Monday, July 29, 2013

Snowbirds face new challenges in staying in the US as visitors

Snowbirds are usually those in their 60s and above who are retired and live in the US for part of the year when the weather is bad in their home country during the winter months (common for Canadians). Traditionally, it has been easy for many Canadians to do this, often spending 6 months at a time or repeatedly entering the US for 3-4 months at a time frequently through the year, without worry that CBP would stop them and turn them around. These snowbirds blend in well with American culture, many opening bank accounts, owning a summer or vacation home in warm places such as Fort Lauderdale, Florida and Palm Springs, California, and lacking the traditional accent of those from Eastern European, Asian, and Spanish-speaking countries.  But the very things that help these individuals blend so seamlessly into American life are now evidence for CBP to start enforcing traditional dual intent doctrine against Canadians, now that a clear policy tightening down on unlawful presence for Canadians has been announced.    

In April 2013, US Customs & Border Protection clarified its policy on Canadian visitors and unlawful presence. Since 2009, US CIS and US consulates under the purview of the Department of State, have agreed that unlawful presence for Canadians is not triggered for purposes of the 3 and 10 year bars for unlawful presence when a Canadian is waived in with their passport at the border. At consulate interviews in Montreal, Canada’s Immigrant Visa issuing post, officers have felt bound to follow the findings in the system entered by CBP concluding that an unlawful presence bar was triggered or unlawful presence has occurred. 
In its latest memo, CBP indicates that Canadians are not treated as D/S (duration of stay) for purposes of unlawful presence but instead, are treated as having the equivalent of 10 year visitor visas with a maximum authorized stay of 6 months per visit, assuming they are waived in at the border, which remains up to CBP discretion.  
This has a significant impact on many Canadian citizens who have often stayed well beyond the 6 months and may have unwittingly even triggered the ten year bar (which is triggered by 1 year of unlawful presence – not consecutive – cumulative overstays can up to this 1 year!) and are turned around at the border on their next attempted entry for having Immigrant intent (living in the US) and unlawful presence. 

For many Canadians experiencing this for the first time, they find themselves stuck abroad, with their lives, girlfriend, work, real property, and family obligations left behind in the US in an instant and without warning.  CBP has been more traditionally lax in enforcing the Immigrant intent issue against Canadians or tracking Canadian entries. No longer the case.   Canadian visitors must now weigh paths topotential permanent residency, in the US instead of relying on the visitor visa status they have been used to. But even US permanent residency comes with its own challenges and the fear of abandoning residency by filing taxes abroad in Canada or living in Canada for more than half of the year. 
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