Transcript of the above video: 

As the title of this video suggests, we are discussing ESTA, that is the Electronic System for Travel Authorization to the United States, and issues with that system and then subsequent US Tourist Visa application. So what are we talking about here? 

Well first of all I don't talk about ESTA all that often because it really does not pertain to Thai nationals much at all. What am I talking about? Well ESTA was basically created and it was created in the George W. Bush Administration; it's often called the back-door Visa meaning it was created for those who were in the Visa waiver program. So foreign nationals who had nationality of a country that had a waiver to allow them to enter the United States without a Visa, up until George W. Bush's time if you had for example a British passport, you got on a plane, you flew to the United States, and you were stamped in. Subsequent to George W. Bush and the creation of ESTA, you would have to get on to this online system and do all this stuff before you got on a plane to go to the United States, and then once you went to the United States you were in. The problem you will see with ESTA there are many, one, is if you travel to certain countries and then you look to travel to the United States using ESTA, you could end up in a situation where ESTA blocks you from coming in simply using the Visa waiver. Another one is just getting into a sort of a catch-22 system. I was talking to somebody the other day who had been in the United States, they got stuck there due to COVID and they did file with USCIS for a proper extension, received that proper extension. But then they were in the ESTA System which is run by US Customs and Border Protection, not USCIS, notwithstanding both of these are under the Department of Homeland Security, they don't exactly communicate and cooperate optimally which is very ironic and annoying because the entire creation of Department of Homeland Security was predicated on the notion that it would allow these agencies to cooperate better but let's leave that aside. Long story short though, you can end up in a catch-22 situation. For example, this person got stuck in America due to COVID; they got a proper extension; they were in status, they were legal, but then in the system - the ESTA system - it saw that they had stayed past the time that they were permitted to go in. It took time, they managed to sort of fix that, but still the ESTA system won't let him fully process through and allow them to re-enter the United States. Well what does that mean?

Well it puts them in a position where they're basically compelled to go ahead and apply for a Tourist Visa and that's a totally different process. That's going through getting an appointment, presenting documentation and then applying for and being interviewed for a Tourist Visa. The other issue associated with a Tourist Visa is the application of what's called Section 214(b) of the Immigration and Nationality Act which basically stipulates that the applicant must show sufficient strong ties to their home country and sufficient weak ties to the United States. But more importantly, that is applied using the Doctrine of Consular Absolutism, meaning the Consular Officer who is undertaking the interview and adjudicating the case, they get to make those determinations and they are beyond appeal, so they are not reviewable by anyone else. 

So again, filing for a Tourist Visa and obtaining one are two very different things. It can be a rather cumbersome process and it can lead to overt denial in the process of trying to seek a Tourist Visa.

So what I'm trying to say and what I'm trying to explain is ESTA can be on the face of it sort of a simple system to use - you just fill out the stuff, put in your information - but a mistake or a possible problem or an issue that arises even if it's not your own fault within the ESTA system, can effectively result in a lot of ability to travel to America being curtailed.