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Returning to U.S. without a visa can be risky!
By Jim Nolan | July 21, 2010
A common question we get from people whose visa is expiring is if they can leave the U.S. right before their visa expires and then return on the visa waiver program (VWP) to either pack their things to go home or to look for other jobs or start a new business.
There is no clear answer to this and it has risks if you try to return without being prepared.
First, assuming you are from a citizen of countries that can use the VWP and have never had any trouble with law before, you can come back to the U.S. and at the airport or border ask the Immigration officer to let you back in to the country for up to 90 days as long as you have a return ticket home or, at least, a ticket out of the U.S.
However, just because you can ask to come back doesn’t mean the officer will let you in. There is always a risk he or she won’t believe you are coming to the U.S. to be a tourist, but think you are actually planning to live or work in the U.S.
Many people don’t understand that just because you say you don’t plan to live or work in the U.S. doesn’t mean that the Immigration officer will believe you. If the officer doesn’t they will hold you at the airport and put you on the next plane back to your home country.
Second, you have to see if you have any what I call “risk factors” which would cause the Immigration officer not to believe you and, if so, prepare to explain AND PROVE the situation to the officer at the airport.
The most common risk factors are:
- How long have you been in the U.S. If you have been in the U.S. for 6 years on an H-1B visa and 4 years before that as a student and are asking to return on the VWP you are a much higher risk than someone who has never been to the U.S. before
- How long have you been outside the U.S. since you last left If you just left and returned 2 days later you have a higher risk factor than if you have been out 6 months.
- Do you have any U.S. citizen or “green card” holder relatives in the U.S. If so, you are a higher risk factor than if not.
- Have you applied for a “green card” and are you still waiting for it. If yes, you are a higher risk factor
Even if you have high risk factors that does not mean you will automatically be turned away at the boarder by the Immigration officer. It does mean that you should come prepared to prove the following:
- You are really coming to the U.S. this time as a tourist or for a short-term business trip; and
- You have strong ties to your home country.
If you can show this to the Immigration officer at the airport he or she will let you in the U.S.
You can bring any kind of proof to show these points you want and you don’t have to bring all of the ones I will suggest later in this blog. However, the more risk factors you have the more proof you should try to bring.
The most common types of proof are:
Purpose of your trip to the U.S.
- If you are coming as a tourist,
- your itinerary showing your schedule in the U.S. showing tourist-type events, ideally with purchased tickets.
- A letter from a friend you are meeting confirming your visit and what you will do together
- If coming for short-term business trip,
- A letter from the people you are meeting explaining what you will be doing in the U.S.
- An explanation of who will be paying for this trip and your salary. If a foreign company is paying, a letter from this company would be very important. If you are paying yourself please bring a recent copy of your bank account to show that you have the money to do so.
Ties to your home country
- If you have a job back home, a letter from your employer or recent proof of payment with English translation
- A copy of your lease showing where you are living in your home country with English translation
- A copy of your foreign driver’s license, phone bill, electricity bill, credit card statements to your foreign address
- Letter from relatives confirming your live there and listing all of your relatives in your home country.
I would suggest you keep all your proof in your carry-on luggage, but DON’T show it to the Immigration officer when you approach him or her at the airport. I would suggest you give the officer your passport, I-94, and return ticket and wait. It is very likely he or she will just let you in the U.S. for 90 days, particularly if the lines are long. You should never tell the officer something which is untrue, but you also don’t have a duty to volunteer any information unless you are asked.
However, if you start to get questions about do you really plan to come back as a tourist and start to hear statements like you’ve been in the U.S. a long time and you didn’t stay out that long this time, then bring out your evidence and show it to the officer.
You should truthfully explain your situation and why you are coming as a tourist or on a short-term business trip and that you will return to live in your home country.
To avoid this risk, it might be safer to stay in the U.S. to get ready to leave and apply to change your status to a tourist visa while you in the U.S. You do this by mailing form I-539 and supporting evidence to Immigration. As long as you mail in your request to change your status before you old visa (plus any grace period) expires you can wait in the U.S. while Immigration decides and this usually takes a few months. If your request is approved you can usually stay in the U.S. for 6 months. However, you CANNOT travel outside the U.S. based upon this approval. You must either get a new visa stamp or use the VWP as I discussed above.
You should be fine, but it is always better to be prepared.
Topics: Practical Immigration Tips, Visa Waiver Program | 3 Comments »
Japanese
German
July 29th, 2010 at 10:05 pm
What about those who apply for the I-130 while in the US, are approved and continue to live in the US while waiting for the visa number (even though this would no longer be within the 90 day period), but then return to their home country for a short time before the visa number has become available? Would those people be allowed to enter the US again? Or would they be said to have “overstayed” and be subject to the 3-year bar?
If they have left the US as I mentioned, and their application is transferred to the US embassy in their home country, what do they do then? Are they required to wait for the visa number and apply for the I-485 in their home country to prevent the bar from being triggered?
Is the petitioner (a US citizen) required to stay in the US during the wait or are they allowed to be with their spouse outside the US?
There don’t seem to be any clear answers on this particular subject. I have found lots of things that talk about “overstays” but they don’t reference those who have recieved an approval for their I-130 application before the end of the 90 days, nor do they reference what will happen to these people if they then leave the US and re-entry is attempted.
August 9th, 2010 at 1:05 am
Dear Kirsten,
Sorry for the delay in getting back to you. Applying for and getting approved for an I-130 GC does not allow you to stay in the U.S. while waiting for the visa number to be current. You cannot stay after your I-94 expires waiting for your visa to be current or you will be in illegal status. You will have to leave and wait in your home country for your visa number. When that happens if everything goes as it should you should receive an appointment notice to go to the U.S. Embassy in your home country for your GC interview.
I would suggest you use our free consultation to discuss the situaiton further.
August 13th, 2010 at 9:42 pm
Excellent post thank you!