Originally Posted by Newryman
a VWP applicant found to be inadmissible by the inspecting officer is refused entry into the United States without further administrative hearing. When you sign the green I94(w) you agree to accept these conditions.
However I stand by my original postion that there is no significant advantage of travelling under the VWP over a B2 visa and in fact the reverse may often be true
The key difference here is that while denial of a VWP simply constitutes a disbarment from using the VWP but is non-prejudicial in itself as far as 212(a) inadmissability is concerned, it does not preclude a subsequent succesful application for B1/B2 visa and consequent admission in that status at POE.
In contrast, an expedited removal upon denial of B1/B2 status at POE carries with it a mandatory 5-year disbarment from the United States and furthermore from application for any NIV/IV in that period without the specific prior application for a 212(a) waiver.
As regards the I-94W waiver of administrative process, the DS-156 has similar provisions. The only grounds to appeal the denial of a NIV is on the grounds of procedural irregularity - but since a vast majority of NIV denials are on the basis of 214(b) - an entirely subjective criterion - you are de-facto signing the same rights away on the DS-156.
Using your described process, the B1/B2 application process would seek 214(b) compliance but the POE process would be the final arbiter of entry. However, since POE cannot make a 214(b) determination in that circumstance their only resort is a 212(a) determination which carries a higher summary penalty.
A determination of 212(a) ineligibilty at POE is not appealable either (and good luck trying to track down a copy of the I-275 or the A file following an ER) so in that case, the obvious reccomendation would be to go with the lower risk strategy unless you can find a no-risk strategy (which the IV petition would provide).
Anyway, this is immigration geek talk so I will stop arguing and boring the regular readers. Either way, there is a grey area in the law and it should be addressed before more people slip through the cracks.