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A Useful Guide for Canadians crossing the U.S. Border

U.S. VISA BASICS FOR CANADIANS

 

By Kathleen Lord-Black, U.S. Immigration Attorney

 

Canadians have special privileges under U.S. immigration law that allow them to stay in the U.S. for long periods of time without a visa, and that permit them to obtain visas allowing them to live and work in the U.S. through a more streamlined process.  This article will discuss certain immigration laws and policies that may impact Canadians who purchase U.S. vacation properties.

 

Canadians are “visa exempt.”  They can cross the border into the U.S. without a visa.  The U.S. Customs and Border Patrol (CBP) is the part of the U.S. Department of Homeland Security (DHS) that decides who may enter the U.S. at the borders.  Recently, Canadians have been required to have valid Canadian passports in their possession before crossing the border.  These passports should not have expiration dates of less than 6 months from the date of intended entry into the U.S.

 

It has long been the policy of CBP to allow Canadians to enter the U.S. for a period of stay not to exceed 6 months.  This allows Canadians to own property in the U.S. and spend the winter months in the U.S.  However, since Canadians are “visa exempt” (having no visa), they cannot extend or renew their stay in the U.S., because they have no visas to extend or renew.  Nor can they change to another type of visa (called “changing status”) because they have no visa to change.  They must return to Canada in order to obtain the necessary visas to work or stay longer than six months in the U.S.

 

It is especially important to remember that Canadians who are staying in the U.S. do not have authorization to work in the U.S.  The U.S. Immigration Service defines the word “work” broadly, extending it to include most volunteer activities and to rental income.  In general, Canadians who own vacation properties in the U.S. should first obtain U.S. work visas before renting their properties, as rental income has been interpreted as “work.”

 

TN (Trade NAFTA) and E-2 (Investment Visas) are the most common types of visas for Canadians.   For those Canadians who have a job offer from a U.S. employer, the TN visa is usually the best option.  With a skillfully prepared TN application packet, a Canadian worker can usually obtain a TN work visa on the spot at the border on his/her way to the U.S. to begin employment.  For those Canadians who would like to start a business in the U.S., purchase a franchise in the U.S., or purchase an existing business in the U.S., the E-2 visa is the best choice.  For those who live in Canada but do not have Canadian citizenship, other visas are available; but these are more restrictive, take longer, and have higher rates of denial than the TN or E-2 visas.

 

What is “unlawful presence”?   In 1996, Congress passed a law designed to punish non-US citizens who stay longer in the U.S. than authorized.  The punishment is that they cannot return to the U.S. for a period of time (3 or 10 years, depending on how long the person was illegally in the U.S.).  As a result, there are many non-US citizens living in the U.S. who cannot leave the country.  If they do leave the country (voluntarily or by deportation), they will not be allowed to return for 3 years or 10 years because the 3-year and 10-years bar do not apply unless and until the foreign national actually leaves the U.S. and tries to re-enter.   These individuals live in fear that Immigration will catch them and deport them.  They fear both deportation and being barred from returning to the U.S. after deportation.

 

Persons who have accumulated 180 days or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 3 years. Persons who have accumulated one year or more of unlawful presence after April 1, 1997, and have then left the country, cannot return to the U.S. for 10 years. Persons who illegally return to the U.S. without seeking a waiver (which is somewhat like a pardon) must wait outside the U.S. for a period of 10 years before they can apply for a waiver. The same rule applies to persons who illegally reenter the U.S. after being deported.

 

A person can accumulate unlawful presence by (1) entering the U.S. without inspection, (2) by overstaying the expiration date on his/her I-94 (or overstaying the 6 months allowed to visa exempt nationals such as Canadians), or (3) by violating status (e.g., working without work authorization) if he/she is notified by the U.S. government that he/she has done so.  For Canadians, who are allowed six months of legal stay in the U.S., unlawful presence begins to accrue after the initial six months have passed.   Therefore, if a Canadian spends more than 365 days in the US, a three-year bar from entering the US is triggered because the 3-year bar is triggered for unlawful presence from the 6th to the 12th month of the stay).  If a Canadian spends more than 18 months in the US, a 10-year bar is triggered (because the 10-year bar is triggered for unlawful presence of over 12 months). Again, a waiver (pardon) can do away with the 3-year and 10-year bars created by unlawful presence in the U.S.

 

Saying the right thing at the border is important.  Canadians should refer to their U.S. properties as “vacation properties” and not second homes.  If Canadian visitors referred to anyplace in the U.S. as a “home”, this will bring up questions of “immigrant intent” (i.e., intent to make the U.S. a permanent home).  Canadians who have been found to have immigrant intent have been subjected to “expedited removal,” as described below.

 

What is “expedited removal”?   Under the “expedited removal” process, an immigration officer at the border can issue an expedited order of removal against certain noncitizens who are applying to enter. This can be done immediately, while the person is at the border, and is completely at the discretion of the immigration officer if the officer believes that the person has made a false statement or does not have the proper immigration documents. The applicant is turned away and is also banished from coming back to the United States for five years. 

 

The process of expedited removal can happen without any check on whether the person understood the proceedings, had an interpreter, or was provided any other procedural safeguards. The expedited removal procedure is fraught with risk of arbitrary, mistaken, or discriminatory behavior.   Although expedited removal is supposed to apply only to cases of fraud or lack of documentation, some CBP officers will decide that an applicant (even with valid documentation) is really intending to make the U.S. his/her permanent home, and will then bar the person from entering the U.S. for five years.

 

Recently, the British Columbia Chamber of Commerce and the Bellingham Chamber of Commerce have targeted the U.S. expedited removal laws because of their chilling effect on cross-border trade and commerce. The organizations are working to change expedited removal through the courts and through Congress.  For instance, the organizations filed an Amicus Brief in a recent expedited removal case (Smith v. CBP,  9th Cir., Jan. 2014) that challenged CBP’s authority to issue expedited removal orders.  Ultimately, however, the appeals court decided that the 9th Circuit Court of Appeals, or any court for that matter, did not have jurisdiction to decide this issue because no judicial oversight was written into the 1996 statute.

 

Can Canadian visitors make money in the U.S.?  Yes.  However, the money must be paid to a Canadian source, and billing must come from Canada, among other restrictions.  Fortunately, there are sales and service rules for Canadians under NAFTA that are broader than the rules for regular business visitors to the U.S.

 

Can Canadians safely buy property in the U.S.?  Absolutely, Canadians without any criminal history or prior immigration violations (and sometimes even those who do) can safely purchase and use their U.S. vacation homes, as long as they avoid pitfalls such as those discussed above.  

 

About the author:  Kathleen Lord-Black is an immigration attorney whose offices are located in downtown Vancouver, British Columbia, and in Blaine, Washington.  She has served as an immigration consultant for the San Francisco Public Defenders Office, served as 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco as well as Congressional Liaison for the San Francisco Chapter of the American Immigration Lawyers Association.  She is currently a member of the Canadian Chapter of the American Immigration Lawyers Association, the Tri-Cities Chamber of Commerce in Coquitlam, and the American Civil Liberties Union.   Ms. Lord-Black can be reached via email at info@immigration-etats-unis.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada).