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I have a denied B2, but approved ESTA. Looking to leave and re-enter the US under the VWP. (New Zealand citizen)
Anonymous4 views1 answers
I held a H1B visa til Jan 31 2010. On Jan 28, my employer applied for an extension to my H1B that was denied on March 23. I submitted for changed status from H1B to B2 on March 31 & received a denial notice May 5.
On May 4, I applied for an ESTA & it was approved. I answered that I had NOT been denied a US visa. I have a flight booked to leave the US on May 13. My intent is to re-enter the US on the VWP on May 24, spend 4 weeks in the US, then fly to the UK where I have a work visa & job.
- What’s the likelihood that an immigration official will deny US entry under the VWP?
- Should I update my ESTA to disclose my denied visa?
- Will it benefit me to leave the US earlier than May 13?
- What short and long term implications may I face for being out of status Jan 31 through May 13?
The H1-b was denied on March 23, 2010, so the decision to withhold information about that visa denial also seems like an issue. A material fact was witheld on May 4, but requested by the ESTA program; that is, the H1-b denial. This may create a permanent bar to immigration or a non-immigrant visa upon discovery by the DHS. An effort can be undertaken to describe your state of mind, but the above ESTA question likely requires disclosure of all visa petition denials, whether B-2 or otherwise.
It does not seem to be a matter of updating. However, a closer look at the ESTA form could prove insightful at this point. If, on May 4, 2010, you knew about the H1-b visa denial, then you were obligated to disclose and explain it. Unfortunately, it is unclear whether the ESTA-VWP would have been approved had DHS known about H1-b extension of stay denial from March 23, 2010. It is also unclear whether you can qualify for a waiver for non-immigrant or immigrant visa purposes.
In the interim, you must decide what to do. If this fact is discovered by CBP, as well as the B-2 denial, then you may be summarily excluded and flown back to the port of departure as a matter of discretion. However, what will actually happen and when is not something that attorneys should venture to speculate about.
I still recommend an appointment with candid and experienced immigration counsel, since you may be skeptical or have additional facts. Obviously, seeking an attorney should have been done much sooner.
The above is general information and does not create an attorney client relationship.
