Travel to the US with a valid ESTA when technically no longer eligible

I’m from The Netherlands and travelled to the US (Los Angeles) last summer under the Visa Waiver Program (VWP/ESTA).

I plan to visit Los Angeles again this summer.

The ESTA I have is valid for 2 years and will still be valid on arrival. However if I were to apply for an ESTA today it will be denied. That is because I have visited North Korea last month.

The Visa Waiver Program states that:

Travelers in the following categories are no longer eligible to travel
or be admitted to the United States under the Visa Waiver Program
(VWP):

Nationals of VWP countries who have traveled to or been present in
Iran, Iraq, North Korea, Sudan, Syria, Libya, Somalia and Yemen on or
after March 1, 2011 (with limited exceptions for travel for diplomatic
or military purposes in the service of a VWP country). Nationals of
VWP countries who are also nationals of Iran, Iraq, North Korea,
Sudan, or Syria.

If I travel to LA today, do I need to apply for a visa or can I travel on the approved ESTA? In fact. North Korea does not stamp the passport so it’s not obvious that I visited the country. The only way they can see is by looking at the entry stamp from China. The chinese city bordering North Korea, Dandong, is written in Chinese on the entry stamp.

Answer

You are not eligible and need to apply for a visa. As the document you quote states, people who have traveled to North Korea after March 1, 2011 (with exceptions that presumably do not apply in your case) are no longer eligible to be admitted under the Visa Waiver Program. This is the case whether or not your ESTA is valid; you’re seeking to be admitted under the VWP when you arrive in the US. The FAQ explains this as well:

The restrictions do not bar travel to the United States, but they do require a traveler covered by the restrictions in the law to obtain a visa from a U.S. Embassy or Consulate. Most U.S. Embassies and Consulates in VWP partner countries and worldwide have short wait times for visa interviews. Please visit travel.state.gov for general visa information or usembassy.gov to find the website of the Embassy that has jurisdiction over your residence.

There’s no mention of an exception if you already have an approved ESTA. The end of your question boils down to “could I try it anyway and get away with it?” I have no idea, but nobody would sensibly advise you to knowingly violate immigration law. Getting a visa is a hassle and expensive, but it usually lasts for 10 years and offers some advantages (you can stay in the US for 6 months at a time and even apply to extend your stay longer than that, which you can’t do under the VWP).

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