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US Visas and ESTA Travel: The dangers of inadvertent misrepresentations

In US immigration law, a finding of misrepresentation or fraud is a very serious issue. Unlike other cultures where people might not think twice about slightly bending the truth or not following the rules to their full extent, doing so in relation to US immigration spells big trouble.

When someone applies for a US visa and blatantly lies about not having a criminal history, for example, one might expect adverse consequences if the truth is uncovered. But what about situations where a person answers US visa-related questions believing their answers to be true when, in fact, they are inaccurate? Unfortunately, he or she may have just misrepresented their situation in the eyes of the US Embassy and the US immigration authorities.

DS-160 and ESTA Questions

As many British visitors to the USA know, the Electronic System for Travel Authorization (ESTA) is the required pre-travel questionnaire that must be completed with an "Authorization Approved" outcome before being able to visit the USA under the Visa Waiver Program (VWP).

Other individuals must complete the DS-160 before attending an interview at the US Embassy in London or the US Consulate in Belfast. Applicants whose country of nationality is not a participant in the Visa Waiver Program, or those who receive a "Travel Not Authorized" message upon completion of the ESTA questionnaire, must apply for a visa in person at the US Embassy or Consulate. Additionally, individuals who intend to engage in activities other than those permitted by the VWP or stay in the USA for longer than 90 days must also apply for the relevant US visa in person.

Both the ESTA questionnaire and the DS-160 contain questions inquiring whether the person has previously been denied a US visa or denied entry into the USA. This is a potential mining field for unknowing applicants.

What counts as a US visa denial?

Applicants who must answer "yes" to indicate they have previously been denied a US visa include but are not limited to:

  • Individuals who applied for any US visa (tourist or otherwise) and were told that they did not succeed in obtaining it;
  • Persons who applied for any US visa, which they were eventually granted, but not until after the visa application had to go through "administrative processing". The reasons for administrative processing can range from simple matters such as missing documents which, when provided, result in the visa being issued, to more complicated matters such as applicant's criminal history that is being investigated. Even if the visa is eventually issued, the fact that it went through administrative processing counts as a visa denial, and applicants must declare in future ESTA/ DS-160 applications that they have been denied a US visa;
  • Individuals who applied for the wrong visa category on Form DS-160. For instance, a person intending to travel to the USA as a tourist should apply for the B-2 visa. If this person applied, say, for the F visa (student visa), then an application for the incorrect visa category would have been made. In this situation, there may be a notation indicating administrative processing in the applicant's record which would raise the issues discussed in the bullet point above relating to administrative processing, and the applicant would have to declare a denied prior US visa.

What are the consequences of misrepresenting such information?

A person who is found to have made misrepresentations in their ESTA and/or DS-160 form will be inadmissible to the United States. This means that any US visa application submitted by the individual may be denied by the US Embassy. There are some limited waivers of inadmissibility that applicants can seek to allow them to obtain a US visa.

This issue is unfortunately but one of the many potential pitfalls for applicants for US visas and VWP visitors to the USA. Becoming educated about the relevant US immigration requirements and speaking to a qualified US immigration lawyer before applying for a US visa could save applicants significant problems further down the road. Unfortunately, many applicants do not seek legal advice until after they have encountered a US immigration visa denial. Speaking to an immigration lawyer may be imperative due to the complexity of many situations at this stage in order to overcome a misrepresentation or fraud finding.

The American Immigration Law Office practices exclusively in the field of US immigration law in the City of London, UK. The firm would be delighted to answer your questions related to US visas, visa denials, and inadmissibility waivers, as well as plan the best course of action for your particular circumstances.