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I have a tricky question regarding an overstay of the Visa Waiver Program.

I'm an Australian citizen who's spent the last 5 months or so in Mexico, and will be heading back home soon. In order to get to Mexico, I travelled through the US (LAX international), and did so through the Visa Waiver Program.

Having recently discovered that my time in Mexico counts towards my 90 day limit under the VWP, this will complicate things.

My question is if I can travel back home through South America (particularly, through Santiago, Chile) without entering the US, will they still have it on their records that I have overstayed my VWP, as in through some international record-keeping? In other words, if I manage to avoid passing back through US CBP, will they be none-the-wiser so to speak?

Any advice on this would be much appreciated.

Thanks in advance!

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You have not overstayed. You are fine to go back to the US on this trip or on any other trip.

Time in Mexico does count under the 90 days that you are allowed spend in the USA, however only if you return to the US within that same 90 days. Once day 91 rolls around, your "maximum 90 days" entry to the US is completed - regardless of whether you are still in Mexico or not.

When you re-enter the US after that occurs it will be treated as a new entry. The immigration officer will look at the details of your previous travel (specifically, ONLY time that you were in the US itself), and decided if you should be granted another 90 day entry to the US under the VWP. In your case, where your trip to Mexico was clearly not a "visa run" you will be granted a new entry, and the 90 days will start again.

If you had, for example, left the US on day 89 and was trying to re-enter on day 91 then it would be a very different story. Technically the immigration official would have the option of granting you another 90 days entry, however it's unlikely they would do so due to the appearance that the trip to Mexico was simply a "visa run". This obviously isn't relevant in your case.

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  • Hi Doc, thanks for the info! OK that makes a bit more sense. So I assume then that these laws are in place primarily for weeding out those who do VISA runs? It's interesting to know that the 90 days "refreshes", in that my reentry into the US will count as a new entry. Can you foresee any future consequences of this, for example if I wish to return to the US years down the track, will there be a red flag by default saying that I have technically breached their immigration laws? Not sure how strict the US is on this.
    – Sparrow
    Jan 4, 2016 at 18:09
  • @Sparrow Yes, this guideline is intended to catch out people doing visa runs.
    – Michael Hampton
    Jan 4, 2016 at 19:30
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    You have not breached their immigration laws, "technically" or otherwise. There will be zero future implications.
    – Doc
    Jan 4, 2016 at 23:26
  • Awesome, thanks so much for the responses. I'll be jetting off with more confidence now. And it seems I can go through the US to get back home without penalty, so that's a great relief.
    – Sparrow
    Jan 5, 2016 at 0:10

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