7. februar 2023

Avoiding ESTA Denials and What to do When it Happens

Beau Russell

One of the little known aspects of the Visa Waiver Program and the ESTA application is how fragile your eligibility for the program is. Under the laws of the United States, if your ESTA application is denied, for any reason, you are required to apply for a visitor visa at a U.S. Embassy or Consulate in the future. These denials usually happen either when a person applies for the ESTA online or at the U.S. border when the traveler is entering the United States. In either event, when your application is denied, for innocent reasons or not, it can present problems and inconveniences for your future travels. These problems and inconveniences can take the form of increased questioning at the border or, more seriously, a quick return trip home.

So how can an individual travelling avoid such a drastic change in travels plans to the U.S.? It is important to understand under which circumstances the denials can occur. First, they can occur when applying online for the ESTA. If a person checks any of the boxes “yes” for questions concerning inadmissibility (bad things you may have done in the past), you will be automatically denied the ESTA. Some of the most common reasons people are denied are for answering “yes” to questions about following issues:

  • On a previous visit, you stayed in the U.S. longer than you were authorized
  • On a previous visit, you came as a visitor, but engaged in unauthorized work
  • Crimes; or
  • You were previously denied entry or a visa to the U.S.

For the majority of individuals, the answers to these questions are no. However, in the event you have something that triggers a “yes” answer to these questions, you are not eligible to travel on the ESTA program and must apply for a visa at a U.S. Consulate of Embassy. In certain cases, especially in the event you have been convicted with a crime in the past, it is important to speak with an attorney before travelling.

In the case you answered the question incorrectly, you may email the U.S. Customs and Border Patrol and ask them to review your application. It may also be possible to resubmit an application and change your answer. The U.S. Customs and Border Patrol will see the first denial when you reach the border and you must be prepared to explain why you answered affirmatively to that specific question. Reapplying with false information for the purposes of qualifying for an ESTA, however, could make you permanently ineligible for travel to the U.S.

The other place you may be denied an ESTA is at the border. The Border Patrol office can see your application and every application or travel you have made to the U.S. previously. The officer has the ability to question you and inquire about any anomalies or problems they think are important. This includes multiple applications with different answers. As mentioned, it is important to realize that you have done this and be able to explain why there are two applications or problems with previous applications.

The bottom line is that it is very important to review carefully each question and take your time with these applications. The ESTA is a very convenient tool for most travelers and losing it will result in having to visit the U.S. Embassy or Consulate before entering the United States. If you have any questions about your eligibility for a visa to the United States, please do not hesitate to contact our office. We can help you assess whether you are eligible for the ESTA program and formulate a plan in the case you are not.

Beau Russell is a U.S. Immigration attorney located in the Copenhagen Area. For the past several years in California he has helped hundreds of individuals solve their U.S. Immigration issues. Beau joined THOMAS THORUP LAW in 2015 and works from our Copenhagen Offices. His specialty is assisting businesses and families obtain non-immigrant/temporary visa and permanent/immigration visas (“green cards”) to the U.S.