Transit through US

[deka2]

My son is currently in Montreal. Has had two stays of 90 days in the US this year on the Visa Waiver program.

Had been offered a job in NY and went to Montreal to accept.

US Government refused workvisa for the job.

No one is hiring over Christmas and he doesn't like his chances of entering US this soon after leaving so has decided to come back to Sydney mid January.

He is concerned what reception he would get if he transited through any US airport.

Any opinions from the experts out there would be appreciated.

 

[skywalkerLAX]

I don't see a problem if he didn't overstay his visa waiver duration.

Can't remember if the question on the immigration form / ESTA is 'Have you ever been refused entry' or 'Have you ever been refused a Visa'.

He might get a secondary inspection to clear things up but if he has a direct onward flight to Australia there shouldn't be an issue.

If you want to play it safe and calm his mind, book YUL-YVR-SYD as a one way.

Cheers
S

 

[drron]

Tell him to try again for a work visa in Australia if the job is still open.There is an E-3 visa available to australians if the job offer is considered a specialty position.
And no he wont have problems transitting.A colleague of my sons who renounced his US citizenship and now can only stay 30 days in any one year can still transit the US without problems.

 

[deka2]

Thanks to both of you for the advice.

Son now tells me that under the visa waiver program, your days do not reset if you go to Canada, so he is over the 90 days limit.

Drron, the problem with the job was they denied the visa for the job, not my son.

He is now looking at China Southern via YVR and CAN to Sydney

 

[skywalkerLAX]

Thanks to both of you for the advice.

Son now tells me that under the visa waiver program, your days do not reset if you go to Canada, so he is over the 90 days limit.

Drron, the problem with the job was they denied the visa for the job, not my son.

He is now looking at China Southern via YVR and CAN to Sydney

You should check award availability with Air Canada using BMI Miles !

It's 20k in Y & 30K in C plus the respective cash amount (Miles can be bought on the BMI website). Definitely a better option than China Southern.

 

[harvyk]

Son now tells me that under the visa waiver program, your days do not reset if you go to Canada, so he is over the 90 days limit.

That is correct, the moment you enter the US, those 90 days start counting. They do not get reset if you go to either Canada or Mexico... However on leaving the US on the VWP to a qualifying country, those 90 days are reset. You may do that as many times as you like within a one year period.
As for transit through the US, it would probably be a good idea to call the US embassy, as he may need a transit visa given there is no such thing as "transit" in the US.

 

[deka2]

harvyk. Are you sure there is no limit to the entries.

My son hasd had two lots of just under 90 days since Feb this year.

If he went to say LHR for a week or so, do you think he would have any trouble getting back in for another 90 days?

 

[harvyk]

As far as I am aware there are no limits on how many times a year you're able to enter the US under the VWP, provided you conform with the rules each time. (As always, getting advice from the source aka the US embassy or the CBP \ DHS websites is a good idea if your not sure yourself).

Yes if your son did a trip to LHR and back again that would reset the days back to the 90.

 

[skywalkerLAX]

Does you son have a canadian visa (Work&Holiday) right now ?

In that case he would be a temporary resident and the 90 day reset rule would not apply when going 'home'.

 

[deka2]

Yes Skywalker LAX he does have a canadian work visa.

I will pass that on to him.

He would very much like to go back to NY but is concerned that
as he has had two stays of 90 days in the last 12 months he would be refused entry,
and whatever the ramifications of that would be for future travel to the US.

 

[skywalkerLAX]

He would very much like to go back to NY but is concerned that
as he has had two stays of 90 days in the last 12 months he would be refused entry,
and whatever the ramifications of that would be for future travel to the US.

Wait... first it was about transiting on the way back to AUS. Now you talk about he would like to go back to NY. What does he try to do?

Of course if he has a canadian work visa then he is a temporary resident of Canada, meaning in his ESTA / US-Entry Forms he declares his residence as Canada and not Australia. When you live in Canada obviously you stay longer than 90 days in North America. Ergo there is no rule that makes it mandatory to go overseas.

IF he however spends more than 180 days out of the year in the Unites States then it may rise an eyebrow. Unlikely that this will happen so soon (usually it takes 1-1.5 Years of permanent traffic until you get flagged) but there might be suspicions and given that he supplied to the Authorities already that he would like to work in NY... This is one of the reasons why you should NOT apply for a visa (especially for the US) if the outcome is not very promising. Meaning without a professionally sponsored position there is almost no chance of getting a work visa approved. And every denied Visa application brings difficulties upon following entries, even as tourist.

 

[deka2]

Sorry skywalkerLAX if I caused some confusion.

His first choice was always to go back to NY and keep trying to get a job.

He did not believe this was possible, or could cause him a future problem.

Another choice is to stay put and try for a job in Canada, but who hires this close to Christmas.

Final choice is to come back to OZ, and if so what routing it should be.
Peak time at the moment, so he is looking at options for mid January.

All I was trying to find out was whether it was going to be a problem transitting through the US.
I passed on the BMI miles option in your message.

Some of his friends are coming up from NY to have Christmas with him,
so I think he will probably sit tight for a couple of weeks.

 

[dfcatch]

If entering the USA on the VWP you get 90 days max.

Officially - going to Canada or Mexico does not count as "leaving the USA" therefore any re-entry to the US counts as per the original VWP 90 day start date.

Going to LHR and back to the US would entitle him to another 90 days (subject to normal VWP requirements). There is no limit on how many VWP entries you can have.

What class of visa did he apply for with the NY job?

If an E-3 - it will not be approved if applying from Montreal - it has to be applied for from Australia (or possibly elsewhere).

Regardless of working in Canada or not - unless he is a Canadian Permanent Resident - then for US immigration purposes - he is an Australian.

I do not believe that he will be permitted any entry to the US (including transit) without a permitted VWP entry (which he technically isn't entitled to if he has only been in Canada) or another valid visa.

As always YMMV and he should call the US consulate directly for official advise.

A weekend in London will fix the problem - as will a YVR-SYD direct flight.

 

[skywalkerLAX]

Regardless of working in Canada or not - unless he is a Canadian Permanent Resident - then for US immigration purposes - he is an Australian.

I do not believe that he will be permitted any entry to the US (including transit) without a permitted VWP entry (which he technically isn't entitled to if he has only been in Canada) or another valid visa.

As always YMMV and he should call the US consulate directly for official advise.

A weekend in London will fix the problem - as will a YVR-SYD direct flight.

I had a work visa for Canada over 3 years, holding a european passport. I went back and forth between Canada and the US multiple times every year. There was never an issue. You don't have to be a PR to be entitled to cross the border during such assignment. That would as well not make any sense, neither is it possible to demand for approved temporary residents to travel overseas just to renew their visa waiver rights.

Two options: He could go to a nexus counter and ask a US Immigration official at YUL or call the consulate (though I would imagine the CBP Officers at Dorval have more insight). Also, immigration for the US is done at YUL Pre-Clearance so even if he has an issue he will not be detained or deported from the US, he would just 'go back' to Canada. HOWEVER: This would be a refused entry and definitely make him ineligible for any Visa Waiver in the future. He would have to apply for a B1/B2 which is good for 10 years but it comes with a lot of questions at every entry.

 

[dfcatch]

I had a work visa for Canada over 3 years, holding a european passport. I went back and forth between Canada and the US multiple times every year. There was never an issue. You don't have to be a PR to be entitled to cross the border during such assignment. That would as well not make any sense, neither is it possible to demand for approved temporary residents to travel overseas just to renew their visa waiver rights.

Two options: He could go to a nexus counter and ask a US Immigration official at YUL or call the consulate (though I would imagine the CBP Officers at Dorval have more insight). Also, immigration for the US is done at YUL Pre-Clearance so even if he has an issue he will not be detained or deported from the US, he would just 'go back' to Canada. HOWEVER: This would be a refused entry and definitely make him ineligible for any Visa Waiver in the future. He would have to apply for a B1/B2 which is good for 10 years but it comes with a lot of questions at every entry.

I'm assuming you were entering the US under something other than the VWP in that case.

The VWP rules are very clear - leaving the USA to Canada or Mexico does not provide for the resetting of the 90 days for the VWP. Any re-entry is marked as a "R" entry and continues on the original 90 days.

Just as you can not enter the USA under the VWP and change status to another status. Once again - leaving to Canada usually (if not in all cases) does not meet the requirement.

Eg. An Australian enters the USA under the VWP, then qualifies for a sponsored H1B/H2B/J etc visa class.

You must leave the continent to pick up your visa at a foreign consulate (ie. not Canada or Mexico).

Canada is not a VWP participant country as Canadians do not have the same requirements to enter the USA.

YMMV - but this has been my experience.

EDIT: Allow me to rephrase:

1/ Leaving the US to Canada does not allow you to enter under a new 90-day VWP entry.

2/ Leaving Canada to a 3rd country WILL allow you a new 90-days.

 

[skywalkerLAX]

I'm assuming you were entering the US under something other than the VWP in that case.

The VWP rules are very clear - leaving the USA to Canada or Mexico does not provide for the resetting of the 90 days for the VWP. Any re-entry is marked as a "R" entry and continues on the original 90 days.

Nope, of course not. Anything else would have been a US Visa which I don't carry.

Also I never ever had an 'R' mark in my passport even when I traveled between YVR & SEA as a tourist years before and after.

 

[dfcatch]

Nope, of course not. Anything else would have been a US Visa which I don't carry.

Also I never ever had an 'R' mark in my passport even when I traveled between YVR & SEA as a tourist years before and after.

I have seen it as hit or miss - I have in fact been given a new 90 days when not entitled.

In recent times though (since the abolition of the green I-94W forms), I have noticed the system seems to be working more "as it should".

 

[dfcatch]

These may help.....

U.S. Embassies and Consulates routinely do not accept applications for "E" visas from third country national applicants who are not resident in their consular districts.


VWP travelers who have been admitted under the Visa Waiver Program and who make a short trip to Canada, Mexico or an adjacent island generally can be readmitted to the United States under the VWP for the balance of their original admission period. See the Department of Homeland Security’s Customs and Border Protection (CBP) website for additional details. Also VWP nationals resident in Mexico, Canada or adjacent islands are generally exempted from requirements to show onward travel to other foreign destinations. Learn more at the CBP website.

http://travel.state.gov/visa/temp/without/without_1990.html

https://help.cbp.gov/app/answers/detail/a_id/194/~/visa-waiver-program---eligible-countries

While in the U.S., you may go to Canada, Mexico and the Caribbean and re-enter the U.S. using the I-94W you were issued when you first arrived in the U.S., although the time you spend there is included in the 90 days allotted for your visit.

If you go to Canada and Mexico or the Caribbean, and while you are there, your initial 90-day period of entry expires, but you need to come back in to the U.S. to fly home, you may encounter a problem. The terms of the VWP are very clear - it is only to be used for occasional, short visits to the U.S. If the CBP Officer thinks you are trying to "reset" the clock by making a short trip out of the U.S. and re-entering for another 90-day period, you can be denied entry. (If that happens, you will have to obtain a visa for any future travel to the U.S.) In order to be re-admitted to the U.S. shortly after a previous admission expired, you will have to convince a CBP Officer that you are not trying to "game" the system.

If you are coming under the VWP, you must apply in advance for an Electronic System Travel Authorization. We recommend you apply at least 72 hours in advance of your travel, but emergency, last minute travel can usually be accommodated.

If you visit other countries such as England or Costa Rica, then return to the U.S., your re-entry will be considered to be a new admission (thereby restarting the 90 day clock), rather than a re-entry from a contiguous country in the course of your initial visit, and the admission inspection may be more strenuous. The Officer inspecting you will want evidence that you intend to go back home to your country of citizenship to live as opposed to returning again and again to the U.S. after visits to other countries.

If you are from Canada, the length of stay for tourism is 6 months. Canadians may file for an extension of stay with the U.S. Citizenship and Immigration Services.

If you are not from a visa waiver country, you will need a visa.