While there are several reasons why an individual may be coming to the United States (i.e. to study or to travel), generally foreign nationals seek entry into the United States to work.  Working in the United States shall be the focus of the discussions in this guide, since work is generally the goal of foreign nationals no matter what immigrant or nonimmigrant category they utilize to gain entry into the United States.

The Visa Waiver Program

Under the sweeping statutory and regulatory changes to the immigration and nationality laws which were made in 1986, a program called the Visa Waiver Pilot Program (referred to as "VWPP" or the "Visa Waiver Program") was implemented. The Visa Waiver Program permits a foreign national from a certain country (usually a foreign country with a low visa fraud and visa overstay rate such as the countries in Western Europe) to enter the United States for a ninety (90) - day period to visit and travel. It is important to know about the existence and characteristics of the Visa Waiver Program for several reasons:

The Visa Waiver Program admits individuals from certain countries that are designated (and these countries may be undesignated on a regular basis) by federal regulation; and

The Visa Waiver Program permits a qualifying foreign national to enter the United States without obtaining a visa through the consulate processing procedure; and

The foreign national who enters the United States on the Visa Waiver program may only travel and visit; and

The foreign national who enters the United States on the Visa Waiver Program is given a green arrival/departure record called an I-94W which is stapled into his/her passport (the green I-94W is in lieu of the I-94, which is a white card that is stapled into the foreign national’s passport); and

Foreign nationals who enter the United States on the Visa Waiver Program may not change their status to a different nonimmigrant visa category or extend their stay, since the status that they have is not actually a visa (and thus, their status cannot be changed or extended).

In practice, it is often the case that the foreign national will come to the attorney’s office and show an I-94W and ask about their options. It is important to counsel the client that (1) failure to abide by the terms of the Visa Waiver Program may result in a permanent bar to the future use of the Program; and (2) that if they are interested in obtaining classification in a new nonimmigrant status or changing their status to a different category, they must depart from the United States to do so.

The Visa Waiver Program is constantly under review and new countries are being added and deleted from the existing list. So, if your prospective client is (1) coming to the United States for a period of time not to exceed a ninety (90) - day period; and (2) he/she is planning to visit with friends/family and/or travel in the United States; and (3) your client wants to avoid standing in a line at a U.S. Consulate Office abroad to wait for a visa, the Visa Waiver Program may be a viable option.