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The Hidden Meaning Behind the Words: ‘Have You Ever Been Denied a U.S. Visa or Entry into the U.S., or Had a U.S. Visa Canceled?’

When traveling to the United States, foreign nationals submit biographic information to determine if they are eligible to travel to the United States. The biographic information along with other information is submitted through the Electronic System for Travel Authorization (ESTA). The ESTA is an automated system that determines the eligibility of visitors to travel to the U.S. As individuals answers questions online, they will need to respond to the following question: “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?”

Customs and Border Protection (CBP) may deem the answer to this question as misrepresentation, if answered incorrectly, which in turn would make an applicant inadmissible to the U.S. To avoid a finding of misrepresentation, the applicant must disclose visa refusals as denials on the ESTA system when the refusals are categorized as §221(g) administrative processing or incorrect visa category on Form DS-160.

Administrative Processing

Under INA § 221(g), a consular officer may suspend a visa application and as a result, the Department of State will treat such action as administrative processing. Note, that while the visa may eventually be granted after the proper documentation is submitted, this action is still considered a refusal by the Department of State. As a result, the applicant should affirmatively answer the question while the applicant’s visa application is currently under administrative processing by a consular post.

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

Form DS-160 is a required document for anyone applying for a nonimmigrant visa with a few limited exceptions. When completing Form DS-160, applicants may incorrectly select the proper visa category and in turn, the consular officer may require the applicant to complete a new Form DS-160 before the visa may be issued. The consular officer may then enter a § 221(g) notation in the system with the inaccurate Form DS-160. Due the possibility of this notation regardless whether the applicant is informed or not, the applicant should disclose this as a visa refusal as a denial and explain the circumstances in the space provided.

The following tips are helpful in responding to “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” on the ESTA system:

  • 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.
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About this Author

Kate Kalmykov, business immigration law, visa application attorney, Greenberg Traurig, EB-5 legal counsel, immigrant compliance law

Kate Kalmykov focuses her practice on business immigration and compliance. She represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including students, trainees, professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability and immigrant investors.

Kate has extensive experience working on EB-5 immigrant investor matters. She regularly works with developers across a variety of industries, as well as private equity funds...