Dealing with ESTA, Prior Visa Applications and The Visa Waiver Process

Having your country be part of the ESTA, or Visa Waiver program to come the United States is a wonderful thing! But like many good things, there is a downside. The downside to ESTA is in not disclosing all prior visa refusals (which may make you permanently ineligible to use ESTA), even if you do not know you were refused a visa! Huh? Is it possible that I was refused a visa at an U.S. Consulate and do not know it? Oh, yes it is.

In an advisory sent out today by the American Immigration Lawyers Association, there are at least TWO instances in which a person could have had a visa refused, and not know or understand what has happened.

Customs and Border Protection ("CBP") may deem the failure to disclose visa refusals for administrative processing or incorrect visa category on the Form DS-160 as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, which could make the applicant inadmissible under INA § 212(a)(6)(C)(i). Therefore, when filing the ESTA form, you should report visa “refusals” as “denials” when refusals are for § 221(g) administrative processing or for selecting the incorrect visa category on Form DS-160.

1. Administrative Processing

The Department of State (DOS) treats a consular officer’s decision to suspend a visa application for administrative processing under INA § 221(g) as a visa refusal. This is true even though the administrative processing notice frequently asks for documents or other information, and after those materials are submitted, the visa is granted.

Because DOS treats the suspension for administrative processing as a refusal, United States Customs and Border Protection (CBP) requires that such refusals be reported on the ESTA application. The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission.

2. Preparation of New DS-160 Due to Incorrect Choice of Visa Classification

If a visa applicant does not select the correct visa category on Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. As to the Form DS-160 submitted with the incorrect visa category selection, the consular officer may enter a § 221(g) notation in its system. Because of this possibility, even if the applicant is not told that the consular officer has entered such a notation, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided.

Tips for ESTA Applications - Responding to Question F: “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?”

If a person’s nonimmigrant visa application has been referred for “Administrative Processing” by a consular officer and is still in that status, the visa applicant should answer “Yes” to the above question on ESTA and explain.

If, at the request of a consular officer, a visa applicant has completed a new Form DS-160 to correct the visa category stated on a submitted Form DS-160, that person should answer “Yes” to the above question on ESTA and explain.

If a person has ever applied for a U.S. visa and has not or did not receive the visa for any reason, the traveler should answer “Yes” to the above question on ESTA and explain.

So, if you are applying to use the ESTA program and have previously applied for a U.S. visa. make sure you understand what happened BEFORE answering the online forms from CBP to obtain your ESTA clearance. You can save yourself a lot of headaches by making sure you answer the form correctly. In the U.S. immigration process, there is rarely a second chance.

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