Previous visa refusal - ESTA?

Old Nov 7th 2014, 7:16 am
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Default Previous visa refusal - ESTA?

Hi there,

You probably get these sort of threads fairly regularly so I apologise in advance, but I was wondering if anyone has had recent experience in the scenario I'm about to describe.

I was refused a tourist visa in 2009 for not demonstrating sufficient ties to Australia. I was a Malaysian citizen at the time and was living in Australia on a student visa.

Subsequently, as I had my heart set on my holiday in the US, I travelled to the US Embassy in Kuala Lumpur and got a B1/B2 visa a couple of weeks post visa refusal in Melbourne. The embassy official who interviewed me was really lovely and rather sympathetic to my circumstances, and gave me a 10 year visa so that "you don't have to do this too often." She also explained that I was refused a visa in Melbourne as from the perspective of the consular officials in Melbourne they deemed that I wouldn't leave the US as 1) I was a temporary resident of Australia 2) and that I was a university student with no full time job.

I have since travelled to the US multiple times for holidays and business meetings on the B1/B2 without issues.

Fast forward to 2014 - I'm now an Australian citizen and Australia is a VWP country. For various reasons I've renounced my Malaysian citizenship - so the B1/B2 visa issued to me when I was a Malaysian national is no longer valid.

Questions:
1) Can I still apply for an ESTA if I have been previously denied a US visa? Or am I better off saving myself the ESTA processing fee and head straight to the US consulate for a new B1/B2 visa? I fully intend to be upfront about my previous US refusals.

2) In the unlikely event my ESTA is approved, how confident should I be that this isn't a glitch and that CBP will let me enter the country on arrival?

I note various embassy websites caution against travelling on the VWP when one has previously been refused a visa. I also note that there are others on here that have had ESTAs approved after a B1/B2 visa refusal. Has anyone in such a circumstance had any trouble entering the US at point of entry?

The state department's website reads at once both vague and ominous and gives the impression that my ESTA could be approved but I could still be denied entry by a border official?!

I was denied a visa under section 214(b). May I use the VWP?

A recent visa refusal for any reason could result in denial of ESTA authorization, additional review at the port of entry, or denial of admission to the United States. If you are uncertain if you qualify for VWP travel, you may choose to apply for a visa

Sorry for the essay - appreciate your thoughts. I am planning a special trip to the US and Canada for my 30th birthday and would like to avoid any last minute surprises. The trip isn't till late 2015 so I still have time for a Plan B, but I'd be gutted not being able to do the trip as planned as I miss New York.

Last edited by Qantasflyer; Nov 7th 2014 at 7:26 am.
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Old Nov 7th 2014, 7:51 am
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Default Re: Previous visa refusal - ESTA?

Originally Posted by Qantasflyer View Post
1) Can I still apply for an ESTA if I have been previously denied a US visa?
Yes. You must declare the earlier visa denial when you complete ESTA. If ESTA is approved, you're free to travel. If ESTA is denied, you must get a new visa.


2) In the unlikely event my ESTA is approved, how confident should I be that this isn't a glitch and that CBP will let me enter the country on arrival?
It's not a glitch. See my final comment below.


I note various embassy websites caution against travelling on the VWP when one has previously been refused a visa.
It's a web site... it doesn't accurately reflect the law. The information is for the benefit of the US government... not for the benefit of the traveler. Telling you to get a visa is the easiest thing for them.


The state department's website reads at once both vague and ominous and gives the impression that my ESTA could be approved but I could still be denied entry by a border official?!
ESTA is permission to travel... nothing more. Entry to the US is based on the VWP. Permission to enter the US is always at the discretion of the CBP officer at the port of entry. But that's true whether you seek entry under the VWP or with a visa. Only a US citizen has the right of entry to the US... everyone else, visa or not, takes their chances.

As a practical matter, 99% of ESTA travelers are admitted to the US without incident... but people always imagine themselves to be in the 1% of travelers who are refused entry. Go figure!

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Old Nov 7th 2014, 8:37 am
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Default Re: Previous visa refusal - ESTA?

You can apply for ESTA, now that you're a citizen of an eligible country. You must declare the prior visa refusal. If ESTA is approved, you can travel on the VWP. If ESTA is denied, then you must apply for a new B2 visa.

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Old Nov 7th 2014, 8:51 am
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Default Re: Previous visa refusal - ESTA?

Fab, thanks both!

I am waiting for frequent flyer redemptions to open up in a couple of weeks on the flights we need (they are refundable with a small fee), and once we secure the reward seats I will apply for the ESTA so that we can provide info on our itinerary. Is there an issue with applying for ESTA too quickly? The trip doesn't take place till October 2015 but I want sufficient time to execute a plan B if we have to go to an alternative destination.

Sorry for the 5 millionth question!
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Old Nov 7th 2014, 10:31 am
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Default Re: Previous visa refusal - ESTA?

You can apply for ESTA anytime, and approval is valid for 2 years, unless your circumstances change (I.e. you'd answer one of the ESTA questions differently).

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Old Nov 7th 2014, 10:33 am
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Default Re: Previous visa refusal - ESTA?

Ta!

Will update on how I go after I apply for ESTA.
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Old Nov 8th 2014, 3:32 pm
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Default Re: Previous visa refusal - ESTA?

Authorisation approved!

I decided to submit an application even though I have not booked my plane tickets seeing as though they don't ask for an actual itinerary. After submitting my application I had a 'pending' status. A few hours later it became 'approved.'

I read a few posts on here that suggests I'd need to bring some documents to prove my intent to return to Australia. Aside from a confirmed ticket leaving the US, what else should I be expected to show to CBP at port of entry? Payslips from my employer, mortgage documentation, property ownership at home etc were cited as necessary evidence to demonstrate an intent to depart the US according to a few other threads on this topic - are these really necessary or am I needlessly stressing myself out?
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Old Nov 8th 2014, 3:37 pm
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Default Re: Previous visa refusal - ESTA?

Doesn't hurt to bring them; you probably won't need to show them.

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Old Nov 8th 2014, 3:43 pm
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Default Re: Previous visa refusal - ESTA?

I find I feel a bit more confident knowing that I have some documents on me to back things up, but have never needed anything. The only thing I have ever been asked for is some evidence if the address I would be staying at in the US, which I didn't have, but even then I got in without anything it just took a bit longer.
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Old Nov 8th 2014, 3:43 pm
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Default Re: Previous visa refusal - ESTA?

Thanks Rene. I might bring a few things just in case.

I've never been given a hard time entering the US on my old B1/B2 visa. This will be my first time travelling on the VWP - compounded with the uncertainty surrounding 'previous visa refusal/subsequent ESTA approval', I can't help but feel a little nervous.

I take Ian's point about 99% of ESTA travellers entering the US without issues, but it's hard to feel 100% confident when there's so much contradictory information on the inter webs even on 'official' websites and all the info surrounding US CBP processes is often presented in such a foreboding way!

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Old Nov 8th 2014, 3:45 pm
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Default Re: Previous visa refusal - ESTA?

Originally Posted by fozzyb View Post
I find I feel a bit more confident knowing that I have some documents on me to back things up, but have never needed anything. The only thing I have ever been asked for is some evidence if the address I would be staying at in the US, which I didn't have, but even then I got in without anything it just took a bit longer.
Thanks! That sounds reassuring. I usually save my airline tickets and hotel bookings on to Passbook anyway along with addresses and their map references - aside from immigration, have had my fair share of clueless taxi drivers. But I'll print a few extra things out (thinking payslips and getting work to sign a letter indicating the date I'm expected to be back) for this trip just in case.

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Old Dec 5th 2014, 3:52 am
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Default Re: Previous visa refusal - ESTA?

Crap... I just realised I'd make a mistake on the ESTA application. It asks for parents' names and for one of the names,. I'd inadvertently entered my dad's given name in the family name field, and his family name in the given name field.

I can't seem to update this information either. Would I have to submit a new ESTA application?
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Old Dec 5th 2014, 4:11 am
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Default Re: Previous visa refusal - ESTA?

Originally Posted by Qantasflyer View Post
Crap... I just realised I'd make a mistake on the ESTA application. It asks for parents' names and for one of the names,. I'd inadvertently entered my dad's given name in the family name field, and his family name in the given name field.

I can't seem to update this information either. Would I have to submit a new ESTA application?
No.

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Old Dec 5th 2014, 4:27 am
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Default Re: Previous visa refusal - ESTA?

But I suppose I'd have to rectify the mistake somehow? I've emailed CBP through the online form...
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Old Dec 5th 2014, 4:49 am
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Default Re: Previous visa refusal - ESTA?

It's not a mistake that would change the outcome of the approval, so you're fine.

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