Secretary of Homeland Security Jeh Johnson announced this morning that, with immediate effect and with no advance notice or warning, foreign citizens “seeking to travel to the United States from countries in our Visa Waiver Program (VWP) will be required to provide additional data fields of information in the travel application submitted via the Electronic System for Travel Authorization (ESTA).”

The additional questions which have already been added to the newly “Enhanced” ESTA application include:

• Other Names/Aliases
• Other Citizenships
• Parents name(s)
• National Identification Number (if applicable)
• U.S. Contact information (email, phone, points of contact)
• Employment information (if applicable)
• City of Birth

As discussed in our comments to DHS when it was first proposed, the ESTA is a a travel permission and exit-permit system of dubious legality. Prior application, payment of the ESTA fee (by credit card only, so that CBP has a credit card number on file to link the travel history of each ESTA applicant to a financial history), and receipt of ESTA approval is required by the US before boarding any flight departing from any other country in the world, with the intention of eventually traveling to the USA.

ESTA approval is not a guarantee of admission to the US, and the US has consistently and explicitly claimed that ESTA is solely a travel-permission scheme, not a visa requirement.  (If it were deemed a visa requirement, US citizens would likely be subjected to reciprocal visa requirements to visit VWP countries.)  So the sole purpose of adding questions to the ESTA application form is to add them to the inputs to the pre-crime profiling process that determines whether to allow an applicant to travel to the US for the purpose of applying, on arrival at a US port of entry, for visa-free admission to the US as a visitor.

In other words, the only reason to ask citizens of VWP countries about their other or prior citizenship(s), if any, is for DHS to discriminate between citizens of the same WVP country, in making ESTA permission-to-travel decisions, on the basis of those VWP-country citizens’ prior national origins.

This is a disgraceful act of overt US government bigotry, and all citizens of both the USA and VWP countries should be outraged.  Why should the US think it can treat citizens of, say, the UK or Germany differently on the basis of their national origin, as evidenced by what other countries’ passports they also hold or previously held? Such blatant discrimination against  US citizens on the basis of their national origin would be illegal on its face, although it has been standard illegal operating procedure for the DHS.

DHS claims in its FAQ about today’s ESTA “enhancements” that it can mandate provision of this additional information through a Paperwork Reduction Act (PRA) notice of information collection, without needing to promulgate any new or revised regulations:

Why is DHS doing this under a Paperwork Reduction Act and not a regulation?

The relevant regulatory provision does not list the specific data elements that VWP travelers must provide in order to obtain an ESTA. Instead, the regulation states that “ESTA will collect such information as the Secretary [of Homeland Security] deems necessary to issue a travel authorization, as reflected by the I-94W Nonimmigrant Alien Arrival/Departure Form (I-94W).” Since there are no data elements listed in the regulation, there is no need to update the regulation. The revisions to the ESTA data elements fall under the Paperwork Reduction Act since DHS is amending an information collection (Form I-94W) and not amending a regulation.

The problem with this is that DHS has already added the new questions to the ESTA form, but doesn’t appear to have gotten the necessary approval from the Office of Management and Budget (OMB) for their inclusion.

DHS has a long history of ignoring the PRA and failing to get its forms approved by OMB. The PRA notice in the online ESTA application form refers to OMB approval control number 1651-0111, which was issued September 17, 2014. But the Federal Register notices and other documents submitted to OMB to support that approval don’t appear to have included the new questions added to the form today.