ESTA Denials and Revocations

For citizens of more than 40 Visa Waiver Program countries, what can be simpler than registering online for the Electronic System for Travel Authorization (ESTA), receiving it for 2 years, and traveling to the US for some short visits? For the overwhelming majority of people, that is true. But with the return of Trump, more and more individuals are finding themselves denied (“not authorized”) ESTA or having their ESTA authorizations revoked. Upon arrival at American airports, more and more individuals are having to deal with overzealous CBP inspectors and humiliating inspections. Those inspections include phone, luggage, and computer checks. The use of AI and the massive expansion of government databases has turbocharged these efforts. And while after the ESTA denial or revocation one may attempt to reapply for ESTA, usually the only way one can travel to the US again is by applying for and receiving a visa.

In light of these serious measures taken against ESTA applicants and holders, now is a good time to understand the reasons for these ESTA denials and revocations, the potential consequences, and ways to deal with such problems. Now is also a good time to understand that even if you did not have ESTA-related problems, a consular officer can decide that there had been an ESTA violation in the past — for example, make that decision when you apply for an immigrant visa — and enter a permanent bar against you for a misrepresentation.

Specific Reasons for ESTA Denials and Revocations

Customs and Border Protection operates the ESTA program. The reasons CBP denies and revokes ESTA are numerous, including:

Spending too much time in the US/suspicions of unauthorized employment. One of the triggers for additional CBP scrutiny is spending substantial time in the US. Some individuals even use ESTA as an entry-exit “carousel:" protracted stays, short departures, and new prolonged visits. Even if an individual is technically complying with ESTA (not spending more than 90 days at a time in the US) and not working illegally, CBP can revoke ESTA if the individual does not meet the visitor requirements or if it suspects unauthorized employment. One of those requirements as an ESTA visitor is that the individual continues to maintain a foreign residence. Frequent, consecutive visits for 2–3 months at a time can lead to the conclusion that the person is no longer living in the home country.
Social media/Political speech. CBP is monitoring, checking and verifying social media, publications, and other public domain information for anti-American and antisemitic statements. The inspectors are scrutinizing memberships in professional associations, societies, and organizations; professional and personal friendships and affiliations; speeches, publications and articles; as well as professional experience for indicators of such sentiment.
Past encounters with law enforcement arrests/convictions — The current ESTA application form only disqualifies those who have been arrested or convicted for a crime that resulted in serious damage to property or serious harm to another person or government authority. But CBP is now aggressively denying and revoking ESTA for some individuals with any arrest or conviction history.
Previously engaged in unauthorized work in the US. There are some situations where it is clear that a person engaged in unlawful employment. For example, working at a farm, on a construction site, at a car wash, landscaping. Helping a boyfriend at his parent’s restaurant and getting paid for it. Freelance musicians and entertainers getting paid to perform at gigs at bars and clubs. But even aside from those clearcut cases, there are some situations which are more nebulous and arguably fall within the exceptions permitted for business visitors. These exceptions include commercial workers from abroad providing installation services under a contract or providing training to US workers. CBP is taking a more aggressive view, believing that such individuals are taking jobs from Americans and cancelling their ESTAs.
Plan to engage in future activity inconsistent with ESTA. If a person is coming to the US to engage in activity that may lead CBP to conclude that they will violate the terms of ESTA during this visit, it will revoke ESTA. For example, if the person is bringing an engagement ring to propose to his American citizen significant other, CBP may believe that the individual will just stay in the United States to get married and adjust status. Or if CBP discovers in the luggage an original diploma or resumes to facilitate a job search in the US, it may then revoke ESTA because it believes that the person will look for a job and stay in the US. If an individual is the beneficiary of a pending or already-approved I-130 immediate relative immigrant petition and CBP believes that he will not leave the US in a timely fashion, it may then revoke ESTA.
Drug violations: The ESTA application form asks whether the applicant has ever violated any law related to possessing, using, or distributing illegal drugs. CBP is aggressively checking phones, WhatsApp messages, and social media to verify drug-related activity. Even seemingly innocuous posts or “liking” drug-related messages can have consequences. If a text message alludes to personal drug use, the consequences can be extremely serious. Obviously, if there has been a conviction for illegal drug possession the consequences can also be serious. Even verbally admitting to CBP illegal drug use or buying illegal drugs for a friend, roommate, or acquaintance can lead to a permanent inadmissibility finding under Section 212(a)(2)(A)(i)(II) and/or 212(a)(3)(C)(i). Needless to say, packing your suitcase with cannabis gummies because they help you sleep is not a wise choice.
Previous overstays. By previously overstaying the 90-day limit permitted under ESTA, ESTA can be revoked or future applications will be denied. In addition, this can also trigger unlawful presence inadmissibility problems under Section 212(a)(9)(B), as well as misrepresentation accusations if one lies about this in a future ESTA application. If an emergency arises, one can extend one’s status in the US for 30 days by requesting Satisfactory Departure. But if one does not do so, then the overstay can trigger revocation of the ESTA and future denials.
Visa previously denied under 214(b), a 212(a) inadmissibility provision, or 221(g). Section 221(g) is considered a visa denial, albeit temporary. As such, attempts to enter on an existing ESTA authorization after a 221(g) visa denial may lead to revocation of ESTA. A 214(b) B1/B2 visitor visa rejection is also problematic. One can understand the logic behind applying for a B visa in certain instances — for example, to stay in the US for up to 6 months instead of the ESTA-allowed 90 days. But unfortunately, a 214(b) denial for that B visa can trigger an ESTA denial or revocation. Similarly, an E-2 investor or O-1 extraordinary ability visa application rejected on 214(b) grounds can also lead to an ESTA denial or revocation. For CBP, the calculus in such situations is clear: you sought to work legally on E-2 or O-1 in the US; your attempt was rejected; and now it believes that you are attempting to work illegally on ESTA. This CBP logic carries over to other work visa applications. For example, if the consul denied an H-1B or L-1 visa and referred the H-1B or L-1 petition back to USCIS, an attempt to enter the US on ESTA could lead to serious problems. This is true even if the trip is legitimate, for example, to visit family or attend a friend’s wedding. Again, the CBP suspicion is that the denied H-1B or L-1 applicant will work on ESTA.
Obtaining citizenship in an ESTA country does not guarantee approval. This is certainly one of the most frequently-encountered ESTA-related myths, that by obtaining such citizenship, ESTA is guaranteed. But CBP is judging the admissibility of an individual, not the person’s country of citizenship. So yes, with the new citizenship in a Visa Waiver Program country, you can apply for ESTA. But if you have an admissibility problem, previous visa denial — no matter how many years ago — or other situation-specific peculiarities, obtaining citizenship in a Visa Waiver Program country may not be the ESTA elixir you thought.
Misrepresentation in completing the ESTA application. This goes without saying, but bears emphasizing because the consequences are so dire. The ESTA form asks whether you have ever worked without authorization. And so if you played weekend gigs in the US and earned even token money (e.g., $50), by indicating that you have never worked without authorization in the US the next time you complete the ESTA registration, you are committing a separate misrepresentation. Even if CBP does not accuse you of a misrepresentation, the consul can. For example, in 2016 you performed at a few gigs on ESTA and received $100; in 2018, you filled in the application form, not disclosing the unauthorized work, and received ESTA; later in 2018, at the time of entry, CBP discovers the unlawful work and revokes ESTA and sends you home; then in 2024, you apply for a visa — where the consul accuses you of two separate misrepresentations: 1) at the time of entry in 2016 for lying to the CBP inspector about the purpose of the visit (tourism, instead of work) and so a violation of the 90 Day Rule (discussed below); and 2) lying in the ESTA authorization form. In such instances, the consul may enter a Section 212(a)(6)(C)(i) refusal.
Failure to update ESTA if an answer changed. Some of the above reasons highlight changed circumstances after receiving ESTA: for example, a visa denial, an ESTA overstay, or a serious conviction. There are also other circumstances that should prompt an updating of the ESTA authorization: a new passport, a change in name, a change in sex, a change in country citizenship. In such circumstances, CBP requires that ESTA be updated to reflect the changes. Failure to do so can lead to future ESTA denials or revocation.
Travel to “hostile” countries: Travel to “hostile” countries such as Cuba, Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria, or Yemen will disqualify one from obtaining ESTA.
Holding dual citizenship of “hostile” country. Holding citizenship of a “hostile” country such as Iran, Iraq, Syria, or Sudan will also disqualify one from obtaining ESTA.
Association with undesirables. As the US Government’s use of AI and its database net expands and expands, so too does the likelihood that it pinpoints innocent individuals for directly or indirectly associating with a person of interest to the US authorities. This could even encompass family members or individuals associated with an alleged criminal — even if deceased — many years later. A good indicator that there is a problematic association is if ESTA is denied or revoked and at the subsequent visa interview, the consul requests you to complete form DS-5535: 15 years of Travel History, Family Information, Employment History, etc…
Security. Obviously, no-fly, terrorist, and a variety of watch lists are constantly being updated. Inclusion in one of these lists automatically triggers ESTA denial or revocation.
Discrepancies in departure dates. Sometimes the CBP system does not properly register departures from the United States, for example, if a person reschedules a departure flight for a later date. This can lead to misunderstandings and misinformation, potentially triggering an ESTA denial or revocation.
Inconsistent answers when completing the ESTA application. Similar to updating an application when there are changed circumstances, an answer inconsistent with a previous ESTA application can also trigger a denial. For example, if a person failed to disclose dual citizenship in a previous application, then indicated dual citizenship in a new application, a denial may be triggered.
Discrepancies in passport used for ESTA and Global Entry. Individuals using ESTA and Global Entry should be consistent with the primary passport entered in each of these systems. Inconsistent passport information between the two programs can cause ESTA cancellation.
Misunderstanding ESTA rules. The ESTA rules are relatively straightforward, but misunderstandings do arise. For example, there is a myth that by going to Canada/Mexico for a couple of days, the 90 days of ESTA time will automatically reset. That is not the case. Such a short trip can be viewed as suspicious behavior. This can lead to ESTA being revoked at the time of the next entry. Or it may lead to the individual overstaying the 90-day ESTA limitation because of the misunderstanding.
Business Nomads/Freelancers. This ties back in with #1 above — spending too much time in the US — but it is a specific category of individuals. During COVID, working remotely became a popular way to work. But visitors who extend that premise to spending substantial time in the US while working remotely may have their ESTA denied or revoked. CBP questions whether these business nomads and freelancers continue to maintain strong ties to the home country, how are they actually spending their time in the US, and how are they supporting themselves in the US. Unfortunately, just by triggering this line of questioning, it is easy for CBP to cancel ESTA.
I-407 not processed yet. If someone with a green card voluntarily relinquishes that green card, they file an I-407 form with USCIS. But the processing of that form may take months. In the meanwhile, the person may need to travel back to the US. By applying for ESTA without receiving USCIS confirmation of the relinquishment, a denial may take place.
214B and Visa Revocation. In other articles on this website, you can find articles on the 42 reasons for a 214(b) refusal and 20 reasons for a visa revocation. Many of those reasons can also lead to ESTA denials and revocations.

Consequences/Other Problems

The consequences of these ESTA denials and revocations can be very serious, depending on the nature of the underlying problem. For airport and port-of-entry incidents, this can be compounded when CBP does not give the individual a copy of the Record of Sworn Statement or other paperwork related to CBP’s processing of the incident. There might not even be an ESTA denial or revocation, providing a false sense of security. But later, a consul may accuse the individual of engaging in impermissible activity while in Visa Waiver Program Tourist (WT)/Business (WB) status under ESTA.

Some of the potential consequences can include:

CBP refuses entry and makes a finding under Section 212(a)(7)(A)(i)(I). At the airport or other port of entry, CBP can refuse entry, citing to Section 212(a)(7)(A)(i)(I). This means that the CBP inspector came to the conclusion that the person does not meet the requirements for entry as a Visa Waiver Program visitor and needs to apply for a visa.
CBP enters an expedited removal decision and/or Section 212(a)(6)(C)(i) finding of misrepresentation. The CBP inspector can enter an expedited removal order — a 5-year bar — and/or make a misrepresentation finding — a permanent bar — based on some of the instances detailed above.
Consular finding of Section 212(a)(6)(C)(i), 212(a)(2)(A)(ii) or another inadmissibility. Even if the CBP decision is simply to refuse entry under VWP and 212(a)(7)(A)(i)(I), that does not mean the incident has been cleared or that the individual is “out of the woods." Instead, the next time the individual applies for a visa, he or she might be subjected to a new interrogation — by the consul. The interrogation may focus on a misrepresentation in the ESTA application, what was discussed at the airport with the CBP inspector, or the activities that led to the problem with the CBP inspector. This consular interrogation may take place at the time of the first visa application after the incident or at the time of any future visa application. At the time of the first visa application after the incident at the airport, the consul might clear the individual or simply deny a visa under Section 214(b). Later, years and years down the road, at the time of the 2^nd or 3^rd visa application, a different consul can launch an interrogation into the same incident — for example, when the person applies for an immigrant visa. At that time, the consul might reach a different conclusion: entering a 212(a)(6)(C)(i) misrepresentation decision. In other words, there is no statute of limitations on such interrogation, there is no repose, and there is no visa “double jeopardy:" according to the Department of State, an individual can be interrogated twice for the same incident by different consular officers years apart and can be found “guilty” the second time even if the first time there was no such finding. Here are two of the most common situations:
- Consular Allegations of Misrepresentations in the ESTA application process. The consul can raise allegations about the applicant’s failure to indicate in the ESTA application a previous ESTA overstay or working without authorization. The consul can claim the person failed to indicate a previous criminal incident. The criminal-related omissions are particularly troublesome because of the sometimes-confusing nature of criminal procedure and the nebulous wording of the ESTA application: 1) when a person’s criminal history has been expunged, the person believes that it is not necessary to disclose that information in the form; 2) when a person’s encounter with law enforcement is classified as an infraction, a caution, or subject only to a fine, the person believes that it is not necessary to disclose that information in the form; and 3) when a person believes that his past criminal incident does not rise to the level of the language of the ESTA application: “have you ever been arrested or convicted for a crime that resulted in serious damage to property or serious harm to another person or government authority?”
- Consular Allegations of Violations of the 90 Day Rule. Another common ESTA scenario is what the consul calls a violation of the 90 Day Rule — entering the United States on ESTA and then during the 90-day visit, starting to work without authorization. The 90 Day Rule states that consular officers can presume that applicants who violated ESTA within 90 days of entry by working illegally misrepresented the purpose of their travel at the time of entry, i.e., they lied to the CBP official. In contrast to B visa holders who are usually given 6 months of authorized presence, ESTA holders are only given 90 days, and so by the very essence of the 90 Day Rule, ANY illegal work during that time could lead to a consular accusation of a misrepresentation. In other words, even if CBP did not make a finding of a willful, material misrepresentation, the consular officer can — regardless of the fact that the alleged misrepresentation was to CBP, not the consul; regardless of how long ago the illegal work took place; and regardless of how trivial the illegal work was. This can pop up at a nonimmigrant, K-1 fiancé, or immigrant visa interview. For example, a US citizen applied for the immigration of her parents, but 10 years ago, her parents entered on ESTA and at their immigrant visa interview, admitted to working illegally in the US within 90 days of their entry. They were denied under 212(a)(6)(C)(i). Because there is no immigrant waiver for the parents of a US citizen, they are unable to immigrate. Another situation: a K-1 fiancée helping at her US citizen fiancé's business while in the US on ESTA: she was accused of violating the 90 Day Rule.

How Can W&A Help?

What should be clear from the above is that there can be a serious downside to receiving ESTA if there was inaccurate information in the ESTA application or a violation of the terms of ESTA. One can become accountable for that inaccurate information or violation later. Honesty and compliance truly are the best policies.

But once the “genie is out of the bottle," forewarned is forearmed. At a minimum, it is necessary to obtain the CBP documentation from the incident — either directly from the airport or via a Freedom of Information Act request. You need to know the Government’s version of what happened.

If CBP enters an expedited removal order or misrepresentation finding on questionable grounds, those decisions should be aggressively challenged. One can submit a Motion to Vacate/Request for Reconsideration with CBP management. Some of the Case Studies on our website detail such instances in which we successfully represented clients. In one such case in which the legal basis for entering the 212(a)(6)(C)(i) was not clear, we requested CBP to clarify the reason. After a manager reviewed the case, he withdrew the accusation.

If only 212(a)(7)(A)(i)(I) was entered or you did not have any ESTA-related problems in the past, the consul’s decision at the time of the visa application will be critical to deciding your fate. And so it is necessary to properly complete the DS-160 and prepare for that interview. The good news is that sometimes the above problems associated with the ESTA denial or revocation can be overcome in the visa process. Sometimes, the consul will enter a 214(b) determination, which is not permanent. If the consul enters a questionable Section 212(a)(6)(C)(i) decision, this needs to be challenged. The misrepresentation alleged must have been 1) to a US government official; 2) willful, intentional, and deliberate; and 3) material, i.e., important. Some of the Case Studies on our website detail such instances in which we successfully intervened.

Because each case is different, please contact us to discuss your situation.

Case Studies

V was a very successful businessman with a clean visa history, dating back more than a decade. After many years of working with his partner, he left the business on less-than-friendly terms, starting his own business. Needless to say, he was stunned when he was charged with tax fraud in his role as a top executive for that former company. After some discussions and taking advantage of a provision in the local law, he paid the claimed deficiency without admitting any guilt or having the criminal case proceed to trial. But the court case triggered a consular investigation and a finding of permanent inadmissibility under Section 212(a)(2)(A)(i)(I). V then contacted us. After doing a deep dive into the local law and consulting with his local lawyer, we came to the conclusion that the consul had been mistaken: while the tax evasion was a crime of moral turpitude, there was no “admission of guilt” or “conviction”. We then raised these issues with the consul and the Department of State. After some time, they agreed and removed Mr. S’s 2AiI ban.

Case of V.S.

More case studies