Due to the COVID-19 pandemic, the travel plans of many Australian Citizens and Australian Permanent Residents intending to visit the US have been disrupted. Unfortunately, we have seen numerous families and couples split apart in separate countries and many travellers looking to visit for business have not been able to attend critical business meetings in the US.
The interplay of the Visa Waiver Program (ESTA) and Australia’s International Travel Ban, most notably its exemptions, is something that requires careful consideration before travel. We have previously covered the details of the travel ban including who may be eligible for an exemption request. We have also covered aspects of Visa Waiver Program (ESTA) travel and specifics on satisfactory departure requests for those travelers that could not get back to Australia within the designated 90 days of entry on the Visa Waiver Program.
Understanding Australia’s Travel Ban and ESTA
It is important to understand the interplay between these two sets of laws as they relate to any planned travel to the US. We have been contacted regularly and directly by travelers with reports of some Australians being refused entry to the United States when attempting to enter under the Visa Waiver Program (ESTA). It is our professional opinion that some of these refusals are based upon the specific nature of their exemption given by the Australian Border Force (ABF) – those approved for a “compelling reason to remain overseas for at least three months” The email provided by the ABF may state this exemption category as being something akin to “Travelling overseas for at least three months.”
This exemption category appears to be problematic for US officials as the Visa Waiver Program (ESTA) is specifically for temporary visitor travel less than 90 days.
Problems with Travel Exemptions at US Entry Points
US Customs and Border Protection (CBP) at certain ports of entry (airports) to the US, particularly San Francisco (SFO), recently have been requesting to review Australian travellers’ exemption approvals to view the reason for the permission to depart Australia. Upon inspection, if the exemption approval relates to travel overseas for at least three months, this could be a reason for US CBP officers to question the intent of the US visit and/or may refuse entry for to certain travelers. Actions by US CBP indicate to us that such travel would be scrutinized under the Visa Waiver Program (ESTA) where the intent of travel, as provided to the Australian Border Force, may be interpreted that the traveler is intending to stay in the US (or another country) longer than the 90-day visa waiver period. US CBP officers in numerous locations are aware of the requirements for exemptions for travel by Australians. We need to stress that this is not happening with every Australian passenger; however, CBP officers are scrutinizing many Australian passengers’ ABF exemption requests looking for any inconsistency between their exemption request and their stated purpose of travel to US immigration. It is the inconsistency, and the potential for untruthful admissions, that is potentially causing issues. If you have an onwards ticket to a third country within the 90 day ESTA permitted stay and not a round trip ticket back to Australia, this may alleviate some of CBP’s concerns about any inconsistency with the intent of travel.
Since March 2020, our office has received numerous first-hand reports of Australians who have been refused entry by CBP under these circumstances. While the reason for the refusal of entry may be pursuant to INA Section 212(a)(7)(A)(i)(I) as an “immigrant without an immigrant visa”, the inconsistency with information provided to the ABF and then to CBP may cause an officer to believe that a traveler has not been truthful in their answers to either government agency – as these two requirements conflict with timing. We received a recent report that numerous individuals on a single flight originating from Australia were refused entry under similar circumstances. These entry refusals usually come after a formal interview and questioning with CBP in secondary inspection, sometimes lasting several hours. We have not been able to independently verify this information with each affected passenger, but we are looking into getting the transcripts of these interactions with CBP and reviewing them for clarity. Previous secondary inspection transcripts that we have reviewed showed a line of questioning by CBP consistent to the information provided here.
After being refused entry, the individuals are typically put on the next available flight back to Australia – or wherever they embarked from. If this occurs, then the passenger is required to enter quarantine at their own expense once back in Australia. CBP officers have complete discretion to deny a non-US citizen’s entry.
The good news is that we are not seeing individuals refused entry if their exemption request was granted under other exemption categories, such as for compassionate reasons, or urgent and personal business.
In most cases, if an Australian is denied entry on the Visa Waiver Program (ESTA) then the individual will be processed as a “refusal of admission”, and will be permitted to withdraw their application for admission. If this occurs, the individual can no longer use the Visa Waiver Program (ESTA) and may have difficulty applying for a visa to return to the United States, particularly in the short term. In some circumstances, the traveler may unfortunately receive an order of expedited removal (deportation) at the discretion of the CBP officer. If an order of deportation is issued, the individual will likely face a minimum five-year ban to re-entering the United States.
We will update all of this information as new facts come into our office.
Careful Planning Is Now More Important Than Ever
Please note, as mentioned above, that if you are denied entry under the Visa Waiver Program (ESTA), you are forever barred from visa-free travel to the United States after that point. This can be extremely problematic for some travelers. Therefore, it is important to review and carefully plan any travel that may be undertaken as a visitor to the US on the Visa Waiver Program when applying for an exemption.
If the travel was to visit a partner in the US, you may want to review your options related to more permanent relocation to the US, or review your options for your partner to relocate to Australia.
With all the extra complexity of travel at the current time, it is important to review your travel to the US with our team of US immigration lawyers and Australian migration agents. Your circumstances may require our team to work together to help you to navigate both Australian and US law.