Do stays in Canada/Mexico automatically count towards the US admission period under the VWP?

score:5

Accepted answer

From the policy unit of CBP Field Operations:

Sir

Thank you for your inquiry regarding the U.S. Visa Waiver Program.

A determination of admissibility is made at the Port of Entry by the U.S. Customs and Border Protection Officer at the time of an application for admission. This applies to every application for admission, including if the individual was recently admitted to the United States under the Visa Waiver Program (VWP).

For travelers otherwise admissible under the VWP (including receipt of a valid ESTA at time of admission), seeking only to transit the United States for a four month trip to Mexico, a visa is generally not required.

We appreciate your interest in U.S. Customs and Border Protection.

As such, contrary to many online reports, you don't accrue illegal presence in the US for being in another WHTI country beyond 90 days after having transited the US.

Upvote:10

The "numerous online reports" are not true.. Your understanding is much closer.

Let's start with the obvious - you cannot be in violation of US immigration overstay rules when you are not in the US. The US cannot and does not enforce this.

The actual rule is very simple. If you re-enter the US less than 90 days after having been admitted on a VWP, having visited only Canada, Mexico or the adjacent islands, you will normally be readmitted on the same I94 and must leave 90 days or less after the initial admission. That is all. Everything else that is said, like time in Canada "counting toward your time in the US" is just an approximation to try to explain the above.

If you spend a short amount of time in the US, then leave and spend time in Canada or Mexico etc., and attempt to return more than 90 days after the initial admission, you are eligible to be admitted under a new I94. Whether you are admitted depends on your circumstances, just like it did when you were first admitted. If you have spent only a few days in the US, and intend to spend only a few more, and have not in any other way made yourself undesirable, you are virtually certain to be readmitted. If you spent a long time in the US and only a very short time in Canada etc. then it is very likely that you will be denied readmission. (That is true even if you went somewhere outside the Canada Mexico Caribbean area.)

In any case you have not overstayed in the US.

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