Visitors who travel to the United States under the Visa Waiver Program (VWP) are allowed to stay in the US for up to 90 days without a visa. However, while this route is certainly easier than applying for a traditional visitor visa (a B1 or B2 visa) through a US embassy or consulate, there are some notable drawbacks to traveling without a visa. There are also very strict requirements to qualify for the VWP, so not every traveler is eligible for the program.

Keep in mind that only travelers who qualify for the VWP can stay in the US without a visa. If you have been issued a visa and you remain in the United States after your visa expires, you are subject to removal proceedings (aka deportation). Even if you depart the country voluntarily, doing so after your visa expires will likely hinder your efforts to obtain a new visa in the future.

Qualifying for the Visa Waiver Program

There are strict requirements pertaining to who may qualify for travel to the United States under the Visa Waiver Program: 

  • The traveler has a passport that is valid for at least 6 months after planned departure from the United States
  • The traveler has no intentions to permanently reside in the United States
  • The traveler has not been present in Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen, or any other country that the DHS designates as supporting terrorism or “of concern” (exceptions may apply)
  • The traveler has valid authorization under the Electronic System for Travel Authorization (ESTA) 
  • The traveler hasn’t violated the terms of a prior non-immigrant visa or become inadmissible 
  • The traveler intends to visit the United States for no more than 90 days as a visitor, whether for pleasure or business
  • The traveler is from a country on the State Department’s list of VWP participating countries—Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lichtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom.
  • The traveler is not a national of Iran, Iraq, Sudan, or Syria (even if the traveler carries the passport of another country)
  • The traveler will not be entering the United States on a private aircraft or any other non-VWP-approved air or sea carrier

Entering the United States Under the Visa Waiver Program

Traveling to the United States under the Visa Waiver Program may not require a visa, but there are still some important preparations that must be made:

  • You must have a valid passport from your home country with an expiration date at least 6 months beyond your expected departure date
  • Your passport must contain a scannable, electronic chip with your biometric information (i.e. an e-passport)
  • Unless you arrive in the US in your own vehicle, you must have a return ticket to your home country or another foreign country
  • You must apply for and receive travel authorization through ESTA prior to your departure
  • Bring enough money to pay any applicable border-crossing fees
  • Bring evidence that you have enough liquid assets to support yourself while in the United States without taking a job (e.g. bank or credit card statements)

When you arrive at the US port of entry, you’ll also need to complete a short interview with a Customs and Border Patrol (CBP) officer. The officer will check your ESTA authorization and determine if you are eligible for admission into the United States. In most cases, this interview takes less than 5 – 10 minutes.

If the CBP officer has any reservations about your entry into the United States, you will be escorted to a secondary interview booth for a more in-depth interview with another CBP officer. Should you fail the secondary interview, the CBP officer has the power to deny your entry into the United States and insist that you return to your home country (or another country) immediately. Unfortunately, you do not have the right to a court hearing or a second opinion—the CBP officer’s determination is final.

The good news is that if you are sent home, you can return to the port of entry for admission into the United States as soon as everything is in order. In contrast, someone with a visa who is denied admission at a port of entry may have to wait up to 5 years to return to the US.

Special Rights Awarded to B-Visa Holders

While traveling to the United States under the Visa Waiver Program is generally much easier than going through the standard visa application process, there are some drawbacks worth considering. First and foremost is the length of time allowed in the country.

Where VWP travelers are limited to 90 days in the US, a traveler with a B1 or B2 visa can stay in the US for up to 6 months. Furthermore, a B1 or B2 visa-holder may apply for an extension to their visit, and they can apply to change their visa status to another non-immigrant (temporary) visa without leaving the country.

If the US government pursues action to remove a VWP traveler from the country, the traveler does not have the right to due process. In contrast, a B1 or B2 visa-holder has the right to a hearing before an immigration judge of the Executive Office of Immigration Review (EOIR) if he or she is subject to removal proceedings.

That said, there are exceptions to these standard limitations. If a VWP traveler suffers a medical emergency, he or she can request a longer stay based on the recommendations of healthcare professionals. If a VWP traveler has credible fear of persecution, he or she may also apply for asylum. Finally, if you marry a US citizen (or if you are a minor and your parent marries a US citizen), you may be able to apply for a green card (adjustment of status).[/vc_column_text]

Extension of Stay in the United States

If you are in the United States—whether with a visa or under the Visa Waiver Program—and you find yourself in a situation that may merit extending your stay in the country, you should consult with an immigration attorney. An experienced immigration attorney may be able to assist you in adjusting your legal residency status, ideally without having to leave the United States. 

If you have overstayed your visit to the United States, you should consult with an attorney before speaking with immigration authorities. While an immigration authority is required to report a violation of visa terms and initiate removal proceedings, an attorney is bound by strict confidentiality laws that protect your private information.

 

Call our Immigration team at(480) 626-2388 to discuss your case today.

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