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I am a US citizen and my husband is Dutch, we both live in the Netherlands. According to Pres. Trump's proclamation we are allowed to enter the United States. We had tickets for May but those were cancelled. We are hoping to travel mid-June as flights are restored. We will be spending time with our son. My husband has an ESTA but we have been told travel with the ESTA is no longer allowed and instead a visa is needed. Is this the case? Thank you for your help.

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    Who told you that using an ESTA is not allowed? I can't find any such restriction anywhere. – Michael Hampton Apr 29 '20 at 14:34
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U.S. Immigration attorney here. First things first: my advice to my clients (and family, for that matter) is to always apply for the visa rather than relying on ESTA. While the ESTA program is a huge convenience when things go right, it quickly turns into a huge headache when anything goes wrong. Cancelled flights, illnesses, freak weather events, and stuff just happening can all cause you to need to extend or change the conditions of your stay, and ESTA makes that incredibly difficult to do. A traveler in the U.S. on ESTA also has significantly less rights within the immigration system than one with a valid visa. So, short answer: get the visa.

As for ESTA travel right now, the situation is fluid and inconsistent. CBP (border patrol) officers have broad discretion at points of entry, and very often they aren't well-informed about what the current state of law/policy is. That's not a dig at the officers, but rather at the system of information distribution within CBP. Some folks with ESTA are being allowed in, and some are being turned back. This is where the ESTA/visa difference comes in again - you have more ability/rights to challenge the denial of entry in a visa situation than you do with ESTA.

Standard disclaimer: I am an attorney. I am an immigration attorney. But I am not your immigration attorney, and this answer is not intended to be legal advice. It is based on my observations and experience, and you should not rely on the advice of strangers on the internet who purport to be knowledgeable (not even me). If you want solid, personalized, legal advice (and you do, you really, really do), talk to a competent lawyer directly.

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  • What rights does a visa traveler have that an ESTA traveler doesn't? (link?) – smci Apr 30 '20 at 13:32
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    @smci A number of rights/privileges. First, and most applicable here, the ability to extend your stay past 90 days. Most visa entrants are admitted for 180 days rather than 90, and it is usually very easy to extend that for another 180. Second, and again particularly relevant when you’re the spouse of a US Citizen, the ability to easily adjust status to residency. Esta entrants can also adjust, but it’s more of a headache. There’s also better protections against removal/loss of status and some procedural rights at the border/CBP/entry stage. – Patrick Kolasinski Apr 30 '20 at 13:58
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    Much as I hate to disagree with an immigration lawyer, but millions and millions of people enter the US on VWP without any trouble at all. Admittedly in general your clients are probably in tricky situations where having a visa is a good idea, but is getting a visa really worth it for the average person? – DJClayworth Apr 30 '20 at 20:44
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    @DJClayworth - that's a perfectly valid point, and a good one to bring up. You're 100% right - millions of people enter the US on ESTA/VWP without any trouble. My view is a bit biased, because I only see the ones who do have trouble, or at least "something interesting." From that perspective, getting the visa is well worth it, which is why it's something I recommend to my friends and family. Same idea as insurance. Every time I pay for insurance, I hope I'm wasting my money. But if I'm unlucky and something bad happens, I'm going to be very grateful that I had the insurance. – Patrick Kolasinski Apr 30 '20 at 20:48
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    It's also worth noting that while the visa fee is more than 11 times the ESTA fee, for most VWP countries a B visa will be issued for ten years as opposed to the ESTA's two years of validity. For someone who goes to the US at least every other year, therefore, the cost of the visa is only a bit more than twice the cost of five ESTAs. (Australia is a notable exception.) – phoog May 2 '20 at 5:45
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I'm afraid you are misled about a couple of things.

Firstly, despite the original statement that the travel ban was for thirty days, the ban has not been lifted. It is still in place, and will probably last for months. See this article for more information.

Second, there has been no mention of preventing people from using ESTA. A Schengen Area national can continue to use the Visa Waiver Program (VWP - the real thing that people mean when they talk about "using an ESTA") to visit the US, provided you have not been in the Schengen area (or any other infected area) for at least 14 days.

As a US citizen you are allowed to travel to the US, and there are exceptions for "some immediate family members" of US citizens, according to this official webpage, so it is conceivable that your husband may be able to.

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    The exception for family members is expressed in terms of "returning home" and in one case "family members under the age of 21," so it is not at all clear that an adult spouse would be able to accompany a US citizen on a visit to the US from a foreign residence (see dhs.gov/coronavirus/…). – phoog Apr 29 '20 at 15:42
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    However, as the question correctly notes, the exception contained in the proclamation itself is simpler: the proclamation simply excepts from its scope every alien who is the spouse of a US citizen or lawful permanent resident. – phoog Apr 29 '20 at 15:53
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Another wrinkle in the ESTA saga: the UK FCO have changed their advice and state that

You’ll need a visa to enter the USA. The Electronic System for Travel Authorisation (ESTA) visa waiver programme is not currently in operation due to the imposition of new travel restrictions on those travelling from the UK.

However, the official ESTA web site is unchanged, and the US Embassy in London don't help!

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  • The husband mentioned is Dutch and not a UK citizen, but this is a warning which may well be needed. – Willeke May 25 '20 at 10:11
  • "The official ESTA web site is unchanged": this isn't correct. The official site has a banner saying "Any traveler with a valid ESTA who is subject to the Proclamation and who attempts to travel the United States in violation of the Proclamation will have their ESTA canceled." This leaves open the possibility that the spouse of a US citizen can still use ESTA and the VWP, but one ought to be careful to be able to prove the relationship. – phoog May 25 '20 at 16:05
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    phoog: technically you are correct, however there have been many reports on FlyerTalk of passengers receiving Emails PRIOR TO TRAVEL to say that their ESTAs have been cancelled at the last minute, presumably after the airline has sent in its flight manifest. No opportunity for these passengers then to argue with the check-in desk that they may travel - "sir, you don't have a valid ESTA". – Full Score May 26 '20 at 12:17

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