More on the Wretched 30-Day US Cross-Border Rule

Of all questions that come across my desk from confused readers, the one most difficult to explain, or justify, concerns the US immigration rule that requires vacationing Canadians to count side trips of 30 days or less, be they back home or to Mexico, as part of their allotted 180-day stay in the US.

If those trips are over 30 days, they are not added to the 180-day tally, and the return to the US is counted as a separate trip.

This becomes more confusing if our Canadian visitors  become entangled in the seemingly contradictory rules governing the B2 visa (which allows most Canadians to stay in the US for up to 180 days per 12 months), and their obligation to file IRS forms (8840) if they spend large chunks of time in the US each year. Different purposes. Different rules.

 

Let’s sort it out—The easiest first

Under the terms of the B2 visa (which these days is a virtual item, a classification rather than an actual piece of paper), Canadians are generally allowed to visit the US for up to six months (180 days) over any consecutive 12-month period—known as a “rolling” 12 months—NOT a calendar year, as many believe.

These 180 days can be expended in one long period, or in an accumulation of shorter trips over the course of any given 12 months.

Each time you cross the border into the US you do so on an I-94 form—which is no longer a form, as you no longer get a piece of paper attesting your crossing into the US. Instead, your crossing is tallied electronically (mostly via your passport) and recorded on your own file held by the US border control agency. So keeping track now is easy—just ask your computer.

One of our readers recently insisted I show him the proof of this 30-day inanity. Here it is (pardon the language, I didn’t write it):

“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-94/1-94W, so that when you resume your visit to the United States you are readmitted for the balance of the time remaining on your I-94/1-94W.” (US Immigration form instructions I-94, emphasis added)

The “balance of time” refers to the time allotted to you by the US border control agent when he asks how long you will be staying in the US and when you plan to return. That border agent has a lot of discretion and doesn’t have to grant you 180 days if he or she is wary of your status as just a tourist or visitor. So if you say you will return to Canada by such and such a date, you better stick to it. And if at the last minute you just add those 15 days you spent back in Canada for Christmas to the back end of the deadline you gave to the border agent, that’s a no-no. You must still return when you said you would return.

Now we’ll complicate this a little further thanks to the reader, already mentioned, who insists that when counting the days allotted for visits in the US it is clearly specified in the 8840 form (filed with the IRS to prove you are not taxable in the US) that only days actually spent in the US are counted.

 

The 8840—Different rules and purpose

And he is correct—when counting days for the 8840 Closer Connection form, which, according to an arcane formula, tallies all days you have spent in the US over the present year and the previous three to determine if you are taxable in the eyes of the IRS. Generally, if you routinely spend from four to six months in the US each year you will technically be US taxable. But completing the Closer Connection form, which asks questions about your Canadian status (is Canada your tax home, do you have a residence, are you licensed to drive a car, do you have a business, a family, etc., in Canada) frees you from the obligation to pay taxes in the US. If, of course, you have investments or business interests by which you earn money in the US, that’s a different story, but let’s not get even more complicated.

So, though the 8840 closer connection form tallies all days you actually are physically present in the US, that is separate and distinct from the B2 method of tallying days. Two different sets of regulations, purposes, and methods. Oh yes, the 8840 tally also is done on a calendar-year basis—January 1 through December 31 of any given year—whereas the B2 tally is done on a rolling 12-month basis.

So there it is—until the next time a reader asks: “So what’s this nonsense about a 30-day rule?”

 

Heading across the border? Don’t forget your travel insurance.

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