November 12, 2009

Visa Waiver Program Visitors should Disclose Receipt of 221(g) Notice as Visa Denial on their ESTA Applications

Individuals traveling to the U.S. under the Visa Waiver Program (VWP) are being advised to disclose any 221(g) notices as visa denials on their Electronic System for Travel Authorization (ESTA) applications, according to U.S. Customs and Border Protection (CPB) per a recent consultation with the Department of State (DOS).

221(g) notices are generally issued by the U.S. embassies and consulates to visa applicants when the visas cannot yet be issued because further action is required, such as the submission and review of additional documentation, or the completion of a background check. While in the past the DOS has considered a 221(g) notice to be a “refusal,” as opposed to a “denial,” it has advised CBP that for purposes of the ESTA application, it is considered a “denial.” Thus, VWP applicants who have received a 221(g) notice and are completing their online ESTA applications should answer the question “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa cancelled?” in the affirmative, and may state a reason for the notice in the “where” box.

Applicants who have received their ESTA approvals but did not disclose a prior 221(g) notice should submit a new ESTA application with the disclosure in order to avoid a possible denial of entry by the CBP and fraud accusations.

As of January 12, 2009, VWP visitors are required to obtain an ESTA approval in order to travel to the U.S. pursuant to the program. The VWP permits individuals from participating countries to travel to the U.S. for 90 days or less for business or tourism without first obtaining a visa. ESTA is a security measure used to ensure that individuals seeking to travel to the U.S. under the VWP are authorized to enter the U.S. For more information on ESTA, visit the CBP’s ESTA website. For more information on the VWP, visit the DOS website and the CBP website.