Would you answer yes to the question about previous refusals if you were given a 221(g) which was approved after AP without having to make another application?

There appears to be conflicting information on Government websites.

The American Embassy in Japan https://jp.usembassy.gov/visas/visa-waiver-program/frequently-asked-questions-esta/ :

I previously applied for a F-1 visa and the application was pending additional documents. I received a notice (221g letter) from the consular officer which said my application is refused. Now I want to go to the U.S for sightseeing. How should I answer the ESTA question “Have you ever been denied a U.S. visa or en...

If your visa application has been refused under section 221(g) of the INA for any reason, you should mark “Yes” for question F on the ESTA application form. A 221(g) refusal will NOT result in an automatic refusal of ESTA. Even if you get a visa after a 221(g) refusal, please continue to answer “Yes” to question on all future ESTA applications.

The American Embassy, Germany https://de.usembassy.gov/visas/esta-wvp-faqs/

My visa application is still pending (in 221g status). Can I travel to the U.S. under the Visa Waiver Program (ESTA) before a final decision has been made?

No. Your current application must be resolved before you would become eligible to apply for the Visa Waiver Program. If you apply for an ESTA clearance while your current application is still pending, you must answer “yes” when asked whether you have ever had a visa application denied. Failure to respond truthfully to the ESTA questions can pose additional problems for future travel to the United States. Once your application has been resolved, you should then answer either “yes” or “no” when asked whether you have ever had a visa application denied based on the final decision of your visa application. Applications which have expired (abandoned cases where more than 1 year has passed from the time of initial application) are considered denials for the purposes of the Visa Waiver Program. Therefore, you must answer “yes” when asked whether you have ever had a visa application denied when applying for an ESTA clearance.

From the Department of State https://fam.state.gov/fam/09FAM/09FAM040310.html

(2) (U) 221(g) Refusal Letter: For an INA 221(g) NIV refusal, posts may draft the refusal letter in the manner they deem appropriate and without Departmental approval. However, the letter must: (a) (U) Explicitly state the provision of the law under which the visa is refused; (b) (U) Not state that the denial is “pending”, “temporary”, or “interim” or that the case is suspended, although it may reference further administrative processing of the case; (c) (U) Neither encourage nor discourage the applicant from reapplying; and (d) (U) Include the following language: Please be advised that for U.S. visa purposes, including ESTA (the ESTA website), this decision constitutes a denial of a visa.

The Embassy in Germany seems to be the most clear but it seems to contradict the other two. "Legal opinion" on the internet seems to be conflicted about this too.

  • Can you point out the contradiction? All three quotes say a 221(g) must trigger a "yes" to a visa refusal or denial for an ESTA application. – Moo Oct 22 '17 at 22:34
  • @Moo The German one explicitly says that if the application is eventually successful, the 221g will become a no. Whereas the other two imply that it will be a denial regardless of the final outcome – greatone Oct 23 '17 at 1:13
  • 2
    That's not a contradiction - the 221(g) is superseded by the final decision, which is an approval or refusal. – Moo Oct 23 '17 at 1:15
  • @Moo, It is difficult to read the last sentence from the Japan embassy as agreeing with you, though I'll admit it isn't entirely unambiguous. The Japan and Germany embassies also seem to disagree on whether a 221(g) refusal is an automatic disqualification for an ESTA or not. I think the basic problem comes from the fact that these are DoS sources but the actual policies concerning the VWP and ESTA are the CBP's, but I don't know a CBP source explaining the policies. – Dennis Oct 23 '17 at 3:05
up vote 5 down vote accepted
+200

I think you and the comments have answered the question. I'll elaborate what I think is confusing you.

A 221(g) means that the applicant is ineligible to receive a US visa because they failed to provide some documentation OR their case needs further processing by the US Consulate/Embassy or another government agency. This further processing results in a final decision for the visa.

  • If your visa is refused after a 221(g), there is no question about it then. You must answer 'Yes' to the question about previous refusals.
  • If your visa is approved after a 221(g), then you answer 'No' to the question about previous refusals. The reason is that the final decision supersedes a 221(g).
  • If your 221(g) ended up in a visa refusal and you reapplied (same visa category or a different one) and got a visa. You would still answer 'Yes' to the question about previous refusals. I think this is what the last line means on Japans Embassy FAQ.

    Even if you get a visa after a 221(g) refusal, please continue to answer “Yes” to question on all future ESTA applications.

I, logically thinking, don't expect the 'get a visa' visa was from the 221(g) refusal application, but from a new or later application.

PS:

The other scenario is that if you can appeal a 221(g) refusal and that appeal ends up in you getting a visa. The appeal's outcome would count as the final decision but I am not sure about this scenario; an immigration attorney would know more. Although I have almost never heard of someone appealing and geting the decision turned. An appeal simply costs more time and money than a reapplication. Someone may correct me if I am wrong about this.

  • " because they failed to provide some documentation of their case needs further processing" my English parser gave up. Please reword. Is there a typo? of/if? – chx Nov 6 '17 at 23:13
  • whoops, must've skipped that in the proofread. thanks for pointing out. – Newton Nov 7 '17 at 2:38

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