ESTA and Visa Denials

  • November 9, 2009
  • Richard Newman

Customs and Border Protection (CBP), the government agency that controls US airport immigration inspections, recently advised that they will now consider all Section 221(g) letters issued by the US Embassy or US Consulate as “visa denials”.

Any Japanese national who wishes to visit the US must apply online on ESTA before being permitted to board a plane to visit the US on the visa waiver program.  If that person was ever denied a visa at the American Embassy or Consulate, they must indicate that on their ESTA application.  This would normally result in a denial of the waiver permission.

The Embassy issues a Section 221(g) letter (refusal) to visa applicants for when it appears that the applicant may be ineligible to receive a visa.  However, the Embassy often uses 221(g) letters as a basis to continue visa applications after the interview for administrative processing reasons, or because the Embassy does not have enough information to make a final decision on the visa application.  The 221(g) letter is often issued along with a worksheet on Embassy letterhead with a list or checked box explaining the specific reason for the delay in processing the application.  Sometimes a 221(g) letter will advise that the application is “incomplete” or “requires further processing”.  The 221(g) letter also applies to cases that are pending requiring further documentation, security checks, administrative processing, etc.  Basically, the nature of the 221(g) refusal is that it requires further action before visa issuance.

CBP now states that an ESTA applicant for the visa waiver program must indicate that they were issued a “visa denial” if they were ever issued a 221(g) letter for any reason, and even if the applicant was eventually granted the visa.

Technically, a 221(g) letter is classified as a visa “refusal”, but the Embassy retains authority to “reactivate” the visa application upon receipt of the required documents or completion of a security clearance.

As such, the ESTA applicant who was issued a 221(g) notice is caught in a difficult situation.  If they indicate on the ESTA form that they were issued a visa denial, they will most likely be denied the visa waiver.  If they indicate that were not issued a visa denial, they might be refused entry at the airport for failing to disclose a visa “denial”, or in the worst case, they could be charged with fraud, resulting in their being permanently unable to enter the US.

The question on the ESTA application reads:

F) Have you ever been denied a US visa or entry in the US or had a visa canceled?

__ Yes                     ___ No

If yes:  When _______________________________

Where _______________________________

To maximize chances of ESTA approval, applicants should clearly state why the 221(g) notice was issued in the “where” box.  For instance, “Tokyo – 221(g), Embassy requested additional documents” or “Osaka – 221(g) Consul needed additional processing time.”

A “yes” answer triggers a manual review of the ESTA application by a CBP officer, which is supposed to be completed within 72 hours, but could take a little as 1 hour.  If you do get a response within 72 hours, it is recommended that you submit a new application.   Preliminary contact with CBP indicates that a 221(g) notice for “additional documents” might result in an ESTA approval, while “administrative checks or security clearances” will probably result in an ESTA denial.