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June 21, 2022

Canadian Visitors: The Myth of the 180-Day Rule and Extending Visitor Status

“How long can a Canadian visitor stay in the United States? Aren’t I limited to six months? Will I have to pay taxes if I stay longer than that?” Attorneys on Barclay Damon’s Canada-US Cross-Border Team often hear these questions from clients, and while there is some truth to these sentiments, there are also popular misconceptions around the myth of the 180-day rule for Canadian visitors.

Canadian visitors are generally granted a six-month default period of stay in B-2 visitor status at the time of entry into the United States. They must confirm their intent to return to Canada within that six-month period. A US Customs and Border Protection (CBP) officer can restrict the length of admission requested or can deny admission altogether if the officer feels that the visitor is not entering for permissible visitor purposes. Visitors must be able to prove that they do not intend to stay in the United States permanently and that they have a “greater connection” to Canada than to the United States, as demonstrated by property holdings, financial ties, employment, and family remaining in Canada. If the visitor indicates intent to work in the United States without authorization, they will not be admitted. 

A visitor violates US immigration law if they do not depart the United States within the six-month default period. The visitor will become ineligible for other immigration law benefits, such as a change or extension of status, and is technically deportable. Longer periods of overstay and unlawful presence can lead to a ban on subsequent reentry for numerous years.

If a visitor is nearing the end of their permissible stay and does not want to or is unable to depart the United States for valid reasons, it is possible to request an extension of visitor status. This paper-based application must be filed with US Citizenship and Immigration Services (USCIS). Aside from the high degree of discretion adjudicating officers have, extension applications are approved or denied based on several factors, including the length of extension being requested, the reason for extension, and evidence provided to substantiate the request. 

Canadian visitors should keep in mind that spending too much time in the United States may result in them being considered US residents for tax purposes, requiring them to file a US income tax return and report all worldwide income, even if they do not earn income in the United States or through other activity that would require a US tax filing. Canadian visitors should also consider the impact their extended stay in the United States might have on their continued health insurance eligibility in Canada.

If you’re interested in learning more, please contact Jennifer Behm, immigration counsel, at jbehm@barclaydamon.com, or another member of Barclay Damon’s Canada-US Cross-Border Team.
 

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