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I got in to the USA on the VWP after being refused a B-2 visa and maybe you can too!

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  • I got in to the USA on the VWP after being refused a B-2 visa and maybe you can too!

    Hello everyone. I recently sought some advice on getting in to the USA on the VWP despite having had a B-2 denial in the past. I always saw lots of advice but never any stories about people managing to do it. Presumably in their euphoria at getting in (or despair at being rejected) they forgot to post the outcomes of their trips.

    This was frustrating for me, because I wanted to know for certain that it could at least definitely be done, and no amount of well meaning advice in the world could do that.

    So, having done the impossible () and been granted entry on the VWP despite my previous visa refusal, I have collected together some advice on how people can hopefully retrace my steps.

    If anyone spots anything I've missed please do let me know.

    Using the Visa Waiver Programme to enter the United States of America after previous visa denial.


    1. You CAN legally enter the USA on the Visa Waiver Programme if you have previously been refused a Visa under Section 214(b) of the Immigration and Nationality Act.

    There is a lot of very confusing and differing information out there as to whether having been refused a visa in the past point blank discounts you from every being able to travel on the VWP again. Even different US government department websites don't agree on this.

    The first thing you need to do is check any correspondence you were given explaining why you were denied your B-2 visa. They are under no obligation to explain why, but it might give you some indication as to the reason. If you were denied under Section 214(b) of the Immigration and Nationality Act it would mostly likely be for one of the reasons

    If you think that any of those reasons fit your bill then you are still eligible for the VWP.

    A lot of sites say that you are never eligible for it once you've been denied a Visa, but actually they're misinterpreting the word 'ineligible', as written here under the section 'Previous Compliance and No Prior Visa Ineligibilities'. To summarise the section, as long as you have never been declared completely ineligible to get a US visa (remembering that 214(b) refusal is a denial, not an ineligibility) you are eligible to use the VWP. I am eligible to play for the England football team, but if I asked I would certainly be denied. It doesn't make me any less eligible to do so.

    If you were turned down under section 212(a) of the Immigration and Nationality act due to a criminal record or some other such reason, you are unfortunately not eligible. This page has a good breakdown of the different reasons for ineligiblity or denial under the various subsections of the act. I don't really understand 221(g), so if you were denied for that it's best to seek more qualified assistance.

    2. Just because you CAN get in, doesn't mean you WILL. But if you play your cards right you stand a pretty good chance.

    If you are sensible about how you approach your application you stand a higher chance of going on that dream holiday. I know it sucks, because I've been there, but applying for your ESTA the day after being refused a Visa just won't work.

    You might think you can get one over on them but the fact is that denial is in the system and if you lie about it you will spend precisely 5 seconds in the States before they ship you home and permanently ban you from coming back for immigration fraud.

    The sad fact is, is that now you have to play the waiting game and let things cool off for a while. I was pretty much 4 and a half years past my B-2 visa denial when my ESTA was granted. I don't know what the **** * amount of time that has to have passed to get to that stage is, because I simply didn't try in that whole time. It may be two years or three. It's a good guess that it needs to be long enough for your circumstances to have changed significantly, though.

    Additionally, keeping plugging away at ESTA applications once every 6 months just to try your luck and being denied every time probably isn't going to look good on your record. I know you want to go to America as soon as possible. The peanut butter M&Ms sing their siren song to me too, but if you keep trying you are going to look suspiciously desperate to get in, which is the kind of thing they're looking out for.

    Go somewhere else for a while. I heard Canada's nice and sort of like America. Or go to Europe. We have just shy of 50 countries within a 4 hour flight radius and some of them are mind blowing. blog/shiiuga/1/tpod.html"]Trust me[/URL]. Then, when the heat has died down, give the ESTA application a try, you might get lucky.

    Finally, be thorough and honest on your ESTA. You will be nervous when you get to the border and you don't want to be tripped up because you put the information in wrong. And do it a long time in advance. You can't edit it from 72 hours before the flight so if you get something wrong after that have fun explaining it.

    3. Be prepared.

    So you've applied for your ESTA and it's been granted. The flights are all booked and you want to make extra sure that you have the right documentation to prove that you intend to return home. The following were suggested to me as good bets:
    • PROOF OF A RETURN OR ONWARD FLIGHT. I cannot stress how important this is because without this you aren't even getting on the plane.
    • A document indicating that you have a property that you do not intend to abandon in your home country. For me this was a tenancy agreement, but it could be mortgage statements, or whatever other fancy things you get when you're rich enough to own your own house. If your tenancy agreement has expired and you are living on a rolling contract, consider asking your landlord if you can negotiate resigning an agreement, as this will reactivate the no break clause, meaning you are further tied to the property in the eyes of the border guard. Obviously if you want to leave your flat as soon as you get back, don't do that.
    • A document indicating that you have a job. I took a copy of my work contract (which had my notice period on it) and a signed letter from my boss dated the previous day to the flight indicating that I was employed their and the day they expected me to return to work.
    • Documents indicating financial ties. Utility bills, council tax statements, credit card statements, bank statements. Anything that ties you financially to your country of origin. Some people said not mobile phone bills because they are transient, but I'd just signed a 24 month contract with no break clause, so I think that one varies person to person. Some other stuff I had included receipts for theatre tickets I had purchased, and for a language course I had booked to start in January.
    • Documents indicating strong social ties. If you have a partner or kids back home then this will obviously help with your case for coming back, but I would say don't rely on these as many people just leave their families and friends behind to move to a new country.
    • Anything else you can think of that might help your case by proving that you have a reason to come back.


    Be aware that there is a good chance that you won't ever need to show any of these things to anyone (bar the return ticket), but it's better to be prepared than to have to shrug your shoulders when the border guard asks you to prove you aren't a homeless drug addict come to steal American jobs and benefits and sleep on the front portico of the White House for ever.

    Finally on this section: If you can't prove the majority of the above (whether it is true or not), consider if now is the right time for you to be doing this trip. Getting to the States and being sent home is far worse than a domestic Visa refusal, so maybe wait it out a bit longer until you can get this stuff together.

    4. Be cool. Be honest. Be discreet. (Or: Calm down, don't lie, and don't rat yourself out.)

    The day has finally come and you've stepped off the plane at your airport of choice, armed with reams of documents to prove you don't intend to be a burden on the American government and it's welfare systems. You line up, and eventually are called forward to speak to the border guard. So, what do you do next?

    Firstly: Be prepared to answer questions. Politely. I know you're probably tired. You've been in a bucket of metal for 8+ hours and all you want is to inject some Mountain Dew in to your veins and fall asleep. Unfortunately, now is not the time to be sassy. If the border guard asks you to jump, you had better ask them how high, because right now the burden of proof is on you.

    It is the applicant's responsibility to prove that they do not intend to break the terms of the VWP by residing here permanently, or stay longer than the 90 days. If they ask you to prove something, do your best to prove it, politely. If you talk back all that it is going to achieve is for them to put a tick in the 'No' column when they weigh up your case.

    You may get lucky, like I did, and not be asked a single question, but don't shoot yourself in the foot before you've even begun. Be cool, even if it seems like they're not being very nice to you. They make the decision at the end of the day so if they want to take our their bad afternoon on you, just let them.

    Secondly: Be cool. I know you're nervous, I was too, but try not to show it. It'll make your life a lot easier. These guys have to process thousands of people a day in some cases, and 99.9% of the time it goes fine. If you look unduly nervous you will be that 0.1% who they pick on. Just relax, and act normally. If you start fidgeting or looking around or some other kind of nervous tic then you will only draw attention to yourself.

    Remember: you are not doing anything wrong. You are entering the country legally, using a programme that you are within your rights to use.

    Thirdly: Be honest. This ties in with the above. I know some of you have sticky situations that mean your application is extra complicated. I did too. I had a previous Visa denial on my record and I was intending to spend 3 weeks with my American girlfriend's family.

    I was so paranoid that the American girlfriend thing would look bad that I came up with all sorts of elaborate ways to lie about the situation. Who I was staying with and why, etc. In the end I decided that it wasn't worth it and, if asked, to go with the truth, or at least the truth that they needed to know, which will come in a minute. Lying about things is hard, especially when you are tired, nervous, and trying to do it to someone whose job it is to spot liars. Don't make it harder on yourself. Honesty is more likely to get you in than tripping over your own web of deceit.

    Additionally they have a wealth of info available to them. Did you know, for example, that if you ever bought a joint ticket to fly somewhere with another person or persons, those names will appear next to yours on a permanent log that is searchable by TSA agents?

    In short: They have access to more info than you think they do. Don't give them cause to use it.

    Fourthly: Be discreet. Remember above when I said to tell the truth? There is only so much truth you want to tell them.

    Example: Had I walked up to the desk, and the officer had said "What is the purpose of your visit?" and I had replied "I am here with my American girlfriend to spend three weeks staying with her family for Christmas" that is an immediate red flag.

    Never give them more than they ask for. If they want more information they will press you for it. The appropriate answer to the above question would have been "I am here on holiday." If they had asked me who I was staying with the answer would be "My girlfriend's godmother." If they had then asked me "Where is your girlfriend?" I could have said "She didn't travel with me" (she was on a separate flight for monetary reasons).

    At no point during that exchange have I given away the identity of my girlfriend or her actual whereabouts. If they want to know, they'll ask. Don't give them any more than they want.

    If your circumstances are simple, great, but if like me you have a bit more to potentially explain, it might help to bend the truth a little bit, but don't outright lie. My girlfriend didn't travel with me, but she was travelling to that airport, so I didn't want them to search all the other flights for her name if I said she was tucked up warm in bed at home.

    Finally: Be prepared to go for secondary processing. I don't know if it's common for prior visa refusal to be a flag for secondary processing, but be aware that you may have to sit in a room for a while before being interrogated a bit more thoroughly. This is when having the documents ready will pay off. Someone told me that at this stage they're looking for the really nasty people, and that generally as long as you answer their questions and show your evidence you will be fine because they're wasting time that could be better spent.

    Unfortunately there is no accounting for a border guard having a really bad day, and all of the above could go perfectly and you will still be shipped home. Equally you may get the nicest border guard in the world, or one that is two minutes away from coming off shift and just wants you to get out of their way.

    However, you can do it. It is possible, and it most definitely is not illegal. Follow the above tips and hopefully you too can enjoy the best that America has to offer.

  • #2
    I got in to the USA on the VWP after being refused a B-2 visa and maybe you can too!

    Great post! I was also denied a B2 visa some years ago, applied for ESTA after 3 years and got to the USA without any issue. No secondary processing, POE experience was a normal one, a few questions and no issues at all.

    Comment


    • #3
      Question

      Hello...I realize this thread is over 2 years old but here goes: Fantastic post with lots of detail and information for keeping your spirits up while getting through the "process", thanks for that. I was wondering if you marked "yes" on your ESTA application regarding your previous denial of your B-2 visa? I understanding that lying on this question is a huge no-no, and that you could easily end up banned from the US if you lied...but I want to confirm that you marked yes to the question regarding your denial? As you mention in your post, there is confusing and even conflicting information out there. My Spanish girlfriend has been denied a B-2 but her ESTA still shows valid when you check the status...we're wondering if she should risk entering the US...we were told her ESTA would no longer permit her to enter the US by the embassy....but again, lots of confusing info out there.

      Comment


      • #4
        Originally posted by tarjetasdememoriard View Post
        Great post! I was also denied a B2 visa some years ago, applied for ESTA after 3 years and got to the USA without any issue. No secondary processing, POE experience was a normal one, a few questions and no issues at all.
        That is impossible, unless you lied on your ESTA for the question about having a visa denied....well?

        Comment

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