Denied entry under the Visa Waiver Program: Can I come back to the U.S.?

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Question:

I am a citizen of Brunei, and planned a trip to the U.S. last year to visit family here. However, the immigration official at the U.S. border did not believe me that I planned to stay here temporarily. He kept asking questions about my family who live in the U.S., and unfortunately he found a resume in my suitcase, because I had been planning to scout around for a job in the United States. So he wouldn’t let me in; I had to fly all the way back to Brunei immediately. Now I’m wondering what happens next: Is this on my permanent immigration record? Can I ever come back to the United States?

Answer:

The fact that you have been refused entry under the Visa Waiver Program (VWP) will indeed go on your permanent immigration record, and may impact whether you are allowed into the U.S. in the future.

But unlike the case where someone has actually been removed or deported from the U.S., VWP applicants do not face any automatic bar upon returning.

If, however, you apply again to enter on the VWP, chances are high that you will be denied when you complete the required application using the State Department’s Electronic System for Travel Authorization (ESTA): http://www.cbp.gov/xp/cgov/travel/id_visa/esta/.

One of the questions on the ESTA asks whether you have ever been denied entry to the United States. (Lying on this answer COULD lead you to be permanently barred from entering the United States.) Your “yes” answer is likely to lead to a denial, though there’s no harm in trying. (But you’d still risk being turned around at the border again.)

That’s not your last hope, however. You can still go to a U.S. consulate in your home country and apply for a tourist (B-2) visa. There, you’ll have a chance to meet with a consular official and hopefully convince that person that your intentions are truly consistent with the visa you are applying for. See Nolo’s article, “A B-2 Visa for Visiting the U.S. as a Tourist: Do You Qualify?” for more information.

A final caution, however: Even after getting a visa, the border officials can refuse you entry – though it’s less likely this time. But if they do so, they may (due to your visa entry) put a formal order of removal into your immigration record, thus creating a minimum-five-year bar to your return. Best to leave those resumes at home.

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