As an Australian-born U.S. immigration attorney and dual citizen, I primarily serve Australian citizens seeking to work and travel in the U.S. This week, I provided several media outlets in Australia with clarification on U.S. visa rules and regulations, and the role of the U.S. Customs & Border Protection (CBP). This clarification followed the stories of Mr. Baxter Reid and Ms. Molly Hill who were both recently (and briefly) detained in the United States.
The U.S. immigration system is one of the most complex systems to navigate, and there is a need for further clarity and caution when travelling to the U.S. This is particularly true for those travelling to the U.S. under the Visa Waiver Program (VWP).
The Visa Waiver Program allows individuals from several countries, including Australia, to travel to the U.S. for both tourism and authorized business-related activities. In most cases, an individual who is granted entry to the U.S. under the VWP will be permitted to remain in the U.S. for up to 90 days without requiring a separate U.S. visa.
Although many Australian citizens qualify to seek entry to the U.S. under the VWP, it does not mean that their entry into the U.S. is guaranteed when they arrive. CBP always maintains discretion when admitting foreign travelers, regardless of whether they seek entry under the VWP or a separate visa. In general, Australians (and travelers from other permitted VWP countries), should keep in mind the following when seeking entry to the U.S. under the VWP:
Clear plans for departing the U.S. on time
All visitors seeking entry into the U.S. are presumed to be staying in the U.S. long-term. The onus is on the visitor to demonstrate to CBP officials that their stay in the U.S. will be temporary, and for a duration of less than 90 days (in most cases).
Clear travel plans
VWP visitors seeking entry should make their intentions and travel plans very clear to CBP officials. Ambiguity regarding one's intentions can cause doubt and suspicion regarding the purpose of travel. Visitors should also ensure their intent and purpose in the U.S. are consistent with the activities permitted under the VWP. Visitors should, therefore, avoid making inferences that their planned stay may be inconsistent with permitted VWP activities.
If possible, VWP visitors should be prepared to provide evidence of their purpose in the U.S., such as a detailed itinerary or invitation for events they are planning to attend. Evidence of their intent to depart the U.S. prior to their length of authorized stay is also important, and may include a return ticket and evidence of additional ties to Australia (work, housing, family, school, etc).
Download your I-94 record
VWP visitors should ensure they are aware of the expiry date granted to them on their electronic I-94 record by downloading their record as soon as possible after entering the U.S. Further details regarding I-94 records can be found here. A VWP traveler can access their current I-94 record through the following website.
VWP visitors should ensure that they depart the U.S. prior to the date indicated on their I-94 record.
Note: As each immigration matter is different, this general information should not be relied upon as specific legal advice. You should consult with an experienced U.S. immigration attorney before making any decisions applicable to your specific circumstances.