NiceGuy82

Hey everybody, ok, here is my deal....

I am a self employed Swedish Citizen. I have travelled to the US 5 times in 2002, being in the U.S for a total of about 7 and a half months on the Visa Waiver Program.

I am still in the U.S and this will be my second 90 day stay....

Before my first 90 day stay, I had been in Sweden for 3 weeks and before that I had stayed in the US for 5 weeks, and before that for about 3 weeks.

Before my two continues 90 day stays (with only a couple of days in between) I had gone back to Sweden once for about 3 months and the other for about 3 weeks.

All of these trips have been for both personal and business reasons.

It was only until when I entered the U.S for my second 90 day stay that I was taken into secondary questioning.

I was honest with the INS officer as I told him that I had come back very quick since I needed to be here to take care of my friend (now girlfriend) who had just had her appendice taken out and had nobody else but me to take care of her.

I also told the INS officer that I was self-employed, had my own company in Sweden and that I had ties to an American artist whom my company in Sweden works with, and that it is required for me to visit the U.S a lot in order for me to get the job done right.

He admitted me without a problem, and I asked him if I was doing anything illegal, he said no, but that not even retired people who come to the U.S for seasonal visits come to the US for this long.

I asked him once again if I would ever get a problem, and if I would be allowed back in if I came back, he shrugged and said "you will just be questioned, because we are interested in knowing why you are in the US for so long because of the way we work". I offered him to see my latest bank statement which had sufficient funds and he said that he didn't need to....and off I was to be here in the U.S for another 90 days.

In the second week of March, these 90 days will expire, and I am planning on going back to Sweden, staying there for about a month, and then come back to the U.S for another 90 days.

I am interested in knowing if doing this is illegal? I have searched everywhere to see extended information in regards to this and it says that as long as I return to my home country before the 90 days are up, I am allowed to re-enter again for another 90 days.

My biggest reason for being here is because my company in Sweden constantly works with this American artist, and for that I am needed in the US for research, interviews and media coverage.

I now have a girlfriend here (although I do not intend to let the INS officer now about this) and am very much in love with her, and not being allowed in again would definately shatter our relationship since we are not ready to marry yet.

But basically, what are my chances of being denied if I follow the same honest and truthful story about the reason why I need to spend a lot of time in the US?

All help will greatly be appreciated. Thank you.

Stuart Brook

NiceGuy82 wrote:
    >
    > Hey everybody, ok, here is my deal....

You're in for a rough ride ahead ... that's the bottom line, right up
the top.

    >
    > I am a self employed Swedish Citizen. I have travelled to the US 5 times
    > in 2002, being in the U.S for a total of about 7 and a half months on
    > the Visa Waiver Program.

That's a LONG time on the VWP.

    > I was honest with the INS officer as I told him that I had come back
    > very quick since I needed to be here to take care of my friend (now
    > girlfriend) who had just had her appendice taken out and had nobody else
    > but me to take care of her.

You're lucky ... because "taking care of a sick friend" is considered to
be "working". If she had nobody else, she was supposed to hire someone
before getting you to help her (that's US immigration law ... not just
the VWP law).

    > I also told the INS officer that I was self-employed, had my own company
    > in Sweden and that I had ties to an American artist whom my company in
    > Sweden works with, and that it is required for me to visit the U.S a lot
    > in order for me to get the job done right.

This borders on working too.

    > My biggest reason for being here is because my company in Sweden
    > constantly works with this American artist, and for that I am needed in
    > the US for research, interviews and media coverage.

And if you spill this to the INS, they will hear these things and decide
this is DEFINITELY work.

    > I now have a girlfriend here (although I do not intend to let the INS
    > officer now about this) and am very much in love with her, and not being
    > allowed in again would definately shatter our relationship since we are
    > not ready to marry yet.

As you are aware, saying "girlfriend" is a huge red flag.

    > But basically, what are my chances of being denied if I follow the same
    > honest and truthful story about the reason why I need to spend a lot of
    > time in the US?

Although you are required to be honest, you have to remember that loose
lips sink ships and the things you are doing in the US come very close
to working and could readily be interpreted as such.

You would be well advised to contact an immigration attorney to make
sure that you get it OK.

Ingo Pakleppa

For the most part, I second what Stuart said. Taking care of your girlfriend could indeed be considered working, and you are spending an awful lot of time in the US. The rule of thumb is that INS will get suspicious if you spend more than 90 days in a 12 month period in the US, and also if you have several entries in short succession. My recommendation therefore is to remain in Sweden for at least six months, better a year.

One area where I disagree with Stuart is that the contacts with your artist could be a problem. Well, of course anything CAN be a problem, but it sounds to me like this would be a bona fide business visit and therefore allowed on the visa waiver.

On Wed, 19 Feb 2003 07:11:30 +0000, NiceGuy82 wrote:


    > Hey everybody, ok, here is my deal....
    >
    > I am a self employed Swedish Citizen. I have travelled to the US 5 times
    > in 2002, being in the U.S for a total of about 7 and a half months on
    > the Visa Waiver Program.
    >
    > I am still in the U.S and this will be my second 90 day stay....

Stuart Brook

Ingo Pakleppa wrote:

    > One area where I disagree with Stuart is that the contacts with your
    > artist could be a problem. Well, of course anything CAN be a problem, but
    > it sounds to me like this would be a bona fide business visit and
    > therefore allowed on the visa waiver.

It really depends on how much control and management you exercise over
this person. If he is effectively your employee, then it's a problem.
If it's more like two companies negotiating, then it's less a problem.

The other area that can be construed as work is the amount of "research"
you're doing in the USA ... One of the things about telecommuting is
that your "employer" should not benefit from your presence in the USA
(beyond that which is permitted on B1 visa waiver). As a package, it
really sounds like you're pushing the limits.

Stuart

NiceGuy82

It's definately my company doing work with a US company, with fees being paid directly to my Swedish company from which I pay my taxes in Sweden.

No way in the Visa Waiver Rules does it say that you can only stay 90 days in a period of a year, I think this is rather an un-official theory based on very vague and isolated non-immigrant experiences.

In fact, the British Visa Consular promotes and suggests that as long as you can show ties to your home country and have enough money to support yourself while in the US, there is NO limit into how many times one can travel on a Visa Waiver to the US and there is also NO requirement of time to stay in home country before next visit to the US.

Yes, it is true, in the end, the decision is all up to the INS officer, but if I prove a valid reason for being in the US this long, which in large volume is beneficiary for the country....(I am helping the economy by spending my money here, I am helping the Economy by helping the American artist to excel and get even more money) I don't see why the INS would have a problem having me in this country with the VWP for as much as I need.

I made this thread to actually ask all of you out there that are familiar with the official legal written rules about this program if there are any chapters, paragraphs, you name it, that say that it is wrong and illegal to use the WWP for an unlimited time.

I do understand that being 6 months and 1 day out of 12 months in the US makes me more than a non-immigrant resident, but the whole time I am here as a whole is temporary.....

Any further input on this is much appreciated.

Stuart Brook

NiceGuy82 wrote:
    >
    > It's definately my company doing work with a US company, with fees being
    > paid directly to my Swedish company from which I pay my taxes in Sweden.

Which appears good, but it is the working relationship with the US
company and the type of work you do that matters.

    > No way in the Visa Waiver Rules does it say that you can only stay 90
    > days in a period of a year, I think this is rather an un-official theory
    > based on very vague and isolated non-immigrant experiences.

Isolated ???? Come on give us a break. Some of us have been following
these groups for years now and on a weekly basis there are people in
here crying that they've met the evil eye of the INS and been put back
on planes. And not many are internet connected and know of newsgroups.
The number is significant.

The reality is that the US Immigration law is founded on the basis that
any person appearing at a port of entry is an intended immigrant. Note
that this is not just "presumed to be an intended immigrant" ... it is
"that you are an intended immigrant". Then the law provides a protocol
... first that citizens be admitted ... second that permanent residents
be admitted on presentation of valid documentation showing that status
... third that non-immigrants be permitted to enter at the discretion of
the inspector, if they can establish meet the requirements for
non-immigrant entry in an appropriate status, and that they can
demonstrate that they will leave the US and that the officer does NOT
believe they will attempt to establish residence in the US ... and
finally, those who under exceptional circumstances and lots of
consulation with INS higher ups are paroled into the US. Everyone else
is sent back home. The officer's duty, therefore is to send you back,
unless you can make a compelling case for being admitted in a hurry.

    > In fact, the British Visa Consular promotes and suggests that as long as
    > you can show ties to your home country and have enough money to support
    > yourself while in the US, there is NO limit into how many times one can
    > travel on a Visa Waiver to the US and there is also NO requirement of
    > time to stay in home country before next visit to the US.

They are correct, there is no 90 day limit. BUT the INS officer only
has to believe that you are going to establish residence in the US. To
them, that means much more than 90 days in the US on the VWP gives the
appearance of establishing residence. This is all at the officer's
discretion.

    > Yes, it is true, in the end, the decision is all up to the INS officer,
    > but if I prove a valid reason for being in the US this long, which in
    > large volume is beneficiary for the country....(I am helping the economy
    > by spending my money here, I am helping the Economy by helping the
    > American artist to excel and get even more money) I don't see why the
    > INS would have a problem having me in this country with the VWP for as
    > much as I need.

The arguments you use don't wash when held up to the "appearance of
establishing residence" clause. The USA is VERY protective of its
immigration status.

    > I made this thread to actually ask all of you out there that are
    > familiar with the official legal written rules about this program if
    > there are any chapters, paragraphs, you name it, that say that it is
    > wrong and illegal to use the WWP for an unlimited time.

You won't find them, because there is none; it's all covered in the
over-riding principles of US immigration law as I described above.

    > I do understand that being 6 months and 1 day out of 12 months in the US
    > makes me more than a non-immigrant resident, but the whole time I am
    > here as a whole is temporary.....

That's not what it looks like. Moreover, another issue that you should
be very careful about is that staying more than 6 months can make you
taxable as a Tax Resident in the US.

Ingo Pakleppa

On Thu, 20 Feb 2003 03:36:22 +0000, NiceGuy82 wrote:


    > It's definately my company doing work with a US company, with fees being
    > paid directly to my Swedish company from which I pay my taxes in Sweden.
    >
    > No way in the Visa Waiver Rules does it say that you can only stay 90
    > days in a period of a year, I think this is rather an un-official theory
    > based on very vague and isolated non-immigrant experiences.

You are right, this is not written anywhere in the law. Rather, it is an
inofficial guideline that INS officers use to determine who may be more
likely to be an intending immigrant.

It is more along the lines of police officers on patrol stopping people in
certain neighborhoods and asking what they are doing. It may be perfectly
legal to walk along a street that is known for, say, drug dealing, but
police officers will still look more carefully at people who go there.

In other words, INS is looking for patterns of behavior that often
correlate with breaking the law.

One difference between police and INS is that with the INS, you are
presumed guilty unless proven innocent.

Joachim Feise

NiceGuy82 wrote:
    > Yes, it is true, in the end, the decision is all up to the INS officer,
    > but if I prove a valid reason for being in the US this long, which in
    > large volume is beneficiary for the country....

That doesn't matter. Who declares that your stay is good for the US
anyway? You?
All that matters is what the INS officer at the port of entry thinks.
They have the discretion to send you back.
And, with the visa waiver, you explicitly state that you waive your
rights to a hearing.
So, if they don't like the way you present yourself, they have all the
legal rights in the world to send you back, and you can't do anything
about it. Period. End of story.
Oh, and you can look all this up yourself. The text of the immigration
law is available on the INS website.

-Joe

NiceGuy82

Stuart, reason why I said "isolated non-immigrants" is because most people here talk about only being able to stay for 90 days in a year, and if they come back, their chances of being sent back are considerably big.

I've been able to use to VWP for 7 1/2 months, and I don't consider myself special nor overprivileged. I was only questioned once.....all post 9/11.....

Maybe I've just been lucky......

So, let's say that I do get rejected and I get sent back.....will it be difficult for me to get a marriage visa here or a student visa immediately following since I was denied entry through the WWP ??

Thanks...

J. J. Farrell

"NiceGuy82" wrote in message
news:[email protected]...
    > No way in the Visa Waiver Rules does it say that you can only stay 90
    > days in a period of a year, I think this is rather an un-official theory
    > based on very vague and isolated non-immigrant experiences.
    > In fact, the British Visa Consular promotes and suggests that as long as
    > you can show ties to your home country and have enough money to support
    > yourself while in the US, there is NO limit into how many times one can
    > travel on a Visa Waiver to the US and there is also NO requirement of
    > time to stay in home country before next visit to the US.
    > I made this thread to actually ask all of you out there that are
    > familiar with the official legal written rules about this program if
    > there are any chapters, paragraphs, you name it, that say that it is
    > wrong and illegal to use the WWP for an unlimited time.

The law says that you can use the VWP to ask to be
admitted for up to 90 days at a time. The law says
that the INS officer at Port of Entry has discretion
to decide whether or not to admit you based on
whether or not he thinks you meet his current
interpretation of the INS's current interpretation
of the rules and regulations covering the requirements
for the status in which you have asked to be admitted.

    > Any further input on this is much appreciated.

Really? That doesn't seem likely given your
rejection of the thorough and accurate answers
and advice that you have been given already.

Stuart Brook

Joachim Feise wrote:
    >
    > That doesn't matter. Who declares that your stay is good for the US
    > anyway? You?
    > All that matters is what the INS officer at the port of entry thinks.
    > They have the discretion to send you back.

Beyond that ... they have not only the discretion to send you back, they
have the duty to send you back unless you can convince them that you
will not be staying in the US.

Stuart

Stuart Brook

NiceGuy82 wrote:
    >
    > Stuart, reason why I said "isolated non-immigrants" is because most
    > people here talk about only being able to stay for 90 days in a year,
    > and if they come back, their chances of being sent back are
    > considerably big.
    >
    > I've been able to use to VWP for 7 1/2 months, and I don't consider
    > myself special nor overprivileged. I was only questioned once.....all
    > post 9/11.....
    >
    > Maybe I've just been lucky......

Let's put it this way ... you've been successful in presenting yourself
in a convincing and reasonable manner. I've known business people make
lots of short trips on the VWP without question. The hitch is that
you've made some long trips too. (The full 90 days being considered
long)

    > So, let's say that I do get rejected and I get sent back.....will it be
    > difficult for me to get a marriage visa here or a student visa
    > immediately following since I was denied entry through the WWP ??

If you are rejected and sent back, you can no longer use the VWP, you
must apply for a B1/2 visa if you want to come back to the US as a
visitor for pleasure or for business.

It will result in additional questioning on ANY visa you apply for on
the grounds of confirming that you will not violate any of the terms of
the visa. It really is a guilty until proven innocent system. Not only
do you have to prove it to consular visa officers, you may also have to
prove it again to the INS on your arrival ... visas do not guarantee
admission!

Stuart

Riri

Furthermore it's without appeal.
If an officer "think" you are staying too much in the USA and "think" it
as some sort of residence/domicile/work you have no appeal.
Try to read him all the rules and laws from the big book
and tell him that nowhere it is written that
"there is NO limit into how many times one can
travel on a Visa Waiver to the US" .
What I am saying is that it is up to the INS Officer -period-.
I think you were lucky as sometimes just saying the word
"girlfriend/boyfriend"
could be enough for him to send you back.
A friend of mine was questioned just because she had a look-alike engagement
ring on her finger.
That could be enough for the Officer to demonstrate her intent...

It is kinda like the "without reasonable doubt" gray area in the judicial
court:
a concept that the European (like me) do not have!

R
"Stuart Brook" wrote in
message news:[email protected]...
    > Joachim Feise wrote:
    > >
    > > That doesn't matter. Who declares that your stay is good for the US
    > > anyway? You?
    > > All that matters is what the INS officer at the port of entry thinks.
    > > They have the discretion to send you back.
    > Beyond that ... they have not only the discretion to send you back, they
    > have the duty to send you back unless you can convince them that you
    > will not be staying in the US.
    > Stuart

Ingo Pakleppa

On Thu, 20 Feb 2003 23:04:15 +0000, RiRi wrote:

    > Furthermore it's without appeal.
    > If an officer "think" you are staying too much in the USA and "think" it
    > as some sort of residence/domicile/work you have no appeal.
    > Try to read him all the rules and laws from the big book
    > and tell him that nowhere it is written that
    > "there is NO limit into how many times one can
    > travel on a Visa Waiver to the US" .
    > What I am saying is that it is up to the INS Officer -period-.
    > I think you were lucky as sometimes just saying the word
    > "girlfriend/boyfriend"
    > could be enough for him to send you back.
    > A friend of mine was questioned just because she had a look-alike engagement
    > ring on her finger.
    > That could be enough for the Officer to demonstrate her intent...
    >
    > It is kinda like the "without reasonable doubt" gray area in the judicial
    > court:
    > a concept that the European (like me) do not have!

Of course Europeans have that. That's why we need courts and judges in the
first place.

What is different about immigration law from criminal law is that there is
no presumption of innocence. But that, too, is true on both sides of the
Atlantic.

Stuart Brook

Ingo Pakleppa wrote:

quoting a european ...
    > > It is kinda like the "without reasonable doubt" gray area in the judicial
    > > court:
    > > a concept that the European (like me) do not have!
    >
    > Of course Europeans have that. That's why we need courts and judges in the
    > first place.
    >
    > What is different about immigration law from criminal law is that there is
    > no presumption of innocence. But that, too, is true on both sides of the
    > Atlantic.

I think what he's driving at here Ingo is that in some parts of Europe,
they do not use common law - all law is codified (the so-called
Napoleonic code which is also used in Quebec and Louisiana) therefore a
lot of interpretive law is not required.