All international travelers who are seeking to travel under the Visa Waiver Program (VWP) must now first apply for authorization under the Electronic System for Travel Authorization (ESTA). (For more information about the ESTA, click here.) However, an area that has caused some confusion for ESTA registrants is how to answer the question "Have you ever been denied a U.S. visa ...?" Customs and Border Protection (CBP) recently provided some guidance on this issue and has confirmed that any VWP applicant who is subject to an INA 221(g) refusal or refusal due to "administrative processing" should answer "yes" to the question regarding visa denials.

The reason is this: INA 221(g) set forth a standard for "non-issuance of visas or other documents" when it appears that an applicant may be ineligible for a visa. The Department of State (DOS) frequently cites INA 221(g) as a basis to continue visa applications after interviews for "administrative processing." The use of INA 221(g) may include requests for additional documents or information or be due to a delay caused by pending background checks. Typically, a consular officer will give the visa applicant a worksheet on Embassy or Consulate letterhead and this document may have a list or a checked box explaining the specific reason for the delay in adjudicating the petition. Typically, the notice states that "action in the case has been suspended" or the "application is incomplete or requires further processing." However, this initial deferral is technically considered a "denial", even if the visa application is ultimately reopened and approved by the Consulate (such as following the receipt of the requested information or the clearance of background checks). Therefore, all ESTA applicants should answer "yes" to the question asking if they "have been denied a U.S. visa" - if they have been issued an INA 221(g) notice by a U.S. Embassy or Consulate. [It is recommended that, where appropriate, the applicant should clearly indicate in the "where" box of Question F of the ESTA application that the denial was due to 221(g) and provide a brief explanation (for example, administrative checks or a request for additional documents).]

CBP has confirmed that a "yes" answer to the question of having been "denied a U.S. visa" will not automatically result in denial of an ESTA application. However, it is certain that a "yes" answer will trigger a manual review of the ESTA application by a CBP officer. This manual review is supposed to be completed within 72 hours of submission of an ESTA application and might take as little as 1 hour. Based on preliminary responses from CBP, it seems that all INA 221(g) "denials" based on DOS-initiated administrative checks will probably result in an ESTA denial; however, "denials" based on requests for additional documentation may result in an ESTA approval. Applicants must check the ESTA website during the 72 hours following submission for a final decision on their application. If the application is not adjudicated within 72 hours, CBP encourages individuals to submit a new application.

If ESTA authorization has already been given, CBP advises that the applicant resubmit the ESTA request and update the answer regarding visa denials to "no," rather than traveling on the existing authorization. If the ESTA application is still pending, CBP advises that the applicant should not attempt to modify their answer to the visa "denial" question using the "update" feature on the ESTA website. Instead, the applicant should make a new ESTA application as new ESTA applications can be initiated on CBP's website as early as 24 hours after submitting a previous application.

Applicants who innocently think an INA 221(g) notice is just an administrative delay may be refused entry by CBP for failing to disclose a visa "denial" on their ESTA application or, in a worst-case scenario, CBP could accuse the VWP traveler of fraud for failing to disclose the visa "denial." A fraud finding is particularly serious, as it could render a traveler permanently inadmissable to the U.S.

Click here to go to the ESTA application website.