Does the ESTA 90 day limit count days SPENT WITHIN the US only?

I intend to stay in the US for 40 days, followed by 20 days in Chile for holidays, then possibly a short 3 day stay in my home country in the EU, then returning for another 40 days, (which together with the 20 days would exceed 90, but if the clock pauses, no problem).

My stays in the US are both related to business with the same contact.

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    Do you have documentation that shows that the business activities that you conduct in the US surely fall under those permissible in the Visa Waiver program? – DCTLib May 1 '19 at 14:20
  • I can document that, the purpose is a "business venture". We are visiting silicon valley for fund raising, and networking, but not receiving any salary from US employers and with no intent to stay or go for additional visits. – mhh May 1 '19 at 19:06
  • Fund raising and networking sounds fine to me (but IANAL). I was only stating that because certain business activities are not permissible under the B1/B2 category even if you do not receive US salaries (such as working remotely for your home country employer while touring the US). The distinction between permissible and non-permissible activities is sometimes not so obvious, and for 2x40 days, the border agents may want to have a close look that your planned activites are really permissible, so I suggest to bring thorough documentation. – DCTLib May 2 '19 at 5:01
  • Thank you, that does clarify my question. It does not make a difference in this case if I apply for a b1/b2. I just have to bring documentation of my purpose of visit. – mhh May 3 '19 at 17:49

Leaving the USA after your first trip ends that entry, unless you're just making a "a short trip to Canada, Mexico, or a nearby island [basically, the Caribbean]" (US State Dept. VWP webpage), which you're not. So your second trip is a completely separate entry, which could be up to the full 90 days.

CBP doesn't like repeated long trips with relatively short gaps between them. For example, trying to make two eighty-day visits with a week's gap between them would be pretty sure to get you denied entry. My guess is that you'll be OK: the total time of your two visits is less than the maximum you could do on a single visit, and there's the three-week gap, too. But I wouldn't be surprised if you had problems if you tried to make a third 40-day visit after another three weeks. However, I should emphasize that this is just a guess, based on the impression I've got from entering the US on VWP a couple of times a year for the last ten years, mostly for 2–3 week visits, with two visits of 80-odd days. The safest thing would be to get a visa, but it's not really possible to quantify whether you need that extra safety.

It's worth noting that two-times-forty days in the US might be interpreted as "work" (which isn't allowed) rather than "business" (which is). I have no experience of that aspect of the Visa Waiver Program, so can't comment on that.

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    I would be more concerned about justifying that OP is within the conditions of the VWP... 2 relatively long stays look more like work than what is usually allowed as « business ». – jcaron May 1 '19 at 13:30
  • @jcaron That's a good point -- I've never been in the US for "business" (academic conferences) for more than a week, so I don't have any experience of that. – David Richerby May 1 '19 at 13:32
  • For example, trying to make two eighty-day visits with a week's gap between them would be pretty sure to get you denied entry. -- See travel.stackexchange.com/a/61835/4188 – chx May 1 '19 at 13:37

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