How many days can a Canadian stay?

by Lavine Team on December 26, 2010

Phoenix snowbirdsOften we get asked the question as to how long a Canadian can stay in Arizona. For those that have vacation homes here, and are coming down for weeks here and there, don’t have to be too concerned as they won’t come close to the 182 days that are typically allowed by US Homeland Security or the IRS. But for those that are able to stay for lengthier periods of time, there seems to be some confusion between the amount of time Canadians are “allowed” in the U.S. and the U.S. tax laws that apply to snowbirds.

There are 2 differing sets of calculations for determining the length of stay allowed……a rolling one year period and an actual January through December calendar year. To comply with the IRS requirements, you cannot exceed 182 days in a calendar year. Fairly typically, Homeland Security measure the 182 days based on a rolling one year period and not necessarily based on the calendar year.

How IRS defines a calendar year is not only the amount of days in the current year. They consider the current year and the amount of days in the two preceding years to be part of the current year calculation. They call it the substantial presence test. It is according to this calculation which in a nutshell is: add the days you were in the US this year, to that total add 1/3 of how many days you stayed last year and then add to that sub-total 1/6 of the amount of days you stayed the year before. If the grand total of the 3 year calculation exceeds 182 days, then you will be considered a resident for tax purposes and have to file a tax return unless you have filed an 8840 form which establishes you as having a closer connection to another country.

The first calculation described in this article as an explanation of the U.S. “substantial presence” test, can be viewed in detail on the IRS website at this link. Canadian snowbirds can check to see if they qualify for a Closer Connection Exemption, which states that they have a closer connection to another country and are not required to pay U.S. income taxes. To claim this exemption, you must file form 8840. The IRS provides detailed information on the Closer Connection Exemption at this link.

If you are a Canadian snowbird staying in excess of an average of 120 days per year consecutively and do not want to pay U.S. income taxes or fines, please visit the IRS website (links above) and make sure you understand how the rules apply in your situation.

The second calculation for determining the 182 day period is frequently measured on a rolling calendar year basis…that is the one that has immigration implications for the Department of Homeland Security. So let’s stay you come down from the start of November and stay through the end of April. Then before you come down the following November for the winter again, you decide to come down for a couple of weeks in August…..you will in effect be exceeding that 182 days based on the rolling calendar year. You could face consequences of being denied entry for 3 years or more and/or fines. Imagine not being allowed to come down and enjoy your vacation home just because you have not tracked your days to their satisfaction?

There is definitely some confusion surrounding the rules about whether it is a rolling calendar or an actual calendar year for immigration purposes. We have been told both ways by border people so some of them don’t even know. And so my best advice is to not take a chance…..keep track of the days using both calculations and don’t exceed it in either calculation.  Now that the Entry/Exit Initiative has been established between Canada & the USA, their immigration computers share information so each authority knows exactly how many days you are in each country. You can request from Homeland Security on their I-94 website how many days you have been present according to their I-94 records within their computers.We still encourage you to keep a journal with all your boarding passes, notes and any other evidence of the duration of your days here. The day you travel here or leave, even if it was only for minutes or a few hours within one particular day, counts as a day in the US. Being gone a few days or weeks from the US during your stay down here may not count towards reducing the number of days down here. I have been told that the absence must be over 30 days to not count towards the total.

In the last decade, most Canadian provinces have changed their respective maximum stays permitted out of the province in order to be still considered a resident and have health care rights. Most have changed from being able to be gone for 6 months to 7 months. American rules though have not changed. So yes, you can be out of the province for 7 months but only 6 of those months (182 days) can be in the US. One month could be for elsewhere like Mexico if warmer weather is desired for that 7th month.

It is a privilege to be able to come down here or to go up there. Sure, many of us Canadians and Americans like to think that we’re all kind of the same due to our geographical joining at the waist and that our cultures are so similar. But the reality is that we are two different countries, each with their own rules and laws. There are potential consequences with violating the rules and laws which works going in both directions for Canadians or Americans.

You can find more information about U.S. entry and exit requirements in the Foreign Affairs and International Trade Canada’s Travel Report for the U.S. found at this link.

Realtors® are not allowed to give immigration or taxation advice because they are not trained to do so. But I know more than the basics due to the experience of working with Canadians selling and buying properties down here over the years. I also have knowledge from associations with cross-border accountants and attorneys. I do encourage you to connect to the links provided in this article and to check for yourself with authorities to confirm what the laws are.

Article updated Feb 28,2015

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