When you can reapply depends on the reason for the denial. The ESTA application asks whether you have ever been refused a visa
One phrase that people who have been denied a visa by a consular officer (the official who reviews visa applications) at a U.S. embassy interview often type into a search engine is "how long to wait before reapplying after a visa denial." Alongside it comes the question of whether, since they hold a Korean passport, they can simply travel on ESTA instead. ESTA is the online travel authorization obtained in advance to stay in the United States for up to 90 days for tourism or business without a visa. This column sets out the answers to both questions based on the official guidance of the U.S. Department of State, which handles visas, and U.S. Customs and Border Protection, which handles inspection at airports of entry.
When you can reapply depends on the reason for the denial
"Under federal regulations (22 CFR 41.121), when a consular officer denies a nonimmigrant visa such as a tourist or student visa, the officer must, as a general rule, inform the applicant of the legal provision on which the denial was based and whether there is a way to overcome the denial."
So the first thing to check is the number of the legal provision the consular officer cited at the time of denial. Section 221(g) of the immigration law is the provision used when documents are missing or additional review is needed. If documents are missing, you receive a notice stating which documents you must submit.
The requested documents must be submitted as soon as possible, and no later than one year from the date of denial, for the same application to be reconsidered. If you miss the one-year mark, you must file a new application from the start and pay the fee again. When additional review is needed, the embassy contacts you once the review is finished, and how long that takes varies from person to person.
Section 212(a)(9)(B) is the provision on unlawful presence. If the period of unlawful presence in the United States was more than 180 days but less than one year, you cannot receive a visa for three years from the date you left the United States; if it was one year or more, the bar is ten years. Unlawful presence includes both time remaining after an authorized period of stay ended without an extension, and time spent in the country after entering without the necessary authorization. Some periods, such as time spent before turning 18, are not counted.
Section 212(a)(6)(C)(i) is the provision used when someone willfully misrepresented a material fact in order to obtain a visa or admission. This is a permanent ground with no end date. A material fact is a fact that, had it been truthfully disclosed, would have made the person ineligible for the visa or for admission. The Department of State advises that in this case, unless a waiver is obtained, every subsequent application will be denied for the same reason.
Even in these two cases — unlawful presence and misrepresentation — a visa can still be issued if the applicant obtains a waiver, meaning permission that overlooks the ground of denial. The consular officer will tell you whether a waiver can be requested. For a waiver sought when applying for a nonimmigrant visa such as a tourist or student visa, the consular officer who denied the application generally must recommend it, and the applicant must otherwise be fully qualified except for that one ground of denial. The waiver decision is made not by the Department of State but by the Department of Homeland Security (DHS), and there is no guarantee of receiving one.
A 214(b) denial turns on what has changed, not how long you waited
"The Department of State advises that a 214(b) denial is a decision on that one application, not a permanent bar, that there is no process to ask for the decision to be reconsidered, and that the only way to obtain a visa is to file a new application."
Section 214(b) is one of the common grounds for denial cited by the Department of State. It is used when the applicant failed to sufficiently demonstrate eligibility for the visa applied for, or failed to sufficiently show that they would return home once the visit was over.
The law presumes that a person applying for a nonimmigrant visa such as a tourist or student visa intends to remain permanently in the United States, and requires the applicant to show otherwise. The Department of State gives a job, a home, and family and friends as examples of ties that would draw a person back home.
The consular officer looks separately at each applicant's circumstances, travel plans, financial situation, and reasons to return home. This presumption that the applicant intends to remain permanently does not apply to applicants for the H-1B work visa, or the L visa used when a company sends an employee from abroad to its U.S. office, nor to their spouses and minor children. They still must show that they qualify for the visa applied for.
The Department of State's visa denial guidance page states no fixed period, such as a number of months, that one must wait after a 214(b) denial before reapplying. Instead, it advises that you may reapply when there is additional information the consular officer should consider, or when circumstances have changed significantly since the last application. Reapplying means filing a new application, paying the fee again, and sitting for a new interview. The fee already paid is not refunded. The Department of State advises checking the website of the embassy where you plan to apply for the reapplication procedure.
Each time an application comes in, the consular officer judges that one application, and the next application is judged anew. If you reapply within a few weeks with no additional information and no change in circumstances, the consular officer has nothing new to consider. Simply practicing your interview answers more while your circumstances stay the same is not a change in circumstances. If you have started a new job or your assets have grown, making your reasons to return home clearer, or if the purpose of your trip has become clearer, document that and reapply.
Before reapplying, it helps to make notes of your answers on the previous application and the questions you were asked in the interview. Write every answer on the new application truthfully. Where circumstances have changed since last time, write them as they now stand. If a previous answer was wrong by mistake, correct it this time and be prepared to explain the discrepancy if the consular officer asks about it. If a previous answer was deliberately written to differ from the facts, consult an attorney before reapplying.
The ESTA application asks whether you have ever been refused a visa
"The Department of State advises that 'a recent visa refusal, regardless of the reason, may lead to ESTA denial, additional screening at the airport or border, or denial of entry.'"
The ESTA application contains eligibility questions answered yes or no about whether you qualify to travel without a visa. One of them asks whether you have ever been refused a U.S. visa applied for with your current passport or a previous passport. If you have ever been refused a visa, you must answer yes. The Department of State also calls a 221(g) denial for additional documents or further review a visa refusal. Even if you later submitted the documents and the visa was issued, you were still refused under 221(g), so answer yes.
Getting a new passport does not erase the refusal history, because the question also covers a visa applied for with a previous passport. At the end of the application is a certification box confirming that you have read and understood all the questions and that your answers are true.
U.S. Customs and Border Protection (CBP) advises that if, after an ESTA denial, you falsify your answers and reapply to obtain approval, you permanently lose the ability to travel to the United States on ESTA. Even on a first ESTA application, if you are found to have willfully misrepresented a material fact, that becomes the permanent ground of denial described earlier and can block a visa as well.
The same question about visa refusal also asks whether you have ever been denied admission to the United States, or voluntarily withdrawn your application for admission and turned back at an inspection at an airport or border. The application separately asks whether you have ever overstayed an authorized period, or worked in the United States without authorization. CBP advises that travelers who believe they may have a legal ground barring them from admission to the United States should apply for a visa before departing.
If you were refused a visa after already obtaining ESTA, you must not simply use that ESTA. Federal regulations require you to obtain a new ESTA if your circumstances have changed since you answered the yes/no eligibility questions.
If ESTA is denied, reapplying will also be denied as long as your circumstances remain the same. At that point you must apply for a visa at an embassy, and the embassy cannot tell you why ESTA was denied. Even if you apply for a visa right away, there is no guarantee that an interview will be scheduled the very next day. That said, an ESTA denial by itself is not a finding that you are ineligible for a visa, and it does not bar you from applying for one.
For example, a person who was refused a student visa under 214(b) and, several months later, wants to travel to the United States as a tourist, must answer yes to the visa-refusal question on the ESTA application. Even if ESTA is granted, they may still face additional screening at the airport or be denied entry. If ESTA is denied, they must apply for a tourist visa, and at that point, too, they must show that they will return home.
Whether to admit you is decided by the inspecting officer. An ESTA applicant agrees in advance to two things. First, that even if the inspecting officer denies admission, that decision cannot be contested. Second, that a removal order can be contested only if asylum is sought. Separately, a person who enters on ESTA cannot attend school, and cannot extend their stay within the United States or change to another nonimmigrant status, such as student status.
Conclusion
If you want to travel to the United States after a visa denial, first check the number of the provision the consular officer cited. If you were asked for documents under 221(g), submit them as soon as possible and no later than one year. A 214(b) denial is a decision on that one application, so the next application is judged anew; document what has changed before reapplying. If you apply for ESTA, state your refusal history truthfully, and if you were refused a visa after already obtaining ESTA, apply for a new ESTA. If you have travel plans, prepare well in advance.
Frequently Asked Questions
Q. How long must I wait to reapply after a 214(b) visa denial?
The Department of State's visa denial guidance page states no required waiting period after a 214(b) denial. A 214(b) denial is a decision on that one application, and there is no process to ask for the decision to be reconsidered. You may reapply, filing a new application, paying the fee again, and sitting for a new interview, when there is additional information the consular officer should consider or when circumstances have changed significantly since the last application.
Q. Can I still travel to the United States on ESTA if I have been refused a visa before?
The ESTA application asks whether you have ever been refused a U.S. visa applied for with your current passport or a previous passport, and if you have, you must answer yes. The Department of State advises that a recent visa refusal, regardless of the reason, may lead to ESTA denial, additional screening at the airport or border, or denial of entry. If ESTA is denied, you must apply for a visa at an embassy.
Q. If I was refused a visa after already obtaining ESTA, can I still use that ESTA?
No, you must not simply use it. Federal regulations require you to obtain a new ESTA if your circumstances have changed since you answered the yes/no eligibility questions. When you apply for the new ESTA, you must truthfully answer yes to the visa-refusal question.
Disclaimer: This column provides general information and is not legal advice for a particular case. Individual immigration matters should be discussed with a qualified immigration attorney.
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