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This might be a slight duplicate of a question, but I've not seen answers to this exact situation. Please let me know if there is an earlier answer.

I need a suggestion on how to tackle this situation:

I am going to study at a Canadian university from Sep-Dec, which means I don't need a study permit, or have one. Before the semester starts I am planning to travel in the USA for about a month.

I am in a situation where I don't have the time to get a B2 visa before going to the USA, meaning the 90 days of the VWP will run out while I'm in Canada.

Would it be necessary to leave Canada before the 90 days run out and return shortly afterwards, e.g. a weekend trip to Iceland, or could I just stay in Canada and avoid transit through USA when I travel home, and make sure that I have documentation of me leaving USA to Canada?

Either way I'll be sure to have a plane ticket of me leaving North America for the CBP

  • You can stay in Canada and you can transit through the US. What you can't do is use Canada to spend more than 90 days in the US. Will you be in the US for more than 90 days? No? I didn't think so. – phoog Jun 16 '16 at 12:03
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    You can't overstay in the USA when you aren't in the USA, so don't worry too much about that. Going back to the US is more complicated although I think it has been covered in a previous question. – CMaster Jun 16 '16 at 12:57
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The VWP is a United States only program -- it is part of the rules for when and how you can enter the United States and/or be present there. Once you're outside the US, there is no way the VWP rules can force you to leave Canada; that is a purely Canadian matter.

So it is utterly certain that if you stay in Canada after the end of your original 90-day period, and later leave Canada without transiting through the US, then you cannot possibly be in trouble with the VWP.

If you need to transit through the US on your way back, things are murkier. Different sources (even different subdivisions of the US Government) give conflicting information about this, and it is often hard to trace it back to definitive legal sources. Some of it may be rumor, other parts of it may be administrative practices.

The extreme cases are pretty well settled:

  1. You are certainly OK if you enter the US on the VWP and travel around in North America such that your last departure from the US is within the 90-day status you got on your first entry.

  2. You are certainly not OK if you plan to build a life in the US indefinitely and expect to get a fresh 90-day tourist status periodically just by making a short trip to Canada and back.

The grey area between those extremes is where the confusion/uncertainty exists. The most trustworthy (according to my unscientific estimation) sources seem to say that what it really depends on is whether you can convince the border guards that you're not in case (2) each time you need to enter the US.

Here common sense would be that if you can show it has been several months since you left the US, then you're not merely doing visa runs, and the border guards should be likely to believe that you're only in transit. In order to make sure you can make that argument, look up your electronic I-94 history after you arrive in Canada and check that your departure from the US has been recorded. Then bring a printout of that that you can show to the border guards in case of trouble.

However, there are also sources -- or at least persistent rumors -- that claim that you will be in trouble unless you are squarely in case (1) above. You will have to decide for yourself if you think this is enough of a risk to settle of an itinerary that keeps you out of the US on your way home -- after all, what the random-people-on-the-internet will tell you here is just rumor.

  • "Here common sense would be" .. i wouldn't apply common sense to US border guards. Not really their fault; in many cases, they aren't allowed to apply common sense. – Guntram Blohm Jun 16 '16 at 14:27
  • @GuntramBlohm: Yes, in general, but what the credible (to me) sources say is that in this particular case US border guards are indeed allowed and expected to use their judgment. – Henning Makholm Jun 16 '16 at 14:32
  • Thanks alot for the answer. I figured it wouldn't be an issue as long as my I-94 has my departure recorded. – Late Lover Jun 16 '16 at 16:54
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    If you fly to Canada they'll almost certainly record a departure, but if you enter by crossing the land border the exit may not show up in the I-94 record (even though lots of sources indicate that Canada does tell them you left, so they may know it anyway). If the departure isn't in the I-94 record make sure you get a Canada passport stamp and/or collect receipts or other records placing you in Canada on or after the date you left the US in (the unlikely) case they question when you left when you reenter. There's no reason to avoid a US transit on the way home unless you want to. – Dennis Jun 16 '16 at 21:22

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