How long can I stay in the United States? This is a frequently asked question by non-immigrant visitors to the United States and especially those coming from so-called visa-free countries. The issue is of particular concern to Canadians, as well as to visitors from Europe and countries such as Australia, New Zealand, Japan and South Korea. The reason is that it touches on US tax law as well as whether a visitor to the United States can change their visitor status to another status, such as an L-1 inter-company transfer, or an E-2 status allowing the person to work in the United States Similarly, these visitors may also seek to adjust their visitor status to that of permanent resident, as would be the case if they married a spouse who is a U.S. citizen and wished to be sponsored for a permanent stay. residence. There is also the question of whether they have made a authentic entering the United States when they said they were only coming for a visit, but later revealed there was an intention for permanent residence at the time of entry.
Special rules apply to Canadians
For Canadians, one of the questions that often arises is whether the visitor has ever spent more than 183 days per year in the United States. United States Customs and Border Protection (USCBP) officers applied what Ira Kurzban, the oldest American immigration attorney and author of the authoritative book Sources of Kurzban Immigration Law, diplomatically calls an “unwritten rule” that visitors cannot spend more than 183 days a year in the United States. Written or unwritten, USCBP custom at the Canada-U.S. Border is to bar visitors from entering in most cases when it is determined that the visitor has already accumulated 183 days of physical presence in the United States. over the past year.
The rationale for the rule comes from the way USCBP officers assess visitors coming to the United States. Second, is the applicant a criminal? Third, is the applicant working illegally in the United States? Finally, is the applicant actually resident in the United States permanently but merely declaring that he is visiting? A practical way to implement the political considerations raised by such thinking is to ban visitors from entering the United States for more than 183 years per year. After all, how many people can live without an income for six months or more?
The rule also has other implications. If a visitor stays in the United States for more than 183 days in a year, they are likely to be taxable by the IRS since they will likely be considered a tax resident. In addition, there is the risk that a Canadian will lose his health coverage in his country if he is absent for more than six months per year.
Restricted stay in the United States for visa-free travelers
Coming back to the issue of changing status within the United States, Canadian visitors have an advantage in this regard. Travelers with a visa waiver to the United States from other countries, such as Europe, are expressly prohibited from staying beyond their 90-day period in the United States. While they can negotiate an additional 30-day stay, under no circumstances can they stay longer. , they also cannot change or adjust their status within the United States from B-1 / B-2 visa status (B-1 business visitor, B-2 tourist) to another. Their only remedy is to leave the United States and reapply from outside for such a change.
This may have significant implications during this time when Covid-19 has forced U.S. consulates around the world to slow down or even stop processing applications. Non-Canadians are forced to leave the United States if they want to change status and are therefore significantly delayed, as getting a consulate appointment can be many months late. Canadians, however, are not subject to the same rules and therefore have a significant advantage in being able to stay in the United States while their status is extended, changed or adjusted, since the decision is made internally by the US Citizenship and Immigration Service. and not by a consulate.
In summary, visitors to the United States are subject to several rules that limit how long they stay and when they must leave. Visitors who are not visa exempt and therefore must obtain a B-1 / B-2 visa from a US consulate abroad are generally allowed to enter the United States for six months. They have an advantage in this regard as they can request an extension of their authorized length of stay and can request to change or adjust their status within the United States. The downside, however, is that their initial entry is not facilitated unlike visa-exempt visitors. As for visa-exempt visitors, although they can enter without a visa, they can usually only stay for a maximum period of 90 days. Normally, they cannot extend, change, or adjust their status inside the United States – they must do so outside of the United States. Canadians can also enter the United States without a consulate visa, but they have the added benefit of being able to apply to extend, change or adjust their status within the United States. However, in their case, they are limited at the border to a maximum of 183 days per year of physical presence in the USA. All travelers should be careful with stays in the United States beyond 183 days, as this can trigger U.S. taxes and affect health care coverage in their country.
Hopefully this summary will be helpful to visitors coming to the United States in the days to come.