A Further “Debunking” of the Snowbird-30 Day Rule

A Canadian entering the United States of America as a visitor/tourist by air must present a valid Canadian passport or Nexus card when departing from a designated Canadian airport in order to gain legal entry into the country. Canadian citizens travelling to the U.S. by land or sea through a port of entry are required to present either a valid Canadian passport, Enhanced Driver’s License/Enhanced Identification card, NEXUS, FAST/EXPRES or SENTRI enrollment card. Most Canadians travelling frequently to the U.S. present their passport. The passport is typically scanned by the CPB agent and the usual perfunctory questions asked, “Where are you from?  How long will you be in the U.S.?  What is the purpose of your visit? Do you have any fruits or vegetables? Any cash or negotiable instruments in excess of $10,000?” Occasionally, the unsuspecting Canadian may be asked a surprise question, which happened to me on my last visit.  “Have you ever been arrested or fingerprinted for any reason?”  GULP…NO… I REPLIED! Satisfied with my responses to her questions, I was handed back my passport and pleasantly welcomed to the United States of America.

In earlier days, prior to the scanning of passports, the CBP officer would stamp the passport prior to allowing access into the country. The significance of the stamp was often lost as the process was typically routine, particularly for those of us who frequently travelled to the U.S. for a brief holiday or for those “snowbirds” who left Canada regularly for their annual extended visit in order to avoid the harsh Canadian winter. The passport admission stamp was however, a significant event, as it provided the “evidence” that you were lawfully in the country and that you were authorized to stay for a certain period of time or in some cases, up to a certain specified date. It typically also identified your entry or visa status, for example, B2-visitor/tourist. Non-immigrants from countries other than Canada or Canadians entering for other reasons, for example as a student, would receive a small white card or paper document. This was referred to as an I-94 form (Arrival and Departure Record), which had an 11 digit admission number. This form also provided vital information including the date of admission, class of admission and “admitted until date” (departure date). The latter annotation was very important, as it clearly identified that the non-immigrant visitor was required to exit the United States on or before the specified date on the card or form. The card or form was required to be produced on request by any police officer or was required in order receive benefits or to obtain any form of government authorization, for example, a driver’s license and it had to be surrendered upon leaving the country.

In 2015, in order to increase efficiency, reduce operating costs and streamline the process, the USCBP agency automated the I-94 process at all air and sea ports of entry for non-immigrants from other countries and introduced the electronic scanning process for Canadians. This is referred to as the “I-94 automation”. The I-94 automation creates an electronic I-94 form and creates for those required to have one, all of the elements of the paper form or card including an admission number, class of admission and departure date. The copy of the electronic version can be obtained upon request by visiting the I-94 U.S. government website. (go to i94.cbp.dhs.gov or search I-94)

In an earlier article entitled, “The Canadian “Visitor” to the United States of America”, (go to wjanhorn.ca) I detailed the relationship between the various departments within the US government responsible for immigration and taxation and clearly identified for the Canadian “snowbird”, the relevant time frames to be considered both from an immigration and taxation standpoint in order to clear up any confusion between the two topics. I also offered advice and suggestions to help avoid any future difficulties. In doing so, I thought I had “debunked” any notion that there was any form of the “Snowbird-30 day rule” relating to the issue of “re-setting” the 6 month clock upon departing the U.S. and returning to Canada. The relevant passage in my article is as follows:

“This leads to the topic of the so called 30 day rule which inevitably creeps into the “happy hour” discussion. The “snowbird” who is enjoying a long visit to the U.S. does not to get to reset the clock for a further 6 month visit by simply returning to Canada for short period of time and then re-entering. The shorter the duration of the return period, the more likely that the CBP officer will ignore the legal significance of the departure and return date but view the re-entry as a continuation of the purpose and activity associated with the original trip or visit. The amount of time spent and the frequency of visits over time may raise some questions about one’s visitor’s status resulting in more scrutiny about the nature of the proposed new visit and the person’s permanent residence or primary ties to Canada. This could result in a limitation on the length of the new visit or in extreme cases a refusal of entry.

What length of time then would be sufficient to reset the clock? The rules relating to eligibility and length of stay are governed by the INS-the U.S. Immigration and Naturalization Service. There is no specific regulation or law that specifies that 30 days or any lesser or greater period will be appropriate for this purpose. It could be fewer or more than 30 days depending on the circumstances of each individual case. It is up to the CBP officer at the point of entry to assess whether the return trip to Canada both in terms of duration and purpose was sufficient to effectively terminate the previous visit and allow the re-entry to be treated as a new fresh visit. Thirty days may be a convenient starting point for consideration but it is not based upon any statute, regulation or interpretation bulletin issued by the INS.”[1]

On a recent extended visit to the United States and while having “coffee” with other fellow Canadians, the so-called “30 day rule” raised its ugly head again, which prompted me to re-visit the subject.

Based upon my most recent Happy Hour” discussion, my observations and earlier conclusion appears to continue to be met with some skepticism as best evidenced by the fact that a close personal friend who plans to return to Canada for Christmas has purposely and carefully planned his departure date from the U.S. and return date so that he is away for exactly 31 days!

I have mentioned the I-94 form and the transition to an electronic format for a reason. The I-94 continues to have relevance for those non-immigrants visiting from other countries or for Canadians who have entered the U.S. on a visa classification other than a B-1 or B-2 visa. In each case, the electronic version of the I-94 provides an “admitted until date” or departure date. Again, unless extended the non-immigrant visitor must depart the United States and return to his country of origin prior to the specified departure date. During the authorized stay, the non-immigrant visitor may leave the U.S. and travel to Canada or Mexico as an example for short periods of time (30 days or less) without adversely affecting their legal status. As noted in an endnote to the earlier paper I-94 form, “In general, if you are admitted into the U.S. under most visa classifications and if you take a short trip to Canada or Mexico (30 days or less) you may retain your I-94 form (and not presumably surrender it which would otherwise be the case) so that when you resume your visit to the U.S. you are re-admitted for the balance of the time remaining under your I-94”. This admonition has prompted one author to suggest that with this statement therein lies the origins of the so-called “30-day rule.” [2] Clearly, on close examination, this reference has no application to the Canadian visitor entering the U.S. on a B1 or B-2 visa. The obvious reason is that a Canadian entering the U.S. on a B1 or B2 visa or combination thereof is not given an admission number or a specified departure date but rather is strictly on an “honor” system.

With the creation of electronic passport scanning and the development of the electronic version of the I-94, it was necessary for U.S. Customs and Border Protection Service to establish a method for non-immigrant visitors requiring an I-94 to apply for or retrieve their I-94 form. As a result, the Department of Homeland Security created an official I-94 website where international travelers visiting the United States could apply for or retrieve their I-94 admission and departure record which provides proof of their legal visitor status. The website also provides a limited travel history of U.S. arrival and departures, including Canadian visitors entering on a B-1 or B-2 visa. The website specifically states that an I-94 form is needed by all persons except “U.S Citizens, returning resident aliens, aliens with immigrant visas and most Canadian citizens visiting or in transit.”

The official website also provides a system for determining whether or not you are in compliance with the terms of your admission into the U.S. under the heading “How Much Longer May I Remain in the U.S.?”

To test my hypothesis, I had occasion to enter the portals of the website and enter my name, date of birth and Canadian passport number. I was able to retrieve quickly and accurately my most recent arrival and departure dates into the U.S. including abbreviations of the various ports of entry. Interestingly, it included a day trip from Palm Springs to Mexico last February, which I had completely forgotten about.

 

On the compliance portal, as anticipated, there was no admission number given nor was there any departure date. This re-affirmed my earlier conclusion. I found further support for my theory that there is no such thing as the “Snowbird-30 Day Rule” by the following statement on the official Department of Homeland Security website:

“The burden of proof that the Canadian citizen is not an intended immigrant (plans to make the U.S. their primary residence) is always on the applicant. There is no set period of time Canadians must wait to re-enter the U.S. after the end of their stay, but if it appears to the CBP Officer that the person applying for entry is spending more time over-all in the U.S. than in Canada, it will be up to the traveler to prove to the officer that they are not de-facto U.S. residents. One of the ways to do this is demonstrate significant ties to their home country, including proof of employment, residency, etc.”.

To the naysayers and skeptics out there, I rest my case!

William J Anhorn QC ICD.d

Rancho Mirage, California

November 26, 2017


[1] Joyce, Daniel “Debunking the Snowbird-30 day Rule” www.jdsupra.com

[2] Sanger and Manes, palmspringstaxandtrustlawyers.com