UNITED STATES - US Customs and Border Protection Issues a Practice Pointer Regarding Misrepresentation

  • United States
  • 06/12/2012
  • Berry Appleman & Leiden LLP

The U.S. Customs and Border Protection (CBP) recently issued a Practice Pointer with tips for applicants of the Electronic System for Travel Authorization, commonly known as ESTA. International travelers seeking to travel to the United States under the Visa Waiver Program (VWP) are now subject to enhanced security requirements and will be required to pay an administrative fee and apply through the ESTA system.

Some common questions arise with Question 7 of the ESTA application, which asks whether the applicant has ever been denied a U.S. visa or entry into the United States or had a U.S. visa canceled. The answers to Question 7 of the ESTA application should be the following:

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.

BAL Comment

If an applicant fails to disclose visa refusal when completing the ESTA form, it may be viewed as a misrepresentation. This could make an applicant inadmissible to the United States. Therefore, when filing the ESTA form, you should annotate the application based on the CBP tips provided above. Please contact your BAL attorney with any questions you have regarding ESTA application.