Individuals who are eligible to apply for admission under the Visa Waiver Program must first seek authorization via the Electronic System for Travel Authorization (ESTA) program. In order to apply for travel authorization through ESTA, an applicant must meet the following criteria:
• Currently not in possession of a visitor’s visa.
• Travel to the U.S. is for 90 days or less.
• Travel to the U.S. is for business or pleasure.
Completing ESTA Form: Tips on Avoiding a Misrepresentation Finding
When completing the ESTA form, a failure to disclose visa refusals as a result of administrative processing or entry of an incorrect visa category on the Form DS-160, Non-Immigrant Visa Application, may be deemed as a misrepresentation which could make the applicant inadmissible. Therefore, such “refusals” on account of administrative processing or an incorrect visa category on Form DS-160 should be reported as a visa “denial” when completing the ESTA form.
• Visa Applications Subject to Administrative Processing
A visa application that has been suspended for administrative processing under § 221(g) of the Immigration and Nationality Act (INA) is deemed a visa “refusal” by the Department of State (DOS) even if the issuance of the administrative processing notice is to request missing documents or other additional information and the visa is ultimately granted.
• New DS-160, Non-Immigrant Visa Application, Due to Incorrect Visa Classification
A visa applicant may be required to complete a new DS-160, Non-immigrant Visa Application, if s/he failed to select the correct visa category. The consular officer may note this error in the system as a refusal under INA § 221(g).
• Reporting Visa “Refusals” as “Denials” on ESTA Form
The U.S. Customs and Border Protection (CBP) requires that such refusals be reported as “denials” on the ESTA application. For example:
ESTA question: “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?”
Answer “Yes” if the applicant’s visa application is under administrative processing by a consular post and/or if the applicant has been required to complete a new DS-160 due to incorrect entry of visa classification and there is a refusal notation in the system. Please note that in some instances, the applicant may not be informed by the consular officer of such a notation so it is best to treat the requirement to complete a new DS-160 as a visa denial on the ESTA form and explain the circumstances in the space provided.
CBP will then review the ESTA application and typically make a determination on whether the applicant is eligible for travel within 72 hours of submission.
For more information on the ESTA application process, please contact our office.