U.S. Trump Clinton election

Republican presidential candidate Donald Trump has staked much of his platform on immigration reform. He’s promised to build a wall between Mexico and the U.S., but in the increasingly unlikely event that he wins, he could also make life difficult for Canadians with U.S. ties.

Meanwhile, Democratic candidate Hillary Clinton wants to loosen certain policies, which could improve conditions for Canadians with U.S. ties.

Advisor.ca asked two Canada-U.S. immigration lawyers to explain how the U.S. election could affect clients who are snowbirds, travel regularly to the U.S. or work in the U.S.

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Overall impacts

A xenophobic president could mean tougher stances, says Heather Segal of Segal Immigration Law. “If you get an executive branch or House that’s very anti-immigration, the translation of that to U.S. Citizenship and Immigration Services and the Department of Homeland Security is […] ‘It’s OK if adjudications are more difficult […] If we give you a hard time, us as officers are doing our job.’”

She adds the State Department, which issues visas, could also follow suit. “There could be a chilling effect across the board,” she says. “That would have serious ramifications. And they wouldn’t have to change any laws or go back on any agreements.”

Any clients who are concerned about a Trump win could apply for visas or permits before the election, she says.

Read: How to apply for TN status to work in the U.S.

Trump proposal: Penalize visa overstays

Trump proposes to crack down on people who overstay visas.

Henry Chang, a cross-border immigration lawyer at Blaney McMurtry, explains that a visa is an entry document, like a driver’s licence, while the period for which a person is legally admitted is called status. “The visa could expire while I’m still in legal status in the U.S., and that doesn’t matter as long as I’m not leaving and coming in again.”

Trump uses wrong or vague immigration terminology, leaving observers to guess what he’s promising. “He could mean people who need visas who overstay their status, but I think he also means a Canadian who doesn’t need a visa to come in as a tourist […] and overstays,” Chang says. “I think his position is to keep [all] foreigners out.”

It’s easy to inadvertently become illegal. Snowbirds, like any Canadian tourist, can stay for six months from date of entry unless told otherwise. If they stay for longer, even by a day, they become illegal aliens. (The six months must occur consecutively. Someone who makes two five-month trips would not be overstaying.)

“If you’re a law-abiding Canadian who never mistakenly violates immigration law, you’ll be fine,” says Chang. “But the reality is, people will make mistakes.”

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And if you’re thinking of bending the truth to avoid penalties, Segal says there are “very serious repercussions” for lying to immigration officers. “You can be barred from the U.S. permanently, and you’ll need a Waiver [of Grounds of Inadmissibility to enter] for the rest of your life.” It costs US$585 to apply for the waiver, and “it can take four to eight months, even a year to get it approved,” she says.

Trump proposal: Hire U.S. workers first

The Republican candidate has promised to make it more difficult for foreigners to work in the U.S. and to ensure “that open jobs are offered to Americans first.”

One way to do that is to restrict work visas. But several work visas “are already subject to a labour market test,” says Chang. “To say ‘Americans first’ sounds really good, but the system is already built based on that.”

The only exemption, he says, is when a U.S. citizen or employer can justify that the business need outweighs the need to show that there’s no Americans available. If Google needs to bring some of its foreign employees into its California office, for instance, “That’s for the benefit of the [U.S.] economy and the employer.” Every country has a similar rule, he adds, and it’s impractical to remove such exceptions. “He might pass those laws, but it would be a disaster.”

Chang also points out that if Trump opts out of NAFTA as promised, several categories of work permits will no longer be available to Canadian citizens: namely TN, E-1 and E-2.

“There are other avenues to get visas, but they are much more onerous,” says Segal.

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Clinton proposal: End bars against entry

Aliens who enter and overstay their authorized period by at least 180 days can be barred from the U.S. for three years (10 years if the overstay is more than one year). Clinton is proposing to end those bars.

That would help Canadians who have previously overstayed, which is more common than you’d think, says Chang.

For instance, if a Canadian enters the U.S. as a tourist, marries an American a few years later and doesn’t file for permanent residency, they’ve technically overstayed their status (which is usually six months, as mentioned earlier).

“Up until a few years ago, that wasn’t really a problem,” says Chang.

That’s because Canadians did not receive entry records, known as I-94s, when they entered the U.S. “In the past, we could argue that since a Canadian never received an I-94, they could not have overstayed the expiration date and would therefore not be subject to an unlawful presence bar,” says Chang. “The only time the accrual [of an overstay] would start is if it comes to the immigration service’s attention when you’re applying for some sort of benefit,” such as an extension. “But the average person who overstayed, where U.S. Immigration never learned of it, there was no [technical] overstay.”

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As of 2013, Canadians receive virtual I-94s at air and sea ports, but not at land crossings. (Canadians can look up their I-94s and arrival/departure histories from the U.S. here.) For anyone with an I-94, the moment their tourist status expires (usually after six months), unlawful presence starts accruing. According to Chang, the U.S. Customs and Border Protection says that also applies even if the Canadian crossed via land and wasn’t issued an I-94. (Chang says he disagrees with this position and points out that U.S. Citizenship and Immigration Services and the Department of State also disagree with it.)

That means “you could come in as a snowbird, stay 180 days longer than your six-month default, and now you’re barred for three years the minute you leave the country.”

While it’s not common for Canadians to overstay deliberately, says Chang, it can happen accidentally. “Let’s say my [work permit] status ends today. My HR person was supposed to renew my status and forgets. Six months later, I found out they never renewed my status, and I’ve clearly overstayed by 180 days. The law’s the law, and I’m barred.”

Clinton’s proposal to end the bars “is good news,” he concludes.

Crossing the border

U.S. Customs and Border Protection uses an informal rule to determine whether you’ve been there too often, says Henry Chang, a lawyer at Blaney McMurtry. “[They] want to see you in the U.S. no more than six months in total out of the preceding 12 months,” he says, and if you’ve been there longer, it’s possible to be turned away.

Melissa Shin is Editor of Advisor Group. Email her at melissa.shin@tc.tc.
Originally published on Advisor.ca
See all comments Recent Comments

AMI.MAISHLISH

This matter is of significance. There appears to be a discrepancy in interpretation of the law between the lawyer cited above and another – American based – immigration law firm. Thus, as I’d expect a good carpenter to “measure twice and cut once”, if I may, I’d like to refer you to the text:

“Canadians are permitted to visit the United States for up to 6 months in a 12 month period. This is not based on a calendar year. If you stay for 6 months, you must depart the United State for 6 months before you are permitted to re-enter as a visitor. You cannot stay for 6 months, leave briefly and re-enter for another 6 months.”

For reference, please see: http://www.canadiansinusa.com/Visiting-the-US/index.html

I believe that this discrepancy deserves to be explored further and resolved.

Thank you,

Ami

Wednesday, Oct 19, 2016 at 10:11 am Reply

MELISSA.SHIN.1

Thank you again. Based on my research and consultations with sources, the quote you mention appears to conflate the informal USCBP guideline — used by USCBP officers when assessing immigrant intent — and the actual regulations cited earlier. Again, I refer you to my earlier response, as well as that of lawyer Henry Chang.

Wednesday, Oct 19, 2016 at 1:38 pm

AMI.MAISHLISH

In the paragraph:
“It’s easy to inadvertently become illegal. Snowbirds, like any Canadian tourist, can stay for six months from date of entry unless told otherwise. If they stay for longer, even by a day, they become illegal aliens. (The six months must occur consecutively. Someone who makes two five-month trips would not be overstaying.)”

The part enclosed in brackets “(The six months must occur consecutively. Someone who makes two five-month trips would not be overstaying.)” is incorrect.

A snow bird visiting the US on a B2 Visa may only be in the US for 182 days at the very maximum during any 365 day period or (s)he violates the law and becomes and “illegal alien”. Therefore, if a Canadian visiting the US on a B2 visa stays for 5 months, then returns to Canada for a month and then goes back to the condo in the US for another 2 months (exceeding the max of 182 days per any 365 day period) (s)he is violating the law. The consequences can be very serious, including being barred from entry to the US.

Thursday, Oct 13, 2016 at 8:08 pm Reply

MELISSA.SHIN.1

Hi Ami,

Thank you for your comment. I have confirmed with a lawyer that the bracketed sentence is indeed correct, as per regulation 8 CFR 214.2 – Special requirements for admission, extension, and maintenance of status. https://www.law.cornell.edu/cfr/text/8/214.2 [Specifically, 8 CFR 214.2(b)(1)]

You’ll notice at the end of the piece that I mention an “informal rule” that U.S. Customs and Border Protection uses to assess whether someone is going to the U.S. too often. That is not a legal statute, but rather a guideline the USCBP uses to determine immigrant intent (as opposed to visitor/tourist intent).

Also note that the Substantial Presence Test, which measures residency for U.S. tax purposes, does indeed kick in after 182 days. But that is not an immigration-related issue. Read more here: http://www.advisor.ca/tax/tax-news/snowbirding-in-the-u-s-74041

Thanks for your readership! – Melissa Shin

Friday, Oct 14, 2016 at 11:32 am

MELISSA.SHIN.1

Ami, here is further clarification from lawyer Henry Chang, who was quoted in the article:

“In theory, a USCBP officer can actually admit a B-2 visitor for an initial period of up to one year by issuing a Form I-94 for this period. The visitor can even file for an extension of stay for an additional six months. Please refer to 8 CFR 214.2(b)(1). Of course, USCBP will rarely admit a B-2 visitor for one year but it is legally permitted.

“A traveller who is admitted for 5 months, leaves, and then re-enters for another 5 months will clearly not be an illegal alien. However, there is a possibility that USCBP will notice that they have already been in the U.S. for 5 months out of the preceding 12 months (they have started tracking entries and exits now), conclude that the traveller has immigrant intent (using their rules of thumb), and then either only admit the person for one more month (to bring them up to 6 months) or just deny them completely. However, they are not applying any specific law or regulation when they do this. They are simply making a judgment call that the traveller probably has immigrant intent because they are spending so much time in the U.S. One officer could deny them for immigrant intent but another could just as easily allow them to enter, if they can satisfy that officer that they are bona fide visitors.

“The article only discussed the immigration issues but it is possible that the reader is referring to the related tax issue. An alien [who] spends too much time in the U.S. (even as a B-2 visitor) can be deemed to be a U.S. resident for tax purposes under the IRS’ substantial presence test (https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test). If they remain more than 183 days in the U.S., they can incur tax filing obligations. It can actually happen before you reach 183 days in the current year because they substantial presence test also counts some days spent in the U.S. during the preceding two years. But even this does not make someone an ‘illegal alien’ – it just gives them an obligation to file a U.S. tax return as a resident.” – Henry Chang, partner, Blaney McMurtry

Friday, Oct 14, 2016 at 11:50 am

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