Visiting the US This Winter? Let’s Review the Rules—Part 1

It’s that time of year again: time to review the rules that govern how long you can stay out of the country without risking loss of your provincial health insurance benefits, how long you may stay in the US as a visitor, and if there are any changes in the rules you need to pay particular attention to.

And this year, we’re going to do our review in two parts—the second dealing with new and vital information you need to know about Canada’s cannabis laws (for recreational or prescribed medical use) before leaving the country or approaching any other international border. You don’t need to be a marijuana user to be affected by these laws—so stay tuned.


But first: the rules for visiting the US—Canada’s favourite vacation location

There are no major changes in the B2 (non-immigrant tourist) visa rules for Canadian citizens wishing to visit the United States. If you have a valid Canadian passport, you haven’t broken any of the rules in the past, and you satisfy the US Customs and Border Protection (CBP) agent that you intend to play by the rules while in the country, you can remain in the US for up to a total of six months in any consecutive 12-month period. That can be in one single 180-day stretch, or an aggregation of several shorter stays. And remember that these days are not calculated over a calendar year (i.e., January to December) but over any consecutive 12-month period. You can’t stay 180 days, leave the country on December 31, and return a few days later for another 180 days. It doesn’t work that way.

Also, understand that there is no single rule as to what “six months” means, as US immigration laws have been cobbled together from many different pieces of legislation—some referring to “six months,” others to “180 days,” still others to “182 days.” Generally, six months means what the border control agent says it means and what is stamped into your passport. I suggest you stay to the basic 180-day maximum just to keep your travel plans consistent. This also means that in case of an emergency, you can have an extra day or two to make your way back home.


Be courteous; don’t argue

Rule #1, above all others: Whatever the agent says is how long you are allowed to be in the country. Don’t argue. Don’t explain your “point of view.”

Rule #2: Stick to the dates you are given. Don’t overstay—you will be found out now that Canadian and US border agencies share data. An exit from one country counts as an entry into the other.

When presenting yourself at the US border—whether by air, land, or water—be prepared to prove that Canada is where you have your home and where you reside for most of the year, that you have the resources to maintain yourself in the US for the time allotted to you, that you do not intend to work or otherwise do business while visiting, and that you have a place to stay at your destination.

And if, while you are within the US, you decide to take a side trip to another country—say a visit to Mexico, or the Caribbean, or you take a cruise, or even return to Canada for short visit over Christmas—and your side trip is shorter than 30 days, it will count as part of the stay you were allotted in the US by the CBP agent.


Taxes and how to avoid them—legally

A frequent question among Canadian snowbirds who normally spend long periods of up to 180 days in the US each year is whether they are considered taxable in the eyes of the US Internal Revenue Service (IRS). The short answer is probably “yes”—but that has nothing to do with the 180-day B2 visa time allotment. You can be taxable even if you stay fewer than 180 days—but don’t panic. There is a perfectly legal remedy.

The rule is that as a non-US citizen, you are considered a nonresident alien for tax purposes if you meet the substantial presence test for any given calendar year (January 1 to December 31). There is a certain formula you follow to see if you are taxable, which can be found on the IRS website.

But here’s the good part: If you can prove a Closer Connection to Canada (by completing an 8840 form, available for free download from the IRS website) you won’t have to pay any taxes to Uncle Sam.

You may occasionally see reports in the Canadian media stating that if you’re willing to pay taxes you can stay in the US longer than 180 days per year. No. Unless you have a green card, that is simply not true. The substantial presence test has nothing to do with the 180 days per 12 months you are allotted under the B2 (visitor) visa.

Incidentally, the B2 is a virtual visa; it’s simply a category and there’s no paper that goes with it, though it may be stamped into your passport.


Protect your provincial health benefits

One very important point that has nothing to do with US rules: how long can you stay out of your home province without losing your provincial health benefits? Though the US allows you to stay as a visitor for up to six months, your province’s health care system likely requires you to be physically present at home for a minimum of five months per year in order to be eligible. The only exceptions are Quebec and Prince Edward Island, which require six months plus a day of residency, and Newfoundland and Labrador, which lets you get away with as little as four months.

Some provinces work on a calendar-year basis, some on a 12-month basis. Call your Health Ministry for those rules in your own province.

And stay tuned for our next article—the cannabis conundrum and you.


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