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I spent 3 months from March to May 2020 in the US while on ESTA visiting my boyfriend. I went back to my home country before the 3 month period ended.

In June 2020, I decided to come back again and was interrogated in a little room by aggressive US Customs officers about my quick return - I told them I would stay for a week and they let me in after 2 hours of intense questioning. However, I ended up staying for ~3 months again till September. I never exceeded the limit of my ESTA Visa Waiver however on each visit and didn't break any official rules.

It's been a year and I haven't traveled to the US since then or seen my boyfriend. I am planning to travel in October and I'm worried that they might interrogate and then reject me. What should I do? What are the chances of this happening given that it's been more than a year since I traveled?

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    Welcome to TSE. Where is your home country and how long do you plan to stay in the US this time? How is it that you are able to spend months at a time away from home - what ties there do you have? Why did you end up staying 3 months when you told officials you’d stay a week? What does your i-94 travel history i94.cbp.dhs.gov/I94/#/home%23section show about the length of that entry permission?
    – Traveller
    Aug 28 at 15:34
  • Was working remotely. Wanted to be with my bf during Covid and avoid taking a flight during the worst period of the outbreak, so ended up extending travel plans. Aug 28 at 15:58
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    Working remotely is illegal by the way. It’s a tossup whether you’re allowed in or denied Aug 28 at 19:00
  • My admit until date was unchanged so it was still 90 days after my entry date. Working remotely is not illegal because I was working for a company in my home country? Aug 29 at 0:29
  • One potential problem with being able to work remotely, especially if you want to make extended/frequent visits to a significant other in the US, is that it might undermine the credibility of you having ‘binding ties’ to your home country that will ensure your departure from the United States at the end of the visit, and thus could make it more difficult to overcome the presumption under U.S. law of immigrant intent. Another is what impact the total amount of time you spend in the US might have on your tax residency status in both countries
    – Traveller
    Aug 29 at 15:41
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The simple answer is that there is no way to be sure what will happen to you when you return to the US. It is likely that you will be allowed enter the country, but also possible that you will be refused entry.

There is no written law as far as how frequently a traveler can visit the US under the Visa Waiver Program (ie, what you enter under when using an ESTA), nor how long their total time in the US can be as long as they exit by the time they are given for each trip (normally 90 days, but it can be less).

However US Customs & Border Patrol do have a "rule of thumb" that you should be spending more time outside of the US than within it. This is the rule that caused you to be send to 'secondary' inspection on your previous trip, as you had spent 3 months within the US, and then only a matter of weeks out of the country before returning. As this is only a guideline and not a formal rule, you were allowed in - likely in part due to your claim you were only staying for one week.

For your next trip, this rule of thumb will obviously not apply, as you've spent over a year outside of the US, so from that perspective you'll be fine.

The concerns is that if the CBP officer looks at your history, they will see that for your previous stay you stated you were only going to stay one week, but ended up staying ~3 months. That will potentially be treated as a red flag that could lead to you being sent to secondary inspection again, and questioned about the prior trip.

As I said at the start, nobody can say whether this will actually happen, nor what the outcome will be. It's possible they will let you in for a full 90 days, for a more limited time period, or not let you in at all - based on anything from your answers to any questions they ask, their impression of whether they think you may overstay on this trip, whether the officer involved has had his morning coffee yet, or any number of other things. If I had to guess I'd say you will be let into the US, but that's really just a guess and in no way guaranteed.

Note that I'm presuming you were actually granted 90 days of status on your second trip last year. Given you stated you were only planning to stay for a week it's not uncommon for them to only admit you for a shorter time period, in which case you would have overstayed by staying the full ~3 months. You will need to check the stamp in your passport (or the "Admit Until" date on your latest I94 record on the CBP website) for that entry and make sure that you departed before the date written below it. If you stayed beyond that date, then you have overstayed and the situation will be very different (in particular, your current ESTA is no longer valid).

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    My I-94 admit until date was still 90 days, so I didn't break any rules. My ESTA has since expired and I'm planning to apply for a new one for this trip. Another question: I know I mentioned staying only for a week the last time, but is this something that they usually note down? I don't see it reflected in the original records anywhere. Aug 29 at 0:32
  • Alas, travel.stackexchange.com/q/57360/4188 didn't get any actual CBP officers share what they see and what they don't. Also, I doubt @doc is right here: you had no obligation to report changed travel plans.
    – chx
    Aug 29 at 2:21

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