Applying for an E-2 visa does not always result in approval. A consular officer may deny your application because you did not sufficiently establish eligibility for a particular eligibility category of the E-2 visa.
But even after the unsuccessful result of the E-2 visa interview, you may still want or need to visit the United States for various reasons. For example, to meet your relatives, to attend very important business meeting, or simply travel for vacation.
If you are a national of a Visa Waiver Program country, you may then wonder whether you can travel to the US under the Visa Waiver Program by obtaining an Electronic System for Travel Authorization (ESTA).
There are generally two different situations to consider. First, where you need to apply for a new ESTA after the E-2 visa denial. Second, where you already have an approved ESTA that has not yet expired.
- An E-2 visa denial does not automatically bar travel on ESTA, but you must truthfully disclose any prior U.S. visa refusal on the ESTA application.
- If an E-2 denial occurred after your original ESTA approval, CBP rules require a new ESTA application reflecting your changed circumstances, even if the old ESTA shows approved.
- A recent visa denial can lead to ESTA refusal or extra scrutiny at the border, and there is no official waiting period, so consulting an immigration attorney is recommended.
Can You Apply for a New ESTA After an E-2 Visa Denial?
An E-2 visa denial does not automatically mean that you are prohibited from applying for ESTA.
Disclosing an E-2 Visa Denial on Your ESTA Application
However, the ESTA application specifically asks whether you have ever been denied a U.S. visa with your current or previous passport. Thus, if your E-2 visa was denied, you must answer “Yes” to this question when you are applying for ESTA. You must answer “Yes” even if you are applying with a different passport from the one you used for your E-2 visa application.
Applying With a Different Passport
For example, let’s say you are a dual citizen of France and Italy. You applied for an E-2 visa using your French passport, but the E-2 visa was refused. You later decide to apply for ESTA using your Italian passport.
You still have to disclose the E-2 visa denial because the ESTA question specifically includes visa applications made with a current or previous passport.
How a Prior Visa Refusal Can Affect Your ESTA
Please remember that even if you had a visa denial, it does not necessarily mean that ESTA will automatically be denied. However, the US Department of State warns that a recent visa refusal (from a US consular post) may result in denial of ESTA authorization, additional review at the port of entry, or even denial of admission to the US.
Is There a Waiting Period Before You Reapply?
Another common question is how long you should wait after the E-2 denial before applying for ESTA.
Unfortunately, there is no published rule or guideline stating that you should wait 30 days, 90 days, six months, or any other particular period. Simply waiting for a certain amount of time does not erase the record of prior visa refusal.
What If You Already Have an Approved ESTA?
This situation can be more confusing.
Assume you obtained an ESTA before applying for your E-2 visa. Your ESTA was approved for two years, and it still shows as “Authorization Approved” after your E-2 visa interview.
Then you are probably asking yourself – can I trust this and travel to the United States?
We would not recommend relying on the old ESTA without taking further action.
Why a Changed Answer Requires a New ESTA
When you originally applied for ESTA, you may have correctly answered “No” to the question asking whether you had ever been denied a US visa. However, after the E-2 denial, this situation has changed, and the correct answer to that same question has become to “Yes.”
CBP rules require a traveler to obtain a new ESTA when the circumstances underlying a previous “Yes” or “No” eligibility answer have changed. They also instructs travelers to re-apply and require that the new application reflects the changed circumstances.
This means that the fact that your old ESTA still appears to be valid in the online system does not necessarily mean that you should continue traveling with it.
Why Your Old ESTA May Still Show as Approved
At the same time, we would not say that an E-2 denial automatically causes the existing ESTA to immediately disappear or show as canceled. The system may still display the prior ESTA approval.
The important point is that since your circumstances have changed, you should submit a brand new ESTA application that discloses the E-2 visa denial rather than simply relying on the previous authorization, and see what new result comes out.
If the new ESTA is still approved, that is certainly a positive sign. However, remember that ESTA approval only authorizes you to travel to USA and does not guarantee that CBP will admit you at the port of entry.
Can You Travel on ESTA After an E-2 Visa Denial?
An E-2 visa denial does not automatically prevent you from ever traveling to the United States through the Visa Waiver Program.
If you apply for a new ESTA, however, you must disclose the E-2 visa denial. A recent visa denial may affect whether ESTA is approved, and there is no published waiting period that guarantees a better result simply because more time has passed.
If you already had an approved ESTA before the E-2 denial, you should also be careful about continuing to use it. Because the E-2 denial changes the answer to one of the ESTA eligibility questions, CBP rules require a new ESTA application reflecting that change.
Talk to an Immigration Attorney Before You Travel
It is always better to consult with an immigration attorney before traveling to USA using ESTA after an E-2 visa denial.
Scott Legal, P.C. can review the reasons for your E-2 refusal, advise whether to apply for a new ESTA or a B-1/B-2 visa, and help you plan your next E-2 application. Schedule a consultation with our team before you book your trip.
