ESTA entree during K1 process?

[Soneshka 0]

So I've been living in Australia with my fiance since I filled the K1 petition. We recently got approved (Yay!) but now we have a slight problem. My Dad is getting married in the states, he want's the both of us to come visit for the wedding. We're unsure if Zach can enter the states on just an ESTA since we're in the visa process. Zach had also been refused a student visa twice (for lack of ties). My soon to be step mom works for the Canadian embassy, she'll be giving Zach a letter to maybe help him with immigration if there are any problems. I just want to make sure Zach wont be turned away at the border, so what do you all think?

[JimVaPhuong 4,865]

So I've been living in Australia with my fiance since I filled the K1 petition. We recently got approved (Yay!) but now we have a slight problem. My Dad is getting married in the states, he want's the both of us to come visit for the wedding. We're unsure if Zach can enter the states on just an ESTA since we're in the visa process. Zach had also been refused a student visa twice (for lack of ties). My soon to be step mom works for the Canadian embassy, she'll be giving Zach a letter to maybe help him with immigration if there are any problems. I just want to make sure Zach wont be turned away at the border, so what do you all think?

Anyone who has ever been denied a visa to the US is not eligible to use the Visa Waiver Program.

[Little_My 464]

I think the only option he has is to apply for a tourist visa - which might be difficult to get, given the K1.. but what's the situation with the K1? I don't know that much about that particular process, but doesn't it allow you to come to the US for 90 days and get married within that time? When are you planning to come here for your own wedding? Before or after your dads wedding?

[Soneshka 0]

Anyone who has ever been denied a visa to the US is not eligible to use the Visa Waiver Program.

Thats not entirely true. On travel.state.gov they say "A recent visa denial for any reason could result in denial of an authorization via ESTA, additional questioning at the port of entry, or denial of admission to the United States. Applicants who are uncertain of whether they qualify for VWP travel may choose to apply for a visa."

I'm not sure if his past visa deniles are considered recent, since it was almost a year ago that he applied.

I think the only option he has is to apply for a tourist visa - which might be difficult to get, given the K1.. but what's the situation with the K1? I don't know that much about that particular process, but doesn't it allow you to come to the US for 90 days and get married within that time? When are you planning to come here for your own wedding? Before or after your dads wedding?

Well my dads wedding is about three months before we'd come back to the states. And I have to renew my ETA visa here in Oz so we figured we'd kill two birds with one stone and go to the states for a visit.

[JimVaPhuong 4,865]

Thats not entirely true. On travel.state.gov they say "A recent visa denial for any reason could result in denial of an authorization via ESTA, additional questioning at the port of entry, or denial of admission to the United States. Applicants who are uncertain of whether they qualify for VWP travel may choose to apply for a visa."

I'm not sure if his past visa deniles are considered recent, since it was almost a year ago that he applied.

Yes, there have been cases of people who were denied a non-immigrant visa but were subsequently approved by ESTA. This usually happens when the reason for the visa denial is benign, such as when the applicant is from a VWP country and the consular officer believes the applicant does not require more than 90 days to visit the US. In this case, they may deny the visa and tell the applicant to travel using the Visa Waiver Program. The VWP waiver of rights provides substantial clout for immigration authorities.

I've never heard of someone who has been denied a visa for immigrant intent being subsequently approved for travel using the VWP, but I suppose it's not impossible. On the other hand, I've seen quite a few people who were denied visas and were also denied by ESTA.

The general advice given on many lawyer blogs and ESTA assistance sites is that someone denied a non-immigrant visa cannot use the Visa Waiver Program. For example:

http://www.esta.us/faq.html

Some lawyers advise that travel using the VWP after a visa denial is possible, but warn about the likelihood of a CBP officer denying admission because of the visa denial. For example:

http://www.avvo.com/legal-answers/b2-visa-denied--but-esta-approved-126582.html

Bear in mind that the ESTA system has a presumption of eligibility if it cannot find a reason to determine the applicant is not eligible. Someone who has been denied a visa for an inadmissibility, such as immigrant intent, has already been determined by a consular officer to be ineligible. Whether the ESTA system will subsequently approve them depends entirely on how the consular officer records the denial in the computer.

[Soneshka 0]

Yes, there have been cases of people who were denied a non-immigrant visa but were subsequently approved by ESTA. This usually happens when the reason for the visa denial is benign, such as when the applicant is from a VWP country and the consular officer believes the applicant does not require more than 90 days to visit the US. In this case, they may deny the visa and tell the applicant to travel using the Visa Waiver Program. The VWP waiver of rights provides substantial clout for immigration authorities.

I've never heard of someone who has been denied a visa for immigrant intent being subsequently approved for travel using the VWP, but I suppose it's not impossible. On the other hand, I've seen quite a few people who were denied visas and were also denied by ESTA.

The general advice given on many lawyer blogs and ESTA assistance sites is that someone denied a non-immigrant visa cannot use the Visa Waiver Program. For example:

http://www.esta.us/faq.html

Some lawyers advise that travel using the VWP after a visa denial is possible, but warn about the likelihood of a CBP officer denying admission because of the visa denial. For example:

http://www.avvo.com/legal-answers/b2-visa-denied--but-esta-approved-126582.html

Bear in mind that the ESTA system has a presumption of eligibility if it cannot find a reason to determine the applicant is not eligible. Someone who has been denied a visa for an inadmissibility, such as immigrant intent, has already been determined by a consular officer to be ineligible. Whether the ESTA system will subsequently approve them depends entirely on how the consular officer records the denial in the computer.

Well thanks for the detailed advice, I guess I'll be going to my dad's wedding stag. ;O