December 2012 Archives

December 13, 2012
Posted by Michael Brooks

I'm a Canadian Snowbird in Palm Springs (or anywhere in the United States), How Long can I Stay in the United States Each Year? Finally, a Clear Answer...Sort of....

On December 8th and 9th, Sanger and Manes and yours truly (Attorney Michael Brooks) spent a terrific weekend as sponsors at the CanadaFest at the Palm Springs Convention Center. I was amazed at how many Canadians came up and kept asking me the same question: "how many days a year can I stay in the US?" And frequently they would follow up with this supplement:"I heard if I leave the US and then return to the US in less than 30 days (like so many Canadians are doing right now as they go back to Canada for Christmas, but will soon come right back to the US in early January), then the days that I'm out of the US count in my six month computation, is that true?" Boy oh boy I thought, what is the Canadian rumor mill up to now? This is complete nonsense.

But was I right?

I Assumed They Were Asking About How Many Days a Canadian Could Stay in the US Under the US the Tax Law

Everyone (I hope) knows that a Canadian can stay in the US up to 182 days in a calendar year without being deemed a US resident for tax purposes. And if they're here in the US between 4 to 6 months on average in a calendar year over 3 or more years, they should fill out an IRS Form 8840 (a Closer Connection Form) annually. The Form 8840 states, although you spend a lot of time in the US (but not exceeding 182 days in a calendar year), your real tax home remains Canada. Your primary residence is there, your drivers' license was issued up there, most of your significant contacts are up there,etc. So please, United States, do not consider me a US resident for tax purposes, don't tax me in the US on my worldwide income, and don't subject me to the multiple US tax filings I don't want to complete. And, if filed properly, the US will not consider you a US tax resident. It's that simple. Finally, when you are counting days spent in the US for the purposes of determining whether you are US tax resident (and whether you have exceeded the magic threshold of 182 days in a calendar year), you only count days actually spent on US soil (even if it's only an hour for a particular day). If you leave for a three week trip to Mexico, or back to Canada, those days do not count as days spent on US soil for the purposes of determining whether you are a US tax resident.

But Upon Reflection, What They Were Really Asking About Was The Immigration Law

In retrospect, I'm pretty sure most CanadaFest visitors were asking me about the six month stay rules under the US immigration law. Under US immigration law, Canadian visitors can stay in the US for up to six months. Now, officially, they could actually stay in the US for a six month period, say from Jan 1 to June 30, go back to Canada for a little while, and then perhaps in October (or earlier) come back and start a new six month period. As far as I know, there is no actual law which prohibits Canadians from "stacking" six month stay after six month stay (provided there is a little respite in between). Of course, that would mean you're in the US around 9 months that year so you'd be a US tax resident (taxed in the US on your worldwide income), but "stacking six month stays" doesn't appear to be strictly against the immigration laws. However, in practicality, it will not work.

Three Important Rules to Remember on the Immigration Issue:

1) The US Border Agents are given a lot of discretion to enforce US law. They can deny you entry because they don't like your hat. For better or (more likely) for worse, we must follow their instructions, even when they don't appear to have a clear legal foundation.

2) As we understand it, and although it's not clear under the US immigration law at all, US Border Agents are basically counting six periods starting with the time your first enter (e.g., you come in October when the weather turns cold up north, the clock starts. You may now spend up to six months in US between the time you come in, and next October when you start again. If your six month period ends the following April, apparently the US border agents are unlikely to allow you re-entry until the next October...although again, every Border Agent may differ on this point in how they enforce it.).

3) Finally, the leaving the US for under 30 days rumor. Apparently, it is true!!!. The origin of the 30 day rule comes from the Instructions to the US Immigration Form I-94:

"In general, if you have been admitted to the United States under most visa classifications if you take a short trip (30 days or less) to Canada or Mexico, you may retain your I-94/I-94W, so that when you resume your visit to the United States you are readmitted for the balance of the time remaining on your I-94/I-94W."

So the rumor, at least as its being enforced currently by (many) US Border Agents, appears to be true. If you're here for a six month stay (as you're allowed), and you go back to Canada for the holidays (for less than 30 days), or down to Mexico for a couple weeks, that brief visit out of the country after you've started your 6 month period will count in your 6 month US allowable period. So again, apparently as its being enforced currently, you enter Oct 1 of this year, you're going to have to probably leave the US by March 30th of next year, even though you spent 3 weeks back in Canada over Christmas (i.e., you cannot add those 3 weeks back in Canada for Christmans and stay in the US until say April 21 of next year...no, you still should leave my March 30).

Call me in my office if you have questions: (760) 320-7421