Visa Waiver Program - stopping the 90 day clock starting in transit

[novocastrian 0]

Friends of mine from Australia entered the US in transit to Canada. They then stayed with their son in Canada for 2 months, then came into the US to travel for over a month. Apparently the US boarder control said their 90 day visa waiver started when they originally transited through LAX to Canada, so in fact they only have the remaining 30 days left on their visa waiver and will have to leave before they had planned. To make matters worse, they are returning back to Canada to see their son and their flight back to Australia goes through the US again. This will be after the 90 days, and they were told immigration in US may not let them transit to Australia because you can't get back to back 90 day VWPs.

This all seems crazy and unfair. Does anyone know if this is correct? Is there anything they can do?

Thanks in advance.

[Merrytooth 5,748]

https://help.cbp.gov/app/answers/detail/a_id/194/~/visa-waiver-program---eligible-countries

While in the U.S., you may go to Canada, Mexico and the Caribbean and Adjacent Islands and re-enter the U.S. using the I-94 admission notation you were issued on your VWP passport when you first arrived in the U.S., although the time you spend there is included in the 90 days allotted for your visit.

If you go to Canada and Mexico or the Caribbean, and while you are there, your initial 90-day period of entry expires, but you need to come back in to the U.S. to fly home, you may encounter a problem. The terms of the VWP are very clear - it is only to be used for occasional, short visits to the U.S. If the CBP Officer thinks you are trying to "reset" the clock by making a short trip out of the U.S. and re-entering for another 90-day period, you can be denied entry. (If that happens, you will have to obtain a visa for any future travel to the U.S.) In order to be re-admitted to the U.S. shortly after a previous admission expired, you will have to convince a CBP Officer that you are not trying to "game" the system.

[VanessaTony 3,567]

Friends of mine from Australia entered the US in transit to Canada. They then stayed with their son in Canada for 2 months, then came into the US to travel for over a month. Apparently the US boarder control said their 90 day visa waiver started when they originally transited through LAX to Canada, so in fact they only have the remaining 30 days left on their visa waiver and will have to leave before they had planned. To make matters worse, they are returning back to Canada to see their son and their flight back to Australia goes through the US again. This will be after the 90 days, and they were told immigration in US may not let them transit to Australia because you can't get back to back 90 day VWPs.

This all seems crazy and unfair. Does anyone know if this is correct? Is there anything they can do?

Thanks in advance.

When you say "entered the US in transit" what do you mean? Did they go through customs and passport control? Or did they just transfer to another flight?

[novocastrian 0]

When you say "entered the US in transit" what do you mean? Did they go through customs and passport control? Or did they just transfer to another flight?

When you enter on any flight into LAX from Australia, they make you go through Immigration and Customs, even if you are just connecting to Canada.

[VanessaTony 3,567]

When you enter on any flight into LAX from Australia, they make you go through Immigration and Customs, even if you are just connecting to Canada.

Okay. Did they get a stamp in their passport with the end date? If they get another one when they actually enter the US, it may have a new date. If it doesn't get a new date, then they have to leave before it expires.

[CC90 90]

CBP will likely escort them to the departing flight when they transfer in the worst case scenario. I wouldn't worry about the return.

They only have 30 days left in the US though. It's a terrible international transit point.

Edited July 14, 2013 by CC90

[Noel194 53]

CBP will likely escort them to the departing flight when they transfer in the worst case scenario. I wouldn't worry about the return.

They only have 30 days left in the US though. It's a terrible international transit point.

Right but if they are denied entry due to an overstay of the VWP they will not be able to use it in the future and will have to obtain a B2.

[CC90 90]

Right but if they are denied entry due to an overstay of the VWP they will not be able to use it in the future and will have to obtain a B2.

Who said anything about overstaying?

[Noel194 53]

Who said anything about overstaying?

For the purposes discussed here if the enter the usa on day 1 go to Canada for 60 days, come back to the USA for 3 weeks, return to Canada for a month when they land in LAX on there way back to Australia more than 90 days past the original entrance on the VWP they are out of status because the VWP clock never reset. Being out of status on a visa or VWP is called an OVERSTAY.

Edited July 15, 2013 by Noel194

[CC90 90]

For the purposes discussed here if the enter the usa on day 1 go to Canada for 60 days, come back to the USA for 3 weeks, return to Canada for a month when they land in LAX on there way back to Australia more than 90 days past the original entrance on the VWP they are out of status because the VWP clock never reset. Being out of status on a visa or VWP is called an OVERSTAY.

Don't think you understand. There won't be a status to overstay because even if they won't be admitted back, they'll be escorted to the plane and no problem.

They're not in the US when they're in Canada. As such, they can't be overstaying while in Canada. The clock simply doesn't reset. Worst case scenario they're escorted to the plane.

[Noel194 53]

Don't think you understand. There won't be a status to overstay because even if they won't be admitted back, they'll be escorted to the plane and no problem.

They're not in the US when they're in Canada. As such, they can't be overstaying while in Canada. The clock simply doesn't reset. Worst case scenario they're escorted to the plane.

Well apparently the CBP does not understand either. From their website:

If you are from a visa waiver program country and you are coming for tourism or business (but not for employment or as a working member of the media) you may enter into the U.S. (including Hawaii, Alaska, Puerto Rico and the U.S. Virgin Islands) for up to 90 days. If you wish to visit the U.S. for a longer period of time, you will need to obtain a visa.

If visiting the U.S. under the visa waiver program you may not apply for an extension of stay.

While in the U.S., you may go to Canada, Mexico and the Caribbean and Adjacent Islands and re-enter the U.S. using the I-94 admission notation you were issued on your VWP passport when you first arrived in the U.S., although the time you spend there is included in the 90 days allotted for your visit.

If you go to Canada and Mexico or the Caribbean, and while you are there, your initial 90-day period of entry expires, but you need to come back in to the U.S. to fly home, you may encounter a problem. The terms of the VWP are very clear - it is only to be used for occasional, short visits to the U.S. If the CBP Officer thinks you are trying to "reset" the clock by making a short trip out of the U.S. and re-entering for another 90-day period, you can be denied entry. (If that happens, you will have to obtain a visa for any future travel to the U.S.) In order to be re-admitted to the U.S. shortly after a previous admission expired, you will have to convince a CBP Officer that you are not trying to "game" the system.

Perhaps you should not give people advice that will make them inadmissable under the VWP in the future. Just a thought.

[CC90 90]

Well apparently the CBP does not understand either. [/size]

You're missing the point. Not worth arguing. Arguing doesn't help the OP; he/she will make their own conclusions.

[jajaju 33]

bottom line for OP is that leaving the US but not the continent doesn't reset your 90days. I think this was the original query.

[loladolly 51]

Well apparently the CBP does not understand either. From their website:

If you are from a visa waiver program country and you are coming for tourism or business (but not for employment or as a working member of the media) you may enter into the U.S. (including Hawaii, Alaska, Puerto Rico and the U.S. Virgin Islands) for up to 90 days. If you wish to visit the U.S. for a longer period of time, you will need to obtain a visa.

If visiting the U.S. under the visa waiver program you may not apply for an extension of stay.

While in the U.S., you may go to Canada, Mexico and the Caribbean and Adjacent Islands and re-enter the U.S. using the I-94 admission notation you were issued on your VWP passport when you first arrived in the U.S., although the time you spend there is included in the 90 days allotted for your visit.

If you go to Canada and Mexico or the Caribbean, and while you are there, your initial 90-day period of entry expires, but you need to come back in to the U.S. to fly home, you may encounter a problem. The terms of the VWP are very clear - it is only to be used for occasional, short visits to the U.S. If the CBP Officer thinks you are trying to "reset" the clock by making a short trip out of the U.S. and re-entering for another 90-day period, you can be denied entry. (If that happens, you will have to obtain a visa for any future travel to the U.S.) In order to be re-admitted to the U.S. shortly after a previous admission expired, you will have to convince a CBP Officer that you are not trying to "game" the system.

Perhaps you should not give people advice that will make them inadmissable under the VWP in the future. Just a thought.

So basically you enter the US just as a transit to go to canada and even once you are OUT they keep counting your VWP down?? Transit is what it is, you stay there for less than a day, why would they keep counting his VWP down if he left on the same day he arrived??

Well i am not concerned by any of this anymore but i am just curious. The more i read the more i am amazed at how stupid the system can be.

bottom line for OP is that leaving the US but not the continent doesn't reset your 90days. I think this was the original query.

Yeah this is hilarious !

[Noel194 53]

This is a rule that was created because people abused the system. People would arrive on the VWP stay 89 days go to Canada or Mexico for a few days and then return and get another 90 days. This is not the intent of the VWP so the rules had to change to stop this. Don't blaim the Government blaim all the people who cannot follow the rules.