Until recently, travelers to the U.S. under the Visa Waiver Permanent Program have enjoyed seemingly hassle-free entry to the United States. If you hail from (or now hold citizenship in) one of 35 favored countries, the process is simple. Go online to a website, ESTA (Electronic System of Travel Authorization), answer a few questions, get a green light to proceed, purchase a round-trip ticket and hop on a plane with just your passport as your entry document. Sure you waive a host of procedural rights, but with the value of the dollar plummeting, the shopping bargains in the U.S. are just too good to let legal technicalities get in the way of real deals.
These idyllic journeys, however, are about to be ruined, if a recent immigration bar practice alert (AILA InfoNet Doc. No. 09110565) outlining the reported views of U.S. Customs and Border Protection (CBP), holds true. The trip-spoiler is a little known provision of the Immigration and Nationality Act (INA), known as § 221(g). As a Congressional Research Report describes it, § 221(g) involves a ground for rejection of a visa application on the basis that "[the applicant] did not comply with provisions in the INA (technically referred to as § 221(g) noncompliance)." In fiscal year 2008, according to the State Department, consular officers relied on this provision to refuse 589,418 nonimmigrant visas but were then persuaded that in 510,549 of these applications the § 221(g) ground of noncompliance had been "overcome."
So why is this (in most cases) temporary determination of visa ineligibility the bane of visa waiver travelers? The answer lies in a single question on the ESTA online form ("Have you ever been denied a U.S. visa?"). The State Department and CBP apparently agree that even a fleeting and ultimately overturned § 221(g) determination of ineligibility to receive a visa is a visa "denial" that requires a "yes" answer to this ESTA question. The problem, however, is that most visa applicants never realize that a § 221(g) determination involves a visa refusal. Most think, and are told by consular officers, that the visa cannot be issued because "administrative processing" (a euphemism for a security clearance) must take place before a visa will be granted or that the applicant must produce a missing document that stands in the way of visa issuance. As a result, well-intentioned visa-waiver applicants will answer "no" to the "ever-had-a-visa-denied" question on ESTA.
When this technically inaccurate answer begins to roost in federal immigration databases, as State Department digital records are increasingly merged with those of CBP, unsuspecting visa-waiver travelers may well find an ugly surprise at the U.S. port of entry or pre-flight inspection post. A CBP inspector may be waiting to accuse the sojourner of willfuland material misrepresentation or fraud in an effort to gain an immigration benefit (a ground of lifelong inadmissibility under the INA). Worse yet, the inspector has the power to issue an order of expedited removal (a deportation order that carries with it a five-year bar on returning to the U.S.) and put the traveler on the next flight back home. This is more expensive than bargain-hungry visa waiver travelers ever expect to pay.
Obviously, then, the safe answer appears to be that any temporary refusal to issue a visa requires disclosure on the ESTA application. The automated ESTA response may thus be that the applicant is refused permission to travel visa-free, and must apply for a visa at a U.S. consular post. Is this what Congress had in mind when it sought to grant easy entry to nationals of countries with low-fraud immigration profiles and relieve consular posts of the burden of approving huge numbers of visitor visas? Probably not. Why then is an ambiguous and evanescent technicality risking unwelcome encounters with legitimate visitors to the United States? Ask the hyper-technical bureaucrats and police agents at State and CBP.
Dear Mr. Akalski:
Thank you for your comment, and for identifying yourself and your former role within CBP. I stand corrected about the reference in my blog to expedited removal. You are right that persons refused admission under the Visa Waiver Permanent Program (VWPP) are free to apply for admission again and that expedited removal of VWPP applicants is not authorized at the port of entry.
A different result applies, however, once a VWPP applicant is admitted to the United States. An expeditious form of removal (although not technically termed "expedited removal") can be effected (without the need for an order of removal by an immigration judge) against any VWPP entrant who is found by any immigration officer to be deportable. As you know, one of the grounds of deportability is inadmissibility at time of entry.
Thus, even if -- as you maintain -- a VWPP who fails to disclose a prior visa refusal would probably be allowed in if "there was no intent to defraud the U.S. government," another immigration official inside the U.S. without finding fraudulent intent could still take steps to remove the person expeditiously. This is because intent to defraud is not required; all that's needed is a determination that the VWPP applicant at time of entry made a material, willful misrepresentation for the purpose obtaining any immigration benefit, including entry to the United States.
We can quibble over whether an undisclosed prior § 221(g) determination is or is not willful or material in a given case, but the reality is that it can be a trap for well-meaning, unsophisticated VWPP applicants and entrants.
The point of my blog was to forewarn VWPP applicants -- as the State Department and your former agency should do explicitly -- that both State and CBP consider a § 221(g) determination to be a visa refusal, requiring an affirmative answer to the "ever-had-a-visa-denied" question on ESTA.
I welcome your comments now and in the future.
Posted by: Angelo Paparelli | November 24, 2009 at 08:56 PM
As a retired Deputy Chief with CBP at JFK Airport, I believe that this is not a matter of grave concern. CBP officers are not 'laying in wait' to refuse entry to applicants for admission under the Visa Waiver Program, if there was no intent to defraud the U.S. government with respect to a prior refusal of a nonimmigrant visa by the State Department. Many factors are taken into account when an individual, who was previously denied a U.S. visa, applies for entry under the Visa Waiver Program. Obviously, there are many instances wherein visas are denied for cause, i.e. prior criminal convictions, prior overstays, etc. In such cases, entry would be refused. However, lacking such clear cause, officers have the authority to admit a Visa Waiver applicant, who is clearly admissible, in spite of a prior visa refusal. Furthermore, Officers cannot issued an order of Expedited Removal to an applicant for admission under the Visa Waiver Program, since Section 217 of the INA, which established this program, does not authorize Expedited Removal Orders. Those refused entry under the Visa Waiver Program are free to apply for admission at any time in the future without any bar whatsoever.
Posted by: Chuck Akalski | November 21, 2009 at 06:05 PM