ESTA approved on the same day as B-1/B-2 visa refused

Question

I am writing because I have a question regarding my ESTA application and because I could not find a similar case online that would help me at this stage. I have never been to the U.S. so this would be my first visit.

I am a German citizen, hence eligible for the Waiver Program. I applied for an ESTA in June 2014 and got approved. After further research on the Internet I learned that the passport should be valid until 6 months after the planned return date. My passport was due to run out in Feb 2015 - which still should have been fine but because I didn't want to take chances I applied for a new passport which was issued August 2014 and is now valid until August 2024. My passport number has been changed also.

After I received my new passport I was advised by a friend to apply for a B-1/B-2 visa as it would allow me to extend my stay and it seemed like a good idea at first. On the day of my interview I also applied for a new ESTA with my new passport number (just in case) which again was granted.

Unfortunately for me the interview for the B-1/B-2 visa was unsuccessful and I got rejected. I was not aware then that after a rejected interview one could not travel with ESTA, otherwise I would have never risked it!

Now I am very concerned, can I still use my ESTA and enter the U.S.? as I read everywhere that once you get rejected the chances of getting through are very slim and any visa rejection will result in not being able to use the waiver program.

It might be important to note that both the B-1/B-2 interview and the waiver application were on the same day, 21st of August 2014, so depending on how one might look at it that might present a problem too I suppose.

I guess the frustration lies in the fact that I did not need to apply for a B-1/B-2 visa to begin with, and had I not I would now not have these problems. I would like to know how likely it is that I can still travel under the waiver program, if at all, and what my options are at this point.

Answer 1

I am not a lawyer or otherwise expert of US immigration law but it is my understanding that the ESTA and the Visa Waiver Program are two distinct things. The language on the US State Department's VWP website seems quite clear:

Travelers must be eligible to use the VWP and have a valid Electronic System for Travel Authorization (ESTA) approval prior to travel.

(This sentence implies that being eligible on the one hand and having a valid ESTA on the other hand are two separate requirements.)

You must meet all of the following requirements to travel to the United States on the VWP:

[…]

Each Traveler Must have authorization under ESTA

In order to travel without a visa on the VWP, you must have authorization through the Electronic System for Travel Authorization (ESTA) prior to boarding a U.S. bound air or sea carrier.

[…]

Previous Compliance and No Prior Visa Ineligibilities

If you have had a U.S. visa before or previously traveled to the United States under the VWP or another status, you must have complied with the conditions of previous admissions to the United States, and you must not have previously been found ineligible for a U.S. visa.

Here again, having an ESTA and having no prior visa ineligibilities are two separate requirements and the site does specify that you must meet all requirements. So if you have been found ineligible for a U.S. visa, you cannot enter under the VWP, period. Under that logic, when you applied for the ESTA, whether it is still valid, etc. become immaterial, you simply cannot legally enter the US without a visa anymore.

Your only option would then be reapplying for a visa, addressing the issue raised in the rejection letter.

Answer 2

The answer above is not 100% correct. I just called US CBP and they said that you must resubmit for an ESTA and change your answer for "have you been denied a visa", which would now be "yes". Keep in mind, visa denial is not necessarily the same as an ineligible visa. Now, it's not likely that your new ESTA will be approved but if it is, then you are cleared to travel to the U.S. However, once it's denied, you will have to apply for a U.S. visa like a tourist B2 visa any time you want to enter the U.S. Hope this helps someone. To those reading this, please post the results of any similar situations you experienced. I'm sure it can help someone.