Fri Sep 02, 2011 5:03 pm
Jesus, people are still asking this question? Must be about a hundred threads on here about it.
Anyway the answer to this perennial question is that Canadians don't have to get an I-94, so it all boils down to non-immigrant intent, which you must have, as defined in 8 USC 1101(a)(15)(B), which basically means bona fide residence abroad, intention to leave, must be a legitimate visitor and have sufficient funds to cover the stay.
CBP use the 183 day rule but it's a bit murky for Canadians, case law is that "duration of stay" is a determinant of non-immigrant intent, so CBP interpret that as 183 days pa. However if you were to go before an immigration court it's not clear that would be the case, depends on the circumstances. There are general exceptions, for example if you are receiving medical care in the US.
I've just had a big going over with the IRS about this whole issue as well, as long as you remember to file an 8840 every year the IRS don't consider you resident until you spend more than 183 days in the US, however once again it's murky beyond that because technically you can file an 8833 and claim residency in Canada under article 4 of the tax treaty, however for them to accept it, guess what, you need a bona fide residence abroad, intention to leave, or at least substantial residential ties abroad...
There's also the issue of partial days in the US, the IRS don't count partial days and CBP use their discretion.
There is basically no simple answer to "how long", depends on your circumstances, to cut a long story short. If you live in Stanstead QC, are 80 years old and have to go to the hospital in Newport for treatment, the answer will be very different than if you live in Toronto, are 20 years old and go down to Texas for no apparent reason.
The main thing to remember is: non-immigrant intent - the more proof you have of it the better.