Canadian citizens, with few exceptions, are visa-exempt, meaning that they generally do not need a visa to enter the United States. As a result, many Canadians who enter the U.S. by land do not receive a Form I-94 or any other documentation that shows how long they are allowed to stay in the U.S. In this post, we discuss how long these individuals, called “noncontrolled Canadians,” can stay in the U.S., as well as how they can go about showing their date of entry even when the U.S. government has created no documentation of the entry.
What is the Form I-94, and why is it important?
Before focusing on Canadians specifically, it is helpful to understand why the Form I-94 is important, what happens when someone stays in the U.S. after their status expires, and the consequences of unlawful presence.
The I-94 is the Arrival/Departure Record Card that the United States government uses to keep track of the arrivals and departures of foreign nationals. It is issued by U.S. Customs and Border Protection (CBP). The I-94 is important because, among other things, it shows a foreign visitor’s current status in the United States and the date when their status ends. The visitor must leave the U.S. on or before the “admit until date” shown on the I-94.
If they stay past this date without extending or changing their status, they will be overstaying, which can result in the accumulation of unlawful presence. Any unlawful presence must be disclosed on future visa applications, and it can result in the individual being barred from entering the U.S. in the future. As detailed here, those who are unlawfully present in the U.S. for more than 180 days but less than one year and who leave the U.S. prior to removal proceedings will be subject to a 3-year bar; those unlawfully present in the U.S. for more than 1 year will be subject to a 10-year bar.
It is not uncommon for CBP to enter the I-94 information incorrectly, which can have negative immigration consequences if left uncorrected. For this reason, it is strongly recommended that a visitor verify all information on their Form I-94 each time they enter the U.S. by visiting the CBP website here. If the electronic I-94 contains incorrect information, the procedure to correct it from within the United States is to visit a local CBP Deferred Inspection Site or Port of Entry (POE) that has a Deferred Inspection office. For more information on the Form I-94, see our earlier post here.
How are Canadians treated differently from those from other countries?
Canadians who enter the United States are treated differently from visitors of any other nationality. This is because, with few exceptions, Canadian citizens are “visa exempt” and do not need a visa to enter the U.S. (The E-visa is one of the few exceptions – Canadians who wish to enter the U.S. in E-1 or E-2 status do need to apply for and receive a visa before they enter the U.S.).
Being visa-exempt is not the same as being in the Visa Waiver Program. Canada does not participate in the Visa Waiver Program – instead, its citizens are visa-exempt and therefore not required to apply for a visa in the first place. As a result, there is no visa requirement that must be waived as there would be for countries that do participate in the Visa Waiver Program.
The frequent result is that Canadians who enter the U.S. by land are oftentimes not issued a Form I-94 that shows how long they are allowed to stay in the U.S. The term used for these visitors is “nonconrolled” Canadians – these individuals are “inspected” at the border by CBP, but are not issued a Form I-94. As a result, they oftentimes are not given a date by which they must leave the U.S.
Not all Canadians who enter the U.S. are noncontrolled. Canadians who enter by air or sea typically receive a Form I-94, as well as a stamp in their passport with their class of admission and the date they are admitted until. Also, Canadians who apply for and enter on a B-1 or B-2 visa would also usually receive a Form I-94 and be permitted to enter for up to one year. Similarly, Canadians who enter in TN status can enter for up to 3 years and would receive a Form I-94.
How long is a noncontrolled Canadian allowed to stay in the U.S.?
For noncontrolled Canadians – those who enter the U.S. by land but do not receive a Form I-94 — there is disagreement among U.S. immigration agencies regarding how long they are allowed to stay in the United States.
U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State consider noncontrolled Canadians to not accrue unlawful presence for as long as they maintain their status. This is referred to as “duration of status,” or “D/S” — a visitor who enters the U.S. and receives an “admit until” date that shows “duration of status” or “D/S” is permitted to stay in the U.S. for as long as they comply with all the terms and conditions of that status (see more on what “D/S” means here). This means, for example, that a noncontrolled Canadian who enters in B-2 status and is admitted for the duration of their status would be able to remain in the U.S. as long as they comply with all the terms and conditions of B-2 visitor status.
However, CBP disagrees with USCIS and the U.S. Department of State, and has instead concluded that noncontrolled Canadians are limited to a 6-month stay. This means that, in the eyes of CBP, the status of a Canadian who enters the U.S. by land but does not receive a Form I-94 expires six months after the date they enter the U.S. After six months, and assuming they have not extended or changed their status, they would begin accumulating unlawful presence, which counts toward the 3- and 10-year bars. As a result, Canadians who enter the U.S. by land but are not issued an I-94 should assume that they are permitted to stay in the U.S. for 6 months – and that they will begin accruing unlawful presence after that date unless they timely apply for an extension or change of status with USCIS.
How can a Canadian prove when they entered the US?
The prospect of applying for an extension or change of status through USCIS raises additional questions, particularly since USCIS will typically ask that the applicant provide their most recent Form I-94 as part of the application process. So, how can a Canadian who was not issued a Form I-94 apply for an extension or change of status, which requires that they provide a Form I-94?
The government has expressed that noncontrolled Canadians who did not receive a Form I-94 can instead provide a detailed affidavit that explains when, where, and how they most recently entered the U.S. The affidavit, which can be signed by the applicant, can be strengthened by including any documentation that might substantiate these facts – including receipts for transportation, fuel, a hotel, or any food or other items purchased at the time the person entered the U.S. Also, even if the individual did not receive a Form I-94, CBP could nonetheless list their entry in the visitor’s travel history – this can be found at the CBP website here, under “View Travel History.” If the entry is shown in the travel history, it is worth providing a screenshot of the travel history along with the detailed affidavit and any other documentation demonstrating the date of entry.
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