The main benefit of entering the United States under the Visa Waiver Program is that citizens of Visa Waiver Countries do not need to apply for a visa from a US consulate to enter the United States. Instead, visitors are permitted to enter the country for a period not to exceed ninety days. In order to qualify, applicants must first apply for preauthorization from Customs and Border Protection ("CBP") under the ESTA program, or Electronic System for Travel Authorization, which is a web based system designed to capture information and determine whether an applicant is eligible. An ESTA application can be rejected at either during the internet application process or even at the port of entry.
What to do if an application or entry is denied?
If the application is rejected or denied during the application process, the applicant will receive a response from Customs and Border Protection advising that "Travel Not Authorized." Thereafter, the applicant will be directed to the Department of State for information on how to apply for a visa. Unfortunately, CBP does not generally disclose the reason why an applicant has been rejected. If the applicant believes that the application was rejected due to an inadvertent error or unintentional mistake by the applicant, he or she may attempt to contact CBP to have the error reviewed. On the other hand, if the application was correctly interpreted and filled out, but nevertheless rejected, the individual may need to reassess eligibility with an expert.
However, even if one receives an ESTA application approval, it does not necessarily guarantee admission to the United States. The Customs and Border Protection Officer must still make a determination in person that the visitor is admissible to the United States. Should a CBP officer decide that the applicant is not coming for purposes consistent with the visa waiver program, or that the applicant does not qualify for admission, he/she is authorized to deny the person entry. According to the Department of State, some travel purposes which are not permitted by the Visa Waiver Program include:
- study, for credit
- work as foreign press, journalist, etc. (these people should be applying for an I visa)
- permanent residence in the US
For example, if an officer learns that an applicant has worked illegally in the US and is returning under the ESTA program to resume employment, he/she may cancel the applicant's ESTA authorization and deny entry. Other reasons why someone may not be admissible to the US besides the above examples include prior overstays, criminal history, or known associations with organizations or groups that may pose a threat to the United States. These types of problems may have arisen after the approval of an ESTA application during a previous visit or worse, may never have been disclosed or caught by CBP during the application process. There is generally no appeal or right to have a CBP officer's decision reviewed.
Denial, By Itself, Not Necessarily The End
Fortunately, an ESTA denial, in and of itself, does not necessarily mean that the individual can never come to the United States. However, it does mean that the individual will not be able to enter pursuant the visa waiver program. Depending on the circumstances, an officer may cancel one's ESTA status, but still leave the door open for the individual to apply for a traditional tourist visa to enter US. On the other hand, if an officer makes some determination that the individual is not admissible due to some legal issue, ie., a crime involving moral turpitude or misrepresentation, the applicant will likely face the same obstacle when applying for a visa. This is why it is extremely important for anyone who has had issues with CBP to retain any paperwork given to him/her and discuss these matters with an attorney prior to trying to enter the country again. It is critical to understand and realistically address the underlying problem. In some cases, it may be overcome; in other cases, the task may be very formidable.
We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.