When you are a citizen of a country that is part of the Visa Waiver Program, you can come to the United States without obtaining a visa from a U.S. consulate. The visitor must first apply for authorization to travel to the United States through the Electronic System for Travel Authorization (ESTA). Most ESTA applications are decided immediately, and an approval is valid for two years. With ESTA authorization, you can stay in the U.S. for a maximum period of 90 days at a time for the purpose of either tourism or business.
A stay on ESTA is limited to 90 days
One of the important limitations on those visiting on ESTA is that they cannot change or extend their status from within the United States. As a result, their stay in the United States is strictly limited to 90 days, and they must depart before the completion of this period.
Does a trip to Mexico or Canada restart the 90-day period of authorized stay?
This raises a common question from those who are visiting the U.S. on ESTA: Can those visiting the U.S. on ESTA travel to Canada or Mexico to restart their 90-day stay in the Visa Waiver Program?
The answer, unfortunately, is generally no – travel to Mexico or Canada would only restart the 90-day clock if the traveler is a resident of the country they are traveling to. If the traveler does not reside in Mexico, Canada, or one of the adjacent islands, their return to the U.S. after traveling to one of these destinations would not restart their 90-day period of authorized stay.
The Foreign Affairs Manual (or FAM) – the basic organizational directive for the U.S. Department of State – makes it clear that “a side trip to Canada, Mexico, or the adjacent islands does not ‘reset the clock’ for VWP travelers, unless the traveler is resident in the country to which they travel.” (9 FAM 201.1-4(C)(e)(2)(b)). This is consistent with the immigration regulations at 8 C.F.R. section 217.3(b), which states that an individual admitted to the U.S. under the Visa Waiver Program can be readmitted after visiting “foreign contiguous territory” (Canada or Mexico) or an adjacent island, but only “for the balance” of their admission period (meaning the time that remains on their initial 90-day period of authorized stay).
Those visiting the U.S. on ESTA should be careful not to remain past their period of authorized stay
The result of this is that those who are in the United States on ESTA and who visit Canada, Mexico, or an adjacent island must be careful to depart from the U.S. within 90 days of their initial entry on ESTA. In the words of the FAM:
“After the initial admission into the United States, under the provisions of VWP, a foreign national may temporarily depart to, and return from, Canada, Mexico, or adjacent islands by car or other carriers as long as the total stay in the United States and the time accrued in contiguous territory and/or adjacent islands does not exceed 90 days.”
If the individual remains in the U.S. past their period of authorized stay, they begin to accrue unlawful presence. This can have severe consequences on their future options to visit the United States, as detailed in an earlier post here.
I have heard that some visitors on ESTA are given a new 90-day period upon entry. How is this consistent with the FAM and regulations?
It is important to note that the decision as to whether to restart the 90-day period for a visitor on the Visa Waiver Program largely rests with the U.S. Customs and Border Protection (CBP) officer at the airport or port of entry. As the Dept. of State’s Inspector’s Field Manual states, “The inspecting officers also have the discretion to grant the applicants entirely new periods of admission.” As a result, some travelers on ESTA might find that they are given a new 90-day period of stay upon their entry to the U.S. after a visit to Canada, Mexico, or the adjacent islands. Particularly if the trip outside the U.S. is for a week or longer, the individual might be given a new 90-day stay.
This, however, does not change the fact that the U.S. government’s general position is not to grant the visitor an additional 90-day stay after returning to the U.S. from Canada, Mexico, or an adjacent island. Such travel would be counted as part of the visitor’s 90-day stay on ESTA. As a result, those in the United States on ESTA who are planning to visit Canada, Mexico, or an adjacent island are encouraged to assume that they will need to depart from the U.S. within 90 days of their initial entry on ESTA – and not 90 days from the date on which they re-enter after their trip.
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