Written by: Tim Golden
Green and Spiegel LLP – U.S. Practice Director
Attorney at Law (Massachusetts)
Licensed as Foreign Legal Consultant (Ontario)
July 15, 2016 – We have been receiving an increased number of inquiries regarding the standards for I-94 issuance, i.e. the duration of stay stamping received from the U.S. authorities upon entry to the U.S. Specifically, we have received inquiries related to Canadian nationals traveling for business and pleasure under B-1 and B-2 status respectively. In short, there is no standardized time permitted. It is possible per regulations to be admitted up to a year as a visitor for business or pleasure upon each entry to the U.S., but it is always to the discretion of the reviewing officer to determine how long an individual is permitted entry. The practical standard for visa-exempt Canadians, as determined by consensus of U.S. Customs and Border Protection (CBP) officials, is six months. The simple rationale is six months is half a year. This allows the individual to enter for the temporary visit and return to their place of residence, Canada, after six months thus not sacrificing the concept of a “visit” to the U.S. As mentioned, this determination is made upon each entry to the U.S., even after brief returns to Canada. Implicit in this determination by an officer, is demonstrated evidence of the applicant’s maintenance of continuing and established residence in Canada to which they intend to return following the “visit.”
The recent trend we have seen is a growing consensus among officers to maintain the original six-month window granted for individuals traveling back and forth between the U.S. and Canada during that six-month period. For example January 1 to June 30th, entry is granted on January 1st and the officer will hold the applicant to that June 30th expiration despite returns to Canada during that period. This can be the case even after prolonged returns to Canada of several months but short of the original six months granted.
Even though this is increasingly the standard, is it is always possible to request an additional amount of time, i.e. a new six-month period or whatever time is necessary for the applicant to complete their U.S.-based activities. It should be understood, however, that this new trend allows a buffer for an officer to ask questions about the individual’s intent to “visit.” If an applicant requests additional time outside of the six-month period granted, or a brand new six-month period, an officer would scrutinize both intent and evidence of the applicant’s continuing maintenance of Canadian residence. Ultimately, the question would be: Is the applicant still “visiting” the U.S. or has the U.S. become the applicant’s primary residence?
For further discussion of I-94 issuances and its intricate nuances please contact Green and Spiegel.
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