Immigration Insights

Generally, Canadian citizens traveling to the United States for business or pleasure do not require a nonimmigrant visa. They simply present their travel document (i.e., Canadian passport, Enhanced Driver’s License/Identification Card, NEXUS, FAST/EXPRESS, SENTRI Enrollment card) at a land port-of-entry or an international airport preclearance to be inspected for admission by US Customs and Border Protection (CBP). Depending on their purpose of travel, the CBP Officer will inspect and admit qualifying Canadian citizens as either B-1 Business Visitors or B-2 Tourist Visitors for up to six (6) months.

As a foreign national, it is important to understand several US immigration concepts and considerations ahead of your upcoming US travel plans. CBP Officers have the ultimate authority to permit or deny admission to the US. If they feel your purpose of travel goes beyond the scope of the B-1 or B-2 permissible activities, they can deny you entry. To avoid this potential negative interaction with CBP, it is important to understand the limitations of these admission categories, particularly the B-1, where there is a fine line between permissible and impermissible business activity.

B-1 Business Visitor vs. B-2 Tourist Visitor

The B-1 Business Visitor admission category allows foreign nationals to enter the US to participate in limited business activities of a commercial or professional nature. These may include, but are not limited to, consulting with business associates; attending a scientific, educational, professional or business convention, or a conference on specific dates; settling an estate; negotiating a contract; or participating in short-term training.

It can be difficult to distinguish between appropriate B-1 business activities and activities that constitute skilled or unskilled labor in the US and fall beyond the scope of permissible B-1 business activities. The clearest legal definition comes from the Board of Immigration Appeals (BIA) in Matter of Hira. This case involved a tailor measuring customers in the US for suits to be manufactured and shipped from outside the US. The decision stated that this was an appropriate B-1 activity because the principal place of business and the actual place of accrual of profits, if any, were in the foreign country. 

On the other hand, the B-2 Tourist Visitor admission category allows foreign nationals to enter the US for certain leisure, cultural, or recreational activities, such as tourism, vacation, or visiting with friends or relatives. For example, many Canadian “Snowbirds” with property in the US will enter as B-2 Tourist Visitors for extended stays during the winter months.

When traveling to the US, Canadian citizens should bring printouts of the following documents to present to the CBP Officer if necessary:

• Proof of round-trip airline ticket (one-way airline tickets to the US are a big red flag)
• Proof of stay in the US (e., hotel confirmation, rental car confirmation, dinner reservations, etc.)
• Proof of purpose of the trip (e., trade show registration, industry conference schedule of events, vacation itinerary, concert/theatre tickets, etc.)
• Proof of your permanent ties to Canada (e., recent utility bill, recent paystub, most recent T4, etc.)

I-94 Admission Record

When a Canadian citizen is inspected and admitted to the US, the CBP Officer will electronically generate their I-94 Admission Record. An I-94 Admission Record is the Arrival/Departure Record issued by CBP to every foreign national upon entry, documenting their legal status, date of admission, and authorized length of stay. It also tracks the foreign national’s entries and exits from the US, thereby creating an I-94 Travel History.

Every time a Canadian citizen enters the US, they should obtain a copy of their I-94 Admission Record, which is available online at: https://i94.cbp.dhs.gov/home. Simply click “Get Most Recent I-94,” enter your passport information, and it will show your Most Recent I-94 Admission Record.  

Your I-94 Admission Record governs your period of lawful stay in the US (not your visa stamp or USCIS approval notice). The expiration date shown on the I-94 Admission Record governs your period of authorized stay and also indicates your status as admitted by CBP. Each time you enter the US, CBP updates your I-94 Admission Record, so it is your responsibility to check this to be aware of your expiration date and catch any errors.

Please note, if you enter through a land port-of-entry, CBP may not automatically update the I-94 Admission Record. Further, the CBP Officer has the ultimate discretion to decide your length of stay in the US. While the default for Canadians entering as B-1 Business Visitors and B-2 Tourist Visitors is typically six (6) months, this is not guaranteed. Again, it is important to check your I-94 Admission Record each time you enter the US to be sure you know your expiration date.

Alien Registration Requirement

US Citizenship and Immigration Services (USCIS) – a division of the US Department of Homeland Security (DHS) – recently updated the compliance process for registering with the US Government. The law and its requirements are not specific to Canadian citizens but rather apply to all foreign nationals who remain in the US for 30 days or longer in a single visit.

Section 262 of the Immigration and Nationality Act (INA) (8 USC. 1302) requires, with limited exceptions, that:

• All foreign nationals 14 years of age or older who were not registered and fingerprinted (if required) when applying for a US visa and who remain in the US for 30 days or longer must apply for registration and fingerprinting.
• Canadian citizens are generally exempt from the fingerprint requirement.
• The parent or legal guardian of a foreign national child under 14 who has not been registered and remains in the US for 30 days or longer is required to register the child, but the child is not subject to fingerprinting.
• All foreign nationals 18 years of age and over in the US who are required to register must also carry, at all times, evidence of their registration.
• All foreign nationals in the United States must also report a change of address to USCIS within 10 days of moving.

Many foreign nationals in the US have already registered, as required by law. However, a significant number present in the US have had no direct way to register and meet their obligation. USCIS has established a new form, G-325R, Biographic Information (Registration), and an online process for unregistered foreign nationals to register and comply with the law.

Registration is not an immigration status, and the registration documentation does not create an immigration status, establish employment authorization, or provide any other right or benefit. More information on how to register can be found here: https://www.uscis.gov/alienregistration.

No Additional Action Needed: Absent unusual circumstances, Canadian citizens in the following categories are exempt or already registered by the nature of how they entered the country or are otherwise exempt.

• A dual citizen of the US or a US Lawful Permanent Resident (LPR)
• Arrived in the US by air
• Issued Form I-94 when being admitted at a land Port of Entry
• Issued a US immigrant or nonimmigrant visa and requested admission to the US based on that visa
• Issued a US Employment Authorization Document
• An American Indian born in Canada who entered the US under Section 289 of the INA (8 USC. 1359)

Need to Register: Canadian citizens who entered the US at land ports of entry and were not issued a Form I-94 must register if they intend to stay in the US for at least 30 days during a single visit. These Canadian citizens primarily comprise those admitted as B-1 Business Visitors and B-2 Tourist Visitors, including so-called “snowbirds,” who did not request a Form I-94 at a US land port of entry.

Issues such as length of stay, travel patterns, and ties to Canada can also have implications beyond immigration, including U.S. tax residency and cross-border reporting requirements. The Hodgson Russ International Tax and Canada-U.S. Cross‑Border Practices routinely advise on these related considerations and often coordinate with the Immigration team when a matter involves both immigration and cross-border planning.

Disclaimer:

This blog is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this blog should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.