Exceeding the 90 day limit of the ESTA

Everyone who travels to the USA, either on a visa or with an ESTA, has an authorised period of time that they can spend there. With visas this varies according to its type, and with ESTA this period is always 90 days. Here we will take a look at what it means to overstay this authorisation period and the implications.

 

Last month, President Trump issued a presidential memorandum on ‘Combatting High Non-immigrant Overstay Rates’. This memorandum stated that "Although the United States benefits from legitimate non-immigrant entry, individuals who abuse the visa process and decline to abide by the terms and conditions of their visas, including their visa departure dates, undermine the integrity of our immigration system and harm the national interest."

 

The context of the memorandum surrounds the issuance of the 2018 fiscal year overstay report, which provides an overview of those who exceeded their travel authorisation period throughout the year. The current administration aims to impose new immigration restrictions for international students, temporary workers and visitors, whose details are all compiled in this report. When it comes to the Visa Waiver Programme, the memorandum states that "The large numbers of aliens who overstay their period of lawful admission, failing to comply with the terms of a visa or the Visa Waiver Program, place significant strain on Department of Justice and Department of Homeland Security resources, which are currently needed to address the national emergency on our southern border.’ In this regard, it establishes that the President will be issued a summary of the ongoing efforts to reduce overstays from Visa Waiver Programme member countries.

 

So what is this report exactly?

 

The ‘FY 2018 Entry/Exit Overstay Report’ provides a country-by-country breakdown of foreign travellers who entered the USA as non-immigrants (by air or sea) and were expected to leave in the 2018 fiscal year, which runs from 1 October 2017 to 30 September 2018. It identifies two categories of overstays: 1) people whose departure has not been recorded, or ‘suspected in-country overstays’, and 2) people whose departure was recorded after their authorised period of admission expired, or (out-of-country overstays).

 

The report for the last fiscal year highlights the second year in a row of a declining overstay rate, with a total rate of 1.22%. It does not, however, compile figures pertaining to Mexico and Canada, given that the vast majority of travellers from these countries enter by land.

 

Of course, the very nature of the report means that it has to entail a certain amount of guesswork, but it still gives a general idea of how overstay levels change year to year, which can influence visa policy and Visa Waiver Programme member country status. In terms of the latter, in order for a country to qualify for the Visa Waiver Programme, they must have a notably low visa overstay rate, around 2% or less. Of course, this is just one of multiple conditions for being a member country of the programme.

 

How exactly does this affect you?

 

Given its macro level, this information may seem irrelevant to individual travellers. However, it is relevant to each country covered in the report, given that their status or potential status as a Visa Waiver Programme member country does correlate with the overstay information. Particularly given President Trump’s memorandum on "Combatting High Non-immigrant Overstay Rates", there is reason to expect some changes to the Visa Waiver Programme in due course, and so current members will be wanting to keep their overstay rates to a minimum in order to protect their status. Indeed, the USA encourages member countries to help enforce this.

 

Of course each person who overstays their authorised period in the United States contributes to these statistics, however there are repercussions on an individual level as well. If you overstay your authorised period of time in the United States, this jeopardises your possibility of being able to return. It can also hinder your chances of having future ESTA or visa applications approved (remember, if your ESTA application is not approved, you are still able to apply for a tourist or business visa). It is also possible for you to be deported if you are caught in the United States beyond your authorised period.

 

Can the authorisation period be extended?

 

With an official US visa, you can apply to extend your visa as long as it is still valid at the time of application, and on the condition that you have not violated any of the terms of your admission. It is also fundamental that your passport is still valid, and will remain so throughout the period of the visa extension. To apply to extend your visa, you will need to file a specific form with U.S. Citizenship and Immigration Services (USCIS).

 

With ESTA (the Electronic System for Travel Authorisation), the 90-day authorisation period cannot be extended under any circumstances. This means that, if there is any reason that you think you may need to be in the United States for longer than 90 days, you are advised to apply for the corresponding US visa. If you are travelling on an ESTA and remain in the United States for longer than 90 days, you will be unlikely to be regranted entry under the Visa Waiver Programme in the future.

 

The 90-day authorisation period of the ESTA can cause some confusion, so we will clarify exactly how it works here. When you apply for ESTA online, you will receive an email within 24 hours informing you of your approval status. If approved, your ESTA is immediately valid from that date, for a two-year period, or until your passport expires (whichever comes first). After this two-year period your ESTA expires, and you will need to apply for another one for future trips (the ESTA cannot be renewed, but the application is just as quick no matter how many times you apply). Within this validity period of the ESTA, you can make as many trips to the United States as you want for tourism or business (under the conditions of the Visa Waiver Programme), and each of these individual trips can be a maximum of 90 days.

 

Given that the 90-day limit is in place for each individual trip, it does mean that this ‘clock’ resets when you leave the country (usually). However, this does not mean that you can hop across a border and go straight back to essentially extend your time in the USA. Border patrol agents catch on when travellers are trying to use ESTA for unauthorised purposes, such as this, so if you do need to remain in the United States for longer than 90 days, it is important that you apply for the proper visa in advance.

 

This "resetting of the clock" does not occur when travelling from the USA into Canada or Mexico, preventing quick border hops to reset it. This means that if you travel to the USA for a week, then go to Mexico for a week, and then back to the United States, all of this time contributes to the 90-day period of your ESTA. However, if you are travelling into Mexico or Canada on your trip, you will also need to make sure you have the proper travel authorisations for these countries too. If you travel to the USA and then in to one of these countries without then going back to the USA, the ESTA clock stops when you leave the USA.

 

In a nutshell, the only way you can secure your ability to be able to return to the United States under the Visa Waiver Programme is to always adhere to its conditions, which include never exceeding the 90-day trip limit. As a British citizen, the country’s future in the Visa Waiver Programme is not at any risk, with low overstay rates and a longstanding relationship between the two countries. In fact, the United Kingdom was the very first country to join the Visa Waiver Programme when it was first created. To apply for ESTA and get your travel authorisation in order, you simply need to fill out a short online form, provide your passport details and pay for the application. Once submitted, you will receive an email within 24 hours (and usually almost immediately) telling you whether you have been approved or not. The vast majority of applications are approved in minutes.

 

With summer right around the corner, apply for ESTA online now (and just be sure to come back on time!).