The Grey Area of Non-Controlled Canadians’ Duration of Stay in the United States - Exeo Attorneys (2024)

While many aspects of the U.S. immigration system’s processes create confusion for its participants, perhaps one of the most puzzling parts of U.S. immigration procedures for Canadians is what constitutes overstaying. An incorrect interpretation could mean staying in the U.S. beyond the limit granted by the visitor’s status, and could have important consequences on that Canadian’s possible U.S. immigration plans down the line.

The duration of a Canadian individual’s stay in the United States can be a make-or-break factor in later U.S. immigration application processes, such as green cards or visa applications, and requires the utmost attention. Canadians in particular are susceptible to confusion on the matter because of the general visa exemption granted to Canadian nationals by the United States upon entry.

With the digitization of the I-94 process, foreigners no longer receive the I-94 card that used to be affixed to their passports, indicating their authorized duration of stay when entering the United States. The electronic I-94 record is instrumental in accurately counting a traveler’s number of days spent in the U.S., but unfortunately, most travelers ignore its existence and subsequently become known as noncontrolled Canadians, which adds difficulty to keeping track of the duration of stay in the U.S. and putting these persons at risk of overstaying their permitted days.

Canadians are generally granted a full six-month visitor status to the United States upon each entry to the country as a tourist. Also, short return trips to Canada do not always reset this 180-day clock, contrary to popular belief. Hence the 180-day clock continues to run after returning to the U.S., while the Canadian travelers believe they have been granted a new 6 month period. The risk of overstaying is not marginal. If they happen to overstay these 180 days, the additional time spent could be counted as unlawful presence and could harm any eventual U.S. visa and green card immigration applications down the line.

Likewise, those who stay overstay their 180-day status may be barred from entering the United States in the following years that, with individuals who stay longer than 180 days but less than a year usually receiving a three-year ban while those who unlawfully overstayed more than a year are subject to a 10-year entry bar from the United States. This is in addition to a potential 5-year ban because the border officer deemed that the prolonged presence meant the Canadian citizen effectively lives in the United States with intention to stay permanently.

That being said, there’s no clear consensus across U.S. agencies on how long noncontrolled Canadians are allowed to stay in the United States despite this granted half-year status, only adding additional confusion for Canadians concerned about their immigration benefits to the United States.

According to the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State, noncontrolled Canadians are allowed to stay in the United States indefinitely without being considered unlawfully present, so long as they comply with the standards of their given “duration of status.”

But the CBP has taken a different stance on the matter, instead claiming that noncontrolled Canadians are indeed bound to a 180-day stay in the United States and could begin accumulating unlawful presence if they do overstay the half-year provision, putting non controlled Canadians’ visits into a murky gray area with U.S. immigration agencies.

Each case’s unique circ*mstances play a factor in what is considered as overstaying and what is considered a lawful visit. Because there is no clear consensus between the various U.S. agencies, Canadians concerned about their time spent in the United States and its potential implication on later immigration applications need to consult with an immigration lawyer to clear up any doubts on their personal case.