and/or passport

9 FAM 201.1-2(A) (U) Overview

(CT:VISA-1; 11-18-2015)

a. (U) In General: U.S. visa policy permits citizens of certain countries to travel to the U.S. without a visa, when they meet certain requirements, under U.S. laws. There are also circumstances in which a passport and/or visa may not be required, or the requirement waived.

b. (U) K Visa Alien Not Entitled to Nonimmigrant Visa Waiver: An alien qualifying for a K visa as the fiancé(e) of a U.S. citizen is not entitled to a waiver of the NIV requirement regardless of circumstances.

c. (U) Transporting Undocumented Aliens to United States: Posts must inform carriers inquiring about transporting an undocumented alien that they would be subject to a fine unless such alien is within one of the categories listed in 22 CFR 41.2 or 22 CFR 41.3.

9 FAM 201.1-2(B) (U) Transporting Undocumented Aliens Requiring Waivers of Passport and Visa to the United States

(CT:VISA-891; 07-15-2019)

a. (U) You must request concurrence for waivers of passport and visa requirements for any NIV case, except K, T, U and V applicants, in which an applicant is refused under INA 212(a)(7)(B) and meet the criteria in 22 CFR 41.3 through U.S. Customs and Border Protection (CBP). For any IV case, to include the excepted quasi-immigrant categories listed above refused under 212(a)(7)(B), in which an applicant is refused under 212(a)(7)(A) and meets the criteria in 22 CFR 42.2 should be processed through the CBP Director at the Port of Entry (POE). It is at the discretion of DHS, usually the CBP director at the Port Of Entry (POE) or Admissibility Review Office (ARO) to determine if a waiver of the passport requirement will be granted.

b. (U) There are two methods to request a passport waiver for NIV applicants:

(1) Unavailable

(a) Unavailable

(b) Unavailable

(2) (U) CBP POE WAIVERS: This is the appropriate passport waiver request when processing IV and DV cases that do not meet the criteria in 22 CFR 42.2 (immediate relatives that do not fall in to category 22 CFR 42.2 (a-c), employment based visas, K visas, DV, and special immigrant visas) and all other NIV passport waiver requests that ARO does not process. IV, DV, and NIV cases that ARO will not process cannot be processed through ARIS and must be processed through the CBP port of entry based on the aliens scheduled travel itinerary. IV cases that do not meet the criteria in 22 CFR 42.2 are submitted through the designated VO/F liaison in charge of passport waivers. The passport waiver request should be submitted to the designated VO/F liaison no more than one month in advance, but no less than 3 days prior to travel. The VO/F liaison will inform post when CBP has granted the passport waiver. If there is an urgent passport waiver request that fall under the expedite criteria as described in 9 FAM 305.4-3(F) that requires concurrence in less than 10 days, you may submit those to the designated VO/F liaison in charge of passport waivers for immediate assistance.

(3) (U) Imminent Expedited POE Waivers: If there is an extremely urgent, usually life and death situations, passport waiver request outside of normal Washington D.C. work hours, please contact the CA/VO Duty Officer.

c. Unavailable

d. Unavailable

e. (U) Furnishing Information Concerning Waivers to Immigration Officers:

(1) (U) Consular officers must furnish the following information to CBP officers when requesting concurrence in waivers of passport and visa requirements in the NIV Passport Waiver template:

(a) (U) Aliens full name with all aliases;

(b) (U) Date and place of birth;

(c) (U) Nationality;

(d) (U) Flight itinerary including the date and port of expected arrival in the United States; please include the flight reservation as an attachment in the email if you have it. (If the POE is undetermined, please submit a tentative itinerary with the tentative POE. CBP will not consider the passport waiver request without a POE and travel itinerary as it is up to the POE to accept or reject the passport waiver request);

(e) (U) Nonimmigrant classification;

(f) (U) Documents to be waived;

(g) (U) A brief summary of the circumstances surrounding the case which must include information indicating that all of the requirements of the subparagraph of 22 CFR 41.3 under which the waiver is recommended have been met; and

(h) (U) Name, address and telephone number of the person the alien intends to visit in the United States.

(2) (U) In cases falling within 22 CFR 41.3(e), consular officers should also furnish the following information:

(a) (U) Name, nationality and type of carrier, if any (for example, battleship, training vessel, or aircraft);

(b) (U) The purpose of entry;

(c) (U) Date and port of expected arrival in the United States, other ports of call in the United States, if any, and period of anticipated stay in each port; and

(d) (U) Number, rank, if any, and nationality of members of group.

f. (U) Officers must notify the designated VO/F liaison with any itinerary changes. If the applicants itinerary changes to a different POE a new waiver of passport request must be submitted. CBP POE concurrence is granted by the Port Director at the POE, therefore a new request must be submitted.

9 FAM 201.1-3 (U) nationality- and geography-based exemptions and waivers of Nonimmigrant visa and passport requirements

9 FAM 201.1-3(A) (U) Related Statutory and Regulatory Authorities

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.2; 8 CFR 212.

9 FAM 201.1-3(B) (U) Canadian Citizens, Residents

(CT:VISA-872; 06-26-2019)

a. (U) Visa Requirement: A visa is not required for Canadian citizens except for those who apply for admission in E, K, V, or S nonimmigrant classifications as provided in paragraphs (k) and (m) of 22 CFR 41.2 and 8 CFR 212.1.

(1) (U) Canadian Citizens Seeking Admission as Treaty Traders or Treaty Investors: During the United States-Canada Free Trade Agreement negotiations, it was recognized that the E visa classification is extremely technical and sometimes quite complex. All parties agreed that the visa process was the best way to accord this classification. 22 CFR 41.2(m) removes the visa exemption for Canadian citizens who seek to enter the United States as treaty traders/investors under INA 101(a)(15)(E). Such Canadian citizens must apply for an E visa at a U.S. embassy or consulate. (See 9 FAM 402.9.)

(2) (U) Canadian Citizens Seeking Admission under the North American Free Trade Agreement: Citizens of Canada seeking admission to the United States under provisions of the NAFTA are exempt from the visa requirement, unless seeking classification under INA 101(a)(15)(E). (See also 9 FAM 402.17.)

b. (U) Passport Requirement: As provided by 22 CFR 41.2, a passport is required for Canadian citizens applying for admission to the United States, except when one of the following exceptions applies:

(1) (U) NEXUS Program: A Canadian citizen who is traveling as a participant in the NEXUS program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of 22 CFR 41.2 and 8 CFR 212.1, may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A Canadian citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may present a NEXUS program card.

(2) (U) FAST Program: A Canadian citizen who is traveling as a participant in the FAST program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of 22 CFR 41.2 and 8 CFR 212.1, may present a valid FAST card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.

(3) (U) SENTRI Program: A Canadian citizen who is traveling as a participant in the SENTRI program, and who is not otherwise required to present a passport and visa as provided in paragraphs of 22 CFR 41.2 and 8 CFR 212.1, may present a valid SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.

(4) (U) Canadian Indians: If designated by the Secretary of Homeland Security, a Canadian citizen holder of an Indian and Northern Affairs Canada (INAC) card issued by the Canadian Department of Indian Affairs and North Development, Director of Land and Trust Services (LTS) in conformance with security standards agreed upon by the Governments of Canada and the United States, and containing a machine readable zone, and who is arriving from Canada, may present the card prior to entering the United States at a land port-of-entry.

(5) (U) Children: A child who is a Canadian citizen who is seeking admission to the United States when arriving from contiguous territory at a sea or land port-of-entry, may present certain other documents if the arrival meets the requirements described below:

(a) (U) Children Under Age 16: A Canadian citizen who is under the age of 16 is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry.

(b) (U) Groups of Children Under Age 19: A Canadian citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when applying for admission to the United States from contiguous territory at all land and sea ports-of-entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:

(i) (U) The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead:

         The name of the group, organization or team, and the name of the supervising adult;

         A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay;

         A list of the children on the trip; and

         For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.

(ii) (U) The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (a) above that he or she has obtained for each child the consent of at least one parent or legal guardian.

(iii) (U) The procedure described in this paragraph is limited to members of the group, organization, or team that are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in 22 CFR 41.2, 8 CFR 212 and 8 CFR 235.

(6) (U) Enhanced Driver's License Programs: Upon the designation by the Secretary of Homeland Security of an enhanced driver's license as an acceptable document to denote identity and citizenship for purposes of entering the United States, Canadian citizens may be permitted to present these documents in lieu of a passport when seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the Federal Register, documents designated under this paragraph. A list of the documents designated under this paragraph will also be made available to the public.

c. (U) Aliens Residing in Canada or Bermuda:

(1) (U) Common Nationality Includes Commonwealth Countries and Ireland: The waiver of passport and visa requirements provided by 22 CFR 41.2(b) for permanent residents of Canada or Bermuda who have a common nationality with Canadians or with British subjects in Bermuda, is considered to include citizens of all Commonwealth countries, as well as citizens of Ireland. (See 9 FAM 201.1-3(F) paragraph (7)).

(2) (U) Stateless Alien Residents of Canada or Bermuda Not Entitled to Waiver: Permanent residents of Canada or Bermuda who are nationals of one of the Commonwealth countries listed in 9 FAM 201.1-3(F) paragraph (7) may be granted a waiver of visa and passport requirements. An alien resident of Canada or Bermuda who is the bearer of a certificate of identity or other stateless person's document issued by the government of one of these countries may not benefit from the waiver.

9 FAM 201.1-3(C) (U) American Indians Born in Canada

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.2(a) provides that a nonimmigrant visa is not required for an American Indian born in Canada having at least 50 percentum of blood of the American Indian race.

9 FAM 201.1-3(D) (U) Mexican Nationals

(CT:VISA-475; 12-13-2017)

(U) Pursuant to 22 CFR 41.2(g) the visa and/or passport requirements for Mexican nationals may be waived under the following circumstances:

(1) (U) Border Crossing Card: A visa and a passport are not required of a Mexican national who is applying for admission from Mexico as a temporary visitor for business or pleasure at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national is in possession of a Form DSP150, B1/B2 Visa and Border Crossing Card, containing a machine-readable biometric identifier, issued by the Department of State.

(2) (U) Kickapoo Indian Tribe: A visa and a passport are not required of a Mexican national who is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I872 American Indian Card issued by U.S. Citizenship and Immigration Services (USCIS).

(3) (U) Airline Crew: A visa is not required of a Mexican national employed as a crewmember on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.

(4) (U) Military or Civilian Officials: A visa is not required of a Mexican national bearing a Mexican diplomatic or official passport who is a military or civilian official of the Federal Government of Mexico entering the United States for a stay of up to 6 months for any purpose other than on assignment as a permanent employee to an office of the Mexican Federal Government in the United States. A visa is also not required of the official's spouse or any of the official's dependent family members under 19 years of age who hold diplomatic or official passports and are in the actual company of the official at the time of entry. This waiver does not apply to the spouse or any of the official's family members classifiable under INA 101(a)(15)(F) or INA 101(a)(15)(M).

9 FAM 201.1-3(E) (U) Natives and Residents of the Freely Associated States

(CT:VISA-784; 05-15-2019)

a. (U) Pursuant to 22 CFR 41.2(g) a visa and a passport are not required of a native and resident of the Trust Territory of the Pacific Islands who has proceeded in direct and continuous transit from the Trust Territory to the United States.

b. (U) A native and resident of the Freely Associated States (formerly the Trust Territory of the Pacific Islands), traveling to the United States, but not in direct and continuous transit, may be issued a nonimmigrant visa (NIV) without being charged the reciprocity fee. The visa may be valid for a period and number of applications for admission consistent with the traveler's needs. (See Reciprocity Schedule under country concerned for the number of applications and validity of visa.) The applicant, however, must pay the machine-readable visa (MRV) fee.

9 FAM 201.1-3(F) (U) Certain British, French, and Netherlands Nationals, Citizens, and Subjects

(CT:VISA-602; 06-08-2018)

(U) Pursuant to 22 CFR 41.2(b) - (e) the passport and/or visa requirement is not required in the following circumstances:

(1) (U) Citizens of the British Overseas Territory of Bermuda: A visa is not required, except for Citizens of the British Overseas Territory of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa classification as provided in paragraphs (k) and (m) of 22 CFR 41.2 and 8 CFR 212.1. A passport is required for Citizens of the British Overseas Territory of Bermuda applying for admission to the United States. See also 9 FAM 201.1-3(B) paragraph c regarding permanent and alien residents of Bermuda.

(2) (U) Bahamian Nationals and British Subjects Resident in the Bahamas: A passport is required. A visa is not required if, prior to the embarkation of such an alien for the United States on a vessel or aircraft, the examining U.S. immigration officer at Freeport or Nassau determines that the individual is clearly and beyond a doubt entitled to admission.

(3) (U) British Subjects Resident in the Cayman Islands or in the Turks and Caicos Islands: A passport is required. A visa is not required if the alien arrives directly from the Cayman Islands or the Turks and Caicos Islands and presents a current certificate from the Clerk of Court of the Cayman Islands or the Turks and Caicos Islands indicating no criminal record.

(5) (U) Nationals and Residents of the British Virgin Islands:

(a) (U) A national of the British Virgin Islands and resident therein requires a passport but not a visa if proceeding to the United States Virgin Islands.

(b) (U) A national of the British Virgin Islands and resident therein requires a passport but does not require a visa to apply for entry into the United States if such applicant:

(i) (U) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin Islands;

(ii) (U) Is traveling to some other part of the United States solely for the purpose of business or pleasure as described in INA 101(a)(15)(B);

(iii) (U) Satisfies the examining U.S. Immigration officer at that port of entry that he or she is admissible in all respects other than the absence of a visa; and

(iv) (U) Presents a current Certificate of Good Conduct issued by the Royal Virgin Islands Police Department indicating that he or she has no criminal record.

(6) (U) Waiver for British Subjects Attached to Canadian and British Government Organizations in Canada: British subjects and their families attached to Canadian or British Government organizations in Canada, including the military, though not "permanent residents," may be regarded as nationals of Canada and eligible for the waiver provided under 22 CFR 41.2(a).

(7) (U) List of Commonwealth Countries and Ireland:

9 FAM 201.1-4 (U) Visa Waiver Program (VWP)

9 FAM 201.1-4(A) (U) Related Statutory and Regulatory Authorities

9 FAM 201.1-4(A)(1) (U) Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 101(a)(15)(B) (8 U.S.C. 1101(a)(15)(B)); INA 217 (8 U.S.C. 1187).

9 FAM 201.1-4(A)(2) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.2(l); 8 CFR 217.2(c)(1).

9 FAM 201.1-4(A)(3) (U) Public Laws

(CT:VISA-475; 12-13-2017)

(U) Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110 - 53, sec. 711.

(U) Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.

9 FAM 201.1-4(A)(4) (U) Other

(CT:VISA-475; 12-13-2017)

(U) 82 Fed. Reg. 56100.

9 FAM 201.1-4(B) (U) Overview

(CT:VISA-1; 11-18-2015)

a. (U) Introduction to VWP: The Visa Waiver Program (VWP) provides for visa-free travel by nationals of designated countries coming to the United States for tourism or business (B visa purposes) for a period not to exceed 90 days, provided the traveler meets the requirements in 9 FAM 201.1-4(C). The Secretary of Homeland Security, in consultation with the Secretary of State, is authorized to designate the countries eligible to participate in the VWP.

b. (U) Travelers Not to Be Discouraged from Seeking Visas:

(1) (U) Although use of the VWP is encouraged, travelers availing themselves of the program should be made aware of the risks involved and the surrendering of certain rights. Consequently, they should not be discouraged from seeking normal visa services, although posts may wish to prioritize appointments for applicants who are required to have visas to travel.

(2) (U) When a traveler opts to apply for a visa in lieu of choosing to travel under the VWP, consular officers must apply the same U.S. immigration law standards to the case that they would to any other visa applicant, including INA 214(b).

(3) (U) It is important to remember that although a traveler may be a citizen or eligible national of a VWP country, this does not necessarily mean that he/she qualifies for VWP travel.

9 FAM 201.1-4(C) (U) VWP Traveler Eligibility Requirements

(CT:VISA-872; 06-26-2019)

a. (U) General VWP Eligibility Requirements: An alien who is a national of a participating VWP country does not require a visa, provided the alien:

(1) (U) Is applying for admission as a nonimmigrant visitor, as described in INA 101(a)(15)(B);

(2) (U) Seeks to enter the United States for a period not to exceed 90 days;

(3) (U) Possesses a valid e-Passport issued by a VWP designated country (see 9 FAM 201.1-4(D) below;

(4) (U) Does not require a visa due to travel history or dual nationality restrictions set forth in the Visa Waiver Program Improvement and Terrorist Travel Prevent Act of 2015 (see 9 FAM 201.1-4(C) paragraph (b) below;

(5) (U) Possesses a valid Electronic System Travel Authorization (ESTA);

(6) (U) Waives any right otherwise provided in the Immigration and Nationality Act to administrative or judicial review or appeal of an immigration officers determination of admissibility;

(7) (U) Waives any right to contest, other than on the basis of an application for asylum, any action for removal;

(8) (U) Can provide evidence of financial solvency; and

(9) (U) Can provide evidence of a domicile abroad.

b. (U) Restrictions Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015: Some nationals of VWP countries are restricted from travelling to the United States under the VWP as a result of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the "Act"). These restrictions do not prohibit travel to the United States; an individual who is impacted by these restrictions may apply for a visa for travel to the United States. An ineligibility for VWP travel under the Act does not constitute grounds for a visa denial (see 9 FAM 201.1-4(C) paragraph (i)(2) below). These restrictions fall into two categories:

(1) (U) Travel-related restriction: Nationals of VWP countries who have traveled to or who have been present in Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria or Yemen on or after March 1, 2011 (with limited exemptions and waivers defined below).

(2) (U) Dual nationality restriction: Nationals of VWP countries who are also nationals of Iran, Iraq, North Korea, Sudan, or Syria.

c. (U) Exemptions under the Act to the Travel-Related Restriction: VWP travelers are exempted under the law from the travel-related restriction if the reason for their presence in Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria, or Yemen was to perform military service in the armed forces of a program country, or in order to carry out official duties as a full-time employee of the government of a program country. However, these military and official government services exemptions do not apply to family members who accompanied an official in Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria or Yemen on or after March 1, 2011. These exemptions do not apply to those who are also restricted based on dual nationality.

d. (U) Waivers of the Restriction: The Secretary of Homeland Security has authority to waive travel-related and dual nationality restrictions if issuing a waiver is in the law enforcement or national security interests of the United States. Waivers will be adjudicated on a case-by-case basis. Certain waivers for the travel-related restriction have been incorporated into the ESTA application process. No separate waiver application is required. Waivers may be considered for the following categories of travelers:

(1) (U) Individuals who traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen on behalf of international organizations, regional organizations, or sub-national governments on official duty;

(2) (U) Individuals who traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen on behalf of a humanitarian non-governmental organization (NGO);

(3) (U) Individuals who traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen as a journalist for reporting purposes;

(4) (U) Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015);

(5) (U) Individuals who have traveled to Iraq for legitimate business-related purposes; and

(6) (U) Individuals who have traveled to Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen who maintain current Global Entry program membership.

e. (U) Nature of VWP Travel:

(1) (U) Maintenance of Status: An alien admitted to the United States under the VWP:

(a) (U) Is admitted as a visitor for business or pleasure for a period not to exceed 90 days;

(b) (U) May not engage in activities inconsistent with status as a visitor;

(c) (U) Is not eligible for an extension of stay in the United States;

(d) (U) Is not eligible for adjustment of status to that of a lawful permanent resident alien (other than as an immediate relative as defined under INA 201(b) or under the provisions of INA 245(i); and

(e) (U) Is not eligible for change of nonimmigrant status.

(2) (U) Side Trips Permitted Within 90-day Limit:

(a) (U) Travelers participating in the VWP who make their initial entry into the United States by air or sea must arrive aboard one of the participating carriers. After the initial admission into the United States, under the provisions of VWP, a foreign national may temporarily depart to, and return from, Canada, Mexico, or adjacent islands by car or other carriers as long as the total stay in the United States and the time accrued in contiguous territory and/or adjacent islands does not exceed 90 days.

(b) (U) In other words, a side trip to Canada, Mexico, or the adjacent islands does not reset the clock for VWP travelers, unless the traveler is resident in the country to which they travel. (For further information see Chapter 15.7(i) of DHS Inspectors Field Manual, Readmission After Departure to Contiguous Territory or Adjacent Islands.)

(c) (U) Return from Canada, Mexico, or adjacent islands by air or sea within the 90 days limit does not require transportation by a VWP signatory carrier.

(3) (U) Aliens Transiting the United States:

(a) (U) A VWP traveler may transit the United States en route to a third country.

(b) (U) If a VWP traveler is transiting the United States to Canada, Mexico, or an adjacent island, the traveler must either be a resident of Canada, Mexico, or the adjacent island; or

(c) (U) If a VWP traveler transits the United States to Canada, Mexico, or an adjacent island, and is not a resident of the destination country, any return trip through the United States must be within the original 90 days granted to the travel under the VWP.

(d) (U) If the return trip from Canada, Mexico, or the adjacent islands to the United States takes place more than 90 days after the travelers initial VWP admission to the United States, the traveler must be able to show that his intent in returning to the United States is not to circumvent the immigration law.

(4) (U) Satisfactory Departure: If an emergency prevents an alien admitted under the VWP from departing from the United States within his or her period of authorized stay, the USCIS district director having jurisdiction over the place of the alien's temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time. Applicants should apply for satisfactory departure at the local USCIS office having jurisdiction over their location.

f. (U) VWP Nationality Requirements:

(1) (U) Nationality is Determinative for VWP Purposes: The travelers nationality, not place of birth, determines entitlement to participate in the VWP. To travel under VWP, the travelers passport must be issued by a designated program country.

(2) (U) VWP and the United Kingdom: For the purposes of VWP, United Kingdom refers only to British citizens who have the unrestricted right of permanent abode in the United Kingdom (i.e., England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man). Accordingly, with respect to VWP travel, the term United Kingdom does not apply to British Nationals Abroad or to citizens of British Commonwealth countries.

(3) (U) Applicant Applying Outside His or Her Country: A national of a VWP participating country need not be residing in his or her country in order to make application for admission to the United States under the terms of the VWP.

g. (U) Passport Requirements for VWP Travel:

(1) (U) Must have an e-Passport: All VWP travelers, regardless of age or type of passport used, must present a passport with an integrated chip containing the information from the data page (e-Passport). As of April 1, 2016 the e-Passport requirement applies to all VWP travelers. A VWP traveler arriving in the United States with a non-compliant passport may be held for further processing and/or denied admission.

(2) (U) All emergency or temporary passports must have an integrated chip containing the information from the data page (e-Passports) to be eligible for travel to the United States without a visa under the VWP. This includes VWP applicants who present emergency or temporary passports to transit the United States. U.S. Customs and Border Protection may exercise discretion at the ports of entry for cases in which VWP applicants are traveling for medical or other emergency reasons. A VWP national arriving in the United States with a non-compliant passport, for other than emergency travel reasons, may be detained for further processing and/or denied admission.

(3) (U) Using Official and Diplomatic Passport to Enter the United States under VWP: Bearers of official and diplomatic passports may use the VWP, provided they are entering the United States as a nonimmigrant visitor (B visa purpose of travel), as described in INA 101(a)(15)(B). These travelers must meet all the requirement for using the VWP, including possessing a valid ESTA approval. If a traveler is coming for an A or G purpose, including a temporary assignment of less than 90 days, the traveler may not travel under the VWP and the appropriate visa must be placed in the passport.

h. (U) Transportation to the United States under VWP:

(1) (U) VWP Travelers Arriving by Air or by Sea: VWP participants arriving by air or sea must meet the requirements of 9 FAM 201.1-4(C) paragraph a above; and

(a) (U) Possess an Onward Ticket: For purposes of the VWP, an onward ticket means any nontransferable ticket, valid for a period of not less than one year that takes the traveler out of the United States to an onward destination, including foreign contiguous territory or an adjacent island if he or she is resident there. If the traveler is not resident in contiguous territory or an adjacent island, the ticket must transport him or her to a foreign location outside contiguous territory or adjacent islands. The following also satisfy the requirement for a round-trip ticket:

(i) (U) Electronic ticket record;

(ii) (U) Airline employee passes indicating return passage;

(iii) (U) Group vouchers for charter flights only;

(iv) (U) Individual vouchers; or

(v) (U) Military travel orders (which include military dependents) for return to duty stations outside the United States on U.S. military flights.

(b) (U) Possess a Valid Electronic System for Travel Authorization (ESTA) Approval: See 9 FAM 201.1-4(C) paragraph i below for more information on ESTA.

(c) (U) Arrive in the United States via a Signatory Carrier: Travelers using the Visa Waiver Program are required to travel to the United States on a Signatory Carrier who has an agreement with the Secretary of Homeland Security pursuant to INA 217(e). See 9 FAM 201.1-4(E) below for a list of carriers who have the required agreement in place.

(d) (U) Port of Embarkation for the United States: VWP travelers may embark for the United States from anywhere in the world, provided they arrive aboard a signatory carrier. VWP travelers returning to the United States from contiguous territory or adjacent islands within 90 days arriving in the United States are not required to be aboard a signatory carrier.

(2) (U) VWP Travelers Arriving at Land Border Ports of Entry:

(a) (U) Any alien arriving at a land border port of entry must meet the requirements in 9 FAM 201.1-4(C) paragraph a above and:

(i) (U) Complete the I-94-W form; and

(ii) (U) Pay $6.00 processing fee.

(b) (U) A VWP traveler at the land border is not required to possess a valid ESTA approval.

i. (U) Electronic System for Travel Authorization (ESTA):

(1) (U) Background on Electronic System for Travel Authorization (ESTA):

(a) (U) Sec 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110-53) introduced new security enhancements to the VWP. One of the security enhancements required by the 9/11 Act is a fully automated, electronic system for screening passengers before they begin travel to the United States under the VWP. The Department of Homeland Security (DHS) has developed the Electronic System for Travel Authorization (ESTA) to determine, prior to an individuals boarding a carrier en route to the United States, whether that individual is eligible to travel to the United States under the VWP, and whether such travel poses any law enforcement or security risks. ESTA collects information that is the same as is collected on the Form I-94-W, Nonimmigrant Alien Arrival/Departure Form, which VWP passengers completed on board the carrier and presented to U.S. Customs and Border Protection (CBP) officers upon their arrival at U.S. ports of entry (POE).

(b) (U) ESTA applications are checked against appropriate law enforcement databases, including the terrorist watchlist, lost and stolen passport database, and visa revocation/refusal database. To the extent possible, ESTA provides almost immediate determinations of eligibility for travel under the VWP. If an ESTA application is not approved, a message on the ESTA website will inform the applicant that she/he is not authorized to travel under the VWP and refer the applicant to the Travel.State.gov website for information on how to apply for a visa at a U.S. Embassy/Consulate.

(c) (U) An approved travel authorization via ESTA only authorizes a traveler to board a carrier for travel to the United States under the VWP. In the same way that a valid visa does not constitute a determination of admissibility, an approved travel authorization obtained via ESTA is not a guarantee of admissibility to the United States at a port of entry (POE). U.S. Customs and Border Protection (CBP) officers make admissibility determinations at U.S. ports of entry or pre-clearance locations.

(d) (U) As of July 2010, most VWP travelers no longer complete the paper I-94W form. The paper form has been replaced by an electronic record stemming from the ESTA application and held by CBP in the Arrival and Departure Information System (ADIS). A stamp is placed in the passport indicating that the traveler has been admitted to the United States under the VWP, and the CBP officer notates the class of admission and the date to which the traveler has been granted admission (usually 89 days from the date of arrival); this is the only record the traveler receives.

(2) Unavailable

(a) Unavailable

(i) Unavailable

(ii) Unavailable

(b) Unavailable

(3) Unavailable

(4) Unavailable

(5) Unavailable

(a) Unavailable

(b) Unavailable

(c) Unavailable

(d) Unavailable

(e) Unavailable

(6) (U) 221(g) Refusals and ESTA Applications: VWP travelers who have been denied any category of visa under INA 221(g) for any reason should mark yes for question F on the ESTA application form, Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?

(7) (U) Visa Annotation for ESTA Denials: To facilitate processing at the port of entry (POE), please annotate any visa issued over an ESTA denial ESTA RECORD REVIEWED. This will let inspectors know that the consular officer has seen the ESTA denial and addressed the underlying reason for that denial.

(8) (U) Additional Information: See U.S. Customs and Border Protection Web site for additional details and guidance on the ESTA program.

j. (U) Aliens Requiring Waiver of Ineligibility: Persons for whom a waiver of ineligibility is required must apply for and receive a visa; they are not eligible to travel under the VWP. Persons covered by the blanket waiver of INA 212(a)(1) for mentally disabled individuals can participate in the VWP, if they are otherwise qualified and are accompanied by a responsible adult; the blanket waiver will be noted at the port of entry.

k. (U) Form I-94-W, Visa Waiver Nonimmigrant Arrival/Departure Document:

(1) (U) CBP has phased out the paper Form I-94-W for VWP travelers arriving in the United States by sea or air in most cases. The applicants ESTA application now provides a basis for an electronic record of the applicants entry and departure.

(2) (U) Record of the travelers entry and the length of stay approved by the officer at the port of entry is documented for the traveler by a stamp and notation in the travelers passport.

(3) (U) VWP travelers entering the United States by land will need to complete a paper Form I-94-W at the port of entry.

9 FAM 201.1-4(D) Country Eligibility to Participate in VWP

(CT:VISA-475; 12-13-2017)

a. (U) List of Countries Whose Nationals Are Eligible to Travel under the VWP:

b. (U) Requirements for a Country to be Designated for the VWP:

(1) (U) The requirements for VWP country designation are set forth in INA 217, as amended, and in other statutes.

(2) (U) The standard requirements include:

(a) (U) Having a nonimmigrant visa refusal rate below three percent for the previous fiscal year (or below two percent based on a two fiscal year average);

(b) (U) Offering reciprocal visa-free travel for U.S. citizens for business or tourist visits of up to 90 days;

(c) (U) Issuing International Civil Aviation Organization (ICAO) compliant e-passports;

(d) (U) Sharing lost and stolen passport information with the United States through INTERPOL or other means as designated by the Secretary of Homeland Security;

(e) (U) Sharing information regarding whether citizens and nationals of that country traveling to the United States represent a threat to the security or welfare of the United States or its citizens; this requirement includes conclusion of various information sharing agreements and/or arrangements;

(f) (U) Cooperating on repatriation matters; and

(g) (U) Receiving a positive evaluation of the affect a countrys designation would have on the security and law enforcement interests (including immigration enforcement interests) of the United States. The Director of National Intelligence must also conduct an independent intelligence assessment in conjunction with the candidate countrys VWP evaluation.

(3) (U) Designation as a VWP country can occur only after a candidate country meets all of the statutory and policy requirements of the program. However, meeting the statutory requirements for membership in the VWP does not guarantee a successful candidacy for VWP.

(4) (U) Each VWP member countrys designation in the program must be reviewed at least every two years as required by INA 217(c)(5)(A). In order for its designation to be continued, the Secretary of Homeland Security must determine, in consultation with the Secretary of State, that the country continues to meet the requirement listed, with the exception of having a visa refusal rate of less than three percent for the previous fiscal year.

(5) (U) The Secretary of Homeland Security has the authority to waive the less than three percent nonimmigrant visa refusal rate requirement and consider for VWP designation countries that have visa refusal rates of not more than ten percent during the previous full fiscal year and that meet additional statutory and other program requirements, including the strengthening of document security standards and airport and aviation security. This authority was suspended on July 1, 2009 because a biometric air exit program was not implemented by June 30, 2009.

c. (U) Report for Country under Consideration for VWP:

(1) (U) On May 1 of each year, for any country that has been nominated by the Secretary of State for inclusion in the VWP, posts must report:

(a) (U) The total number of nationals of the country who applied for U.S. visas in that country during the previous calendar year;

(b) (U) The total number of applicants issued and refused visas;

(c) (U) A breakdown of the refusals by refusal category; and

(d) (U) The B1/B2 refusal rate under INA 214(b) refusals.

(2) (U) The chief of mission must certify the accuracy of the information provided.

d. (U) Refusals to National of Country under Consideration for VWP: Consular officers must not knowingly refuse visas under a refusal category that is not included in the calculation of the visa refusal rate for VWP in order to lower the refusal rate for VWP purposes.

9 FAM 201.1-4(E) (U) List of Signatory Visa Waiver Program (VWP) Carriers: INA 217(e) Signatory Transportation Lines

(CT:VISA-58; 02-24-2016)

(U) Signatory Visa Waiver Program Carriers list for CBP.

9 FAM 201.1-5 (U) Guam Visa Waiver Program (GVWP)

9 FAM 201.1-5(A) (U) Related Statutory and Regulatory Authorities

9 FAM 201.1-5(A)(1) (U)Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 212(l) (8 U.S.C. 1182(l)).

9 FAM 201.1-5(A)(2) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 8 CFR 212.1(e).

9 FAM 201.1-5(B) (U) Guam Visa Waiver Program Information

(CT:VISA-1; 11-18-2015)

a. (U) The Guam Visa Waiver Program, as provided for in section 212(l) of the INA, was implemented on October 1, 1988. The program allows citizens of designated countries to make a temporary visit to Guam provided that they:

(1) (U) Visit for business or pleasure for a period of not more than 15 days;

(2) (U) Travel aboard a participating airline (see list of participating airlines);

(3) (U) Have a round-trip, nonrefundable, and nontransferable ticket;

(4) (U) Have a completed and signed Form I-736, Guam Visa Waiver Information;

(5) (U) Waive any right otherwise provided in the Act to administrative or judicial review, or appeal of an immigration officers determination of admissibility; and

(6) (U) Do not apply for an extension of stay, adjustment of status, change of nonimmigrant status, or onward travel to another destination in the United States.

b. (U) For Department of Homeland Security (DHS) regulations regarding the Guam Visa Waiver Program, see 8 CFR 212.1(e).

c. (U) For a list of countries eligible to enter Guam without a visa, see 8 CFR 212.1(e)(3).

d. (U) Since Guam is a part of the United States as defined in INA 101(a)(38) (8 U.S.C. 1101(a)(38)), aliens proceeding to Guam must possess a valid visa, unless they qualify under the Guam-CNMI Visa Waiver program (8 CFR 212.1), which also applies to aliens proceeding to the CNMI. Navy clearance is not required for entry into the area. However, cases should be submitted to the Department for action for aliens who desire, but are ineligible under INA 212(a)(3), to enter Guam and who request a waiver under INA 212(d)(3)(A) or are recommended by a United States consular officer for such waiver. The Department may advise the Department of Defense, if appropriate.

9 FAM 201.1-6 (U) Other Niv-Related Provisions exempting or waiving visa and/or passport

9 FAM 201.1-6(A) (U) Related Statutory and Regulatory Authorities

9 FAM 201.1-6(A)(1) (U)Immigration and Nationality Act

(CT:VISA-1; 11-18-2015)

(U) INA 212(d)(4) (8 U.S.C. 1182(d)(4)); INA 233(c) (8 U.S.C. 1223(c)).

9 FAM 201.1-6(A)(2) (U) Code of Federal Regulations

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.1; 22 CFR 41.2; 22 CFR 41.25(e) and (d).

9 FAM 201.1-6(A)(3) (U) Treaties and Agreements

(CT:VISA-1; 11-18-2015)

(U) North Atlantic Treaty Regarding Status of Their Forces (TIAS 2846; 4U.S.T. 1792); Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 2978; 5 U.S.T. 875).

9 FAM 201.1-6(B) (U) U.S. Armed Forces and NATO Armed Services

(CT:VISA-365; 05-25-2017)

(U) 22 CFR 41.1(a), (d), and (e) provide that the nonimmigrants the following categories are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i):

(1) (U) Alien Members of the U.S. Armed Forces: "An alien member of the U.S. Armed Forces in uniform or bearing proper military identification, who has not been lawfully admitted for permanent residence, coming to the United States under official orders or permit of such Armed Forces (Sec. 284, 86 Stat. 232; 8 U.S.C. 1354)." (See 22 CFR 41.1(a).)

(2) (U) Armed Services Personnel with NATO:

(a) (U) Armed Services of a NATO Member: "Personnel belonging to the armed services of a government which is a Party to the North Atlantic Treaty and which has ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed at London on June 19, 1951, and entering the United States under Article III of that Agreement pursuant to an individual or collective movement order issued by an appropriate agency of the sending state or of NATO (TIAS 2846; 4 U.S.T. 1792.)" (See 22 CFR 41.1(d).)

(b) (U) Armed Services Personnel Attached to a NATO Headquarters in the United States: "Personnel attached to a NATO Headquarters in the United States set up pursuant to the North Atlantic Treaty, belonging to the armed services of a government which is a Party to the Treaty and entering the United States in connection with their official duties under the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 2978; 5 U.S.T. 875.)" (See 22 CFR 41.1(e).)

(c) (U) Documentation Required of Armed Services Personnel of NATO Members: Armed services personnel of NATO members entering pursuant to 22 CFR 41.1(d) and 22 CFR 41.1(e) must present on demand the following documents:

(i) (U) The personal identity card issued by the sending state showing names, date of birth, rank and serial number (if any), service, and photograph; and

(ii) (U) The individual or collective movement order, showing the movement ordered and the status of the individual or group as member(s) of a force.

(d) (U) Dependents of Armed Services Personnel; Members of a Civilian Component and their Dependents: The exemptions from passport and visa requirements provided in 22 CFR 41.1(d) and 22 CFR 41.1(e) for NATO armed services personnel do not extend to the dependents of such members or to the members of a civilian component and their dependents. Such persons must apply for nonimmigrant visas and present valid passports. (See 22 CFR 41.25(e) and (d), respectively, for classification.)

(e) (U) Countries Signatory to NATO Agreements: For a listing of the parties to the North Atlantic Treaty, the NATO Status-of-Forces Agreement, and the Protocol on the status of International Military Headquarters, see 9 FAM 402.3-8(C).

(f) (U) Definitions: For definitions contained in the protocol on the status of international military headquarters set up pursuant to the North Atlantic treaty, see 9 FAM 402.3-8(F). For definitions contained in the NATO Status-of-Forces Agreement, see 9 FAM 402.3-8(G).

(g) (U) For more information on visa issuance to aliens entitled to exemption from visa requirements, see 9 FAM 201.1-6.

9 FAM 201.1-6(C) (U) NIV Transit Without a Visa and/or Passport

(CT:VISA-872; 06-26-2019)

a. (U) Conditions for Admission of Aliens under Direct-Transit Waiver: INA 212(d)(4)(C) provides that either or both of the requirements of 212(a)(7)(B)(i) may be waived by the Attorney General and the Secretary of State acting jointly in the case of aliens proceeding in immediate and continuous transit through the United States under contracts authorized in INA 233(c). Note, however, that the Transit Without Visa (TWOV) Program has been suspended until further notice.

b. (U) Signatory Transportation Lines: See 9 FAM 201.1-4(E) above for a list of carriers which have contracts, including bonding agreements, with the Attorney General pursuant to INA 233(c) regarding aliens who are being transported in immediate and continuous transit through the United States.

9 FAM 201.1-6(D) (U) Entry from Guam, Puerto Rico or the U.S. Virgin Islands

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.1(c) provides that nonimmigrants in the following category are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i): aliens departing from Guam, Puerto Rico, or the Virgin Islands of the United States, and seeking to enter the continental United States or any other place under the jurisdiction of the United States (Sec. 212, 66 Stat. 188; 8 U.S.C. 1182.).

9 FAM 201.1-6(E) (U) International Boundary and Water Commission Treaty

(CT:VISA-1; 11-18-2015)

(U) 22 CFR 41.1(f) provides that nonimmigrants in the following category are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i): Aliens entering pursuant to International Boundary and Water Commission Treaty: All personnel employed either directly or indirectly on the construction, operation, or maintenance of works in the United States undertaken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission, and entering the United States temporarily in connection with such employment (59 Stat. 1252; TS 994.).

9 FAM 201.1-6(F) (U) DHS/State Waivers, Parole

(CT:VISA-365; 05-25-2017)

a. (U) Waiver of Visa and/or Passport Requirement:

(1) (U) 22 CFR 41.2(j) provides that "except as provided in paragraphs (a) through (i) and (k) through (m) of 22 CFR 41.2, all aliens are required to present a valid, unexpired visa and passport upon arrival in the United States. An alien may apply for a waiver of the visa and passport requirement if, either prior to the alien's embarkation abroad or upon arrival at a port of entry, the responsible district director of the Department of Homeland Security (DHS) in charge of the port of entry concludes that the alien is unable to present the required documents because of an unforeseen emergency. The DHS district director may grant a waiver of the visa or passport requirement pursuant to INA 212(d)(4)(A), without the prior concurrence of the Department of State, if the district director concludes that the alien's claim of emergency circumstances is legitimate and that approval of the waiver would be appropriate under all of the attendant facts and circumstances."

(2) (U) See additional information on such waivers in 9 FAM 302.1-3(D) and 9 FAM 302.1-4(D).

b. (U) Parole Procedure under INA 212(d)(5):

(1) (U) In addition to the categories of aliens listed in 9 FAM 201.2-3 who are not required to obtain immigrant visas (IV), INA 212(d)(5)(A) provides authority to the Secretary of Homeland Security (DHS) to parole an alien who is applying for admission on a case by case basis into the United States for urgent humanitarian reasons or for significant public benefit.

(2) (U) Consular officers may answer questions about the relationship between the parole procedure and the regular visa procedure under the INA with a reference to INA 212(d)(5) that contains the statutory authority for the parole procedure. Consular officers should not give more information in answer to inquiries from the general public, nor should consular officers suggest parole to an alien or an interested party. In appropriate cases, consular officers may refer inquirers to the Department of Homeland Security (DHS). See 9 FAM 202.3 for additional guidance on parole issues.

UNCLASSIFIED (U)