Levy Salis LLP is thrilled to share a special article which Shlomi Steve Levy, partner, and Jean-Noel Ben Hamou, of Counsel to Levy Salis LLP, were invited to prepare for Snowbird Advisor. In this article, they present an often ignored process for Canadians to apply to extend their stay in the United States.
To know more about this process, read the article below or click here to read the article on Snowbird’s website.
How Canadian Snowbirds Can Apply to Extend Their Stay in the U.S.
Shlomi Steve Levy
Jean-Noel Ben Hamou
April 13th, 2021
A number of Canadian snowbirds currently in the U.S. are considering extending their stay south of the border in the hopes that they will be able to avoid new travel rules and restrictions introduced by the Government of Canada for arriving travellers by waiting until these rules are eased or lifted.
However, individuals considering this approach need to be aware that there are limits on how long you are allowed to stay in the U.S., both from an immigration and tax perspective.
It’s important to understand and comply with these rules, as overstaying your welcome in the U.S. can land you in hot water with the IRS, U.S. Customs and Border Protection (“CBP”) and U.S. Citizenship and Immigration Services (“USCIS”).
It’s also important to be aware that the rules for how long you can spend in the U.S. are different for immigration and tax (not covered in this article) purposes, and you need to comply with both sets of rules.
On the immigration side, it is possible to apply for an extension to avoid running into issues, but extensions aren’t granted automatically.
If you’re thinking about extending your stay in the U.S. beyond your allotted time due to the COVID-19 pandemic – or at any other time in the future – here’s what you need to know for immigration purposes.
How long can a Canadian generally stay in the U.S.?
From an immigration standpoint, Canadian citizens (and permanent residents?) generally do not require a visa to enter the United States from Canada for the purpose of visiting and are generally granted a stay in the U.S. of up to six months at the time of entry.
How do I track how long I am allowed to stay in the U.S.?
Whenever you enter the United States, U.S. Customs and Border Protection issues an I-94 Arrival and Departure Record that creates a record of your arrival and departure dates and the date by which you must leave the United States.
You can check your I-94 history online here by entering your personal information and passport details, to find the date by which you are required to leave the U.S.
However, it’s important to be aware that U.S. Customs and Border Protection officers have a great deal of discretion when determining how long you can stay in the United States. For example, if you spend 3 months in the U.S., then travel back to Canada for a week, then travel back to the U.S., you won’t necessarily be granted a fresh 6-month stay when you re-enter the U.S.
In addition, if you use different modes of entry to travel to and from the U.S. (i.e. you fly one way and use a land border the other way), your I-94 records may not be accurate.
Accordingly, whenever you travel to the United States it’s always a good idea to check your I-94 status.
If you believe your I-94 record is inaccurate, you can apply to have it corrected, but the decision of whether or not to amend your record rests solely with CBP.
What happens if a Canadian stays too long in the U.S.?
If you stay in the U.S. after the required departure date listed on your I-94, you may be banned from entering the United States in the future.
This may be a temporary ban of several years (usually 3 or 10 years, depending on how long you overstay) or a permanent ban for more serious violations.
Can Canadians apply for an extension to stay longer in the U.S.?
While it’s not something most snowbirds are aware of, Canadians can apply to extend their stay in the U.S. beyond the required departure date on their I-94 by up to 6 months.
Where and How Can Canadians Apply to Extend their Stay in the U.S.?
Canadian citizens (and permanent residents) can apply to extend their stays in the U.S. by preparing and filing a Form I-539 with U.S. Citizenship and Immigration Services, along with any required supporting documentation.
The application can be filed online or by mail.
The fee for filing an application to extend your stay in the U.S. as of February 24th, 2021, is $370 USD plus an $85 biometrics fee.
What are valid reasons for Canadians to request an extension?
Some reasons for requesting an extension are more likely to be approved than others, including:
- Extending your stay as a visitor and showing you have the funds to do so without having to work;
- Seeking medical assistance; and
- Travel restrictions due to Covid
When do you need to apply to extend your stay in the U.S.?
Technically, you can submit an application to extend your stay in the U.S. any time prior to the date that your I-94 record states you are required to leave the U.S. by.
However, U.S. Citizenship and Immigration Services suggests that you file your extension 45 days prior to your required departure date on your I-94.
From a practical standpoint, you will want to submit your application to extend your stay well in advance of the required departure date on your I-94 in case your application is denied and you have to leave by the original date on your I-94.
If I apply, will I automatically be granted an extension?
No. Just because you apply for an extension it doesn’t mean that it will automatically be granted. This being said, you will have legal status in the U.S. while your extension application is pending with USCIS. Extension applications are reviewed and approved or denied based on a number of factors, including:
- How long of an extension you are requesting
- The reason you are requesting an extension
- The backup evidence you provide to substantiate your request for an extension
In addition, there is a high degree of discretion when it comes to approving or denying requests to extend your stay in the U.S., and it may ultimately come down to the individual reviewing your application.
Do you need a lawyer to apply for a U.S. Visa Extension?
You do not require a lawyer to apply to extend your stay in the United States. However, many Canadians do engage the services of a cross border immigration lawyer to assist them with their extension applications.
The comments offered in this article are meant to be general in nature and are not intended to provide legal advice regarding any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate for your circumstances.
About the author
Shlomi Steve Levy is a Partner of Levy Salis LLP and is a member of the Quebec Bar, the Law Society of Ontario (L3), the Society of Trust and Estate Practitioners, and the Canadian Bar Association.