CBP may deem the failure to disclose visa refusals for administrative processing or incorrect visa category on the Form DS-160 as a misrepresentation when completing the Electronic System for Travel Authorization (ESTA) form, which could make the applicant inadmissible under INA § 212(a)(6)(C)(i).1 Therefore, when filing the ESTA form, you should report visa “refusals” as “denials” when refusals are for § 221(g) administrative processing or for selecting the incorrect visa category on Form DS-160.
The Department of State (DOS) treats a consular officer’s decision to suspend a visa application for administrative processing under INA § 221(g) as a visa refusal. This is true even though the administrative processing notice frequently asks for documents or other information, and after those materials are submitted, the visa is granted.
Because DOS treats the suspension for administrative processing as a refusal, United States Customs and Border Protection (CBP) requires that such refusals be reported on the ESTA application. The ESTA application asks “Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?” If the applicant’s visa application is under administrative processing by a consular post, the applicant should answer “yes” to this question on ESTA. CBP will manually review the ESTA application to determine whether the applicant is eligible for travel. Generally, CBP will issue a decision on such applications within 72 hours of submission (AILA Doc. No. 09110565).3
Preparation of New DS-160 Due to Incorrect Choice of Visa Classification
If a visa applicant does not select the correct visa category on Form DS-160, the consular officer may require the applicant to complete a new Form DS-160 with the correct visa category before the visa may be issued. As to the Form DS-160 submitted with the incorrect visa category selection, the consular officer may enter a § 221(g) notation in its system. Because of this possibility, even if the applicant is not told that the consular officer has entered such a notation, the applicant should also disclose a visa refusal on ESTA as a denial and explain the circumstances in the space provided.
March 2013 Visa Bulletin is now available.
"VISA AVAILABILITY IN THE COMING MONTHS (April – June)
FAMILY-sponsored categories (potential monthly movement)
F1: Three or four weeks
F2A: Three to five weeks
F2B: Three to five weeks
F3: One or two weeks
F4: Up to two weeks
EMPLOYMENT-based categories (potential monthly movement)
Employment First: Current
China: Three to six weeks
India: No movement.
Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from U.S. Citizenship and Immigration Services (USCIS) Offices for adjustment of status cases remains extremely high. Should the current rate of demand continue, it is likely that at some point the cut-off date will need to be retrogressed in an effort to hold demand within the FY-2013 annual limit.
Worldwide: Four to six weeks
China: Two to three months
India: Up to two weeks
Mexico: Four to six weeks
Philippines: Up to one week
Employment Fourth: Current
Employment Fifth: Current
Item D of the December 2012 Visa Bulletin alerted readers that a China cut-off date might be imposed at some point during the second half of the fiscal year. Currently there is no reason to believe that it will be necessary to establish a China Employment Fifth preference category cut-off date during FY-2013, since demand over first six months of FY-2013 has now averaged out to a manageable level.
The above projections for the Family and Employment categories are for what is likely to happen during each of the next few months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables which can change at any time. Those categories with a “Current” projection will remain so for the foreseeable future." - State Department CA/VO, Feb. 8, 2013, emphasis added.