US Visa Waiver Program 90 day rule for US stopovers

Question

It seems like I am stuck here. Can anyone help me with the following?

I am from Switzerland and currently do an exchange semester in Toronto. My flight from Zurich to Toronto included a 3 hour stopover in New York on August 28th. For this, I used the ESTA Visa Waiver Program. Since then, I have not returned to the USA. However, I have 3 US trips planned:

1. Nov 9 - 13, Visit New York and Boston
2. Nov 16 - 19, Attend a workshop in Buffalo, NY
3. Dec 12 - 23, Visit a friend in San Francisco. I return to Toronto by plane on Dec 23. On Dec 24, I fly back home (Toronto - Zurich).

It seems like for 1) and 2) are not issues. However, I may be stuck with the San Francisco trip, as I will be entering the US 106 days after my Stopover in NYC and leaving even later.

I suddenly figured out that the visa waiver program only allows stays of max. 90 days. I found the following information from US gov websites:

• VWP travelers who have been admitted to the U.S. under the Visa Waiver Program and who make a short trip to Canada, Mexico or an adjacent island generally can be readmitted to the U.S. under the VWP for the original admission period. They do not, however, get a new 90-day admission period.
• Under the VWP, time spent in Canada, Mexico, and adjacent islands counts towards the maximum of 90 days stay allowed under the program.
• It is required to obtain a visa if you intend to visit the United States for more than 90 days.

Applying for a visitor visa can be problematic as it most likely takes too much time. According to the US consulate, it takes approximately 36 days plus administrative processing time.

I am trying to do everything to avoid cancelling my trip to San Francisco. Do you have any idea on how I shall proceed? Many thanks. Every response is appreciated.

Update: I do not have a student visa. This is not required because my stay is shorter than 6 months.

Answer 1

As @Doc states on this answer - there's an important distinction between leaving the US temporarily (eg quick trip to Canada) and permanently - like returning to your home country.

If you are leaving US to return to your place of residence, then you are leaving permanently. In this case your VWP period would end when you left the country, and historically that's when you would have turned in your I-94W.

Presumably you have a student visa for Canada? Then for the purposes of this, you Canada should be your place of residence, and would not count as still being part of the 90 days.

Indeed, I have been in Vancouver for the past 6 months, and made trips on an ESTA to the US in May, August, early October and late October, without problem, each time returning to Canada, as even though I'm not Canadian, for the moment on a working holiday visa, I'm a 'resident' there.

Obviously we are not lawyers, and if you want a definitive answer you should consult with USCIS or ring your embassy and double check, but I and other friends who are based in Toronto and Montreal have had similar queries and never run into any problems due to them being 'resident' in Canada.

As @DJClayworth points out, as long as you're handing back the I94, you're officially 'leaving' the US, and that should make sure. You could also check with the US border officer when you enter in a few days' time, and get back to us to confirm that what we're saying holds true. I personally believe you'll be fine, however.

Answer 2

There isn't a problem with applying for a new Visa Waiver after the old one expires. Just like you (presumably) got your Visa Waiver when you entered the US on your stopover, you can get a new one with the same ease when you come in on your Dec 12 visit (assuming nothing has changed to make you ineligible).

If you want to play this safe, when you leave the US for the last time before the 90 days are up, make sure you tell immigration that you are leaving the country, and give back your I94. That should make it clear that you have not been in the country longer than your 90 days.

Answer 3

You were not "making a short trip to Canada." You left the USA on August 28th and didn't (plan to) return until November 9th. In other words, you left the USA for nearly 11 weeks, which is an eternity compared to the three hours, four days, four days and twelve days you planned to spend in the US.

The discussion of "short trips to Canada" is with reference to spending a long time (most of the 90 days) in the US, then going to Canada for a day or two, then trying to return to the US for another long stay.

The other answers refer to handing in form I-94. You'll no longer be given a paper copy of this form when you enter the US by air, so that part of those answers no longer applies.