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It is often claimed that ESTA is not a visa - both by the US government and the travelers themselves. However in practice, I find it difficult to see the distinction between ESTA and e-visas:

  • It costs money, while a true visa-free system is, well, free
  • You have to fill out personal details about yourself to receive it
  • Not everyone who's eligible is approved for it
  • Even if you enter overland, you still have to answer the same questions on form I-94W and pay a fee to enter the country
  • The vast majority of VWP passport holders enter the US by air, so they do need the ESTA

What is the exact distinction then (in practice) that separates ESTA from a regular e-visa?

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    If an ESTA were a visa, the US would be in violation of reciprocal agreements on visa-free travel. So they say an ESTA is not a visa, and since the ESTA is an American legal concept their voice is significant. Other states are not calling them out on the inconsistencies. – o.m. Jul 28 '18 at 16:44
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    The reason why on this site we constantly say "ESTA is not a visa" is because people are confused. They read about ESTA validity, or ESTA renewal, and think it tells them how long they can stay in the country. If they searched for information about VWP instead they would find the answers they were looking for. – DJClayworth Jul 28 '18 at 18:24
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    @DJClayworth But neither does the validity of a visa tell you how long you can stay in the US! – npl Jul 28 '18 at 18:33
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    @o.m. The US has been in violation of reciprocity requirements for visa-free travel with several Schengen states for many years. Both this issue and the fact that for all practical purposes (as seen from outside), the ESTA is a visa, is a regular topic for discussions in the relevant EU/Schengen bodies. The grace periods, as set out in the Schengen regulations have lapsed, and the EU Commission is currently ignoring its own law by not revoking visa-free entry for US citizens to the Schengen area. – Tor-Einar Jarnbjo Jul 28 '18 at 22:56
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    @JonathanReez Probably, but I can't find any right now. The situation is well covered by the press though. In March 2017, the EU Parliament voted in favour of revoking visa-free entry for US citizens and ordered the EU Commission to implement the necessary changes withing two months. In May 2017, the EU Commission announced that it will refuse to follow the parliament vote, as they expect it to complicate the situation even more and not lead to a satisfactory solution. – Tor-Einar Jarnbjo Jul 28 '18 at 23:10
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From the perspective of the traveler the difference is somewhat semantics.

From the perspective of the US government, introducing the ESTA would have been much simpler than re-writing the various legislation around the Visa Waiver Program, which is likely why they went with this path.

However there is one major difference between the ESTA and an e-visa, and that is that with an ESTA, you don't have a visa. Where with an e-visa, you would.

Now that might seem obvious (because, well, it is!) but it's an important fact if only for one major reason - US Visa holders have more rights than people attempting to enter under the Visa Waiver Program.

If you hold a US visa, and you are denied entry at the border, then under US law you have the right to have your case heard by an immigration judge. If you are denied entry under the Visa Waiver Program - even if you hold a valid ESTA - then you have no such right.

The other difference between the two, which is the reason that people normally make the "ESTA isn't a visa" distinction around here, is that if you are "denied" an ESTA, then you have NOT been denied a US visa. This is important, as one of the questions asked when applying for a visa is whether you've been denied a visa previously. If the US instead used e-visas rather than ESTA, the answer to this question would be "yes" if you had been denied an e-visa, rather than no as it is today.

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    +1 Excellent answer, but I'd love to see some references. – DJClayworth Jul 28 '18 at 19:11
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    This is an excellent answer, but the right to have your case heard by an immigration judge is not of that much practical value to most travelers. A visitor who is denied entry is generally going to be given the opportunity to withdraw their request for admission and return home, and 99.99% of visitors will find this a better option than starting a lengthy process that could land them in US immigration detention for months. – Zach Lipton Jul 28 '18 at 20:02
  • @ZachLipton I don't disagree, which is why I stated at the start it's mainly semantics. But it IS one of the major differences between the two. – Doc Jul 29 '18 at 8:25
  • @ZachLipton I agree with your comment, and would like to add that it would be possible for US law to cast ESTA as a visa that requires people to waive the same rights that VWP travelers now waive. That is, these rights are not somehow intrinsically attached to the definition of "visa," and under US law VWP travelers lack them because they are required to waive them explicitly as a condition of using the program. – phoog Jul 29 '18 at 11:02
13

I am one of those people on this site who almost always prefixes my answers to ESTA questions with "ESTA is not a visa. Your entry to the US is governed by the Visa Waiver Program".

The reason I do this is that questioners are often confused. They say "I read that I can only stay 90 days on an ESTA, but my ESTA say it is valid for three years." Or "If I drive to Canada and come back, do I need to get a new ESTA?".

So my intention is to direct people to look up the rules of the VWP, which usually tell them what they want to know. I also don't want to be one of the people perpetuating the mistake, so I always want to be saying "VWP will allow you to stay 90 days" rather than "ESTA will allow you to stay 90 days". If people learn "you can stay 90 days with an ESTA", and then find that with you can drive to the US without an ESTA, they ask "so how long can I stay then?". If they learn that VWP rules apply to both, they aren't confused.

My other reason for saying "ESTA is not a visa" is that is how the US sees it, and the US gets to decide. Correct terminology is important when you are dealing with legal issues. Calling it a visa is going to confuse people, especially if they eventually read official sites that call it something else. If the US asks if you have held a visa before, they do not want ESTA holders to answer "yes".

7

For all intents and purposes, ESTA is just what the US calls their e-visa concept.

Like other e-visas, it is somewhat more burdensome on travelers than traditional visa freedom, but quite a bit less burdensome than a traditional visa-in-advance.

They reason why they don't call it an e-visa is partly historical (it was one of the first such programs, so there was no established terminology to follow when they started it), and partly diplomatic (in a tacit understanding with other government that if they don't call it a visa, it doesn't need to upset existing reciprocal visa-freedom arrangements).

  • uh, no. While the application process is similar, the legal status is quite different. ESTA does not for example depend on the nature of your stay, or the duration. It's effectively a criminal background check required on top of a passport, rather than a document detailing what you're allowed to do while in the country. – jwenting Jul 30 '18 at 9:54
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If an ESTA were a visa, the US would be in violation of reciprocal agreements on visa-free travel. So they say an ESTA is not a visa, and since the ESTA is an American legal concept their voice is significant. Other states are not calling them out on the inconsistencies. – o.m.

1

The list of similarities you posted has little meaning, as you need to do the first three things too when you want a credit card, or many other things.
However, you are right that in practice, the difference is meaningless for the vast majority of users.

The purpose of ESTA (='Electronic System for Travel Authorization') is to check if you are eligible to travel without a visa. Your input at that time is not verified, so you could type in whatever you want (the same is true for eVisa though).
The USA has no eVisa, and all other Visa require a lot more effort and answers, nearly always with a personal interview. The cost is also significantly higher.

All arriving travelers have to answer questions they are asked, that does not depend on ESTA, Visa, or even Citizenship. The USCIS officers have the right and duty to verify that you are who you claim to be, and that your intended stay is matching the limits and regulations. You can't take the questioning as a reason that ESTA and Visa are the same, as all travelers are subject to questioning (and eVisas in other countries are not any difference).

If your question was serious, that should point out the major difference; if your question was rhetoric and a ramble about the US milking you for money with a fake name - you are probably right, but think about how you would set up a better system; it would be interesting if you find a way to do it for free, without jeopardizing the secutiry.

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    My question is geared towards clarifying the terminology as "ESTA is not a visa!" is a cliche on Travel.SE. – JonathanReez Supports Monica Jul 28 '18 at 18:30
  • As for questioning - no (tourist) visa or visa free entry grants you the right to unconditionally enter the country - you may always be questioned or turned back, regardless of what paperwork you've applied for before reaching the border. Hence it is not a distinction of a visa free system. – JonathanReez Supports Monica Jul 28 '18 at 18:32
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    Why shouldn't it be possible to do it for free? (Australia does so for their electronic authorization e.g. for German passport holders, and I believe the reason is reciprocity.) – npl Jul 28 '18 at 18:35
  • @JonathanReez Isn't the more recurring theme here "No, you're not entering the US on an ESTA but on VWP"? – npl Jul 28 '18 at 18:44
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    @DJClayworth I thought at least the US interpretation is that a visa just allows you to ask to be admitted to the US at a point of immigration. Tough indeed in my experience, entering the US on a visa usually was indeed more smooth than on the VWP. – npl Jul 28 '18 at 18:55

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