U.S. Immigration Laws for Snowbirds
Posted date : Sep 21, 2020.
We are snowbirds who spent the winters in California. We have tracked our days in the U.S. very carefully and every year, we file Form 8840. It has recently come to our attention that there are two rules in place for Canadians visiting the U.S. One rule relates to the IRS and permits visits for up to 182 days within a calendar year under the substantial presence test. The second rule concerns us, as we were not aware of the U.S. immigration rules. This rule permits visits to the U.S. for up to 182 days during any rolling 12-month period. This rule greatly concerns us, as a 12-month rolling period can definitely put us offside, as we could exceed 182 days. If we are abiding by the IRS rules and are filing Form 8840 every year, is there a chance we could be in trouble under the U.S. immigration laws if our days in the U.S. for a particular 12-month period (not a calendar year) exceed 182 days?
Ed.: The simple answer is “yes.” The IRS wants to tax you if you stay for longer than six months, but the immigration people really want to control you. The rolling 12-month period is sacrosanct and can be administered quite aggressively. The border guards have computers that are getting better every day and they know more than you think. I would do everything I could to abide by this rule and be very careful if you decide to go to the U.S. a month earlier this year. That is usually how people get into trouble; and never lie, of course.