90 days means 90 days, on the Visa Waiver Program!

Certain countries’ nationals holding valid passports and who are otherwise admissible may come into the United States without a visa for a period of 90 days.  This is the “Visa Waiver Program” (“VWP”), and the participating countries are listed here on the State Department’s website.   Recently, I posted a blog update announcing that Chile just joined the list of many other countries on the United States’ VWP.  Travelers should remember that this program confers a non-immigrant status, and the requirement of non-immigrant intent applies.

The benefit of using the VWP is that no visa is necessary for the travel; therefore, the visitor avoids the hassle of applying, paying, and interviewing for a non-immigrant visa.  A trade-off in using the VWP to enter the U.S. is, once in the U.S., the visitor may not file for a change of status (to another non-immigrant status) or extension of status.  Because of this limitation, the visitor must not remain in the U.S. for more than 90 days.  Another type of non-immigrant visa should be considered, if the visitor believes he/she would need more than 90 days on a particular visit to the U.S., despite the temptation to take advantage of the ease of using the VWP.

One recent client tested this 90-day limit, and departed the U.S. 7 hours after the 90th day of her visit in the U.S. on the VWP.  Upon her next visit into the U.S., again, using the VWP, she was denied entry into the U.S. by the Custom Border Patrol (“CBP”) officer at the airport.  She had no right of review or appeal of that decision denying her entry, another condition of using the VWP.  Because of that 7-hour overstay, CBP revoked her VWP privileges.  She can never use the VWP again (unless the privileges under the VWP are reinstated), and she must use some other non-immigrant visa to enter the U.S. in the future.

Moral of the story is, 90 days is 90 days, and not a second longer.