CBP Fully Implements ESTA Ineligibility Due to Cuba Travel

The CBP Visa Waiver Program’s ESTA application has been updated to include ineligibility questions regarding travel to Cuba on or after January 12, 2021, as a result of the designation of Cuba as a state sponsor of terrorism on that date. According to CBP, if it is determined that an individual already approved for ESTA has prior disqualifying travel to Cuba, or dual nationality with Cuba, the ESTA will be revoked, and the individual will be required to apply for a visa in order to travel to the United States. Foreign nationals with approved ESTA authorizations who may be affected by the change in Cuba policy should monitor their ESTA status on the CBP ESTA website.

The issue

According to an official U.S. Customs and Border Protection (CBP) communication, as of July 6, 2023, the Visa Waiver Program (VWP) ESTA application now includes questions regarding an applicant’s prior travel to Cuba, as well as whether they hold dual Cuban nationality – either of which may disqualify the applicant for travel under the VWP.

The ESTA update is the result of the U.S. government’s January 12, 2021 designation of Cuba as a state sponsor of terrorism, adding Cuba to the list of countries covered under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). As a result of Cuba’s inclusion under the Act, the following nationals of VWP countries are ineligible for the VWP, and will instead require a U.S. visa to travel to the United States:

• Those who traveled to Cuba on or after January 12, 2021 (unless eligible for an exemption available to certain military personnel and government employees); and
• Those who hold dual nationality with Cuba at the time of their ESTA application or thereafter.

Since November 2022, there have been several reports of travelers with approved ESTA authorizations being denied boarding or entry to the United States based on CBP’s awareness of prior Cuba travel, but until July 6, the ESTA application did not include questions about Cuba. According to CBP, new questions related to Cuba travel and nationality now appear in both the CBP website ESTA application form and in the new ESTA mobile app.

Impact on current VWP travelers

In confirming the ESTA change, CBP also stated that if an ESTA application has already been approved and it is later determined that the traveler has been present in Cuba during the relevant timeframe or holds dual nationality with Cuba, the individual’s ESTA will be revoked. The individual will receive a notification that their ESTA status has changed in the ESTA Mobile App or on CBP’s ESTA website: https://esta.cbp.dhs.gov. Those with current, valid ESTA authorizations who may be affected by the Cuba policy should monitor their status in one of these ESTA tools.

Background

The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act) established new eligibility requirements for the VWP, barring those who have been present in certain countries of concern since March 1, 2011 (with limited exceptions) and barring those who are dual nationals of a VWP country and a country of concern. CBP maintains an FAQ on the Act here, which provides detail on countries of concern, exceptions, and waivers, but the page has not yet been updated to include the change in Cuba policy.

Cuba was previously designated as a state sponsor of terrorism from 1982 to 2015. Though the Act identifies travel on or after March 1, 2011 to a country of concern as barring VWP eligibility, CBP has confirmed that the most recent January 12, 2021 designation of Cuba as a state sponsor of terrorism is the effective date of the VWP travel restriction for Cuba.

What it means

Travel to the United States is not barred for travelers who are subject to the Cuba VWP restrictions. However, these travelers will need to apply for a nonimmigrant visa at a U.S. embassy or consulate in order to enter the United States.

Foreign nationals with a current, valid ESTA authorization who believe they may be impacted by prior travel to or dual nationality with Cuba should monitor the CBP ESTA website or mobile app for any notifications indicating a change in their ESTA status, and should consult with immigration counsel before undertaking travel to the United States.