Is there actually a *legal* limit to the number of individual visiting days in 12 months? Info online is confusing me.

[legendqueue 163]

I'm Canadian, wife is American, I-130 filed last year.  So we're 5 months into the NOA1-NOA2 waiting time and all is going well.  I visit generally every weekend either 2 or 3 days, spend all holidays there, and sometimes she and my stepson come up to Canada to visit (it's a 30-40 minute drive between my apartment and our house in the USA).  I'm dutifully recording every day I'm over the border even for an hour or so, and doing things like crossing over at 10 past midnight to "save a day" because of the 180 day limit.  I'm currently over 165 on the rolling 12 months and January/March are gonna be hard because I wasn't down a ton last January and March so not a lot of days are gonna "drop off" in those months so I won't be able to visit very often.  We want to keep the count with a 7-10 day cushion just in case some emergency arises and I should be down there.

 

However then I read this as well as similar articles on the topic:

 

https://www.lexology.com/library/detail.aspx?g=bb7206f5-69f7-472f-94a2-cfb18755e3ea

 

This states that legally there's a 180-day limit *per visit* but that visiting more than that in a 12 month period doesn't cause any threshold issues for immigration purposes (it does for tax purposes, but I've got that covered already).  As it states, CBP may start to give you the eye if you approach or go over this, but I've been through that already several times with CBP and keep the full border kit (work docs, apartment lease, utility bills) in my glove box.  The last 6-8 weeks it's like CBP has a note pop up on their screen saying "THIS DUDE IS TOTALLY HARMLESS - I-130 AND LIVES/WORKS IN CANADA" as I drive up because they're all but just waving me through recently.

 

The unlawful presence clause in the Immigration Act which refers to 180 days looks like this:

 

(B) ¹³ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section  244(e)) prior to the commencement of proceedings under section  235(b)(1) or section  240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

 

Which backs up the above.  But there's *so much* info that states there's a 180/182 day limit, or that there's a six month limit, in a rolling 12 month period. 

 

What's the deal here?  Is the 180/182 thing just a very persistent canard that doesn't have any basis in fact?  Does it come from the taxation law that says that I have substantial presence if I'm over more than 182 days total in the past 3 years (using the 1/3 previous year, 1/6 year before that formula)?  Or is there something to back this up and the Lexology article is totally wrong?

 

Who can I ask about this?  Can I just ask the border guard when I cross, and then go inside if they're not sure?  

[payxibka 10,045]

3 minutes ago, legendqueue said:

I'm Canadian, wife is American, I-130 filed last year.  So we're 5 months into the NOA1-NOA2 waiting time and all is going well.  I visit generally every weekend either 2 or 3 days, spend all holidays there, and sometimes she and my stepson come up to Canada to visit (it's a 30-40 minute drive between my apartment and our house in the USA).  I'm dutifully recording every day I'm over the border even for an hour or so, and doing things like crossing over at 10 past midnight to "save a day" because of the 180 day limit.  I'm currently over 165 on the rolling 12 months and January/March are gonna be hard because I wasn't down a ton last January and March so not a lot of days are gonna "drop off" in those months so I won't be able to visit very often.  We want to keep the count with a 7-10 day cushion just in case some emergency arises and I should be down there.

 

However then I read this as well as similar articles on the topic:

 

https://www.lexology.com/library/detail.aspx?g=bb7206f5-69f7-472f-94a2-cfb18755e3ea

 

This states that legally there's a 180-day limit *per visit* but that visiting more than that in a 12 month period doesn't cause any threshold issues for immigration purposes (it does for tax purposes, but I've got that covered already).  As it states, CBP may start to give you the eye if you approach or go over this, but I've been through that already several times with CBP and keep the full border kit (work docs, apartment lease, utility bills) in my glove box.  The last 6-8 weeks it's like CBP has a note pop up on their screen saying "THIS DUDE IS TOTALLY HARMLESS - I-130 AND LIVES/WORKS IN CANADA" as I drive up because they're all but just waving me through recently.

 

The unlawful presence clause in the Immigration Act which refers to 180 days looks like this:

 

(B) ¹³ALIENS UNLAWFULLY PRESENT.-

(i) In general.-Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States (whether or not pursuant to section  244(e)) prior to the commencement of proceedings under section  235(b)(1) or section  240, and again seeks admission within 3 years of the date of such alien's departure or removal, or

 

Which backs up the above.  But there's *so much* info that states there's a 180/182 day limit, or that there's a six month limit, in a rolling 12 month period. 

 

What's the deal here?  Is the 180/182 thing just a very persistent canard that doesn't have any basis in fact?  Does it come from the taxation law that says that I have substantial presence if I'm over more than 182 days total in the past 3 years (using the 1/3 previous year, 1/6 year before that formula)?  Or is there something to back this up and the Lexology article is totally wrong?

 

Who can I ask about this?  Can I just ask the border guard when I cross, and then go inside if they're not sure?  

Ask at the border,  they are the gatekeepers 

[geowrian 22,337]

There's no limit other than what is granted by CBP as dictated by your I-94 stamp. Often that's 6 months, especially for a Canadian.

 

The INA section you posted is regarding unlawful presence, for the purposes of imposing a 3/10 year bar. If you leave before your I-94 expires, then you have no unlawful presence.

 

The rest is related to taxes & the substantial presence test.

 

While CBP will probably remain lax, spending over 6 months in a year in the US can rub a CBP officer the wrong way and cause a denial of entry for living in the US instead of just visiting. The work docs, apartment, etc. don't mean much if you can spend so much time abroad. Edit: Although it sounds like some/many of your visits are for very short periods. This is unlikely to draw any attention.

 

Edit: With regard to the linked article, notice the use of the "continuous" term. It's regarding a single stay, not aggregate.

"Immigration rule summary: Don’t remain in the United States continuously for more than six months as a visitor. Aggregate time frames in excess of six months do not violate any immigration law, but they might create more CBP scrutiny at the border, requiring the person to prove how he or she qualifies as  visitor.

...

The second part of the “180-day rule” relates to U.S. taxes. "

Edited January 10, 2019 by geowrian

[legendqueue 163]

No I-94 stamp.  Canada to US border crossings are done passport-stamp-free and I cross using a Nexus card -- this is a card you apply for and then go through a vetting and interview process to allow for expedited border crossings (separate car lineups, specifically) and permit you to travel without your physical passport (the passport number and info are linked to the card).

 

> Edit: Although it sounds like some/many of your visits are for very short periods. This is unlikely to draw any attention.

 

Right, my visits are typically 48 hours or less, with exceptions at holidays (e.g. Thanksgiving I was down for 4 days, Christmas for 5).  I work in Canada so staying continuously through the work week isn't an option.  I have commuted from there though (and plan to).

 

But yeah, it seems like somewhere along the line folks started mixing up the substantial presence test/taxation stuff with the "180 day" clause from the Immigration Act and it's just got pushed on.  I think I'll ask at the border next time because I'd really like the word of God, or as close to God as I'm getting on this one.

 

[geowrian 22,337]

8 minutes ago, legendqueue said:

No I-94 stamp.  Canada to US border crossings are done passport-stamp-free and I cross using a Nexus card -- this is a card you apply for and then go through a vetting and interview process to allow for expedited border crossings (separate car lineups, specifically) and permit you to travel without your physical passport (the passport number and info are linked to the card).

An electronic I-94 should still be issued (so long as they scan it...otherwise entry is D/S and impossible to accrue unlawful presence unless determined to be out of status by USCIS or an immigration judge beforehand). This was put into place around 2013 or 2014, IIRC.

 

Quote

> Edit: Although it sounds like some/many of your visits are for very short periods. This is unlikely to draw any attention.

 

Right, my visits are typically 48 hours or less, with exceptions at holidays (e.g. Thanksgiving I was down for 4 days, Christmas for 5).  I work in Canada so staying continuously through the work week isn't an option.  I have commuted from there though (and plan to).

Gotcha. That's unlikely to be an issue (but not impossible, as you seem to know already).

 

Quote

But yeah, it seems like somewhere along the line folks started mixing up the substantial presence test/taxation stuff with the "180 day" clause from the Immigration Act and it's just got pushed on.  I think I'll ask at the border next time because I'd really like the word of God, or as close to God as I'm getting on this one.

Right.

CBP probably will know and make the decision on any entry, although they give out wrong info sometimes too (as described on this website very often). But I agree it won't hurt to ask.

Edited January 10, 2019 by geowrian

[legendqueue 163]

Thanks.  I'm gonna ask because we're so close and I'm so scared of messing something up.

[AstroCanada 206]

You might double check that you're not pushing up against any rules for OHIP as well.  I recall there being a physical presence test for eligibility.

[legendqueue 163]

On 1/13/2019 at 1:27 PM, AstroCanada said:

You might double check that you're not pushing up against any rules for OHIP as well.  I recall there being a physical presence test for eligibility.

BC, but same point, thanks.  I'm fine as I'm here a majority of the time.  I work full-time in Canada so I'm here well over 200 days.