Background 1. It is a condition for applying for admission to the US under the Visa Waiver Program that one waives one's right to appeal or contest any rejection by a border official. (In practice, air travelers are not asked to affirmatively waive these rights; I think it is in the small print of the ESTA application somewhere).

Background 2. Various report (e.g. here) state that US consulates are quite reluctant to issue B-1/B-2 visas to VWP nationals when it appears their travel purpose fits under the VWP.

Question. Suppose you apply for a visa and outright tell the consular officer that your reason for wanting a visa is to preserve your right to an immigration judge in case you're refused entry. Have you then effectively killed your application? Are there reports of this succeeding (surely someone must have tried just out of general boundary-pushing assitude)? Are there rules stating explicitly that such a desire is an acceptable reason to apply for a visa?

Never mind that it appears to be a stupidly pointless move for most bona fide tourists or business visitors to insist on full removal proceedings if rejected at the border -- since the law states that these rights must be waived instead of just declaring that you don't have them in the first place, the system should at least pretend that it's rational to want to preserve them, shouldn't it?

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    @pnuts emphasis on should, not must. The question is narrow but not simplistic and is unusual and interesting - exactly what we are looking for on this site! Jan 3, 2017 at 3:14
  • While common sense indicates that a consular officer would see such an application as a big red flag (why exactly would one be concerned about being rejected by a border official? Maybe further investigation is in order...), I'm not convinced that they necessarily would. The US has a longstanding, accepted practice (often enshrined in official policy) whereby persons charged with crimes often have the choice to either plead guilty and accept a small punishment or preserve their right to trial by jury and risk a larger sentence. Why wouldn't there be a similar choice in immigration law? Jan 3, 2017 at 3:18
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    @pnuts I was making my own emphasis. I was pointing out that if "practical, answerable questions based on actual problems that you face" were the only questions allowed here, then the Don't Ask page would be expected to say "You must only ask..." rather than "You should only ask...." Jan 3, 2017 at 3:31
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    @pnuts one way that the question could be answered would be for someone to find some official USCIS policy document (a lot of them are online), immigration case law, or statute that covers this. For example, if an official US Government policy says "Consular officers shall not treat visa applications from VWP-eligible persons as a red flag for further investigation", I would consider that to answer the question even though everyone knows that not every official is going to do that perfectly 100% of the time. Jan 3, 2017 at 3:33
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    @Robert "exactly what we are looking for on this site!" Who is "we"?
    – fkraiem
    Jan 21, 2017 at 14:12


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