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My situation is this:

  1. I will enter US on ESTA / VWP. With a New Zealand passport.
  2. Three weeks later, I will fly to Canada.
  3. I may be in Canada for 4 or more months (they give me up to 6 by default)

After that, three scenarios are possible:

  1. I will go elsewhere (South America), but need to pass through the US to do that.
  2. I will fly from Canada to my home country (New Zealand).
  3. I will spend some more time (a few weeks perhaps) in the USA, and fly to New Zealand.

Over the years I've seen mixed information about whether or not time in Canada simply counts towards the 90 days US gives on the VWP, and therefore if total time in US + Canada is over 90 days, it could make it hard to re-enter the US without first leaving North America entirely;

Or, they will simply start a new 90 days VWP upon re-entering the USA from Canada;

Or, whether the US will consider the 90+ days in US + Canada and overstay (aka. a violation) of the VWP?

The cause of my confusion

I've seen it written on a US Customs web site back at that time (this was around 2011) passing through the US on the way to Canada would mean you can't stay more than 90 days in Canada (assuming just one day was spent in the US), and I then asked the US Consul in NZ to confirm I'd understood it correctly, and she said I had. She told me outright that if I plan to pass through the US on the way to Canada, I can not stay more than 90 days in the two countries, otherwise I've over stayed my VWP in the US and will need a visa if I wish to return to the US in the following 5 years. She advised I would need to get a Visa if I wanted to pass through the US to spend 90+ days in Canada.

I also see this comment on travelwiki.org:

Visa Waiver Program requirements Travel under the Visa Waiver Program is limited to transit, tourism, or business purposes only; neither study, employment, nor journalism is permitted under the VWP. The 90-day limit cannot be extended nor will travel to Canada, Mexico, or the Caribbean reset the 90-day limit. Take care if transiting through the US on a trip exceeding 90 days to Canada and/or Mexico. Source: https://wikitravel.org/en/United_States_of_America

Also, this answer to a similar question seems to imply the same thing, that it will be a problem. Yet, this answer to a similar questions, say the opposite. That there will be no issue.

I completely agree that a short time spent in Canada (or Mexico) won't reset the 90 days. But does going over 90 days due to staying an extended time in Canada make me an overstayer on the US VWP?

And, what would happen if I was, for example, in Canada for 4 months and then wanted to spend some time in the US before heading back to New Zealand? Will they give me another 90 days of VWP?

marked as duplicate by phoog, user90371, David Richerby, bytebuster, Ali Awan Aug 18 at 4:07

This question has been asked before and already has an answer. If those answers do not fully address your question, please ask a new question.

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    If you're in Canada, you're not in the United States. You're not overstaying. The law itself (regulation, not statute) says that if you try to return to the US after your initial 90-day period expires, nothing special should happen: you'll either be admitted for a new 90-day period or be refused entry. The problem is that the executive branch does not understand its own regulations, and VWP visitors waive their right to judicial review as a condition of using the VWP, so any misinterpretation of the regulation cannot be challenged. – phoog Aug 17 at 6:39
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I'm pretty shocked to hear that a US consular officer did not understand the VWP 90-day rule and misrepresented it to you, but that appears to be what has happened.

First, the important bits:

If you have exited the US before the 90 days are up, you are not overstaying in the US. You're in some other country. This applies whether you're in Canada or Cameroon, Mexico or Malta. Doesn't matter for the purpose of leaving the US, so long as you leave.

The so-called 90 day clock is a tool that helps to discourage visa runs. That is, someone tries to spend a large amount of time in the US, leaves for a short period and then returns. If they are within the original 90 day period, they will only be readmitted until the end of that period. If they are outside that period, they could theoretically be admitted for another 90 days, but it's very likely they will instead be detained and questioned very closely about their travel plans.

Someone who has spent three weeks in the US followed by four months outside the US has absolutely nothing to worry about with regard to this rule, even if that time was spent in Canada, Mexico, etc.

  • Thanks for clarifying that. So, based on what you know, should it be fine to have a flight to Canada as my departure flight from US (which they may want proof of when I enter the US)? – Flying Kiwi Aug 17 at 6:53
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    The tool is also discretionary. The regulation says "may be admitted for the balance of the initial 90-day period," or words to that effect, not "must be admitted." This allows the officer to admit the person for a new 90-day period if it's appropriate. This allows people, assuming they have a reasonable immigration officer on return to the US, for example to transit through the US on their way to Canada, remain in Canada for 88 days, and then return to the US for 2 weeks. – phoog Aug 17 at 6:53

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