Overstaying a visit on VWP

When you enter the United States on a Visa Waiver Program (VWP), there is a strict 90 day requirement for the duration of your stay. There are some confusion about how VWP is structured and some people even assume that VWP itself is a visa. This post intends to break down the VWP to its core and explain the two only possible ways to extend a visit using the VWP.

Firstly, the VWP does not give the visitor any type of visa. It is not a visa program. There is no visa stamp in the visitor’s passport once they have applied and been approved to travel on the VWP. As you may already known, VWP is only available to certain countries that historically exhibit low instances of illegal immigration into the United States. Countries that are typically sending droves of people who want to live and work in America permanently are not likely going to be part of the VWP. These are typically developing to under-developed countries, such as China, India, Vietnam, most of Africa, etc. The US government probably uses statistics to determine that granting a country a VWP inclusion will not likely increase illegal immigration from that country.

So since there is not even a visa, what is the VWP? It is essentially an agreement between the United States and the visitor’s country. The US government and the visitor’s country government reaches an agreement that any one who wishes to visit America can simply go online to https://esta.cbp.dhs.gov/esta/ to fill out an application with information about their visit, and if approved, the visitor can hop on a plane and enter into the US without going to the American embassy for any visa interview or stamps. So you might ask, why bother applying in the first place? Doesn’t applying mean asking for a visa? The answer is that the US still wants to be informed of your visit before you arrive, and that the VWP application (or Electronic System for Travel Authorization, ESTA) is just paperwork to fill out to be “pre-screened” for your visit into the USA. Again, once approved, there is no visa stamp, you simply just get on a plane and go. With the fee being at $14 USD, it allows for a quick and cost effective way to allow people to visit America.

Because there isn’t a visa and no visa interview or application, the visitor is restricted to a very defined maximum stay of 90 days. Why is that? Because the USCIS actually has no file or information on the visitor, because there isn’t a visa. The Department of State (DOS), which oversees the various American embassies and visa applications around the world, has no information on the visitor either. The only US government branch that has the visitor’s information is Customs and Border Protection (CBP), which are the police looking immigration officers at the airport immigration desks. Therefore, because the USCIS and DOS has no information on the visitor, the visitor simply cannot extend their stay beyond 90 days. The VWP, by definition and use, is intended for short term visits to the USA. There are no USCIS forms or process to extend a VWP visitor’s stay.

Now there are always instances of people who travel on VWP into the US and are looking for ways to stay beyond 90 days. This does not happen often or else the US government will likely terminate the VWP agreement with the country sending people trying to stay permanently on a visit. After thorough research, there are currently only 2 ways to extend a trip that begun under the VWP. The two ways are not entirely obvious and not advertised anywhere, not because the US government wants to keep it a secret, but simply because it does not happen often enough to warrant a public service announcement.

The first way

The first way is for emergencies. The US government knows sometimes things happen beyond the visitor’s control and the visitor, at no fault of their own, will overstay their 90 day duration. In emergency situations, the visitor can apply for what is called Satisfactory Departure. According to USCIS’s website,

Satisfactory departure is granted only in limited cases and for serious emergencies, such as hospitalization, or conditions that cause flights to be delayed or cancelled for more than 24 hours (weather, worker strikes, etc.). Otherwise, people visiting under the Visa Waiver Program may not stay beyond their initial 90-days.  

These reasons are typically:

  • Hospitalization emergencies, such as getting into a serious car accident on the way to the airport to leave the USA

  • Inclement weather that cancelled the outbound flight

  • Airport strikes

  • Catastrophe events impacting your departure area.

If such situation applies to you, you can then request an InfoPass appointment on the USCIS website and select the field office that is responsible for where you are, and present your case and supporting documents. The district director of the USCIS field office has the sole discretion to approve or deny your satisfactory departure. Keep in mind, satisfactory departure only gives the visitor max 30 more days to depart the US.

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The second way

The second way requires the visitor to have immediate relatives in the US who are US citizens. As described from this USCIS memo, if the visitor who came into the US under VWP is an immediate relative of a US citizen (immediate being spouse, parent, child under 21), the visitor is able to apply for adjustment of status (AOS) to permanent residence (green card). By properly filing a I-485, the visitor enters the pending AOS application state and can legally stay in the US until the application reaches a final decision, which can take many months. However, keep in mind that if the application is denied, the visitor has no appeal rights and must leave the country immediately. Also, this is a special circumstance for people under VWP that are applying for a green card, that USCIS technically can remove and force you to depart the USA while the I-485 AOS application is pending. This is not the case for all other I-485 applications but unfortunately for VWP visitors, it is a reality that must be taken into consideration. For example, if the VWP visitor committed a crime, the visitor is subject to immediate deportation despite the pending AOS application.

In conclusion, the VWP is a easy way to get into the US for a visit and a very difficult way to extend a stay. If your stay may be longer than 90 days, it is always in your best interest to apply for a B2 visa which gives you more rights and options should you want to stay longer in America.