How long can I stay in the U.S.? This is a common question asked by nonimmigrant visitors to the United States and particularly by those who visit from so-called visa exempt countries. The question is of particular concern for Canadians, as well as for visitors from Europe and from countries like Australia, New Zealand, Japan and South Korea. The reason is that it touches on U.S. tax law as well as on the question of whether a visitor in the U.S. can change his or her status from visitor to another status, such as an L-1 inter-corporate transferee, or an E-2 status enabling the person to work in the U.S. Similarly, such visitors may also be looking to adjust their status from visitor to that of permanent residence, such as would be the case if they married a U.S. citizen spouse and wanted to be sponsored for permanent residence. There is also the question of whether they made a bona fide entrance into the U.S. when they said they were only coming in for a visit but later disclose there was permanent residence intent at the time of entry.
Special Rules Apply To Canadians
For Canadians, one of the issues that often arises is whether the visitor has already spent more than 183 days in a year in the USA. U.S. Customs and Border Protection (USCBP) officers have been enforcing what Ira Kurzban, the Dean of American immigration attorneys and author of the authoritative book Kurzban’s Immigration Law Sources, diplomatically calls an “unwritten rule” that visitors may not spend more than 183 days in any year in the USA. Written or not, the USCBP custom at the U.S.-Canada border is to prevent visitors from entering in most cases when it is determined that the visitor has already accumulated 183 days of U.S. physical presence in the last year.
The rationale for the rule comes from the way USCBP officers assess visitors coming to the U.S. As a general rule, such officers consider the following elements in making a decision about allowing a visitor to enter the U.S. Firstly, is the applicant a security threat? Secondly, is the applicant a criminal? Thirdly, is the applicant working illegally in the U.S.? Finally, is the applicant really living in the United States permanently but only saying he is visiting? A convenient way of implementing the policy considerations raised by such thinking is to prohibit visitors from entering the U.S. for more than 183 years in any year. After all, how many people can live without earning income for six months or more?
The rule has other implications as well. If a visitor is in the U.S. for more than 183 days in any year, they are likely to be taxable by the I.R.S. since they will probably be considered a tax resident. Also, there is the danger that a Canadian may lose health coverage back home if he or she is away for more than six months in a year.
Restricted Stay In The USA For Visa Waiver Travellers
Returning to the matter of changing status inside the U.S., Canadian visitors enjoy an advantage in this regard. Visa waiver travellers to the USA from other countries, such as from Europe, are expressly prohibited from staying beyond their period of 90 days in the U.S. While they may be able to negotiate a further 30 day stay, there is no way they can stay longer, nor can they change or adjust their status inside the U.S. from B-1/B-2 visa status (B-1 business visitor, B-2 tourist) to some other one. Their only remedy is departure from the U.S. and reapplying from outside for such a change.
This can have significant implications during this period when Covid-19 has forced U.S. consulates worldwide to slow down or even stop processing of applications. Non-Canadians are forced to leave the U.S. if they want to change their status and thus significantly delayed since getting an appointment at a consulate could involve many months of delay. Canadians, however, are not subject to the same rules and thus have a significant advantage in being able to stay in the U.S. while their status is extended, changed or adjusted, since the decision is made internally by the U.S. Citizenship and Immigration Service and not by a consulate.
To summarize, visitors to the USA are subject to several rules that restrict how long they can stay and when they must leave. Visitors who are not visa exempt and therefore must obtain a B-1/B-2 visa from a U.S. consulate overseas usually are allowed to enter the U.S. for six months. They have an advantage in this regard as they can apply to extend their period of authorized stay and can apply to change or adjust their status inside the USA. The disadvantage is however, that their initial entry is not facilitated unlike visa exempt visitors. As for visa exempt visitors, while they can enter without a visa, usually they can only stay for a maximum period of 90 days. Normally they cannot extend, change or adjust their status inside the USA—they have to do that outside the USA. Canadians can also enter the U.S. without a visa from a consulate, but they enjoy the added advantage that they can apply to extend, change or adjust their status inside the USA. However, in their case, they are limited at the border to a maximum 183 days per year of physical presence in the USA. All travellers must be careful with U.S. stays beyond 183 days since that can trigger U.S. taxes and could impair health care coverage back home.
Hopefully this summary will be of benefit to visitors coming to the USA in the days ahead.