I have a valid ESTA and I got refused a B1/B2 US Visa

I just got denied a B1/B2 Visa as my reason for going to the US was to open my business. I still have a valid ESTA. Can I still fly with my ESTA? Can the homeland security immigration at the airport know about my visa refusal?

84.6k 4 4 gold badges 167 167 silver badges 318 318 bronze badges asked May 25, 2021 at 13:02 101 1 1 silver badge 3 3 bronze badges

You should probably start by checking the status of your ESTA. I don't know if they automatically cancel ESTAs upon visa refusal, but if they do, at least you'll know for sure. If it's not outright cancelled, the chances you will be denied boarding or refused entry are quite high.

Commented May 25, 2021 at 15:34 ‘Open a business’ sounds like working Commented May 25, 2021 at 15:45 Was the refusal under INA section 214(b), or something else? Commented May 25, 2021 at 17:36

@jcaron The ESTA doesn't need to be cancelled - the airline will receive a DO NOT BOARD message at check-in anyway.

Commented May 25, 2021 at 20:23

If you want to mention some of the activities you intend to undertake in the US while "opening your business," you can shed a good deal of light on the question, because that would help clarify whether the planned visit is in fact permissible in B-1 status.

Commented May 26, 2021 at 2:42

3 Answers 3

Answer #1

Your problem now is that even though you had (not have, had) an approved ESTA, you now would be required to answer Question 7 with a YES, instead of a NO.

  1. Have you ever been denied a U.S. visa you applied for with your current or previous passport, or have you ever been refused admission to the United States or withdrawn your application for admission at a U.S. port of entry?

Note that this question refers only to visas and not ESTA applications. Even if you have had a previous ESTA application denied, you should answer ‘no’ to this question provided you have not been denied a visa, been refused entry or withdrawn a visa application in the past.

If you have withdrawn a visa application, you will likely be considered suspicious due to the assumption that your withdrawal was likely out of fear of being denied.

As soon as your answer to any of the 7 qualification questions changes from No to Yes, your existing ESTA is considered void, and you have to reapply for a new ESTA. Because you applied for a B1/B2 visa and were denied, your answer to Question 7 is now YES.

It is not guaranteed that answering YES to question 7 will automatically deny you a new ESTA, but the probability is considered very likely.

Answer #2

The US Customs and Border Protection is part of the US Department of Homeland Security and it (the CBP) runs the ESTA system. The US Department of State runs the Visa program. The Departments of State and Homeland Security have a memorandum of understanding to feed to and share information from IDENT, a single shared database. Therefore yes, if you were to attempt to enter an airport and pass through Customs to enter the US, the CBP Agents will know about your visa refusal. Guaranteed.

266 2 2 silver badges 13 13 bronze badges answered May 25, 2021 at 14:00 CGCampbell CGCampbell 10.2k 8 8 gold badges 51 51 silver badges 77 77 bronze badges

Actually visa applications are handled by the Department of State. It makes no difference, though, since all information about a person seems to go into a common database that both departments access.

Commented May 25, 2021 at 15:12 Dennis, my apologies, you are correct. I have further researched for the 2nd answer. Commented May 25, 2021 at 15:25

@CGCampbell "f you were to attempt to enter an airport and pass through Customs" Won't happen, as OP won't even get on the flight without a visa (check-in staff will receive a DO NOT BOARD warning)

Commented May 25, 2021 at 20:21

I suppose that it is possible that there is some set of business activities that are both describable as "opening my business" and permissible under a B-1 visa, but it seems like you would have to describe them in great detail to establish to the visa officer's satisfaction that they truly are permissible.

It's also likely that your visa application was refused because B-1 is simply not the appropriate classification for your visit. In that case, your visit is also not permissible under the VWP. In that case, it does not matter whether your ESTA is valid nor whether you can get a new one. In fact, this failed visa application may have saved you from a refusal of entry, because if you hadn't applied for the visa and instead had traveled with ESTA, and then described the purpose of your visit when asked by the immigration officer, you probably would have been sent back to your point of origin.

Your best course of action now is probably to hire a US immigration lawyer, preferably one who has experience with business visitors and investors. If your visit is in fact permissible in B-1 status, the lawyer can submit an application that makes this clear to the visa officer. If your planned activities are not permissible in B-1 status, the lawyer can tell you which visa category you should be applying for.