How Long Can I Legally Stay in the U.S.?

With the Canadian and U.S. governments intensifying their cross-border data collection systems, it is more important than ever for Canadians who spend substantial leisure time in the U.S. to know the rules about how long they can stay, how they can avoid paying taxes to America’s IRS, and how they can hold on to their domestic health insurance coverage.

Let’s review them.

Residents of Canada are allowed to stay in the U.S. for up to six months in any consecutive 12-month period on their virtual B2 visa.

Explanation: The B2 visa is the immigration category covering leisure visits, tourism, and non-business travel. It is not a specific piece of paper. Because the limitation was devised over time by various differing pieces of legislation and is applied for different purposes, there is no exact definition of “six months.” Some border agents consider it to mean 182 days, others 180 days, still others actual six months (e.g., January 15 to July 15). To stay on the safe side, I recommend you go by the 180-day marker. Also, that six-month allotment can be in one continuous stay or an accumulation of several shorter stays within the previous 12 months. These totals are not calculated in a calendar year basis, but rather on a rolling 12-month period.

 

What constitutes a day?

Any part of a day during which you are on U.S. soil counts as one day. Example: You cross over to Buffalo for dinner with friends on Friday evening and return after midnight (Saturday), you will have used up two days.

 

When does the IRS consider you taxable?

On this subject, there is considerable confusion because the rules for Aliens for Tax Purposes are different from the B2 visa rules. So keep them separate. Some snowbirds are under the impression that if they pay taxes to Uncle Sam they can stay longer than six months. But that is false. Unless you have a specific visa (student, investor, green card, etc.), you are not allowed to stay in the U.S. longer than six months out of 12, even if you’re willing to pay U.S. taxes

The IRS rule for considering you taxable is based on the so-called Substantial Presence Test and is calculated according to an averaging formula over three calendar years. I emphasize calendar years—not rolling 12-month periods as defined for the B2 visa.

The IRS publishes a specific formula for what constitutes Substantial Presence, and it generally boils down to an average of 120 days per year over the previous three years. The formula goes like this:

 

To meet this test, you must be physically present in the United States (U.S.) on at least:

  1. 31 days during the current year, and
  2. 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:
    • All the days you were present in the current year, and
    • 1/3 of the days you were present inthe first year before the current year, and
    • 1/6 of the days you were present in the second year before the current year.

After you calculate all that, you can take relief in knowing that you can still avoid those taxes by simply submitting a Closer Connection exemption statement (Form 8840), which establishes that you have a closer connection to Canada than to the U.S. each year. That exempts you from filing anything further with the IRS. There is an exception if you have actually earned money via investments or work done in the U.S., but for most snowbirds, it’s a get-out-jail-free card.

 

What about your provincial health care benefits?

Provincial health insurance benefits are premised on your being a true resident of your province, which means you must be physically present in your province for a specific number of days to qualify. That number used to be a minimum of 183 days (six months plus a day). However, over the past 20 years that requirement has been whittled down to allow residents to enjoy the southern sun a while longer. And now, with the exception of Prince Edward Island and Quebec (183 days), residents of all other provinces are required to be physically present at least 152 days a year (five months). Newfoundland and Labrador is even more generous, requiring only four months of physical residence.

Some provinces calculate that on a calendar year basis, others on a rolling 12-months basis). In upcoming issues, we’ll go into more detail on individual provincial rules.

 

Emphasis

Many snowbirds make the mistake of assuming that because they are allowed to stay out-of-province for seven months, they can spend that time in the U.S. That’s wrong. These are two different sets of rules.

The U.S. allows you six months (depending on the judgment of the U.S. border control agent), under the B2 visa rule. Your health care allowance is irrelevant to U.S. border control agents. But you can use the additional month to travel elsewhere—to other provinces, Europe, Asia, or wherever else you feel compelled to go.

So go ahead, enjoy. But keep your rules straight.

 

To purchase travel insurance for your upcoming trip, visit Ingle International.

10 Comments

  1. Wanted to check, when calcularing your days in the USA as a Canadian, for the purpose of needing to file the 8840 form, if you return to Canada for less than 30 days between trips to the USA, do those days in Canada count when calculating the days in the USA (I understand they count for counting the 182 days per year max, but is it the same for counting the days for the 8840 day calculation?)? Also, do the same rules apply for cruises out if the USA, if you spend time in the USA before or after, in terms of needing to count those days in international waters or other countries as days in USA for the 8840 calculation?

    • Ingle International Reply

      Hello Deborah,

      good question!

      If you are in the US for a prolonged period, every exit trip of less than 30 days (be it for a short trip home for Christmas or a cruise out of Florida) will be considered part of your six month allowance whether its for purposes of meeting your B2 visitor allowance or your 8840 Substantial Presence Test. That’s because your status as an alien for tax purposes will be based on the same passport entry/exist records. Only if you leave the US for 30 days or more will your return to the US be considered a second trip and would those days not be counted.

      However, if you travel directly from Canada to a US port and transit to your cruise ship without staying in the US overnight–either in or out, those days would not be counted as US stay-days for either your B2 visitor stint, or for your 8840 Substantial Presence test. They make allowance for foreigners transiting to ships.

      Maybe now that the two border authorities are setting up such precise entry-exit data sharing systems, you would think they might change that system so that only the actual days you really spent in the US would be tallied, but don’t hold your breath.

      We hope that clears up an otherwise unclear situation.

  2. HI THERE , WE ARE THINKING OF BUYING A HOME IN THE USA LIVING THERE FOR OUR 180 DAYS THEN RETURNING TO CANADA FOR THE 185 DAYS IS THERE AYTHING YOU KNOW OF THAT WE SHOULD LOOK INTO ?

    SORRY MY CAP LOCK IS STUCK .

    THANK YOU VALERIE

    • Ingle International Reply

      Hi Valerie,

      Your schedule sounds fine, but remember to file form 8840 with the IRS each year. That protects you from having to pay taxes to the US on the basis that you have a Closer Connection to Canada. For information on how that works, go to http://www.irs.gov. It’s free and it’s not difficult. It can save you a lot of headaches and double taxation. And don’t forget your travel insurance. Pay close attention to finding a plan that satisfies your specific individual needs and buy it early so you can examine it well and run it through your family physician to make sure you answer all questions accurately.

      Milan

  3. We live in Florida 182 days an then back to Ontario thinking of leasing a car in Florida Why or Why not is this a good idea

    • Ingle International Reply

      Jouni,

      This is an excellent idea, so long as you have good credit–which I assume is the case, and you don’t mind the cost. On semi annual leases you can get some good deals–just make sure you shop around as there can be great variations in price. Also, get some estimates from local as opposed to the giant national lease vendors. And don’t expect to drive the car back to Ontario for short periods as that can be problematic at the border-you being Canadians citizens and the car being a US citizen.

      Milan

  4. Hello,

    Following up on your response to Deborah’s question. We took a cruise that started in Sydney Australia, went to Hawaii visiting two port on back to back days and then sailed to Los Angeles over the next five days. Do the sea days between Hawaii and Los Angeles count as US days?

    • Ingle International Reply

      Yes, but if you stay on in LA or venture further into the US, they will all be US days.

  5. Sorry, another follow up to Deborah’s question.

    The counting of returns to Canada of less than 30 days has me wondering. I live close to the US border and have many friends who for various reasons visit the US almost on a weekly basis. Do the days add up such that they would be considered to be in the US for the entire year if they crossed the border every three weeks?

    • Ingle International Reply

      No. Only the days they actually set foot in the US would be counted.

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