ESTA Travelers: Do Not Risk a Misrepresentation Finding

U.S. Customs and Border Protection (CBP), the agency whose officers make the determination at ports of entry regarding admission to the United States, advises that failure to disclose visa refusals for administrative processing or for an incorrect visa category on  visa application, Form DS-160, may be construed as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, and this misrepresentation could make the applicant inadmissible. The ESTA form is required for those foreign nationals who are eligible to enter the United States through the visa waiver program. ESTA applicants are advised to report visa “refusals” as “denials” even when the refusals are for administrative processing or for selecting the incorrect visa category on Form DS-160. This means that even when a consular officer suspends a visa application for administrative processing for receipt of additional documents or other information and those documents are subsequently submitted and the visa is granted, the ESTA applicant should consider that as a denial on the ETSA form. This is because the Department of State (DOS) treats a consular officer’s decision to suspend processing a visa as a visa refusal. Because DOS treats the suspension for administrative processing as a refusal, 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 advises that it 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.

CBP also advises that if a visa applicant does not select the correct visa category on the nonimmigrant visa application, 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. Because there may be a record of this error noted by a consular officer, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided even if the applicant is not told that the consular officer has entered such a notation.

Category: Customs and Border Protection, Visa waiver program Comment »


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