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Visa Waiver - Some possible issues??

Visa Waiver - Some possible issues??

Old Jun 20th 2010, 1:23 am
  #16  
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Default Re: Visa Waiver - Some possible issues??

If someone is refused under VWP, they can't be lawfully admitted under the VWP again and need a visa unless exempt (they become Canadian, Bermudian etc).

http://www.uscis.gov/ilink/docView/S...-0-0-4391.html

Section 217(g) 7/ VISA APPLICATION SOLE METHOD TO DISPUTE DENIAL OF WAIVER BASED ON A GROUND OF INADMISSIBILITY- In the case of an alien denied a waiver under the program by reason of a ground of inadmissibility described in section 212(a) that is discovered at the time of the alien's application for the waiver or through the use of an automated electronic database required under subsection (a)(9), the alien may apply for a visa at an appropriate consular office outside the United States. There shall be no other means of administrative or judicial review of such a denial, and no court or person otherwise shall have jurisdiction to consider any claim attacking the validity of such a denial.

A visa waiver refusal isn't a removal order so a VWP refusal, by itself, it doesn't automatically disqualify someone from getting a visa.

Last edited by crg; Jun 20th 2010 at 1:29 am.
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Old Jun 20th 2010, 2:10 am
  #17  
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Default Re: Visa Waiver - Some possible issues??

Thanks for the clarifications, everyone.

Rene
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Old Jun 23rd 2010, 10:00 am
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Default Re: Visa Waiver - Some possible issues??

Thanks for your responses everyone!

I consulted a very knowledgeable immigration lawyer and essentially this is what he said:
1.) Re-entry under the VWP would almost certainly be denied in my specific circumstances (i.e. very unusual travel patterns), unless I arrive with a significant amount of documentation to show my ties to my home country. These would include lease agreement, bank statements showing regular income from a non-US source, return ticket, car/loan payments, family ties, pets, specific short-term reason for visiting the US, etc.
2.) If denied once under the VWP, I would not be allowed to come in on the VWP again - I would definitely have to apply for a visa.
3.) The 'drunk in public' is not a CMIT. I could tick 'no' for the respective question on the I-94, but he advised me to tick 'yes' on the ESTA application, as the respective question is apparently slightly different. I.e. the ESTA application requires stating any previous arrests, no matter what for and whether they led to a conviction.
4.) My freelance work in the US was perfectly legal, as I had no US customers and was paid in foreign currency into a foreign bank account.

Hopefully this info will be of use to others else as well. Thanks again.
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Old Jun 23rd 2010, 10:45 am
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Default Re: Visa Waiver - Some possible issues??

Number 4 is quite surprising to me.
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Old Jun 23rd 2010, 11:01 am
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Default Re: Visa Waiver - Some possible issues??

It doesn't really surprise me that much... The work did in no way depend on me being present in the US - I could have done it from any other country as well, as long as I have an internet connection. Also, that way I wasn't taking any work that could have possibly gone to a US resident instead.

The other way to look at it: what if I was a writer working on a book? Arguably I could have done the writing while on an extensive holiday in the US, which is not that different from my technical writing projects. Or: if I was on a shorter holiday to the US but on regular pay from an overseas company, I would certainly be allowed to check my work email, do some work on documents, etc, right? The only difference was that my holiday was longer...

Legal gray area perhaps? It certainly did not seem to contravene any US laws.
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Old Jun 23rd 2010, 12:29 pm
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Default Re: Visa Waiver - Some possible issues??

Originally Posted by nomadsurfer
I could tick 'no' for the respective question on the I-94, but he advised me to tick 'yes' on the ESTA application, as the respective question is apparently slightly different.
I hope he meant I-94W because that, and not the I-94, is the form you must complete when you travel on the VWP. I believe he's wrong - the questions are identical on both ESTA and the I-94W. If you check "no" on ESTA but "yes" on the I-94W, it could be inferred that you deliberately lied in order to receive an immigration benefit... and that would likely initiate a series of unfortunate events.

Will that happen? I've no idea. Could it happen? Absolutely, yes. Here's the thing... you won't know for sure until you try it. I can tell you one thing though... it's not the lawyer who will suffer if things go belly up for you.


My freelance work in the US was perfectly legal, as I had no US customers and was paid in foreign currency into a foreign bank account.
I'm not going to comment on this other than to say that two of the criteria for determination, is whether or not your physical body was in the US and whether or not you were working.

Ian
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Old Jun 23rd 2010, 12:49 pm
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Default Re: Visa Waiver - Some possible issues??

Originally Posted by ian-mstm
I hope he meant I-94W Ian
Yes, my mistake. I actually also thought the questions on ESTA and the I-94W were the same... Hope he didn't give me wrong advice here! I will check if the 2 ask an identical question. If so, then I should be fine answering 'No' on both, correct? Seeing as an alcohol-related drunk in public is not a CIMT.

Originally Posted by ian-mstm
I'm not going to comment on this other than to say that two of the criteria for determination, is whether or not your physical body was in the US and whether or not you were working. Ian
Hmmm, point taken. Could you maybe point me in the direction of the applicable laws/rules/guidelines, either online or in print form? Even the names/numbers of the applicable immigration laws would help if I ever need to discuss this with anyone again. Thanks!
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Old Jun 23rd 2010, 6:08 pm
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Default Re: Visa Waiver - Some possible issues??

Originally Posted by nomadsurfer
If so, then I should be fine answering 'No' on both, correct?
If you "honestly and truly" believe that "alcohol-related drunk in public is not a CIMT" then tick "no".


Could you maybe point me in the direction of the applicable laws/rules/guidelines, either online or in print form?
There are none, which shouldn't really come as a surprise. The vagueness is built into the system so as to allow the officer the widest possible latitude when making a determination about whether or not to admit you.

Ian
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Old Jun 24th 2010, 3:31 am
  #24  
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Default Re: Visa Waiver - Some possible issues??

I just checked and the questions are identical between ESTA and I-94W. I think this hasn't always been the case, I think the ESTA question used to be broader.
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Old Jun 24th 2010, 11:12 pm
  #25  
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Default Re: Visa Waiver - Some possible issues??

The ESTA and I-94W questions have always been identical. The visa application arrest question is different and broader. Either you misunderstood what the lawyer told you, or he isn't as knowledgeable as you thought he was.

I suspect you may have misunderstood because his other answers seem pretty solid with the exception of "Re-entry under the VWP would almost certainly be denied in my specific circumstances". I don't see how the outcome of an individual inspection before an individual border guard could be predicted with any certainty.
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