Multiple 90-day visits on visa free waiver to the US. Future problems?

Question

I have used visa-free entry to the United States as a South Korean passport holder. Visit history:

• 2017/03 - 89 days
• 2018/12 - 14 days
• 2019/07 - 90 days
• 2020/11 - 89 days

I have visited the U.S. on four occasions as a tourist under the Visa Waiver Program, staying for the full 90-day allowance each time without overstaying. My purpose for visiting is to spend time with my mother and brother. I have not worked there during my stays and used my savings. During my previous visits, I did not encounter any issues at immigration. However, during my most recent trip in 2020, I was referred to secondary inspection upon arrival.

During the interview, I explained to the immigration officer that I planned to stay for about three weeks. However, after being admitted, I ended up staying for the full 90 days, which was within the allowable duration. One of the things the officer asked me was why I stayed longer than the duration I initially stated. I guess that was the main red flag. While I was ultimately allowed entry, the officer mentioned that staying for the full 90 days again could potentially cause problems in future visits.

I will be starting a new job in a different country, so before that starts, I wanted to visit my family in the USA because I won't know when I'll be able to visit them again. I'm only staying around 2 weeks as my new job will start soon. It has been more than 4 years since I last visited. Will this time help my situation, and will it be difficult to enter the US with my current situation?

Answer 1

You can certainly stay for the full 90 days. However:

• First of all, you should remain a visitor. That means that visiting for 90 days, leaving for a week, and coming back for another 90 days is probably not going to cut it. The rule of thumb is that you should stay out at least as long as your stayed in.

• Staying exactly 90 days is risky: what if anything happens (flight delayed or cancelled, medical emergency...) and you exceed the limit? That would considerably complicate future travel.

• This is bound to have them wonder: how can you afford to stay 90 days without working? Do you have enough money for that? If you are employed, is your employer really letting you off work for 3 months in a row? Remember that in many countries paid leave is 4 or 5 weeks per year, and in the US it's usually closer to 2 weeks per year!

  Or are you going to be working while you are in the US? Do you actually have a job to return to? What about your place? Are you really paying rent for 3 months every year without being there?

Going for 90 days a year should not be a problem (with the above caveats), but make sure:

• You keep enough time between the visits. Not an issue here since you haven't been there for 4 years, but don't make a 90-day visit at the end of year N and another 90-day visit at the beginning of year N+1.
• Keep a bit of margin
• Do not lie to the officer. Remember that you need to have a return (or onward) flight booked, and that they can see it. If you tell them you'll stay for 3 weeks when your return flight is booked in 90 days, that is bound to cause issues.
• Make sure you do NOT work while in the US.
• And you would need a good explanation as to why/how you can stay away for work for 90 days and afford the trip, and still have a job to return to.

Answer 2

I want to ensure I follow all regulations and avoid any complications during future trips. Could you please clarify if staying for the full duration of the 90-day allowance is permissible under the Visa Waiver Program, or if there are any recommendations to prevent potential issues at immigration?

Staying 90 days is permissible (you have apparently done it yourself several times) but it's a little misleading to look at it this way. What's problematic here is the impression that you may be staying in the US most of the time created by multiple long stays. This raises questions about the intent behind your visits.

Some countries have formal rules like “no more than 90 days in any 180-day period” to cover this scenario, the US does not. What's obvious is that a single 90-day stay is perfectly fine and multiple back-to-back stays with only a few days outside the country each time will eventually get you in trouble. Between these two extremes, CBP and its agents will draw the line somewhere but they do not advertise a hard-and-fast rule based on the number of days spent in the country.

That said, not having visited during the last four years should help you enter at least once. Also: CBP agents can see the dates of your previous stays so pretending you want to stay a couple of weeks when you have a history of long stays might make them more suspicious. One recommendation to prevent potential issues is to avoid trying to deceive the officer, there are too many ways it can backfire.

Answer 3

TL;DR: you're fine, don't worry about it. Get a B1/B2 visa if you want to stay for up to 6 months in a row.

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My mom was/is in a similar situation, with very frequent visits since 2019, each time staying for the full 6 months allotted on her B1/B2 visa, leaving, and then coming back after 1-3 months. Her approximate visit duration in each year was:

2019: 2 visits, 8 months total
2020: 1 visit, 3 months (COVID)
2021: 2 visits, 9 months total
2022: 3 visits, 8 months total
2023: 2 visits: 10 months total
2024: 2 visits, 4 months total

Only during the second visit in 2024 visit did she get a verbal warning about possibly staying in the US for too long, as explained in Can a CBP officer verbally prescribe a shorter duration of stay than what’s listed on the I-94?. This probably happened because she finished a 6-month stay, went to Europe for 10 days, and then came right back, which was just too close. Still, she wasn't denied entry and I'm ~99% sure she'll be allowed to visit for another 6 months in 2025.

There is a rule of thumb that people often refer to and which was even officially mentioned by the CBP to an information request in 2012:

If he decides to use the Visa Waiver Program (ESTA); maximum stay is 90 days and he needs to allow adequate time between visits. The rule of thumb is if he is in the US for 90 days; should be out of the U.S. for 91 days before returning.

But it doesn't seem like it would be a problem in your case, as you just want a single 90-day visit. And as evidenced by my mom's situation, you can get away with more than the rule of thumb for a long time.

If you want to stay for more than 90 days, you can get a B1/B2 visa instead that will let you stay for 6 months at a time. For nations that are eligible for VWP this is a mere formality, doesn't require that many documents, and the only annoying part is the need to attend a brief in-person interview at the closest US consulate.