Hello,

I am an Australian passport holder, and I am currently in Canada on business as a Business Visitor for a few weeks. I arrived via the U.S. and so I used the Visa Waiver Program (VWP) to transit through to Canada. The VWP website says that I must leave the U.S. as well as Canada and surrounding islands within 90 days.

The local subsidiary of my company would like me to stay on and work here for up to a year. They will sponsor a work permit for me (and I have to leave and re-enter Canada via the U.S. to activate this work permit, which is fine as this will be done within the 90 day VWP limit)

My question is, once I have the work permit in place and am staying in Canada for the year, what happens after the 90 day limit for the VWP runs out? Will I be allowed to return to Australia via the U.S. as a Canadian work permit holder? Even though I entered 'North America' using the VWP and their website explicitly states I must leave North America before the 90 days is up? Will I have to re-route my trip home via Europe or something at the end of my assignment?

Any help would be greatly appreciated.

Thank you very much!

You can't use the VWP as your total time in the U.S., Canada, Mexico and the adjacent islands will be over 90 days, but you can still get a C1 transit visa or a B-1/B-2 Combined Business/Tourism Visa to re-enter the USA while you're doing business in Canada or heading back to Australia. See the US Embassy website for Australia.

Thanks Mark, but unfortunately from the U.S. Embassy website in Canberra:

canberra.usembassy.gov/consular/visawaiver.html

...it appears that I cannot transfer to another type of Visa whilst in North America. I refer to the following:

I am transiting through the U.S. on my way to another country. Can I use VWP?

Yes, as long as your total stay in the U.S., Canada, Mexico and adjacent islands is less than 90 days, and you meet the other VWP requirements. You can use the VWP if, for instance, you are transiting the U.S. on a journey between Australia and Europe, or are transiting Guam between Australia and Japan.

However if for example you are transiting the U.S. on the way to a 6 month stay in Canada, you cannot use the VWP, as your total time in the U.S., Canada, Mexico and the adjacent islands will be over 90 days. In this case you should apply for a B-1/B-2 visitor visa, or a transit visa.

I have entered the U.S. on the VWP but now find I need to stay longer than the 90 days. Can I transfer to another type of visa without leaving the U.S.?

No, you cannot transfer from the VWP to any other type of visa, and you cannot extend the VWP 90 day admission period. You must leave the U.S., Canada, Mexico and adjacent islands within the VWP 90 day admission period, and either apply for a visa relevant to your new situation, or re-enter on the VWP if your next stay will be less than 90 days and you still meet the other requirements. Re-entering on the VWP is however at the discretion of immigration officials at the port of entry, who can deny admission.

What should I do? Do I really have to go back home to Australia, apply for a U.S. Transit Visa and then fly back? Or come back via Europe? What a hassle!

Thank you!

You're reading too much into it. Yes, you cannot transfer to another type of visa but that's referring to a US visa. If you're legally living in Canada with a Canadian visa and resident permit that allows you to stay and work in Canada, you don't have to follow the rule with respect to leaving the "US, Canada, Mexico, and the adjacent islands" and you apply for a visa from the US Embassy (or nearest Consulate) in Canada under your new legal status in Canada. At the point you are legally residing in Canada with a Canadian visa / permit, contact a consular rep at the US Visa Information Services center for the US Embassy in Canada and get the actual requirements as far as what type of visa you'll need. The number is 1-888-840-0032 from either the U.S. or Canada - you will be asked to provide your credit card number and it costs CA$1.59 per minute. When you call that number, it clearly notes at the intro recording that you can't be assisted if you're already out of status and if the promise of Canadian work permit / visa doesn't materialize, you'll be out of status. Don't call them with 'what if' questions or give convoluted stories. Tell them you are Australian citizen residing in Canada with a Canadian residence permit and visa, and you last entered the US on such and such a date - what kind of visa do I need? By the way, starting in Dec 07, Air Canada will offer non-stop service between Vancouver and Sydney using their new 777 aircraft. So even if you are unable to re-enter the US for some reason, you shouldn't have to route back through Europe.

Thanks Mark, much appreciated. I will contact them and ask what I need to do to apply for a U.S. transit Visa once I have a Canadian work permit.

Another option is to fly to New York, hand in the I-94 form (the green slip in my passport) to indicate that I'm leaving North America, and then fly to London for a week. Then fly back directly to Canada from London, skipping the U.S. entirely. So then, on my way home back to Australia, I will just enter the U.S. on a new Visa Waiver Program time period. Do you think that could work? Save the hassle of applying for a U.S. transit Visa, and then can spend a week shopping in London too!

Thanks.

Going to London will meet the requirement and you'll get a UK entry stamp in your passport as certain proof that you had left the US and surrounding countries. Have fun shopping but don't break the bank :)