How Many Days can Canadians Visit the USA

The amount time a Canadian national citizen can stay in the USA is six months in any twelve-month period.  There is still much confusion on a few of the technical issues on how the six months is actually counted.  The U.S. Customs and Border Protection (CBP) service is responsible for enforcing these regulations, which operates under the department of Homeland Security.  It should noted that this organization has had a significant amount of hiring in the past five years and although they have endeavored to have consistency in application of the regulations there have been inconsistencies.  The rules are pretty dammed hard to figure out but an accepted views by most is the six-month rule.   A Layman's View of the Players and process

  • Canadians enjoy special privileges in entering the USA for business and pleasure in terms of documentation and process.  These privileges where developed to enhance trade, commerce and accessibility under the North America Free Trade Agreement (NAFTA)
  • The terms of this agreement are enforceable by law through the Federal Regulations Act (FRA), such laws and major legislation are enacted by the United States Congress
  • The enforcement of the Federal Regulations falls on different government agencies and in the case of the sections of the FRA that governs the regulations on Canadian visitation to the USA this eventually falls to U.S. Custom and Border Protection Agency, a Department of Homeland Security

  A Few Key Regulations: The key section of the FRA that governs documentary requirements for nonimmigrant's to enter the USA is Section 212.1 (a).  

  • Canadian citizens: A visa is generally not required for Canadian citizens, except those Canadians that fall under nonimmigrant visa categories E, K, S, or V as provided in paragraphs (h), (l), and (m) of this section and 22 CFR 41.2 . A valid unexpired passport is required for Canadian citizens arriving in the United States, except when meeting one of the following requirements: (Revised effective 6/1/09; 73 FR 18384 ) (Paragraph (a) revised effective 3/17/03; 68 FR 5190 )
  • The general thinking here is that there is no formal visa process requirement for Canadians, you just need a valid passport, nexus card etc.  However it seems to be implied that Canadians enter on the terms of a B-2 visitor visa and hence the six month rule.  This gets covered off under Section 214.2 (b).  Although not consistent, I do have B2 stamps on my passport
  • CBP personnel refer to CBP Inspectors Manual for guidance on how to enforce the regulations.  Sections 15.3, 4 and 5 provide guidance around admitting aliens to the USA.  

A Few Issues

  • There is general agreement that the six-month period is the intent of all the regulations.  There is debate as to when the six-month period starts.  Many believe it is calculated by calendar year, others believe the counter starts when you first enter the USA after being out of the USA for more time than you have been in.  
  • I can't find any evidence the clock is based on calendar year
  • Evidence suggests that the clock starts when one first enters the USA after an extended stay outside of the country, at least 30 days.  
  • Different CBP personal will calculate six-months differently, it can be 180 -183 days.
  • The area as to whether short trips outside of the USA, less than thirty days, count or don't count as part of your six-months is confusing.  The regulations are clear if you are a holder of a B-2 Visa and have an I-94 Form (exit departure form) that these short trips do count as part of your six months, you don't get to add these days back.  Canadians however are not issued a B-2 visa, nor have to fill out the I-94 form, so they fall through the cracks. If the intent is to treat Canadians because they are NAFTA members, similar to a B-2 visa holder but not have them go through the process of getting the visa and forms, then the same rules could apply.

It appears to be about intent

I think Americans want to have Canadians and other visitors spending time and money in their country.  What they don't like are individuals who come in as visitors and stay or try to immigrate.  Of course the Customs and Border Security personnel can't determine intent in all cases so duration of stay is a good indicator for them.  It's kind of like leaving your dirty laundry on the floor too long, after a while it starts to smell funny.  Because visitors to the USA  from other countries are issued a B2 visa and are limited to six months, CBF generally uses this as a rule of thumb for Canadians.   You definitely don't want to start to smell funny to them. 

One good resource to follow on this issue

There is a really good site The Travel Insurance FIle,  Milan Korcok is the  editor and one very Knowledgable guy on travel insurance and issues on extended travel in general.  I encourage you to visit his site.  Here are experts from two recent entries on his blog:

 

Jeff
 June 22, 2011 • 3:26 pm

I just got off the phone with Caitlyn from US Customs and Border Protection (was on hold for 38 minutes). She said that to be on the safe side, Canadians should stay no longer than 180 days in the U.S. in any given year. I asked about a rolling year or calendar year and she said that was totally at the discretion of the Border Patrol Officer. Some use a calendar year and some use October to October for example. She made it VERY clear that the specific agent you get is the boss and whatever formula he uses is the right one, so don’t go over 180 days. She said she has heard of Canadians being denied access for up to 5 years as a result of going over our allotted time.
Hope this helps… Milan has already answered the question 62 different ways, so my 2 cents are pretty redundant.

 

 

Milan
 June 23, 2011 • 12:11 pm

Jeff:
Very good advice. The agents think in terms of months, not days, and you say six months–most people think in terms of 180 days. But it is also true that border agents apply their own standards, because the legislative language that established these rules allows such leeway, and it referred to months, and not days.

You can see the whole Blog at "How Long Can A Canadian Snowbird Stay Out of the Country"

Comments

 
 
These two bills, likely only one will pass if one passes at all, propose to allow certain Canadians to visit up to eight months rather than the current six.    It seems that getting two overlapping bills in the U.S. political process provides for a higher probability of getting reasonable legislation through the political process.  The bills propose that Canadians 50 or 55 years of age and older, who maintain a home in Canada, and either own a home in the U.S. or sign a rental agreement for the duration of their stay will be eligible for the special visa.   
 
These bill(s) have not been passed and as of the date of this post, and may not pass so don’t go telling the Border Security Officer that your working off of 8 months or 240 days.  Even if one of these bills passes it may not be worthwhile to exercise your 240 days. A few things to consider; the tax legislation has not kept pace as of yet, if you spend more than 182 days in the U.S. your are no longer eligible to claim the “Closer Connection Exception” and will be considered a U.S. resident for tax purposes and have to deal with U.S. taxes.  At the very least you are going to have to deal with all non-trivial reporting requirements.  Oh, and what about potential U.S. estate taxes, maybe. There is also the issue of compromising your Canadian Tax status, perhaps trigger Canada’s departure tax.  Lastly you may compromise access to your Canadian health care coverage a problem in itself and compounded by the fact this coverage is usually required to purchase additional travel insurance for Canadians. 
 
Lots to consider, definitely seek help from a tax expert if one of these bills comes into law and you want to take advantage of the extended number of days.