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I am a UK citizen intending to travel to the United States via Mexico in order to see my fiancee. I will spend the necessary fourteen days there before traveling onward to the US in order to circumvent the travel ban that is currently in place. I have a valid ESTA and seek to be admitted under the Visa Waiver Program.

My planned itinerary involves two return tickets, one between the UK and Mexico, and the other between Mexico and the United States. The plan is that I will travel to Mexico, spend the necessary fourteen days before traveling onward to the US on a separate return ticket, which would then take me back to Mexico to complete the return leg of my initial ticket. This is significantly cheaper than booking three separate one-way tickets that would allow me to fly directly back to the UK.

However, it's just come to my attention that the eligibility requirement under 8 USC 1187(a)(8) may prevent me from doing this. It reads as follows.

(8) Round-trip ticket

The alien is in possession of a round-trip transportation ticket (unless this requirement is waived by the Secretary of Homeland Security under regulations or the alien is arriving at the port of entry on an aircraft operated under part 135 of title 14, Code of Federal Regulations, or a noncommercial aircraft that is owned or operated by a domestic corporation conducting operations under part 91 of title 14, Code of Federal Regulations).

The round trip ticket is defined under 8 CFR 217.2(a) as follows.

Round trip ticket means any return trip transportation ticket in the name of an arriving Visa Waiver Pilot Program applicant on a participating carrier valid for at least 1 year, electronic ticket record, airline employee passes indicating return passage, individual vouchers for return passage, group vouchers for return passage for charter flights, and military travel orders which include military dependents for return to duty stations outside the United States on U.S. military flights. A period of validity of 1 year need not be reflected on the ticket itself, provided that the carrier agrees that it will honor the return portion of the ticket at any time, as provided in Form I-775, Visa Waiver Pilot Program Agreement.

So far, this is no problem. However, the restriction mentioned under 8 CFR 217.2(c)(1) is what leads me to doubt if I am actually admissible under such arrangements. It reads as follows.

(1) Applicants arriving by air and sea. Applicants must arrive on a carrier that is signatory to a Visa Waiver Pilot Program Agreement and at the time of arrival must have a round trip ticket that will transport the traveler out of the United States to any other foreign port or place as long as the trip does not terminate in contiguous territory or an adjacent island; except that the round trip ticket may transport the traveler to contiguous territory or an adjacent island, if the traveler is a resident of the country of destination.

The problem here is that my ticket to the United States is a return ticket to Mexico, making it seem as if I could be falling foul of 8 CFR 217.2(c)(1) as my ticket does indeed terminate in a contiguous territory in which I am not a resident.

Does the fact that I have a separate return ticket from Mexico to the UK less than eight hours after returning there overcome this ineligibility? It seems to depend on whether the trip refers to my travel itinerary as a whole, or to just the the aforementioned "round trip ticket" required under 8 USC 1187(a)(8).

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  • Is the ticket from the US to Mexico by any chance with the same carrier as the ticket from Mexico to the UK? Also, do you have time to get a B-2 visa? If so, that would solve the problem.
    – phoog
    Mar 17 at 21:56
  • @phoog The UK to Mexico flight is with KLM, and the Mexico to US flight is with Delta. Both are booked in advance. Sadly no time to get a B-2, and I'm not even sure I can do so at this point with Covid affecting everything.
    – James C
    Mar 17 at 23:01
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    I suspect that the round trip ticket requirement isn't routinely enforced. I also suspect that your Mexico-to-UK ticket might get you past an enforcement attempt even if it doesn't count officially, but I do not know whether any court or adminstrative official has ever ruled on the question, nor do I know whether there is any official policy one way or the other.
    – phoog
    Mar 17 at 23:42
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Your plans are fine under the VWP rules you mentioned. See below for issues about going to visit a fiancee.

The key phrase you cited is "as long as the trip does not terminate in contiguous territory or an adjacent island". This is because the 90 days allowed under VWP may include any time you spend in continguous territories or adjacent islands after entering the US.

Allowed under VWP (what you asked about): UK to Mexico, Mexico to US, US back to Mexico, Mexico back to UK, all within 90 days and all tickets in hand.

Disallowed: UK to US, stay for 40 days, US to Mexico, stay in Mexico for 40 days, return to US and stay another 11 days. Disallowed because you would stay in the US past 90 days from the initial US entry.

Gray area: UK to US, stay for 40 days, US to Mexico, stay for 6 months. Gray area because it is unclear whether staying in Mexico for 6 months counts as terminating the trip there. Probably still acceptable as long as you already have tickets out of Mexico and can clearly explain your plans.

===

You also mentioned "to see my fiancee". This can be a potential problem because some US officials (incorrectly) think that entering the US to see one's fiancee should only be done with a K-1 fiancee visa. Under 9 FAM 402.2-4(B)(1) you should be able to get a tourist visa to visit your fiancee temporarily, which implies that it should also be possible to do so under VWP. Here are some more resources about this issue: 1, 2, 3.

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    "If you want to see your fiancee but not get married on that trip, US immigration law does not really have an option for that”: yes it does. It has two options, in fact: the VWP and the B-2 visa.
    – phoog
    Mar 19 at 10:28
  • @phoog you're right, I was exaggerating how badly the US treats this. Edited.
    – krubo
    Mar 19 at 12:21
  • Even with an ill-informed official, the K-1 problem only arises if the fiancée is a US citizen, which isn't specified in the question. Another problem with this answer is the ambiguous nature of the "adjacent territory" rule for two VWP visits, which, on its face, is at the discretion of the immigration officer. But this issue is in any event not implicated in this question, since the contemplated itinerary only includes one visit to the US, so bringing it up is unnecessary and confusing.
    – phoog
    Mar 19 at 12:30

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