Visa?

[E. Cosgrove]

You are stuck between a rock and a hard place.

As Robert says, there is a hard and fast rule but the IMO's seem to put their own interpretation on it, if you were questioned and tried to point it out to them there is no doubt they could make it difficult for you as the ultimate decison about your entry to the US lies with them regardless of whether you have a visa waiver/ESTA or a visa.

Wind them up and they can still say no!![msnmad]

I go to the states on average 4 times a year.......3 to Florida and once elsewhere. To date we have never been questioned about the frequency of our visits ( probably just put a curse on myself!) If I was, I would probably apply for a visa, but you only need some well meaning person at the embassy turn you down because you qualify for ESTA and then you are stuffed!!

[jimiansville]

We also travel to the US about 4 times a year on the Visa Waiver system. We have been questioned a number of times about the frequency of our visits. On two occasions we were told we were only allowed a maximum of 90 days in a rolling 12 month period but that they would let us in as we hadn't reached that limit. Both times we had actually exceeded the 90 days but the IO was just flicking through the passports trying to identify each visit in the past 12 months and ask us how long we had stayed. Don't know why they didn't just look on the system when the passports were scanned!!

We have never been sent to "the room" for further questioning but were told twice that it would be better to apply for a visa. The second time it happened I actually plucked up the courage to ask some questions including what type of visa would be appropriate as we have no intention of working or remaining in the US for over 90 days. The IO didn't know so I didn't press the point!

From personal experience of frequent visits over the past 30 years, if you have a private address shown as your first nights accommodation rather then a hotel coupled with frequent visits it has given rise to more questions. The times we have gone out and joined a cruise ship or had a few nights in Ft Lauderdale or gone to New York or the west coast have been totally trouble free.

We have still not applied for a visa and don't intend to as we tend to stay a maximum of about 7 weeks which falls within the Visa Waiver process.

[karenk]

We were stopped in June on entry about the number of visits we have made in the last year (four). Point to note here is that even if you have a visa in your passport or are eligible for entry under the VWP, it is still entirely up to the officer at the port of entry to determine whether or not you will will be allowed into the USA.

We were questioned when we arrived about the frequency of entry and advised that we were staying too long (only 90 days allowed in any one year period regardless of whether or not they stamp your passport for 90 days). We hadn't stayed anywhere near the 90 days over the course of a year but were advised that if we did, we would be refused entry to the USA and that regardless of eligibility, if we were found to be overstayers, this is what would happen.

I checked this on returning to the UK with the US Embassy in London and the response I got basically said that we could apply for a visa to extend our stay beyond 90 days in a one year period or carry on using the VWP providing we didn't exceed the 90 days within a year. They did however confirm that regardless of getting a visa or eligibility for VWP it would be up to the officer at the point of entry to determine whether or not you should be let in. They did clarify that refusal is normally for overstaying or other breaches of their Homeland Security rules and that once you have been refused on the VWP you will need to get a visa from the embassy. However, they further said that this may be difficult as you would then be classed as an overstayer and visas are not generally granted to those who overstay on the VWP without good reason.

Looks like you take a chance, some people come and go for years without any questions being asked but if you get caught outstaying your welcome, it could be your last visit.

[Robert5988]

<blockquote id="quote" class="ffs">quoteonly 90 days allowed in any one year period regardless of whether or not they stamp your passport for 90 days).
.
. I got basically said that we could apply for a visa to extend our stay beyond 90 days in a one year period or carry on using the VWP providing we didn't exceed the 90 days within a year.[/quote]I think this is yet another case of officials not knowing their own rules.

Did you phone the Embassy at £1.50 a minute to get that incorrect information? or did you get it in writing?

There is nothing(as far as I can see - difficult to prove a negative) to restrict waiver(or Visa holders) entrants to any period 'in one year'. In fact the Embassy specifically states there is no restriction - see quote above.

So no mention of a year, no mention of 90 days other than that is the maximum period for a single stay on a waiver.

I have stayed for over 90 days in each of the last 7 years(on waivers) as no doubt have many on this forum.

I don't think anyone is 'taking a chance' and I would be willing to bet that nobody has ever been refused entry for breaking a non-existing rule on length of stay. Much as we all appreciate that the Immigration authorities have huge power - they simply cannot invent reasons and have to abide by the rules.

[steph_goodrum]

We had an officer at mco a couple of years ago who on initalt questioning and looking at our passports said "you've been here a lot" and we siad we just loved the place, he said would you like to spend more time here when you retire and we said we knew that wasnt possible. He went to great pains to tell us that we could stay for up to 90 days at a time on Visa waiver and if we left the country and came back and could stay for another 90 days. He said if any immigration officer tells you different then ask to see where it is written that you cant do that and he said they wont be able to because it doesnt exist. He was really nice and helpful.

[karenk]

I can only tell you what they told me by mail by the way. If you want to carry on taking the chance that I'm wrong that's fine and your perogative and yes there is confussion around what you can and can't stay for and you may just find that these rules aren't written down anywhere, which makes them all the more open to interpretation by officers at the port of entry. Just because someone has managed to stay over the 90 days doesn't make them right and someone else wrong by default. I suggest anyone thinking of visiting over 90 days on the VWP gets some expert advise beforehand. We've clarified it and would apply for a B1/2 visa if that's what we intended to do in one calendar year or otherwise what would be the point of B1/2 visas if you only had to leave the country for one day to get another 90 days at the point of entry under VWP? Somewhere the logic to coming in and out of the USA without securing the facts doesn't seem to ring true, but that's just my thoughts, everyone must make up their own mind and I can only say what I have been told. I think what they, the US Embassy, were trying to imply was that you are not supposed to be living in the USA and should ensure that the majority of the year is spent in your resident country and not in the USA. What they did say for certain was that if you are found to be in violation of their laws however vague by the officer at the point of entry (and herein lies the risk) then you will not be admitted which means you cannot use the VWP again and will not be eligible to apply for a visa as you have been refused entry.

Bit of a risk to take in my opinion, but then again as I've said, to each their own. Personally, I'm not willing to 'bet' that I wouldn't be the first person I know to be refused entry if I overstayed, rather make sure but that's just me Robert, carry on as you wish.

[Robert5988]

<blockquote id="quote" class="ffs">quote:what would be the point of B1/2 visas if you only had to leave the country for one day to get another 90 days at the point of entry under VWP?[/quote]The point of a B1/B2 visa is that it enables you to stay for a period of 6 months on a single visit instead of 90 days on a waiver; and the B1 visa can be extended for a further 6 months on application, making a year in total.

You originally stated: <blockquote id="quote" class="ffs">quote:I checked this on returning to the UK with the US Embassy in London and the response I got basically said that we could apply for a visa to extend our stay beyond 90 days in a one year period or carry on using the VWP providing we didn't exceed the 90 days within a year.[/quote]That is in direct contradiction of this from the Embassy website: <blockquote id="quote" class="ffs">quote:QUESTION
Is there a limit to the number of times I may travel to the United States visa free in any given period of time?

ANSWER
"There is no limit to the number of times you may travel visa free under the Visa Waiver Program in any given period. There is also no minimum period of time you are required to remain outside the U.S. before reapplying for admission. However, if you are a frequent traveler to the United States you should be sure to carry with you for presentation to U.S. immigration evidence of your residence abroad to which you intend returning at the end of your visit together with evidence of funds sufficient for your support while in the United States."[/quote]As your apparent written correspondence will worry lots of people, will you please quote verbatim what was said(not 'basically' your interpretation of the letter) and the name of the Embassy official who wrote the letter.

I will then write to the Embassy and get formal clarification. It will set a lot of peoples minds at rest.

Just so there is no obfuscation, please address just the '90 days in one year' issue in the letter.

[karenk]

I suggest you write to the US Embassy and clarify your position anyhow Robert. It seems you are a little confused and through this confusion and advocating the 'drop in any time approach' you may be encouraging people to do something they may later regret.

Quote:'I don't think anyone is 'taking a chance' and I would be willing to bet that nobody has ever been refused entry for breaking a non-existing rule on length of stay. Much as we all appreciate that the Immigration authorities have huge power - they simply cannot invent reasons and have to abide by the rules.'

I note from the above quote that you don't 'think' and are 'willing to bet'. I suggest that you and/or anyone else who intends to stay beyond the 90 days in one year without a visa contacts the US Embassy in London to clarify this as assuming and betting isn't the right way to go and encouraging people to do just that due to your experience is not a responsible thing to do. Ask first, get the facts and then act accordingly, or don't its up to you but as many of the people who log into this forum for information only go for a few weeks a year, it probably will not apply to them.

As far as the B1/B2 visa is concerned, advocating your approach that you can enter the USA for 90 days several times a year on VWP without a problem negates the need for a B1/B2 visa. If what you say is correct and you have been doing this for some time, you have been staying longer than the six months on a B1/2 anyhow. Hence my question raised by your pattern of entry, what is the point of a B1/2 visa if you can simply come and go for 90 days at a time without problem for six months of the year or longer if leaving the USA for a short time and then returning guarantees you another 90 days. Based on that premis you could spend all year bar four days in the USA so why have a B1/2 visa? Could it be that its what you are supposed to get if you are staying more than 90 days within a year, I suggest you check.

I have asked and been given an answer and to everyone out there that intends to stay longer than 90 days, what they do is up to them. However, the final say will be via the Homeland Security Officer at the port of entry, not the US Embassy or some vague allusion to having entered for ninety days before without a problem. Get the facts rather than assume, it doesn't guarantee you won't have a rather grumpy Homeland Security Officer but it does mean you have checked what you are supposed to do with the authorities as far as you can.

[karenk]

For further information, here's an extract on why these details should be clarified before multiple entry to the USA is attempted on the VWP. This is from the CBP site for Homeland Security, take a look at the last sentence.

Q: How Can I Appeal?
A: In certain circumstances, if you used a valid visa to apply for admission and your application for admission has been denied, you can request a hearing before the Immigration Court, where an immigration judge will determine your case. A judge's decision can be appealed to the Board of Immigration Appeals (BIA). You will receive instructions on where and how to appeal. For more information, please see, How Do I Appeal? If you apply for admission to the United States under the Visa Waiver Pilot Program, the decision of the officer is final. In cases involving fraud, willful misrepresentation, false claim to U.S. citizenship or lack of a valid immigrant visa for an intending immigrant, the officer's decision is final.

Better to have the right visa than to assume you can get entry regardless as there's no right of appeal under VWP if you are denied. Once again, everyone reading this, please do check to make sure you are in tune with what the US port of entry officers expect for the amount of time you want to spend in their country.

Here's also a weblink to an immigration lawyers page. Not official, but it does explicitly set out what's expected of people entering the USA under VWP.

http://www.americanlaw.com/vwpp.html

Look at the section Limitation on Period of Stay, Changes of Status, and Adjustment of Status

[Andrena]

We have had a B1/B2 Visa for some years now, but prior to that we travelled to the States for more than 20 years without problems. We usually stay for a period of 6/7 weeks sometimes three or four times a year. Other times we have stayed for the full 90 days a couple of times each year. We checked this out with the US Embassy and they said that there was no problem as we had a permanent home in the UK. This is the main point - you must have a permanent home in the UK and be able to prove that.

We got the B1/B2 Visa as we decided that we would probably want to stay for more than 90 days on some visits and also we have our own car in the States so it means that we can get our driving licences for at least 6 months at a time. Since 9/11 we can no longer get a driving licence for any longer that the period of our visa, so the 90 days on the VWP just cost us money it was easier to get it for 6 months at a time.

I think that people are getting all worked up and worried totally unnessesarily. I know the Americans can be a bit bureaucratic, but they are not that bad. Mind you some people's attitude at Immigration can make them be stroppy and often I don't blame them. I have heard some really nasty people, on both side of the coin. Smile nicely and treat them politely and you will rarely have a problem.

Andrena