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Denied Entry to US: What Next?

By Nita Nicole Upadhye

Table of Contents

Having been successfully granted a visa waiver or visa to come to the United States, most would be forgiven for thinking that this provides an absolute entitlement to gain entry into the country. Sadly, this is not always the case, as it’s not uncommon for someone travelling to the USA from the UK to still be denied entry on arrival.

The following guide looks at what to do if you are denied entry to the US, and for those planning a stateside trip, we look at ways to reduce the risk of being denied entry at the US border.

 

Issues at the US Border

 

As a British citizen, you may be eligible to travel to the USA visa-free under the Electronic System for Travel Authorization (ESTA), provided your trip is for business or pleasure and for a period of fewer than 90 days. ESTA is an automated screening system used to determine the eligibility of certain foreign nationals, including British nationals, to visit the United States via the Visa Waiver Program (VWP).

As a prospective VWP traveller planning to arrive at a US air or sea port of entry, you must obtain an approved travel authorisation via the ESTA website at least 72 hours before you depart. However, you will not be eligible for visa-free travel if you have a criminal history (including any prior arrests and cautions), have previously been refused admission or deported from the US, have previously overstayed or have a serious communicable illness. You will also not normally be eligible for a visa waiver under the VWP if you have travelled to Cuba, Iran, Iraq, Libya, North Korea, Somalia, Sudan, Syria and Yemen since 1 March 2011.

If you are ineligible under the VWP, or looking to undertake activities in the US not permitted as a visitor and/or to stay for more than 90 days, you can instead apply for a nonimmigrant visa with your local US consulate or embassy. These are temporary visas designed for various purposes, from tourism and business trips to work and study, although the process to obtain a visa will require an online application, supporting documentation and an in-person interview. They can also take several weeks or months to process.

 

Why are travelers denied entry to the US?

 

Having been screened as eligible under the VWP and provided with approved electronic travel authorization, or having successfully applied for a nonimmigrant visa, this will allow you to board a carrier bound for the United States. However, issuance of ESTA-approval or even a visa, regardless of the application requirements, does not guarantee entry to the US.

An approved ESTA will allow you to travel to the States and request permission to enter, but all persons arriving at a US port of entry will be subject to inspection by US Customs and Border Protection (CBP) officials. A CBP officer has the authority to permit or deny you admission to the country. Equally, even if you are in possession of a valid visa, this will simply indicate to CBP officials that a US consular officer at an American embassy or consulate has reviewed your visa application and that officer has determined that you are eligible to enter the country for a specific nonimmigrant purpose.

The CBP officials at the port of entry will still need to determine if you are eligible for admission under US immigration law by conducting an inspection of your documentation, together with a background check, where anyone seeking to lawfully enter the United States must establish their admissibility to the satisfaction of any CBP officer. Unfortunately, there are several common reasons for being denied entry, including:

 

  • if you have previously been refused entry to the US, regardless of the reason, for example, even for an expired passport or unintentional errors on your documentation
  • if you have previously overstayed a visit to the US or have previously worked illegally
  • if you have been arrested, cautioned or convicted of a criminal offence
  • if you are suspected of having ties to either terrorist and/or criminal organisations, or there are otherwise suspicions of malicious intent on your part
  • if you have a communicable disease, or a physical or mental disorder that may pose a threat to either the safety or welfare of you or others, or you are a drug or alcohol addict (where even carrying prescription drugs can result in a denial of entry).

 

Other common reasons as to why you could be denied entry to the USA from the UK include any problems with paperwork, such as documentation that contradicts your ESTA-approval or visa status, such as having printed CVs on your person when you are prohibited from undertaking work. Problems may also arise because of a lack of documentation, for example, where you are unable to provide proof of ties to your country of origin, where requested, or proof that you have sufficient funds to support yourself during your stay, again indicative of possible plans to immigrate to the USA illegally.

If you have questionable content on your social media, or mobile phone and devices, and CBP officials gain access to any posts or data, this could also result in a denial of entry.

 

Options if you’re denied entry to the US

 

On arrival at a US port of entry, you will usually have to wait in a long line of other travellers to be screened. During this primary screening process, a CBP officer will inspect your passport, verify your identity and check your name against various databases.

Having established that you have been given permission to travel to the US, and notwithstanding that permission, they will go on to ask you questions designed to elicit any information that may prohibit you from entering. Depending on your responses and/or any information from a background check, this may result in you being sent to a secondary inspection area for a full interview, where your luggage may also be searched.

Even though CBP officials are generally on the lookout for people who may be either a security or health risk, or using a visitor or other nonimmigrant visa to gain entry to the US for illegal purposes or a permanent stay, you may still be denied entry for various other reasons. If an officer during any secondary inspection determines that you are ineligible to enter the USA, you can be refused entry and returned to your home country.

Having travelled from the UK on a long flight, you will understandably feel upset and frustrated if denied entry. However, the most important thing to remember is not to argue with CBP officials. Many foreign travellers, including travellers from the UK, are denied entry to the USA every day for all sorts of different reasons but, by keeping calm, this will provide the best possible basis upon which to find a potential way forward. It will also help to buy some time to contact an immigration attorney to see what, if anything, can be done.

In most cases you will be required to return home and, depending on why you were denied entry, you may need to apply for a waiver of ineligibility, for example, if you have a criminal conviction. However, where you have arrived to the United States on a visa, you have the right to request an exclusion hearing before an immigration judge, as well as an appeal or judicial review, although VWP applicants waive their right to such proceedings.

Even if you have no other option but to return to the UK, a CBP officer may, at their discretion, allow you to withdraw your application for admission. This simply means withdrawing your request to enter the country. If denial is inevitable, this can often be the best option, where a determination of inadmissibility on arrival may have an impact on your future admissibility. For example, if you are denied entry under the VWP, and you subsequently apply for ESTA-approval, your previous denial will almost certainly result in ineligibility under the VWP, where you would need to apply for a visa instead. It is also important to be able to ascertain from the CPB officer why you were refused entry, as this too may affect any future applications and/or decisions at a US port of entry.

 

Reducing the risk of being refused entry to the US

 

Even if you are eligible for visa-free travel, but there are possible reasons for you being denied entry to the USA, applying for a visa in advance before you travel, rather than obtaining ESTA-approval, can often help to pre-empt any potential problems.

A visa will not guarantee you entry to the United States, but the fact that you have been able to satisfy an embassy or consular officer that your intentions are consistent with the type of nonimmigrant visa sought, with reference to detailed documentation in support of your application, this will go a long way towards persuading a CBP officer of the same at a port of entry. The individual dealing with your visa application will also enter notes about your travel plans into their database. This means that, provided the CBP officer is able to access these notes, and that any verbal explanation given by you on arrival is consistent with what has been recorded, this will serve as corroboration of legitimate travel plans.

It is also always best, when travelling under either ESTA-approval or even a nonimmigrant visa, to have sufficient documentation in your possession to prove the reasons for your stay. In this way you will be able to provide documentary evidence of your genuine intentions, for example, if you are visiting for a holiday, you could produce a travel itinerary and your hotel booking, together with evidence of day trips and pre-planned excursions.

By the same token, it is important that you do not have on your person, or in your luggage, any documentation which conflicts with the specific purpose for which you have been granted entry. For example, if you are travelling under ESTA-approval or a visitor visa, you must not have anything to suggest a work or housing search during your US stay.

 

US Trusted Traveler Program

 

If you are a regular traveller to the United States, you may want to consider registering for US Global Entry. This is a US Trusted Traveler program designed to facilitate expedited clearance for low-risk and pre-approved travellers upon arrival in the US. This does not replace the need for a visa waiver or visa, and you will still need a valid passport. However, travellers must be pre-approved for the Global Entry program, where all applicants will undergo a rigorous background check and in-person interview prior to being enrolled.

You will first need to apply to the UK Home Office at GOV.UK, paying the non-refundable fee if you fail the background checks. However, if you pass the checks, you can go on to apply using the Trusted Traveler Program website. This will cost an additional $100 USD, again non-refundable if your application is turned down. The US CBP Agency will tell you if you have been provisionally accepted for Global Entry within 2 weeks, at which stage you will need to attend an in-person interview before being officially enrolled in Global Entry.

By becoming an approved Global Entry member, this will mean that instead of standing in long passport-control and inspection lines, you will be able to enter the USA using an automatic kiosk located at designated airports. You will be required to present your machine-readable passport, place your fingerprints on the scanner for verification and complete a customs declaration. The kiosk will issue you with a transaction receipt and direct you to baggage claim, in this way ensuring a smoother and speedier admission.

While Global Entry’s goal is to speed up the entry process, you may still be selected for examination when entering the USA. Any violation of the program’s terms and conditions may also result in enforcement action and termination of your membership privileges.

 

Need assistance?

 

NNU Immigration are specialists across all classes of US visas and immigration. If you have a query about traveling to the US, or if you are facing an issue with your permission to enter the US, contact our dedicated US immigration attorneys.

 

Denied entry to US: FAQs

 

What happens if you are denied entry to the USA?

 

If you’re denied entry to the USA, you may be returned to your home country. Any determination of inadmissibility on arrival may also impact your future admissibility, so it is important to ascertain the reasons for entry refusal.

 

Why might a person coming to the United States get denied entry?

 

There are various reasons as to why someone might be denied entry to the US, even with electronic travel authorisation or a valid visa. These could include having been previously denied entry or having been convicted of a criminal offence.

 

What happens if I am denied entry to a country?

 

If you are denied entry to a country, you will probably be put on a return flight home or, if you cannot return to that country, on a direct flight to another country that will be able to accept you.

 

Can I find out why my ESTA was denied?

 

Due to security/privacy laws, Customs and Border Protection (CBP) cannot tell you the reason why travel authorisation was denied, although further information about ESTA denials is available from the CBP website. If denied, you will need a visa instead.

 

What should I do if I am denied entry to the US?

 

If you are denied entry to the US, you should first seek clarification from the Customs and Border Protection (CBP) officer on the specific reason for the denial. Depending on the circumstances, you may be allowed to withdraw your application for admission voluntarily, which can be less damaging to future travel plans than receiving an official removal order. It is advisable to contact your consulate or embassy for assistance and consider consulting an immigration attorney to understand your options.

 

Can I reapply for entry to the US after being denied?

 

Yes, you can reapply for entry to the US after being denied, but it is crucial to address the issues that led to the denial. Before reapplying, ensure that you have all necessary documentation and that you meet all the entry requirements. Contact our experts for legal advice to understand the specific reasons for the denial and to prepare the necessary applications to seek the required permissions.

 

What are common reasons for being denied entry to the US?

 

Common reasons for being denied entry to the US include having incomplete or incorrect documentation, failing to prove the purpose of your visit, prior immigration violations, criminal history, or being suspected of intending to immigrate permanently without the appropriate visa. It is important to provide truthful and complete information during your entry interview and to have all necessary documents ready.

 

Does being denied entry affect my ability to travel to the US in the future?

 

Being denied entry can affect your ability to travel to the US in the future, especially if you received a formal removal order. Future visa applications and entry attempts may be scrutinized more closely. To mitigate this, you should understand the reasons for the denial, resolve any underlying issues, and provide clear and accurate information in future applications.

 

What should I expect during the secondary inspection if I am referred there?

 

If you are referred to secondary inspection, it means that the CBP officers need more information to determine your eligibility to enter the US During this process, officers may ask detailed questions about your travel plans, review your documents, and possibly search your belongings. The inspection can take several hours, so it is important to remain calm, provide truthful answers, and comply with the officers’ requests.

 

Can I appeal the decision if I am denied entry to the US?

 

There is no formal appeal process for being denied entry to the US by CBP officers at the port of entry. However, you can reapply for a visa or entry at a later date. It is advisable to address the reasons for the denial and seek advice from an immigration attorney to improve your chances of being allowed entry in the future.

 

What documents should I carry to avoid being denied entry to the US?

 

To avoid being denied entry to the US, you should carry a valid passport, an appropriate visa or ESTA authorization, proof of return or onward travel, evidence of sufficient funds for your stay, and any additional documentation relevant to the purpose of your visit (such as an invitation letter, hotel reservations, or proof of employment). Ensuring all information is accurate and consistent can help facilitate a smooth entry process.

 

Who can I contact for assistance if I am denied entry to the US?

 

If you are denied entry to the US, you should contact your country’s consulate or embassy in the US for assistance. They can provide guidance and support in dealing with US immigration authorities. Additionally, consulting an immigration attorney can help you understand the reasons for the denial and explore your options for future travel to the US.

This article does not constitute direct legal advice and is for informational purposes only.

 

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.

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