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Changes in U.S. Immigration Procedures Affecting Taiwanese and Canadian Citizens

Taiwanese citizens may visit the United States under the Visa Waiver Program beginning November; new filing option for Canadian TN nonimmigrants is now available.

Taiwanese Citizens

The U.S. Department of Homeland Security (DHS) announced on October 2 that Taiwan has been added to the list of approved Visa Waiver Program (VWP) countries. Taiwanese citizens will be able to visit the United States under the VWP beginning November 1, 2012.

What is the VWP?

The VWP allows nationals and citizens of VWP countries to travel to the United States for either business or pleasure for a temporary period of 90 days or fewer without first obtaining a B-1/B-2 visa stamp from a U.S. consulate. VWP travelers are (1) required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, (2) screened at the port of entry into the United States, and (3) enrolled in the DHS's US-VISIT program. In addition, all VWP travelers must present a machine-readable passport. Depending on when the passport was issued, other passport requirements may apply.[1]

The following countries participate in the VWP: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

What is the ESTA?

ESTA is an automated online system that determines the eligibility of nationals and citizens from a VWP country to board a carrier for travel by air or sea to the United States.[2] If approved, the authorization will be valid for multiple entries for up to two years or until the traveler's passport expires, whichever is shorter. ESTA does not guarantee admission into the United States. U.S. Customs and Border Protection (CBP) officers will still make a determination of admissibility at the U.S. port of entry.

How to Apply for ESTA Authorization

Nationals and citizens of a VWP country, regardless of age, must complete the ESTA application online here. A third party, including a relative or travel agent, is allowed to submit an application on the traveler's behalf. Should the application be denied, the traveler will need to apply for a visa at a U.S. consulate. DHS recommends that ESTA approval be obtained as soon as travel plans are made and no later than 72 hours prior to departure. Accommodation for emergency and last-minute travel may be possible. Travelers may update their information, including itineraries, through the ESTA website.

Canadian Citizens

The U.S. Citizenship and Immigration Services (USCIS) announced on October 3 that it will begin accepting Form I-129, Petition for Nonimmigrant Worker, from employers wishing to employ Canadian citizens who are outside the United States and seek Trade NAFTA (TN) status. Until now, in order to apply for TN admission, Canadian citizens had to apply in person to CBP at an airport or a land port of entry. Canadian citizens could only apply for TN status with the USCIS when requesting an extension of stay in TN status or when requesting a change of status to TN.

Presumably, the USCIS Service Centers in California and Vermont will accept TN nonimmigrant petitions based upon the geographical location of the TN worker's employment. After approval of a TN petition by a USCIS Service Center, the TN applicant may take the petition approval notice to a Class A preflight inspection station or land port of entry and apply for admission under TN status. The CBP should honor the Service Center's approval of the petition without further inquiry, but there is no guarantee that the agency's officers will not attempt to readjudicate the applicant's eligibility for TN status.

Canadian citizens will continue to have the option of applying to CBP for TN admission. TN admission procedures for Mexican citizens remain unchanged; Mexican citizens will still need to apply for a TN visa at a U.S. consulate or embassy.[3]

[1]. Detailed information regarding passport requirements is available here.

[2]. Detailed information regarding ESTA is available here.

[3]. For more information on the new filing option, visit the U.S. Citizenship and Immigration Services (USCIS) website here.

Copyright © 2020 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume II, Number 279


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