VWP with previous visa rejection - an experience

[akuppa]

Hi guys

I have seen this question quite often and wanted to put in my experience here. I was the holder of a previous Indian passport and now a naturalised citizen of United Kingdom. Whilst holding my Indian passport, I had my US visa rejected twice - once in 1999 on a H-1 and once on in 2001 on a B1 tourist visa. After these experiences, I had decided not to apply for any more visas until I get my British passport. Recently I had to go for a friend's wedding in New York and decided to use my VWP. I knew that that the I94W form given to you by the Airlines would have a question on previous rejection and I had decided to answer honestly to that question. I travelled with my wife who had a Indian passport with US tourist visa. On entry, we went through to the first counter where the usual questions (how long / purpose of visit ) were asked. Our fingerprints / photograps were taken and my wife was asked to proceed through to the baggage claim and I was asked to accompany the officer to a room downstairs (Oh. we landed at Newark airport, btw) I expected this and was taken downstairs to a room where my passport was collected by one officer and I was asked to take a seat. There were about 20-25 people in the waiting area and we were processed by two officers. After a wait of roughly about 30 minutes, I was asked to come over to the counter. The immigration officer wanted to know why I was rejected for my H-1 (212(g) section) and why I was rejected for the B-1 visa (not a resident of UK at the time of application). I informed the officer the reasons. He then asked me the purpose of my visit and how long I intended to stay. He then asked me how I acquired my UK citizenship (through continous employment) . He then told me that I did a great job by being honest about my rejection as he felt that was a better approach than to have lied and be debarred. He then allowed me to proceed through but told me that in future I had to answer the same way on my I-94 form. He told me that I would still be called for a secondary inspection but that would be more of a quick couple of questions than anything else.

I just thought that this experience of mine would be helpful. I am currently still in the US enjoying my holiday !!!!

Anand

[ZWND_1]

Nice post. From Jan '09 visitors using VWP are reuiqred to fill a form online that is similar to I-94W. Once you fill that form it shows whether you are Authorized/Un-Authorized/Pending status. If Un-Authorized or Pending status is shown, the online form shows details of US embassy to contact. One advantage of this new system is it eliminates uncertianity to a large extent if you are allowed or not into the country. Enjoy your vacation.

[akuppa]

Thanks Zwnd_1

I think the next time around I will apply for a visa from the US Consulate as it would be safer option...

[Marco 72]

I think the next time around I will apply for a visa from the US Consulate as it would be safer option...

I'm not sure. My understanding is that B visas are generally denied to those who are eligible for the VWP, unless they can show a valid reason why they need one (i.e. why they need to stay longer than 90 days).

[Christophe]

I think the next time around I will apply for a visa from the US Consulate as it would be safer option...

I'm not sure. My understanding is that B visas are generally denied to those who are eligible for the VWP, unless they can show a valid reason why they need one (i.e. why they need to stay longer than 90 days).

On the other hand, such a denial would clear the air, too, since it is, in effect, the US authorities confirming that the person is eligible to use the VWP. (It is certainly true that people who could use the VWP are discouraged from applying for a visa, but I don't think that there's any penalty on them if they do, is there?)

[Marco 72]

On the other hand, such a denial would clear the air, too, since it is, in effect, the US authorities confirming that the person is eligible to use the VWP. (It is certainly true that people who could use the VWP are discouraged from applying for a visa, but I don't think that there's any penalty on them if they do, is there?)

The OP already knows he's eligible for the VWP, since they just let him through. The only penalty for having a visa denied is an increased chance of being taken to secondary when one tries to enter the US on the VWP. Personally I don't see much point in applying for a B visa unless one is ineligible for the VWP or needs to stay longer than 90 days.

[ZWND_1]

I fully agree with Marco 72 view.

[Marco 72]

I fully agree with Marco 72 view. However i would like to point out OP is *not* eligible to use VWP anymore. Past visa refusals (irrespective of the previous nationality)counts towards VWP ineligibility now. This is a new restriction in the long list of conditions for VWP eligibility. I think OP needs to contact US embassy for appropriate visa *even* if it is less than 90 days stay in US. Ofcourse all eligible VWP visitors need to register with ESTA system before travelling to US from 12 Jan 2009.

I don't think this is true, otherwise the OP would not have been admitted under the VWP. The official information is somewhat contradictory. According to the Department of State website those who have been refused a visa are not eligible for the VWP, but the Tokyo Embassy website states

"I have been refused a visa under Section 221(g) or 214(b) of the Immigration and Nationality Act. Do I need a visa?

You are not prohibited from using the Visa Waiver Program. However, it is likely that you will be questioned by the immigration inspector at the port of entry regarding your refusal. If the immigration inspector is not satisfied that you meet the qualifications for nonimmigrant status, you may be denied entry."

[Christophe]

The OP already knows he's eligible for the VWP, since they just let him through. The only penalty for having a visa denied is an increased chance of being taken to secondary when one tries to enter the US on the VWP.

Yes, that may be true. I was just "thinking aloud" really.

[ZWND_1]

I fully agree with Marco 72 view.

"I have been refused a visa under Section 221(g) or 214(b) of the Immigration and Nationality Act. Do I need a visa?

You are not prohibited from using the Visa Waiver Program. However, it is likely that you will be questioned by the immigration inspector at the port of entry regarding your refusal. If the immigration inspector is not satisfied that you meet the qualifications for nonimmigrant status, you may be denied entry."

I would agree with Tokyo embassy version of ESTA. However UK embassy's VWP eligibility wizard is updated with 'Have you been refused US visa?' question. It directs to operator assisted visa information to book an appointment when you answer yes to this question.

ESTA would reduce ambiguity to some extent in many cases.

[joesoap101]

If you meet the requirements for the VWP but cannot make use of it because of previous visa denial I think it is likely that you will receive a 10 year B1/B2 visa given that you now have a British passport. And I believe anyone can apply for a tourist visa even if they are eligible for the VWP.

[BAI]

My question is this:

With regards to the new countries that are about to join the VWP (such as Czech Republic, Estonia etc). Suppose someone was refused a visa before on the grounds that the visa officer was not satisifed that the person would return to their country of origin. What will happen once these countries are going to join the programme? Are they going to be prohibited from using the VWP channel? Surely the state must distinguish btwn refusals on the grounds of economic reasons and for instance because the person has a criminal conviction and was refused a visa before on that basis... I'm not sure how ESTA will work for the new countries..

[douces]

i was refuse a visa under 214b travel to new york and had no problem

[ZWND_1]

douces,

You telling you were just let in. Did you declare on I-94 your previous refusal? Not declaring so will haunt later. Were you not questioned at secondary inspection?

[elgerva]

Hey!

I'm in a similar situation... I've been denied a visa on Dec, 2003... I'm Uruguayan and Uruguay isn't in the VWP. Then, I got my Italian passport.

I'm travelling to the US on Dec 23rd, so... in order to have everything in place, I filled the ESTA... beeing honest about everything. At first, it said "Pending", b/c it should be manually checked. After a few hours, it turned into "Approved"...

When filling the ESTA, I did say I've been refused on Dec 11th, I plan on taking the passport when their consulate put a note... and even though, it was approved.

Will the CBP officer have access to the info I supplied when filling the ESTA? I'll carry the printed copy, but it doesn't say anything about my declarations... also, the I-94W form will be required and I'll say yes again, so I foresee going to the second step.

My main question is... should I try to get a VISA? or with the ESTA I'll be fine? I have no problems in going to the second interview, I'll carry enough money, hotel reservations, a cruise reservation on a suite... I'm arriving to CA and have a flight to NY after 20 days... And the best part... I'm not willing to stay more than 90 days or work in the US, but I'm sooo afraid something could go wrong...

Thanks in advance!

[ZWND_1]

I travelled to NYC to meet friends on a holiday. Had my esta approved and traveled with wife. I was called for secondary inspection because i had previous visa refusal for business and work visa on previous nationality passport. The officer asked me what is the purpose of the visit and how long i was staying and wanted to know which visa was refused. And he allowed me to proceed to collect the baggage. Thanks to akuppa, Marco 72 and others for their advise.