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Me and my wife travelled to South East Asia in 2017 and on the way back to the UK we had to do a layover in Iran. We didn't leave the airport nor did we get our passports stamped.

My wife would like to visit the USA soon but is wondering whether she will fail the ESTA application as it asks if you have travelled to countries like Iran since 2011? She would like to travel within the next two weeks and is aware that if she has to go through the US embassy route she might not make it in time. Please let me know your thoughts.

  • May be related travel.stackexchange.com/questions/61663/… – RedBaron May 21 at 9:23
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    If I were your wife I would apply for a visa immediately, to maximize the chance of getting it before the anticipated departure. – phoog May 21 at 15:26
  • That would be quite the strange itinerary. – Michael Hampton May 21 at 16:52
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    @MichaelHampton Mahan Air has seasonal service to several Southeast Asian cities, so it's quite possible that for the OP's particular itinerary (or which we have no details), they were the best deal. – choster May 21 at 21:24
  • Also see travel.stackexchange.com/questions/100619/… . If you declare that you "visited" Iran, you may get the visa but the visit may be very uncomfortable from immigration point of view. If you don't declare and CBP at border determine you "visted" Iran and hence lied, you face a long entry ban to US. – RedBaron May 22 at 13:02
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Some travelers are not eligible for ESTA. The US Customs and Border Protection FAQ says those travelers include:

Nationals of VWP countries who have traveled to or been present in Iraq, Syria, Iran, Sudan, Libya, Somalia, or Yemen at any time on or after March 1, 2011 (with limited exceptions); and

where those exceptions are

to represent your program country on official military orders or official government business

It depends on what the US definition of "travelled to or been present in" is, but taking that to be literal "set foot in the country" (the safest definition from your perspective), you and your wife would no longer qualify for an ESTA and would need to do a full visa application.

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    This is a rather poor answer. The question is effectively asking for clarification on how the US defines "traveled to", and you don't provide any additional clarity on that point, aside from an unsupported "better safe than sorry" admonition [and you don't even expand on what "safest" implies here]. (It comes off a little like "Q: Do I qualify for the student discount?" "A: If you pay full price, you don't have to worry about the discount rules." - technically true, but not useful for answering the question at hand.) – R.M. May 21 at 19:45
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    @r.m. exactly. A better answer might look like, "According to Smith v. Shoppers Value Mart Student Benefit Programs, 'student' was defined as any person enrolled in high school or in credit-bearing university coursework. It was specifically held in this case that receiving private online tutoring in French grammar from an independently-operating retired public school teacher did not, in and of itself, constitute either high school or university study." – Columbia says Reinstate Monica May 21 at 20:47
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    @R.M. but in the absence of some authoritative statement on the US interpretation of "present in" with respect to transits without clearing immigration controls, this is the best answer one can get. I further think it unlikely that we'll find an authoritative statement of the US interpretation, and I note that answering "no" to the relevant ESTA eligibility question in these circumstances could be seen as deceptive and could therefore result in a finding of inadmissibility. – phoog May 21 at 21:05
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    @RobertColumbia I doubt there's been any litigation on this question. VWP-eligible travelers, like most nonimmigrant applicants for immigration benefits, have very limited access to US courts. – phoog May 21 at 21:06
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    @phoog I'd suspect that no authoritative statement will ever be given as this open and vague wording is very much in the favour of US CBP. – Richard May 22 at 8:29
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With the disclaimer that I'm not sure how the CBP interprets the rules for this edge case, for most practical purposes, if you never went through immigration, you've never been to Iran.

So in your shoes, I would say "no" in the ESTA application, and in the unlikely event of being questioned on arrival, I would simply state the above.

The other option would be to state "yes", which will likely cause the ESTA to be rejected, and then apply for a visa and explain the situation. However, while you will very likely get the visa this way, it may take so long that you miss the trip -- and if you've failed ESTA once, you now need to apply for a visa for the US for the rest of your life.

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    Being at the airport, wouldn't OP be considered to have been present in Iran? – RedBaron May 21 at 10:25
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    @RedBaron I've sent a question to CBP, i'll post an answer when i get a reply, they're usually quick – BritishSam May 21 at 10:33
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    @jpatokal In the relevant act (Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015), the only wording is 'the alien has not been present in ...'. If 'been present' only referred to people residing for longer periods, the act would not apply to people on short visits, which it however obviously does. – Tor-Einar Jarnbjo May 21 at 11:06
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    @Tor-EinarJarnbjo I agree. It's possible that CBP will interpret a transit without clearing immigration controls as not constituting "presence in" Iran for the purpose of the VWP regulations, but it's also possible (if not likely) that they would take the opposite interpretation. If CBP somehow has access to the traveler's history, and the traveler says she hasn't been to Iran, she risks being found inadmissible for deception. – phoog May 21 at 15:27
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    @RedBaron that's the question, isn't it? Technically if you don't go through customs you may not have been in the country despite setting foot on its territory. That's how people can be denied entry into a country when arriving at an airport in that country and elect to return home without getting listed as having been deported too, an important factor in future visa applications. – jwenting May 22 at 3:38
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I must agree with jpatokal with a small correction: unless you went or should have gone through immigration, you haven't been in Iran (otherwise illegal border crossings wouldn't count). Otherwise really strange questions arise. Like, if you have sailed through the Strait of Hormuz it is entirely possibly you have crossed waters Iran claims theirs but the United States disputes these claims. So, according to the United States have you been to Iran if you have been only on territory the United States doesn't recognize as a territory of Iran...? If your plane does an emergency landing in Iran, do you lose your ESTA rights for life? If your plane does a refuelling stop where you can't get off and noone can get on, have you been to Iran? The possibilities are endless...

Even more importantly, what happens if you enter a consulate of Iran? What definition can you find aside from an actual border crossing that differentiates from the territory of the embassy and the country itself?

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    Perhaps I could interest you in a career in the law... – David supports Monica May 22 at 2:41
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    We have already been characterized as "bloodthirsty persnickety software developers". I don't need a degree in law to be persnickety beyond any reason. – chx May 22 at 2:44
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    “should have went”. Is that a typo? – Anush May 22 at 5:38
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    Consulates and embassies are not foreign soil, so considering a visit to an Iranian consulate as having been in Iran would be quite bizarre and not based on any internationally recognised definition. @Anush No, it’s just a dialectal US form. – Janus Bahs Jacquet May 22 at 11:37
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So my wife got a response back from ESTA after applying that the authorisation is still pending even though it's been more than 72 hours since she applied. This was the response from the CBP officer:-

Your application is pending additional administrative processing due to your previous travel to Iran. Applications that show travel to a restricted country can take considerably longer than the normal 72 hours to review. Alternatively, we strongly recommend applying for a visa at the nearest U.S. Embassy or Consulate.

The trip is in just under a week's time so it looks like she could miss out unfortunately

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