Frequent visitors to the US often want to know more details regarding the permitted length of time one can stay in the US and how one can lawfully extend his/her stay. The Immigration and Nationality Act provides for separate treatment for those who enter the US under the visa waiver program (meaning, without a visa sticker, but with an electronic travel authorization obtained online) and those who enter on a business or tourist visa (B1/B2).

The visa waiver program, often referred to as ESTA, applies to citizens of 37 countries, primarily from Europe. Visitors from Canada or Bermuda can visit the US visa free under separate agreements, as neither Canada nor Bermuda is a member of the visa waiver. The advantage of visiting the US on the visa waiver is ease and low cost, as the traveler does not have to get an appointment and visit a US consulate. Under the visa waiver, a traveler can stay in the US for up to 90 days. The customs and border inspector determines whether to admit the visitor or not, but if the decision is made to admit a visitor, the visitor will be admitted for exactly 90 days. (There are only two exceptions to this rule. If the foreign traveler’s passport expires within the next 90 days, then admission will only last until the passport’s expiration. Moreover, if the foreign traveler was previously in the US and departed for Canada, Mexico or the Caribbean, then the traveler will normally only be permitted to stay until the expiration of the original 90 day grant.) The greatest disadvantage of visiting the US with the visa waiver is that it is very difficult or impossible for one to extend his/her stay beyond the permitted 90 days. If a foreign visitor stays for more than the permitted period without authorization, even for just for a single day, then the visitor will not be able to use the visa waiver again anymore and will always be needing a visa when visiting the US in the future. (and there is no guarantee that a visa will in fact be granted.) If the foreign visitor overstays the visa waiver by more than 180 days, then a three-year bar to reentering the United States applies, starting from the day of last departure from the US. If the overstay extends to a period greater than one year, then a ten year bar to reentry will apply. The bar is in effect even if the foreign traveler gets married to a US citizen. (but a waiver may be possible in some cases)

A trip to the US with a business or tourist visa (B1/B2) permits the foreign traveler to stay in the US for up to six months. The exact authorized period of stay may vary, as the border officer has discretion to provide for a period shorter or greater than the usual six months. Note that, while a visa may be valid for a period lasting several years, this does not mean that one may visit the US and stay there for the period of validity of the visa. The period of validity of the visa only refers to the time during which a traveler can seek admission to the US, not to the time the traveler can stay in the US after each admission. The later is governed by the stamp placed in the traveler’s passport. Thus, if one has a ten-year visa on her passport, she may visit the US at any point of time during the next ten years – but each visit cannot be longer than the time provided for by the border inspector, normally six months.

Unlike visits under the visa waiver, a visitor with a business/tourist visa is able to seek an extension to his/her stay in certain cases. But if a traveler stays in the US for a period exceeding the authorized period of stay, the visa is automatically invalidated and can not be used again in the future. Similarly to the visa waiver, if the foreign visitor overstays by more than 180 days, then a three-year bar to reentering the United States applies, starting from the day of last departure from the US. If the overstay extends to a period greater than one year, then a ten year bar to reentry will apply.

For the traveler that seeks to visit the US for an extended period of time, a tourist visa is preferred to the visa waiver. But getting a tourist visa isn’t always easy. For individuals from countries that are part of the visa waiver program, the US consulates abroad do not hand B1/B2 visas easily, unless one can justify why visiting with the visa waiver is not an option. And if one does apply for a visa and is rejected, one may have trouble visiting even with the visa waiver – since the electronic system for travel authorization asks the applicant whether he has ever been refused for a visa. Thus, applying for a visa for a traveler from a visa waiver country is a double edged sword – if you don’t get the visa, you may end up not losing the ability to travel on the visa waiver as well.

One of the most common questions asked by travelers that want to stay in the US for extended periods of time, is how soon can they return to the US after a previous visit. There is no set rule – but generally, the longer the stay in the US and the shorter the time of staying outside the US, the more trouble one will have convincing the border guards when visiting. A tourist/business visa is issued for a specific purpose and not for living in the US. Thus it is generally recommended that travelers stay outside the US after each trip for a period of time greater than the period of time for which they were in the US. If a traveler has frequent, lengthy trips to the US, one after the other, then it is likely (and inevitable) to eventually be sent to secondary inspection when arriving to the US for a more extensive questioning. Being questioned by the border guards is not always a pleasant procedure, especially when being at risk of being denied entry. When at the border, there is a difference in the way individuals traveling with a visa are treated compared to those traveling under the visa waiver. When one is denied admission at the border when attempting to enter with a visa, a five-year bar to reentry may apply. On the other hand, when one is denied admission at the border when attempting to enter under the visa waiver, there is no bar to reentry – even though one may no longer use the visa waiver again. In other words, the visa waiver is advantages for the traveler up to the time of crossing the US border – but once the traveler has entered the US, a visa provides for additional rights and options.

(Note that in some cases, the border guards may give the option to the traveler of withdrawing their application for admission to the US, rather than denying the traveler admission. This may be advantageous, as it helps avoid the consequences associates with being denied admission to the US as described above.)