7

I went to the US on an ESTA for about two weeks, went to Caribbean for like 30 days (but two of those days were the flight to/from the US, meaning it was 28 days out of the states). It was not done for the purpose of resetting the ESTA.

Problem is that when I came back from the Caribbean, my I-94 said I had new 90 days. This is also what the immigration officer stamped in my passport. So naturally I thought it wasn’t an issue. I then stayed around 1,5 months. Which means that if the Caribbean didn’t reset the count, I’d stay 4 days over. I just saw online that you needed to check I-94 to see how long you are submitted. And from that I had more time..

So I came to the US again some 4 months later. I have some extra questioning, get to secondary (but not about that trip particular at all, something else). The first officer at the booth said things I couldn’t hear, but the second officer at the secondary didn’t explicitly say I had overstayed. He said I was abusing the ESTA (I’ve been there quite a bit, but still way under the limit of the ESTA unless you count that one trip). I’ve been there max 68 days on one trip. He let me in with one month (I had intended two so therefore need to change the flight out).

And now I’m confused. Would they have notes I’ve overstated? Would the secondary officer explicitly say I had overstayed? Can I find online anywhere if I did? It’s really annoying to see both a stamp and an I-94 saying I’m good and then it really isn’t?

Why was the I-94 reset and why did the officer stamp my passport with another 90 days?

I feel I could use this as a proof that I had no intention of overstaying. I should have my old passport with that very stamp.

Would I even have been let in if they thought I had overstayed?

how much time I’ve spent total in the US; 179 total since start of 2022. Divided over 2022 and so far in 2023. The stay that I wanted to have now with 2 months wouldn’t have gone over 180 days per 6 months or in a year.

Edit: Thanks so much to everyone here for all the answers! Oh wow, so much incredible advice and perspectives. I don’t have a lot of time right now to respond to each question but can later.

Also, I don’t know how to respond to each person, just edit my post..

10
  • 15
    How are you able to spend so much time away from your country of residence? Your pattern of visits to the US is not that of a typical tourist. Related question travel.stackexchange.com/questions/182860/esta-question-travel
    – Traveller
    Aug 19, 2023 at 7:22
  • 5
    Can you give us a breakdown of all your visits to the US since you got your ESTA? The 90-day limit is not the only rule that applies.
    – jcaron
    Aug 19, 2023 at 8:33
  • 6
    What do you do while in the US? How can you afford to stay away from home that much? Do you have a good reason to go home? Do you do any work at all while in the US? What kind of questions did they ask? Was you last exit properly recorded? Actually, were all your entries and exits properly recorded? Are there other cases when you travelled to Canada, Mexico or nearby islands between trips to the US?
    – jcaron
    Aug 19, 2023 at 13:58
  • So on your last entry, did you get 1 month or 3 months?
    – Crazydre
    Aug 19, 2023 at 18:20
  • 1
    You do not need to answer, but what is providing you income? Personal savings? Remote work? Family contributions? Even these things may complicate your situation. And please remind that the ESTA is not guaranteeing you entry in the US. I think the CBP officers are finding some inconsistencies in your documentation. For example, if you are "rich", you may find easy to get a permament visa ( travel.state.gov/content/travel/en/us-visas/immigrate/… ... plenty of rural areas with decent yield on low-maintenance land ...)
    – EarlGrey
    Aug 21, 2023 at 4:34

3 Answers 3

18

When you enter the US on the VWP, short travel to Canada, Mexico, and nearby islands can result in re-admission on the previous I-94 (i.e. it doesn’t “reset the clock”).

This is a (very imperfect) measure to try to combat “visa runs”, where people would come to the US, stay a bit under 3 months, and make a short back-and-forth hop to a cheap close destination, and get 3 more months when they come back.

But “short” is not defined anywhere. My guess however is that 30 days is not “short”, and that’s obviously what the CBP officer decided when you came back, which explains the new I-94 and new 90 days maximum stay.

So I doubt the issue comes from that. But the VWP has a lot more rules than just “no more than 90 days at a time”.

You should not use repeated visits to live in the US (which is another way of saying “no visa runs”). This is not defined as “you should spend less than X days in a Y period”. The rule of thumb is that you should stay at least as long outside the US as you stayed in the US, but contrary to Schengen for instance there is no hard and fast rule like 90/180 or 6 months per sliding or calendar year or anything else. It’s strictly up to the CBP officer’s evaluation to decide if you are abusing the system or not.

Other rules include that you must not work while in the US, other than permissible activities.

Now, you stay that you have stayed in the US six months out of a maximum of 20. Your planned stay would have brought you to 8 months out of 22, probably less.

While this is far less than half of the time, that is still a lot of time. Which raises a lot of questions: how can you afford that? What do you do while in the US? Are you not working? Are you not trying to live in the US? Do you actually have a good reason to leave the US at the end of your stay? Remember that the goal of the CBP officer is to make sure there is no “immigrant intent”, and this basically means following the same reasoning as during a visa application. While in most cases they make a quick positive decision after a few innocent questions, it doesn’t require much for them to think very differently. And once they start on that path…

Also, from the few dates you gave, your plan would have had you in the US for 3.5 months out of 7.5. Still under half, but getting very close to that, and again, raising a lot of questions.

We lack a lot of details (requested in comments to your question) so it’s difficult to ascertain exactly what they were thinking and why they said you were “abusing the VWP” or why they limited your stay to one month instead of two (consider yourself lucky, they could have just sent you back home — which is a good sign, considering: they have their doubts, but they still left the door open, and very importantly, you are not banned from the VWP or from entering the US altogether).

Review the terms of the VWP (or of a B-1/B-2 visa, which, apart from the maximum duration per stay, are very close). It definitely isn’t a “come as often as you like for 3 months at a time and do whatever you want” program. There are lots of details which do not have any importance for the “regular” tourist or business visitor but can kick in for people coming to the US just a bit too often for too long each time. Spending 2-3 weeks a few times a year is not an issue. Spending 3 months once is not an issue. Spending multiple months each time, multiple times a year is most probably out of bounds. Remember that the bounds are not set in stone: they are up for interpretation (by CBP), and there is basically no recourse. So you’d better stay in their good graces. Or maybe you need a visa. Which type you would need we do not know, though, as we lack details about your circumstances and the purposes of your trips to the US.

11
  • "that’s obviously what the CBP officer decided when you came back: it's not obvious to me; another possibility is that the CBP officer overlooked the previous stay. They don't always pay very close attention to everything; they're only human, after all.
    – phoog
    Aug 20, 2023 at 9:14
  • On the other hand if Lilytree did say she was planning to remain for 1.5 months when she re-entered then it is indeed likely that the officer granted a new 90-day admission specifically to accommodate this. I've asked in a comment on the question whether this is the case.
    – phoog
    Aug 20, 2023 at 9:21
  • @phoog while an error is always possible, it’s probably more difficult to get there nowadays then just missing a previous stamp in the passport: I would be surprised if the existing/previous I-94 did not show up prominently on the officer’s screen as soon as they scan the passport, probably with the exact number of days since departure and the remaining number of days.
    – jcaron
    Aug 20, 2023 at 9:38
  • @jcaron Nitpick: scanning passports is a thing of the past at most US airports; you look into a camera and your details are pulled up
    – Crazydre
    Aug 21, 2023 at 11:04
  • That's true, but I've seen a good deal of evidence that immigration officers fall into autopilot mode from time to time, some of it on this site, for example people being admitted under the VWP despite presenting a valid visa. It does seem less likely for a recent I-94 to be overlooked, but if a valid visa doesn't appear prominently on the screen, a current I-94 also might not.
    – phoog
    Aug 21, 2023 at 11:04
12

It's a common misconception (on well-reputed travel forums and even within the CBP unfortunately) that you can overstay whilst outside the US.

What it is is that, if entering the US after a short visit to Canada, Mexico or the Caribbean, the CBP may, depending on the circumstances, choose to merely "resume" your original admission, i.e. give you the remainder of the 90-day period given upon your first entry to the US, in order to combat "visa runs".

They can, however, also give a fresh 90-day admission period, or possibly something in-between (not entirely sure). If your original 90-day period has expired, obviously they'd have to give a fresh admission, but again it's possible they could make this less than the standard 90 days.

As a general rule, comply with the terms, including duration of stay, of the most recent admission you got. If you're at all unsure, contact your nearest CBP deferred inspections site, listed at https://www.cbp.gov/contact/ports/deferred-inspection-sites

11

The reason for giving you a shorter admission was not that they believed that you had overstayed. If they had thought that you'd overstayed then they would not have been able to admit you, because a violation of the terms of the visa waiver program makes you ineligible to use the visa waiver program in the future.

Would the secondary officer explicitly say I had overstayed?

Yes, because they would have had to explain to you why they weren't admitting you to the US.

Why was the I-94 reset and why did the officer stamp my passport with another 90 days?

See Crazydre's answer.

Would I even have been let in if they thought I had overstayed?

Indeed you would not have been.

If I were you I would seriously consider getting a B-2 visa. This allows visits of up to six months at a time in most cases (longer visits are actually allowable but you have to be able to justify them). It will also avoid future suspicion of abusing the VWP (which you haven't actually done in my opinion) because you won't be using the VWP. On the other hand, it is possible to be suspected of abusing a B visa, so you will still have to be a bit careful.

2
  • 8
    "If I were you I would seriously consider getting a B-2 visa" I believe this would backfire. Subject to more scrutiny, they'd likely refuse such a (IMO) high-risk applicant AND if so OP would be ineligible for VWP forever. I say OP should take it easy with US visits for the next 1,5-2 years.
    – Crazydre
    Aug 19, 2023 at 19:09
  • 5
    It is not a good idea for a still-VWP-eligible (i.e. without a refused ESTA) to apply for a B-visa, especially after this. The only way it wouldn't be unusual to apply for a B-visa is for a motivated >90 day visit Aug 20, 2023 at 10:11

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .