“How long do I have to stay outside the US before I can return as a visitor?”

contributed by Brad Flecke, CFP® (US)

In this month’s guest contribution, Senior Staff Planner Brad Flecke, CFP® answers a question we are often asked at KeatsConnelly: “How long do I have to stay outside the US before I can return as a visitor?”

CalendarThe technically correct and completely useless answer is: “It depends.” Practically speaking, 98% of Canadians can spend autumn in the Sun Belt, celebrate the holidays in Canada, and then return to the Sun Belt–and can plan on doing this every year. A basic understanding of the US admission rules and proper use of a Border Kit (as described by +Robert Keats in +The Border Guide 10th Edition) will better ensure smooth sailing.

Admitted for 180 days – Canadians admitted in “Visitor for Pleasure” or B-2 status without a B-2 visa in hand are deemed to be admitted for 180 days under current US Customs and Border Protection (CBP) interpretation of the rules. Canadians who routinely summer in Canada (from April-ish through October-ish) should not be concerned about counting days. No one at CBP is counting days that closely, so you should not either.

Another 180 days and another – Canadians can get into trouble if they routinely spend substantially more than 180/365 days in the US (e.g., 240 days). Typically these Canadians will leave the US for a few days or weeks and then return as visitors, thinking that they have “reset the counter” to 180 days. Not so.  Increasingly, CBP is electing to limit the stay of these visitors.

Notice that the visitor immigration rules involve the number of days in a rolling 365 day period.

The Calendar – Now let us shift focus for a moment… The January-December calendar year IS important to visitors but for reasons unrelated to the immigration rules. The calendar is used to determine whether visitors trigger TAX residency by spending too much time in the US. To avoid running afoul of the IRS Substantial Presence Test, a Canadian snowbird would need to spend on average a maximum of 120 days annually in the US.

That’s right! CBP is admitting visitors for 180 days and IRS is drawing the line at about 120 days annually. CBP and IRS don’t talk much, do they?

Fortunately, Canadian visitors typically can ignore the IRS Substantial Presence Test and the 120 day annual limitation if they EITHER:

  1. spend less than 183 days physically present in the US each calendar year and annually file IRS form 8840, the “Closer Connection”form; OR
  2. spend 183 days or more in the US and file a US tax return but take a treaty position on the return (i.e., assert a closer connection to Canada).

The Bottom Line

Canadians visiting the US routinely from April through October, with a good Border Kit in hand and filing an 8840 annually, should have very few issues at the port-of entry.

Canadians who occasionally stay well beyond 180/365 days may also avoid problems with a Border Kit and a competent cross-border tax professional to file a US tax return and make the appropriate treaty election.

Canadians who routinely spend more than 180/365 days in the US will run afoul of CBP sooner or later and have their US visits strictly limited. These individuals should explore other US immigration options. As always, when exploring immigration options with an immigration attorney, consult with a cross-border planner who can assess the tax and other financial implications of your immigration options.

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