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.