Will getting a refund from an ESTA scam site cause me to be blacklisted from the US?

Question

A colleague accidentally purchased a US ESTA from a scam site that I won't dignify with a link, charging him $31. (The official site charges just $14.) Like most scam sites, the site actually did get him an ESTA, they just took a fat cut.

He'd like to request a refund (the site promises they have a 30-day refund policy), get his money back and try again via the official site, but the US Embassy in Australia says:

If you think you have been victimized, you can contact your bank or credit card company and dispute the charges on your statement. Please be aware that if the $14.00 charge submitted to the U.S. government is refunded, the ESTA approval will automatically be denied and future applications may also be denied.

$17 is not worth getting blacklisted from ESTA and having to apply for visas the hard way! But is this is a bureaucratic "may" in the sense of "this could theoretically happen but never does in practice", or "this is what will happen and we're just being coy about it"?

Update for clarity: The discussion of whether this is legally fraud or not is beside the point. This question is asking whether the act of requesting a refund can really stop you from being able to use ESTA in the future.

Resolution: They did not attempt to claim the refund.

Answer 1

Update: the Customs and Border Protection website now says:

You may also have a third party, such as a relative or travel agent, pay the associated fees for each application. CBP is not responsible for third party fees. Your application will not be submitted for processing until all payment information is received.

Apparently they currently have no problem with these third party sites handling your payments - the advice given before implied that these sites were violating the CBP's terms of service. The FAQ's now additionally say:

I have seen other websites that are assisting travelers in applying for their ESTA application. Is there a benefit to using one of these other sites?

No. Use of a private service to apply for travel authorization via ESTA will not expedite approval. Third party websites that provide information about ESTA submit ESTA applications for VWP travelers are not endorsed by, associated with, or affiliated in any way with DHS or the U.S. government.

and

There are third-party entities already working in VWP countries that charge a processing fee to assist travelers in completing the ESTA online form. The implementation of a government-based fee for ESTA is likely going to result in additional confusion to [... truncated]

The Department of Homeland Security worked with the travel and tourism industry to inform international travelers that the original ESTA program online application form was free. DHS and industry will continue to promote the official U.S. government ESTA website and discourage travelers from using the third-party organizations to complete the easy ESTA application. This will increase the likelihood that VWP travelers will know where to find the correct internet address for the official U.S. government ESTA website and that the only ESTA fees required will be those collected during the online application process.

This new advice places the earlier advice into the context of having been cheated. The directions and implications remain the same - only use the official site - and if you don't and get charged extra, you may dispute it - but it could jeopardize your travels.

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The official US Government site recommends disputing the amount over $14, (in spite of doing so jeopardizing your future visits):

https://help.cbp.gov/app/answers/detail/a_id/1164/kw/esta/p/0/c/0

I've been charged more than $14 for submitting my ESTA application, what should I do?

There are a number of third parties that have established websites that charge a fee for submitting your application on your behalf. If you have used one of these third party sites, we strongly suggest you use your reference number to confirm with the official U.S. government site to ensure that your ESTA is in our system. We recommend you do this because we have no way of knowing if the information passed through the third party website to us is accurate. If it is not, you may have a problem when you arrive in the U.S.

...

CBP cannot refund the money you paid to a third party website, however if you think you have been victimized, contact your bank or credit card company and request a refund of any amount over the $14.00 required by the U.S. government by disputing the add-on charges on your statement.

In standard grey on dark blue text at the bottom of the scammer's front page: "Legal Disclaimer: ESTA.US is a private information website not affiliated with the United States Government." Whether it really creates any value for anyone is questionable, but a sucker is born every minute. The official website is good enough for government work: https://esta.cbp.dhs.gov/esta but it looks like a phishing url - the fake site looks even more official/professional.

The US Government site seems to back the idea that these people are being scammed and that these sites create no additional value. I hope he gets his money back by disputing the amount over $14.

How exactly can he prevent the scammer from reacting to the partial chargeback by submitting their own chargeback to the $14 they forwarded to the government? The site says bad things will happen "if the $14.00 charge submitted to the U.S. government is refunded" but provides no information on how to prevent that from happening

I am not a lawyer, but I have some business law training. What I would presume, based on the context, is that the intermediary opens the account pretending to be the individual, which is against the terms of service of the US Government site.

If the intermediary attempts to charge-back to the government, the issue would seem to be between the intermediary and the government, since the applicant has followed the government's advice.

I think it very unlikely that the government, knowing that there exists this bad-faith intermediary, and providing advice, would then penalize an applicant for following its advice. However, see the response below - it appears our short-sighted government bureaucrats would rather you save your $17 and jeopardize your future visits than visit, inject money in our economy, and create jobs.

I have submitted this question to the government's official site. We'll see what they say, after they've had a few weeks to respond.

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Here's their email response:

Response Via Email (CBP ESTA Officer) 09/01/2015 02:05 PM Hello,

If the company you used to submit the ESTA cancels the fee with ESTA after you cancel the charge with them this will create a charge back.

If you were charged more than $14 USD per application, you have gone to a third party web site. A third party business charges a fee to submit an ESTA application on your behalf to the official website. These businesses and web sites requesting additional fees are not endorsed by, associated with, or affiliated in any way with Department of Homeland Security or the United States Government. If there is a disclaimer indicating the site is not affiliated to the U. S. government, there is no action the U. S. government can take. The official US Government ESTA web site is: https://esta.cbp.dhs.gov/esta

CBP cannot refund the money you paid to a third party website. However if you think you have been victimized, contact your bank or credit card company and request a refund of any amount over the $14.00 required by the U.S. government by disputing the add-on charges on your statement.

However, please keep in mind that any payment stoppage to the ESTA application fee payment transaction with your bank or credit card that may inadvertently result in a withdrawal of the fee for any of your previous ESTA applications - will cause an automatic denial of your current ESTA. The account will then be posted as a "chargeback” and incomplete account. This means that you will NO LONGER be able to re-apply for a new ESTA and all subsequent ESTA applications will be denied.

You can continue to monitor the application up until the date of travel to see if it continues to be approved. If you wish to apply for a new ESTA to feel at ease you can also do this; the decision is completely yours to make and we cannot advise you one way or the other.

To monitor your application use these instructions:

Please go to this site https://esta.cbp.dhs.gov/esta/

1. Scroll to the bottom of the page and click on the "Retrieve Application" button on the right hand side (Gray box with Black Letters)
2. Click on the "Retrieve One Application" button on the left hand side (Gray box with Black Letters)
3. Put your passport number
4. Put your Birth Date
5. Put the application number you received in the left side (I know the application number) YOU DO NOT need to fill out the information on the right side if you know the application number - if you do not know the application number then you will have to fill out the information on the right side.
6. Click on Continue

Respectfully, ESTA PMO

And they have further marked the matter as "solved":

Question Reference #150901-001607
Topic Level 1: ESTA / Visa Waiver
Program Topic Level 2: I am having computer/payment issues.
Date Created: 09/01/2015 11:52 AM
Last Updated: 09/01/2015 02:05 PM
Status: Solved

At the beginning of the email, which I received the same day,

Recently you requested personal assistance from our on-line support center. Below is a summary of your request and our response.

If this issue is not resolved to your satisfaction, you may reopen it within the next 7 days.

Thank you for allowing us to be of service to you.

Perhaps someone else can get further with this bureaucracy than I can, given my limited time.

Answer 2

He'd like to dispute the credit card charge, get his money back and try again via the official site

Card disputes are for unauthorized fraudulent charges not purchases. If your friend authorized the purchase and further received the goods I don't see any standing on which he could dispute the charge.

Your friend's situation is the same as someone who bought something at a local store for $X, and then found it cheaper online and now wants to get the money back, so they can buy it for a cheaper price.

I would not risk possible consequences over $17 and instead chalk this up to an experience and move on; especially considering that you risk losing your dispute claim and then are flagged for that.