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Ask Guillermo Senmartin Your Own Question
Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 112036
Experience:  Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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we have holiday home in florida and visit twice a year on the

visa waver programme, homeland security... Show More
visa waver programme, homeland security said last October we should get a 6 month visa from us embassy in London, is this correct as we have no intention of staying more than 89 days each visit.
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Hello and thank you for using our service. My name isXXXXX and I am a licensed attorney and will try my best to help you. Believe me that I will try my best to give you a solution if one exists, but sometimes the law does not have a good one. Also, we have been having technical issues lately. If you respond and you do not see your response, please post again until you can see it because if you cannot see it, I cannot see it to respond.

How often do you plan to come to the U.S. each year?
Customer reply replied 4 years ago.

Thanks for replying. We usually go to US twice a year for 89 days, Oct/Nov then around May/June. Homeland security were not very happy with us last trip said we were using the VWP too often!! Suggested we go for a 6 month visa but we do not want to visit for 6months at a time, all we want is to avoid the winter here and the really hot season in Florida, is there any reason why we cannot use the VWP twice a year? We bought a holiday home Paid cash, in Nov 2010 and have used it twice a year since then. Talked to British in FL and they have never had problems like this, and they usually only visit for a couple of months at a time during a year. We are both retired and are self supporting and in good health, got medical insurances to cover us in the US, we pay the taxes on the house and car we have over there and have an account with Bank of America. We do not want to be a drain on the country.




Customer reply replied 4 years ago.

Not sure if my e mail got through, I'm not good with computers!! We bought a holiday home in FL Nov 2010 and go twice a year, mch/Apl and Oct/Nov times for 89 days each visit on the visa waver programme. We went at end Oct last year and Homeland officer said we were using the VWP too often!! Suggested we got to US embassy for 6 month visa and use that. Don't want to visit just once a year, other British in Florida go several times and stay for approx. 2 months each visit so they say. We are both retired, self supporting, paid cash for the house, bought car and pay all the taxes, got medical insurance etc. and generally keep ourselves to ourselves! Cannot see what the problem is.

It got through. But because of the time difference, I had retired for the evening when it came in and have not been able to get to it until now which is morning for me. Sorry about the delay.

Luckily, you can continue to use the Visa Waiver if that is the amount of time that you will stay in the U.S. A B-2 would just give you more flexibility but you can still run into the same problem. Let me see if I can explain. You see, no one that is not a U.S. Citizen has a "right" to enter the U.S. This means that even the U.S. Lawful Permanent Resident spouse of a U.S. Citizen doesn't have a right to enter. It is 100% at the discretion of the officer at the Port of Entry. For some reason, this officer that you got believed that perhaps you were using the Visa Waiver too often as maybe that was your 2nd trip in a 12 month period and he may have been scared that you would use it a 3rd time to then have more than 180 days inside of the U.S. in a 12 month period. It's still a problem in that regard even if you had a B-2 tourist visa. You could come in 6 months, then leave for a few months and come back for another 6 months. Not that you intend to do that, but you see what I mean? The idea is to spend more time outside of the U.S. than inside. You are doing that, BARELY, and that's what worried the officer. That the barely could turn the other way very easily. Still, a B-2 wouldn't solve that anyway. With a B-2 or Visa Waiver, regardless, if it appears to the CBP Officer that when you apply for entry you are spending more time over-all in the U.S. than outside, it will be up to you to prove to the officer that you are not de-facto U.S. residents. One of the ways to do this is demonstrate significant ties to your home country, including proof of employment, residency, etc.

It actually hurts you that you own a house in the U.S. It shows that you are planting roots in the U.S. and they don't like that, but here is an official document that you can review what you would need to prove non-immigrant intent:

Now remember, that list is for things that you have outside of the U.S. at home, not inside of the U.S. So the more of those things you have, the better it is. I don't think there is a need to apply for a B-2 visa. Use your ESTA Visa Waiver, but carry with you evidence as found on that list to prove you will be going back home. It also would be better if you wouldn't cut it so close. So instead of 89 days and 89 days which add up to almost half a year, maybe 60 days and 60 days or something like that.

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Customer reply replied 4 years ago.

Hi Thanks again, you have told me what I need to know. We have decided not to go back again till end of this year, complete with proof of residency in uk

You are very welcome! Thank you for the excellent rating. If you would like to request me in the future, please remember to put my name in the subject box. Good luck to you!