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According to numerous online reports (e.g. the US Embassy in the UK), a VWP national who enters the US by air solely in transit to Canada or Mexico, and then spends over 90 days in Canada/Mexico, unless a resident of Canada/Mexico, will be in violation of the VWP, refused re-entry to the US and barred from future travel under the VWP.

Is this really correct? It would imply a VWP national wishing to spend e.g. 4 months in Mexico would need a tourist/transit visa for the US if both the trip to and from Mexico takes place with a flight connection in the US. This would frankly be ridiculous.

My understanding is instead that stays in Canada/Mexico do not count towards the VWP admission duration on an automatic, strictly binding basis (as the reports suggest); rather, if the stay in Canada/Mexico is sufficiently short that it can reasonably be considered a mere side trip from the US, the CBP is likely not to grant a new 90-day admission period, but only the remainder of the original 90 days.

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    Would you care to give some links to these "numerous online reports"? – Nate Eldredge Oct 20 '19 at 18:19
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    Since you want this to be a canonical, what sort of answer are you looking for? This question and slight variants of it has already been answered at least a few hundred times here. – Michael Hampton Oct 20 '19 at 18:51
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    I think this is a duplicate. I may not have time to find it in the near future, however. I've certainly answered this question a couple of times already, though perhaps in response to subtly different questions. In short, your understanding is more or less correct, but there's no "sufficiently short" criterion: by the letter of the law, it depends only on the border officer's discretion, and there do not appear to be any public guidelines or policies guiding the exercise of that discretion. – phoog Oct 20 '19 at 20:09
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    Perhaps then it would be better to delete this for now, and then post the question and answer together once you hear back from CBP, since there does not appear to be any possibility for anyone else to give a satisfactory answer in the meantime. – Nate Eldredge Oct 20 '19 at 20:09
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    @NateEldredge I do not share Crazydre's optimism about the reply from the properly competent CBP department. In my experience trying to get answers from them they are no better than the information center. That shouldn't be too surprising, since they are probably the source of the material presented by the information center. – phoog Oct 20 '19 at 20:13
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The "numerous online reports" are not true.. Your understanding is much closer.

Let's start with the obvious - you cannot be in violation of US immigration overstay rules when you are not in the US. The US cannot and does not enforce this.

The actual rule is very simple. If you re-enter the US less than 90 days after having been admitted on a VWP, having visited only Canada, Mexico or the adjacent islands, you will normally be readmitted on the same I94 and must leave 90 days or less after the initial admission. That is all. Everything else that is said, like time in Canada "counting toward your time in the US" is just an approximation to try to explain the above.

If you spend a short amount of time in the US, then leave and spend time in Canada or Mexico etc., and attempt to return more than 90 days after the initial admission, you are eligible to be admitted under a new I94. Whether you are admitted depends on your circumstances, just like it did when you were first admitted. If you have spent only a few days in the US, and intend to spend only a few more, and have not in any other way made yourself undesirable, you are virtually certain to be readmitted. If you spent a long time in the US and only a very short time in Canada etc. then it is very likely that you will be denied readmission. (That is true even if you went somewhere outside the Canada Mexico Caribbean area.)

In any case you have not overstayed in the US.

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  • I might add that it might be worth ensuring that the US is aware you have left after those few days before entering Canada/Mexico (in particular Mexico where there may be no passport check when you enter), otherwise when trying to re-enter after the 90 days it may look like you're just trying to reset the clock – Midavalo Oct 20 '19 at 20:33
  • Additionally I believe entry to the US under VWP requires an onward ticket, so having one after the 90 days might help, but also might mean that the airline could be reluctant to let you board the first flight to the US – Midavalo Oct 20 '19 at 20:35
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    I believe it is “you MAY be readmitted”, not “you will”, and it is to the appreciation of the CBP officer. Also IIRC there’s a mention of a “short stay” in Canada/Mexico/etc, the limit being usually placed at 30 days. – jcaron Oct 20 '19 at 20:42
  • I am not sure if the officer has discretion. I will edit to "will normally ", which I am confident is true. I'm guessing if you transit through the US, then return 80 days later and want to spend 20 days in the US you would be allowed, but immigration rules aren't always sensible. – DJClayworth Oct 20 '19 at 20:44
  • @Midavalo the "round-trip ticket" requirement is satisfied if the return trip is within 1 year of the date of admission. – phoog Oct 20 '19 at 22:21
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From the policy unit of CBP Field Operations:

Sir

Thank you for your inquiry regarding the U.S. Visa Waiver Program.

A determination of admissibility is made at the Port of Entry by the U.S. Customs and Border Protection Officer at the time of an application for admission. This applies to every application for admission, including if the individual was recently admitted to the United States under the Visa Waiver Program (VWP).

For travelers otherwise admissible under the VWP (including receipt of a valid ESTA at time of admission), seeking only to transit the United States for a four month trip to Mexico, a visa is generally not required.

We appreciate your interest in U.S. Customs and Border Protection.

As such, contrary to many online reports, you don't accrue illegal presence in the US for being in another WHTI country beyond 90 days after having transited the US.

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