Live in US lawfully without a visa? How 6 months caculated?

[lbhl]

(2) If a non-Canadian alien overstays his visa less than half a year, it won't trigger a 3,10 year bar because no more than the threshold 180 days? So what's the penalty for this overstay?

Well the 3/10 bar is not triggered, but the penalty would be that person's inability to file for a change of status or extension of status because they failed to maintain their present status. They would need to depart the U.S. and consular process the visa extension or change in visa status.
[/b]

------- Does the visa officer take the previous over stay (less than 180 days) into account as a disadvantage factor for issurance of a new visa/extension in his future application?

[lbhl]

Copy and past following url in your internet explorer.
"http://64.233.169.104/search?q=cache:MIg6HU4htCIJ:www.shusterman.com/up-canada.html+INA+212(a)(9)(B)(i)+canadian+citizen+judge&hl=en&ct=clnk&cd=5&gl=ca"

Montreal's Reftel asks if the unlawful presence inadmissibilities, imposed by INA (a)(9)( B)1 and 2, apply to Canadians, and Commonwealth Citizens Resident in Canada, who enter the United States following inspection by and INS officer, but have received neither a visa nor an I-94.
The INS General Counsel's office has informed VO that, a Canadian, or Commonwealth Citizen Resident in Canada, admitted following inspection, who has not been issued an I-94, should be treated in the same manner as a duration of status case, similar to an F or J.
As in duration of status cases, a Canadian, or Commonwealth Citizen Resident in Canada, who is found to have violated status and be removable by an Immigration Judge, or found to have violated status, by an INS officer, in the course of adjudicating a benefit, such as an extension of stay or a change of adjustment of status, is unlawfully present. The unlawful presence commences on the date when the immigration judge, or INS officer, makes the ruling, not the date the status violation began.



--------

Hi Christopher G. Rizzo,

You wrote "Once the IJ orders the Canadian removed, then at that time they would be out of status and the clock would start running on the 180/365 days. "

Do you mean a removal order by a judge is essentialy the same meaning as a 3,10 year bar?

[canadiangirlforever]

last year i spend a total of 9 & a half months in the u.s. over two trips in a 12 month period. Did I break some law? Can it be held against me at a later date? First visit was 182 days and second 3 and a half month. I keep getting different answers and CBP won't give me a straight answer, they keep saying it's at the discretion of the individual POE guard. Can you please help answer my question? I've never broken the law before and I don't want to do anything wrong.

[Reba]

It really is up to the discretion of the individual CBP officer. If they feel that you have taken up "defacto residency" in the US, then they can deny your next entry, and possibly bar you for a a few months or years.

[Christopher G. Rizzo, Esq]

You didn't do anything wrong, Canadian visitors can't overstay unless they're found to be in violation of status by CIS or an immigration judge. CBP should know this.

[marle1120]

Residency Rules
Under United States (U.S.) income tax law, a foreign citizen or national is subject to U.S. tax in varying ways depending on whether he/she is a resident or nonresident. A U.S. resident alien is taxed on worldwide income in much the same manner as a U.S. citizen: he/she will be required to file U.S. tax returns and pay U.S. tax on income from all sources. When computing taxable income, a resident alien is generally entitled to the same deductions and personal exemptions available to a U.S. citizen.
Nonresident aliens, on the other hand, generally are taxed only on their income from U.S. sources, with some exceptions. As a result of limited exposure to U.S. tax, deductions and exemptions available to nonresident aliens are limited.
A Canadian snowbird will be treated as a resident for tax purposes if he/she meets either of two tests the lawful permanent resident (or green card) test, or the substantial presence test. Under the first test, a Canadian citizen who is a lawful permanent resident of the U.S. a green card holder is considered a resident for U.S. income tax purposes. A green card holder is treated as a U.S. resident, whether or not he/she is physically present in the U.S., until such time as permanent resident alien status under U.S. immigration law is officially revoked or abandoned.
Under the second test -- substantial presence -- a foreign national may become a U.S. resident for tax purposes if he/she spends a substantial portion of the year in the U.S. Under the substantial presence test, a foreign national will be considered a U.S. resident for tax purposes if:
The individual is present in the U.S. on at least 31 days during the current calendar year; and
The sum of the number of days of U.S. presence during the current calendar year, plus one-third of the U.S. days during the first preceding year, plus one-sixth of the U.S. days during.
The non-resident will be treated as being present in the U.S. on any day that he/she is physically present in the U.S. at any time during such day.
However, days spent in the U.S. because the individual is unable to leave the U.S. due to a medical condition that arose while present in the U.S. will not count the second preceding calendar year, equals or exceeds 183 days.

The law treats presence in the U.S. for such a medical condition as
Example 1:

Year Days Present in the U.S. EquivalentDays

1996 120 120

1995 120 x 1/3 40

1994 120 x 1/6 20

(Foreign national taxed as non-resident of U.S.-180)



Example 2:

Year Days Present in the U.S. Equivalent Days

1996 130 130

1995 120 x 1/3 40

1994 120 x 1/6 20

(Foreign national taxed as resident of the U.S.-190)
Thus, Canadian snowbirds who stay for long periods of time in the U.S. should be aware of the requirements for the physical presence test, lest they be considered a U.S. resident for income tax purposes. If that happens, a Canadian will be required to file a U.S. tax return and may be required to file a U.S. income tax return to report income from all sources, including income from Canada. As a general rule, if a foreign national has never spent more than 121 days in the U.S. in any tax years, he/she will never be considered a U.S. resident under the substantial presence test.

For Canadians snared by the substantial presence test, all is not lost. There are three exceptions to the test which allow a Canadian to still be taxed as a non-resident: the closer-connection-to-a-foreign-country exception, the exempt individual exception, and the treaty tie breaker provisions.
Exception 1: Closer Connection
An individual who, despite meeting the substantial presence test, maintains a closer connection to a foreign country will not be treated as meeting the test for the current year if:
The individual is present in the U.S. fewer than 183 days during the current year;
The individual maintains a tax home (e.g., a main place of business or employment; or, if an individual has no such place, then the place where he/she regularly lives) in a foreign country during the current year;
and The individual has a closer connection during the current year to a single foreign country in which he/she maintains a tax home than to the U.S.
An individual may generally establish that his/her tax home is in a foreign country by showing that his/her principal place of business or employment and/or abode are located in such foreign country. The tax home must be in existence for the entire taxable year and must be in the foreign country to which the individual claims a closer connection. Thus, the closer-connection exception generally will not apply to the year an individual moves to the U.S.
The determination of whether an individual has a closer connection to such foreign country will generally be made by weighing the individuals contacts with the U.S. against those with the foreign country. Such contacts include the location of ones:
regular or principal permanent home
family
automobiles
personal belongings
social, cultural, religious and political organizations banks with which an individual conducts routine personal banking activities registration to vote
investments
Both the tax-home and closer-connection determinations are factual in nature and therefore subject to some degree of uncertainty. Therefore, a Canadian should generally rely on the closer-connection-to-a-foreign-country exception only as a last resort. Furthermore, this exception will not apply for any year during which the individual has an application pending for adjustment to permanent resident status or has taken other affirmative steps to apply for status as a lawful permanent resident of the U.S.
In order to qualify for the closer connection exception to the substantial presence test, an individual must file a form with the IRS.
Exception 2: Exempt Individual
Under the exempt-individual exception, an individual generally will not be treated as being present in the U.S. on any day in which he/she is temporarily present in the U.S. as a foreign government-related individual, a teacher or trainee who holds a J visa, a student holding either an F, J or M visa, or a professional athlete temporarily in the U.S. to compete in a charitable sports event.
Exempt individuals are required to file a form with the IRS stating why they are exempt from U.S. taxation.
Exception 3: Treaty tie-breaker provisions
It is possible that a Canadian will be considered to be a resident of both Canada and the U.S. pursuant to the tax laws in each country. The Canada-United State Income Tax Convention (the Treaty) provides relief from being considered a resident of both locations as follows:
An individual shall be deemed to be a resident solely of the country in which he/she has a permanent home available;
If a permanent home is available in both countries, or if a permanent home is not available in either country, the individual will be deemed to be a resident solely in the country with which his/her personal and economic relations are the closer (centre of vital interests).
If the centre of vital interests cannot be determined, he/she will be deemed to be a resident of the country in which he/she has a habitual abode;
If a habitual abode is available in both countries or in neither country, he/she will be deemed to be a resident of the country of which he/she is a citizen;
If he/she is a citizen of both countries, or of neither, the competent authorities of the countries will settle the question by mutual agreement.
Although an individual who holds a U.S. permanent resident visa may claim to be a non-resident of the U.S. pursuant to the Treaty, it is advisable that the individual consult with his/her immigration attorney before claiming non-resident status. The U.S. Income Tax Regulations provide that claiming non-resident status may affect the determination by the Immigration and Naturalization Service as to whether the individual qualifies to maintain a residency permit.
A tax return must be filed timely to claim the treaty tie breaker provisions. Failure to file timely may result in significant penalties.

[Steven]

That's the substantial presence test for taxes, it's not really relevant to immigration status other than the bit about residential ties.

[lawsrlaws]

WOW! A lawyer that doesn't understand the US Immigration system. What a surprise. First some advice:

Never listen to an Immigration Lawyer. They have absolutley NO say at the US Border! Period! Only a G28 lawyer may ask to speak to a Cheif or a Port Director in the matter of any Immigration matters at the Border.

Now with that said, you as a Canadian can be Expeditiously Removed (ER) from the United States for overstaying/living in the USA. CBP Officers have the power to do this in lieu of an Immigration Hearing. We do this alot. Remember that an ER can be done on a National of ANY country except Cuba. If you are found to be overstaying your allowed time or that your living in the USA to conduct your E-Bay buisness, then you are in violation of Section 212(a)(7)(A)(i) -Immigrant without an Immigrant Visa and thus an ER should be done.

Now, to answer the 6 month question. It's mor eabout INTENT than it is about the actual 180 days. Do we know that Snowbirds own houses in the USA and spend 7 months at a time in the USA? Yes we do. Their INTENT is to return to Canada and live there, thus no problems. On the other hand, the guy who wants to conduct his buisness in the USA because it is more convenient for him has a completely different INTENT than a Snowbird.

The 6 months starts when you enter the USA. Its not a calender year. Example: you come to the USA and tour for 6 months and then return to Canada. Six months later you do the same thing. That would be considered 6 months in a year. If im losing anyone, don't feel bad. The US Immigration laws are very hard to understand and it takes years for an Officer to undersatand a small amount of it.

Now to throw in a curve ball. The law actually states that a visitor from Canada can spend ONE YEAR in the USA, six months at a time. This means that a B1/B2 visitor may extend his/her stay in the USA through a service center. Confused yet? The bottom line here goes back to INTENT. If your spending too much time in the USA and can't prove to the CBP Officer that you are not an Intending Immigrant, you would be rightfully removed.

And finally, YES we do know when you enter the USA and when you leave, even before the Passport Law. Can't tell you how though. The passport law has nothing to do with tracking anyone. (paranoid?) It is to aid us as Officers in finding false documents and imposters, of which there are MANY.

-- Tue Jun 30, 2009 9:00 pm --

After re-reading my post, I may be being a little harsh lumping all Lawyers together. Some are good. But so you know, i refuse more TN applicants that were prepared by Lawyers than I do self prepared.