US: Immigration officer demanded I leave the country after 2 months (when VWP gives me 3 months)

Question

I had a very traumatic experience recently while trying to enter the US. I was almost denied entry for having a "story that was too vague" according to the immigration officer.

I lived in the US and had an H1B visa before, but after quitting my job I left the country and came back a month later as a tourist under the VWP program (I'm from EU, btw). Anyhow, I never overstayed, worked as a tourist, had any problems whatsoever and/or committed any crimes. In short, I've always been a law-abiding visitor, both when here with an H1B visa and as a tourist.

This time, I again entered as a tourist (note that this was my 2nd tourist visit; there was an almost two-month gap between the first one mentioned above and this one). The immigration officer said my "story" didn't check out and I had to undergo the secondary inspection. The 2nd guy was very unpleasant and hostile, and basically treated me like I was some sort of criminal (I get it, that's his job - not complaining about it). However, when he finally OK-ed my stay, he told me I must leave the country in 2 months. At the same time, the stamp in my passport says I need to leave in 3 months.

What I would like to know is if the immigration officer's verbal demand to leave in 2 months can override the default three-month stay that's tied to the VWP program (which has also been stamped into my passport). Is there even a record of such verbal demands?

Happy to provide additional details if you think that would help. Thanks!

Answer 1

First lets get some semantics out of the way. You will never officially be given a "3 month" stay on VWP. The maximum is 90 days. The difference is only a day or two, but it matters because even a 1 day overstay is an overstay!

Immigration officials most definitely have the ability to limit your stay to less than the normal 3 months that you would get under the VWP. What's more, you have no right to appeal their decision to do so - one of the conditions of using the VWP is that you give up any right of appeal to their decision.

So the issue here is obviously how long a stay you were officially given. There are two places that the official length of stay is recorded - one is in your passport (presumably 90 days), and what is entered in their computer system. Two these entries should be the same, but it's possible that the immigration officer made a mistake and put the wrong date on your passport.

Thankfully you can check the date in the computer by going to http://www.cbp.gov/i94

If the date on your electronic I94 matches the date on your passport, then you are officially good to stay for 90 days. It is certainly possible that the officer made a note in your record that you were to leave within 2 months, which could cause you issues the next time you enter the US - but legally for this trip at least you're good to stay 90 days.

If the date in the computer is different, then you've got a problem. In this case, they officer has given you 60 days, but apparently stamped your passport with the wrong date. If this is the case then you've probably got 3 options :

• Contact USCIS and ask them to resolve the descrepency. However this will probably just end up with then changing the date on your passport to match the computer.
• Leave with 60 days, as per the I94
• Stay for between 61-90 days. If you do this, you will be flagged as overstaying. The next time you attempt to enter the country you can attempt to convince them that you didn't overstay based on the stamp in your passport. If your ESTA expires before then, any attempt to renew it will probably fail due to the overstay.