How to answer transit question in ESTA application?

Question

A friend is trying to complete the US ESTA application for a trip to Mexico.

They will be flying in to LAX and then driving to Mexico the same day, and on their trip home they'll be driving from Mexico to LAX to fly out.

I would be inclined here to check "Yes" to being in transit to another country, however potentially (unsure at this stage) they will also spend some day-trips sight-seeing in California between those two in-bound/out-bound legs. In that case the "in-transit" wouldn't be correct.

The ESTA is also valid for 2 years, in which they are likely to return to the US for tourism.

What is the correct way to answer this question, knowing that the sight-seeing and further tourism is possible to happen, although unplanned at this point? Is there an easy-to-read guide to explain how to answer?

Possibly relevant information - my friend will have a flight to the US, and then a flight from the US 5 weeks later. There are no other flights from/to the US in that time, so potentially it looks (to CBP at least) like a 5 week long trip to the US

Answer 1

As Doc says, this is almost certainly not going to matter. The ESTA will continue to be valid for future visits, and the future visits can be transit or not transit, irrespective of the reason for your first visit.

For future reference though, a visit is for transit:

for persons traveling in immediate and continuous transit through the United States en route to another country, with few exceptions. Immediate and continuous transit is defined as a reasonably expeditious departure of the traveler in the normal course of travel as the elements permit and assumes a prearranged itinerary without any unreasonable layover privileges.

Entering and exiting by land are not excluded, and there is no actual time limit as long as you are taking an "expeditious" (meaning as short as practical) route to the other country. Arriving at LAX and driving immediately to Tijuana in order to cross to Mexico certainly counts. However that does assume you drive expeditiously to Mexico, that you don't hang around for a couple of days to do sightseeing. The several hours you will spend in the US doing this are certainly within the limits of the definition of "transit". Airport layovers can sometimes involve staying a couple of days, and are still considered transit.

The issue of transiting through the US and then transiting back again five weeks later will not be a problem. When your friend re-enters the US after five weeks they do so on the same entry permission they had before, and will thus be expected to leave within 90 days of their original entry. As long as your exit from the US to Mexico and your re-entry from Mexico are recorded by US immigration then it does not "look like you spent five weeks in the US" and US immigration will not think that.

The correct answer is Yes, but it probably isn't going to make a difference.

Answer 2

Realistically I doubt it will matter at all. ESTA's are not issued for a single trip but instead for multiple trips over several years, and those trips can have different purposes to that stated when originally applying. So even if your friends first trip was for transit only, future entries for non-transit purposes would still be allowed.

However in this case I would recommend NOT marking this as a transit trip, for a few reasons.

1. "Transit" would normally be considered arriving on one flight, and then departing the country on another flight leaving from the same airport, or at most a nearby airport. Tijuana is over 140 miles away from LAX, so the traveler will be spending a non-trivial amount of time in the US, and a trip of this distance would not normally be considered "transit" - especially if your friend does decide to spend any time sightseeing.

2. The Visa Waiver Program, which the passenger will be entering the US using, considers time in Mexico as a part of the allowed time in the US. When re-entering from Mexico, the passenger will not (normally) be issued with a new I-94 (US entry record), but instead the one they were originally issued before departing the US will be extended. Thus from the perspective of the VWP, your friend will be spending 5 weeks in the US - which is clearly not in the definition of "transit".

Given that the application process is the same for both transit and non-transit applications, it seems to simply NOT marking the visit as 'transit' would be the safest option.