Even if you kept to the authorized period, you can be refused entry if you look like someone who lives in the United States, so work out your reasons to return home before your next visit
In principle, a person who enters on a tourist visa (B-2) may stay up to 6 months, and a person who enters without a visa on ESTA may stay up to 90 days. ESTA is an online travel authorization that visitors coming for tourism or business obtain before departure instead of a visa. Our office receives inquiries from people who stayed the full period, left, came back soon afterward, repeated this for several years, and were then sent to secondary inspection at the airport. Secondary inspection is a further examination you are called aside for at the inspection counter. This column explains why a problem can arise even when you kept to the authorized period, and what can happen at the airport.
6 months and 90 days are only the length of one stay
"U.S. Customs and Border Protection (CBP), which handles inspection at the airport, states that 'with ESTA you may stay for up to 90 days at a time.' It adds that you should allow a reasonable amount of time between visits so that the officer does not conclude you are coming to live in the United States, but there is no set standard for how many days that is."
How much time is reasonable is decided by the officer each time; it does not mean that a few days outside the country is enough. As the State Department explains, a visa is not permission to enter. It allows you to travel to a U.S. airport and request admission at inspection. Even with a visa, the officer at the airport decides whether to admit you and for how long. Under federal regulations, a person who enters on a B-2 visa is in principle given 6 months, but may be given less. The last date you may stay is written on the arrival record (Form I-94), which is entered into the computer system when you are admitted, and you can look it up yourself on the CBP website. Even with a 10-year tourist visa you must keep to this date, and you must leave by 11:59 p.m. Eastern time on that day.
A person who came on a B-2 visa can apply to extend their stay (Form I-539) before the date on the arrival record ends, and if approved the stay is extended by up to 6 months at a time. A person who came on ESTA cannot extend; the only relief is that, when an emergency prevents departure, USCIS or CBP may look at the circumstances and grant up to 30 days of satisfactory departure. This too is granted as an exception, not automatically.
If you stay past the date on the arrival record, the visa you used to enter becomes void regardless of how much validity it has left. Even if you filed an extension request, the visa becomes void if the request is denied, so leaving before the date on the arrival record is the safest course. Once a visa is void, you must in principle apply for a new visa at a U.S. embassy or consulate in your country of nationality before you can enter again. A person who entered on ESTA and overstayed the date on the arrival record can no longer use ESTA and must apply for a visa.
A short trip to Canada or Mexico does not start a new period of stay. CBP states that a tourist visa holder who visits Canada or Mexico for 30 days or less can only re-enter within the date originally granted, and that a trip to another country such as the United Kingdom counts as a new entry and may bring closer scrutiny. For ESTA as well, after a trip to Canada, Mexico, Bermuda, the Bahamas, or the islands of the Caribbean, the general rule is that you may re-enter only within the remaining part of the original 90 days.
Inspection officers look again, every time, at whether you live in the United States
"Section 214(b) of the immigration law provides that, both when a visa is issued and when a person seeks admission, an applicant who fails to show that he or she qualifies as a visitor is presumed to be an intending immigrant — someone who plans to settle in the United States."
Under the immigration law, a visitor is a person who keeps a residence abroad that they do not intend to give up and who comes to the United States temporarily for business or tourism. The law defines residence not by where you intend it to be but by the place where you actually have your principal dwelling. If every year you enter in January, leave in June, enter again in July, and leave in December, you are in effect in the United States all year, and the place where you actually live may be questioned.
CBP states that even for tourist visa visitors, the officer looks for evidence that the person will return to live in their home country, and refuses entry if the person is suspected of in effect living in the United States. Entry can be refused even if your ESTA was approved.
In principle you cannot work on a tourist visa or ESTA, and coming to work, even without pay, does not fit the purpose of a visit. If you worked without authorization during an earlier ESTA visit, you violated the conditions of that visit and may lose your eligibility to come on ESTA again.
Secondary inspection can lead to refusal of entry or even expedited removal
"Section 235(b)(1) of the immigration law provides that if the inspecting officer determines that a person seeking admission has misrepresented a material fact or lacks the required visa, the officer is to order the person removed without a hearing. The exception is a person who asks for protection (asylum) because he or she fears persecution in their home country."
For a person who came on a visa, the officer may admit the person for a period shorter than 6 months, or may issue an expedited removal order.
Expedited removal is a removal order issued at the airport on the spot, without a hearing before an immigration judge. An officer can issue it if the officer concludes that the person is in effect coming to live in the United States. This is because a person who comes to live in the United States must arrive with an immigrant visa for permanent residence, and the officer views a person entering on a tourist visa with the intent to live here as lacking one. A person who receives an expedited removal order is in principle barred from entering the United States for 5 years, or 20 years for a second order, and a visa already issued may be canceled.
Giving up on entering at the airport and asking to return directly is called withdrawal of the application for admission. You may request it, but it is not a right; the officer decides whether to allow it. A withdrawal is not a removal order, so the 5-year bar described above does not attach, but it is not minor. Your visa may be canceled, and on your next ESTA application you must answer "Yes" to the question asking whether you have ever withdrawn an application for admission.
Answering falsely to hide the purpose of your visit or the fact that you worked makes things more dangerous. If you are found to have willfully misrepresented a material fact in order to enter, you may be permanently barred from the United States. There is a waiver process in which you can separately apply to lift this bar, but there is no guarantee it will be granted. If you answer falsely at the first inspection counter and correct it in secondary inspection, State Department guidance generally treats this as a correction that came too late, so the lie remains a problem. For a person who came on a visa, it can also be a basis for expedited removal.
The procedure is different for a person who came on ESTA. When applying, the person agrees in advance not to contest the inspection officer's decision, so if entry is refused, the person must return directly rather than go before an immigration judge, unless he or she asks for protection (asylum). Under federal regulations, this refusal is not a removal order, so the 5-year bar does not attach, but the refusal remains on record, and on your next ESTA application you must answer "Yes" to the question asking whether you have ever been refused entry. If the refusal was because you willfully misrepresented a material fact, the permanent bar described above may attach separately.
Before your next visit, and if you now plan to live in the United States
"State Department consular guidance tells officers to look not at whether a stay exceeds 6 months or a year, but at whether the visit has a defined end."
Before your next trip to the United States, prepare documents that show the reasons to return home that State Department consular guidance lists: a stable job, a business or property, close family ties, and the like. Proof of employment, business documents, and a return flight ticket are examples of such documents. If there is a reason you need to stay a long time, also bring documents that show that reason and your date of return.
If you gave up on entering at secondary inspection and went home, or were refused entry, keep the papers you received then, and do not hide that fact on your next application or at inspection.
If you now plan to study, work, or stay in the United States without a fixed end, a tourist visa does not solve that. A person who has entered on a tourist visa can apply from within the United States to change to student status, but approval is not guaranteed, and until approval you may not enroll in a school program or begin study. If you enroll, the application is denied, and if you leave the United States while it is pending, the application is treated as abandoned. A person who entered on ESTA cannot change to another nonimmigrant status, such as student status, from within the United States. To work in the United States, you must first have a status or authorization that permits that work.
If you have ever worked without authorization, that fact can become a problem in future visa applications, ESTA applications, and inspections. It is best to consult an attorney before your next departure about how to answer.
Closing
The 6 months on a tourist visa and the 90 days on ESTA are the length of a single stay, not a promise that you may use them up every time. First, each time you enter, check the date on your arrival record (Form I-94) and leave before it. Second, if you spend most of the year in the United States, organize your reasons to return home into documents before your next visit, and state the purpose of your visit truthfully. Third, if you plan to study or work in the United States, do not keep repeating tourist visits; look into the visa that fits your purpose.
Frequently Asked Questions
Q. If I stay 6 months on a tourist visa and leave, how soon can I come back?
CBP states that there is no set number of days to wait between visits. However, you must allow a reasonable amount of time so that the officer does not conclude you are coming to live in the United States, and the officer makes that judgment each time you enter. If you keep spending most of each year in the United States, the place where you actually live may be questioned.
Q. Does the 90 days on ESTA start over if I visit Canada or Mexico?
No. If a person who came on ESTA visits Canada, Mexico, Bermuda, the Bahamas, or the islands of the Caribbean, the general rule is that the person may re-enter only within the remaining part of the original 90 days. A person who came on a tourist visa and visits Canada or Mexico for 30 days or less can likewise only re-enter within the date originally granted.
Q. If I am refused entry in secondary inspection at the airport, am I barred from the United States for 5 years?
It depends. A person who came on a visa and receives an expedited removal order is in principle barred for 5 years, or 20 years for a second order. A withdrawal of the application for admission and an ESTA refusal of entry are not removal orders, so the 5-year bar does not attach, but you must answer "Yes" to the question about it on your next ESTA application. If you are found to have willfully misrepresented a material fact, you may be permanently barred from the United States.
Disclaimer: This column provides general information and is not legal advice for a particular case. Individual immigration matters should be discussed with a qualified immigration attorney.
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