Visa Waiver Program and staying in Canada > 90 days

[Mal P]

Hi everyone,

I am currently in Canada on assignment with my company. I arrived via LAX, and was thus admitted under the VWP. I am allowed to re-enter the U.S. for upto 90 days for my return trip home (again via LAX).

The question is... what happens if I stay past the 90 days in Canada, as is likely? I am not allowed to return via the U.S. and it appears that I cannot apply for a U.S. Visa from within Canada even.

Does this mean my only option is to fly home via Europe? What happens if someday I wish to go back to Canada via the U.S.? Will they think it suspicious that I didn't fly back home via the U.S.?

Any help would be greatly appreciated. I'll contact my company's immigration lawyers but I just wanted a heads up first.

Thank you,
Mal

 

[Dave Noble]

I am a bit confused. You entered the US under the VWP and then you left the US to go to Canada . when you return from Canada, surely this will just be a new entry into the US under the VWP allowing you 90 days again?

You are allowed to enter under the VWP from any country afaik

Dave

 

[d15.in.oz]

I reckon the US doesn't want people crossing the border for a few days every 3 months, then coming back on a new i94w. (And fair enough.) Overview of the Visa Waiver Program (VWP) - CBP.gov

Q: Can a VWP applicant for Admission Be Readmitted To the United States Follwing a Short Trip To an Adjacent Island, Canada, or Mexico?A:

• Generally, VWP applicants admitted under the VWP may be readmitted to the United States after a departure to Canada or Mexico or adjacent islands for the balance of their original admission period. This is provided they are otherwise admissible and meet all the conditions of the VWP, with the exception of arrival on a signatory carrier, in which case the inspecting officers have the discretion to grant the applicants entirely new periods of admission.
• The VWP applicant is admissible and may be readmitted to the United States under the VWP after a departure to Canada or Mexico or adjacent islands provided the person:
  1. Can identify an authorized period of admission that has not expired,
  2. Plans to depart the United States prior to the expiration date of their period of admission,
  3. Presents valid, unexpired passports which reflect admission to the United States under the VWP, and
  4. Continues to meet all criteria set forth in 8 CFR 217 and section 217 of the Immigration and Nationality Act (Act), with the exception of arrival on a signatory carrier.

 

[Kiwi Flyer]

I don't think that interpretation is quite right.

Not all US borders have stamps proving entry or exit. As I understand it, US allows multiple entries within the original 90 day period under the original VWP application for entry. This is easier for them than tracking all entries and exits. However, if you can prove that you left USA and subsequently re-enter under a new VWP application for entry, the 90 day clock starts again.

 

[d15.in.oz]

I don't think that interpretation is quite right...

I can be obtuse, can’t I. First part, was my comment (as I imagine like the OP, I too have heard urban legends about i94w Canadian crossings, hence I assume the reason for the original post), & more in relation to Dave Nobel’s confusion as to why someone would pose such a question.

Second part (the CBP quote), as you Kiwi Flyer paraphrase, demonstrates the official position.

 

[Mal P]

Hi guys, actually, I was basing my information off of the following website:

Visa waiver program

In it, it says:

I am transiting through the U.S. on my way to another country. Can I use VWP?

Yes, as long as your total stay in the U.S., Canada, Mexico and adjacent islands is less than 90 days, and you meet the other VWP requirements. You can use the VWP if, for instance, you are transiting the U.S. on a journey between Australia and Europe, or are transiting Guam between Australia and Japan.
However if for example you are transiting the U.S. on the way to a 6 month stay in Canada, you cannot use the VWP, as your total time in the U.S., Canada, Mexico and the adjacent islands will be over 90 days. In this case you should apply for a B-1/B-2 visitor visa, or a transit visa.






and






I have entered the U.S. on the VWP but now find I need to stay longer than the 90 days. Can I transfer to another type of visa without leaving the U.S.?

No, you cannot transfer from the VWP to any other type of visa, and you cannot extend the VWP 90 day admission period. You must leave the U.S., Canada, Mexico and adjacent islands within the VWP 90 day admission period, and either apply for a visa relevant to your new situation, or re-enter on the VWP if your next stay will be less than 90 days and you still meet the other requirements. Re-entering on the VWP is however at the discretion of immigration officials at the port of entry, who can deny admission.






So basically, I have to leave the entire continent to apply for a visa that will allow me to return via the U.S. This can't work, there's no way the company is going to pay for a business class trip back home. Maybe they will route me via Europe after 6 months or something... man, what a hassle!




Sincerely,
Mal

 

[Dave Noble]

So basically, I have to leave the entire continent to apply for a visa that will allow me to return via the U.S. This can't work, there's no way the company is going to pay for a business class trip back home. Maybe they will route me via Europe after 6 months or something... man, what a hassle!

I didn't realise that going to Canada didn't stop the VWP count

Perhaps you could get your company to pay for a flight for a weekend trip to Europe if that might be cheaper than rerouting back avoiding the USA

There wouldnt be anything suspicious about routing back via Europ; the are a lot of ATW type tickets being used

Dave

 

[gnatale]

Help with my situation please.

I am living in Canada on a Working Visa and have entered the USA on a Visa Waiver Program.

I have been in the USA for ONLY ONE day and resided back to Canada for the remaining. Soon the 90 days will expire and I wish to re-enter after this period... However I wish to remain in Canada after the 90 day period of my Visa Waiver Program has expires (as I currently live in Canada).

Shortly after this 90 day period i will returning to Australia for a week.

My question is, will i be allowed to apply for a new Visa Waiver Program in the USA if i have returned to Australia, but overstayed my continent (regional zoning for the Visa Waiver Program) period, as a result of living living in Canada.

Please help

 

[Doug]

I didn't realise that going to Canada didn't stop the VWP count

Perhaps you could get your company to pay for a flight for a weekend trip to Europe if that might be cheaper than rerouting back avoiding the USA

There wouldnt be anything suspicious about routing back via Europ; the are a lot of ATW type tickets being used

Dave

This is the response I got from the horse's mouth:

Discussion Thread
Response (Mark)

09/25/2009 11:47 AM​

There should not be any issues for your son to come back through the US. When he first arrives in LAX he will be a given a green I-94W Arrival/Departure record, and he should give that to the airline before be boards the plane to Canada. Since he will be in Canada for 6 months he will be given a new one when he transits the US on his way back to Australia. His ESTA application will also be valid for both trips. If he wants to visit the US for short trips while he is in Canada he should also be able to do that. I hope this helps.

Thank you for contacting Customs and Border Protection's Customer Service Center. If you have any other questions or would like clarification on this response, please feel free to contact us either by calling our toll free number 877 CBP-5511 (227-5511) or if calling from outside the United States our toll number 703-526-4200 and speak with a Public Information Officer. Our hours of operation are Monday thru Friday from 8:30am-5:00pm Eastern Time.




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[mushypeas]

It seems to be a bit hit and miss to be honest.... the actual policy is no you will not be allowed back into the US as per the State Department's website however, each customs/homeland security person has their own intepretation & discretion.... I have read many stories of folks coming and going on the VWP via land crossings but being denied via air. (source: 2 x expat forums)

I'm not taking the risk, I'm going to Canada on a WHP for a year or so and have opted for an American B1/B2 visa as I'll be landing via LAX/JKF before heading to Canada.

 

[SnowYeti]

It seems to be a bit hit and miss to be honest.... the actual policy is no you will not be allowed back into the US as per the State Department's website however, each customs/homeland security person has their own intepretation & discretion.... I have read many stories of folks coming and going on the VWP via land crossings but being denied via air. (source: 2 x expat forums)

I'm not taking the risk, I'm going to Canada on a WHP for a year or so and have opted for an American B1/B2 visa as I'll be landing via LAX/JKF before heading to Canada.

I've got a WHP Canada Visa, which lasts 2 years. I also got a B1/B2 (validity 5 years). The B1/B2 was tricky to get, they don't like issuing these to Aussies, since we are entitled to VWP. When applying, just make sure you tell them there will be lots of times you will be there more than 3 months. On a B1/B2, you can only stay max 180 days anyway then back out.

 

[Doug]

My son leaves this Friday - I'll post the result but the crux of the issue is that you need to hand over your visa when you leave the USA for Canada and that way you have left the US. The bit that is causing some people confusion is that if they leave say LAX for Canada and they don't surrender the visa before getting on the plane, that's where the problems arise. The system then thinks you are still in the USA or Canada using the 90 day Visa. Surrender it and there's no issue.

 

[mushypeas]

There is a broader issue Doug. The VWP isn't designed for borderhopping to Canada or Mexico and you may find it is up to the customs officers discretion whether you'll be allowed back in if you're arriving from either of these two countries (regardless of handing the green slip back).

You also cannot upgrade from a VWP to another visa ie: arrive on VWP then go to say Toronto US Consulate and apply for a B1/B2 and re-enter USA. Apparently you need to leave the continent and return on the B1/B2.

Good luck either way.

Cheers