Question:  When completing the Electronic System for Travel Authorization (ESTA) form, do I have to disclose a recent visa refusal under §221(g) as a visa denial?

Answer:  Yes, when completing the ESTA form, foreign nationals should indicate that they have been denied a visa, even if they had a visa refused under §221(g).  CBP may deem the failure to disclose visa refusals as a misrepresentation under INA §212(a)(6)(c)(i), which has serious adverse consequences on the foreign national’s ability to enter the U.S. in the future, whether as a non-immigrant or as an immigrant. 

If a foreign national is unsure of their status, it is in their interest to consult with an experienced immigration attorney regarding how best to proceed - before unintentionally running afoul of the lifetime bar under INA §212(a)(6)(c)(i).