BIRD TALK

I sit in dismay, having read your response re: subtracting time from six months. You say that a fewer-than-30-day return to Canada cannot be subtracted when calculating total days allowed in the U.S.

We have spent three to six months every year since 1994, always coming home for Xmas. Our time was not always the same. One might fly, the other drive.

We annually file Form 8840 (an Internal Revenue document) with the U.S. It deals in calendar year only. So if you left for Canada on Dec.15 and returned to the U.S. on Jan.10, the time spent in the U.S. up to Dec.15 was for that calendar year only. When you returned on Jan. 10, that began the calculation for that new calendar year. Form 8840 states, “Generally, you are treated as being present in the United States on any day that you are physically present in the country at any time during the day.” Nowhere in Form 8840 is there any possible interpretation of anything else.

Over the past 18 years of travel to the U.S., we have dealt with many insurance companies topping up our health insurance coverage, so Canadian health companies never asked about our coming and going.

All U.S. border and airport immigration people have never raised an eyebrow about crossing or re-crossing the border.

This is a very concerning issue. Would you please refer all of your readers to the written U.S. position on this issue. It is not an Internal Revenue issue (per Form 8840). Maybe it’s Immigration. But we need an official position – not hearsay.

Jim Dabbs
Calgary, AB

Response:
Ed: Wow, that’s a lot of questions, but let’s give it a try. You are correct, the Form 8840 is an Internal Revenue Service form and it has nothing to do with how long you can stay in the U.S. It has to do with whether you must pay taxes in the U.S. You file the form to help avoid having to pay U.S. tax.
The time that you spend in the U.S. is under the auspices of the Department of Homeland Security – U.S. Customs and Border Protection (CBP). To further compound the issues, you must refer to the Department of Justice, Immigration and Naturalization Service. The file numbers are “8 CFR Parts 214, 235 and 248” of the Immigration and Nationality Act. On reading these, you will find that there is no finality to your questions as the Act has left a great deal of the administration of the Act up to the Border Protection division. They issue guidelines to their agents, but their agents really can do anything they feel would be in the interests of the United States. This is a lot of power and a lot of leeway to give to these individuals, but that’s the way it is.

Below, I have printed the contents of a letter from their Executive Director, received in 2007, which outlines the maximum 181/2/3-day position for Canadians entering the U.S. This still holds true for today.

Now we can address your absences (from the U.S.) of fewer than 30 days, to come home for Christmas. We start at the verbal B-2 visa which you receive when you cross the border. The agent will state that it is OK for you to visit the U.S. for, say, 180 days. He has just verbally completed the Form I-94 mentioned above, which states that you must be out of the U.S. by that 180th day. You may wish to review file # 22 CFR 41.112. In the instructions for “Filling Out Arrival-Departure Record, CBP Form I-94 for Non-immigrant Visitors…” it states…

“In general, if you have been admitted to the United States under most visa applications, if you take a short trip (30 days or fewer) to Canada or Mexico, you may retain your I-94/I-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/I-94w.”

You can Google this or go to the CBP.gov site for more details. We have been advised by CBP that this is the method which border agents are using to assess short departures from the U.S. and that there has also been an increase in the number of times questions are asked about your previous trips, when crossing the border.

The verbal form I-94 specified a specific departure date 180 days following your entry date. You may actually be leaving 190 days or 200 days later than your original entry date and that does put you at risk.

Hope that this helps, but please understand that these rules are all guidelines as can be seen in the very first words of the CBP instructions… “In general…”

Another of our readers, Don Roskamp, says that this is “ridiculous” and we totally agree.