Understanding U.S. Visa and Residency Policies for Foreign Citizens with Property in the U.S.

Foreign citizens who own residences in the United States (U.S.) often wonder if they need to leave the country every 90 days or if spending a night in Canada is sufficient. The answer is complex and involves a deep understanding of the U.S. immigration system especially regarding the concept of immigrant intent.

Basics of the Visa System

A foreign national (non-U.S. citizen) entering the U.S. must demonstrate they do not have an intent to immigrate or reside permanently every single time they enter the country. The idea is that even short visits can trigger questions if there is any indication of staying longer or making the U.S. a primary residence.

Immigrant Intent and Staying Longer in the U.S.

The concept of 'immigrant intent' is critical. It refers to a person's intention to live and establish a permanent residence in the U.S. Despite what one may say to border control or immigration officers, their actions are what matter. Owning a home in the U.S., even if it is only visited periodically, can attract more scrutiny because it could be seen as a home base for extended periods.

Visitors who repeatedly come and go from the U.S. for 90 to 180 days and return briefly to a neighboring country like Canada, are likely to face scrutiny. By the third or fourth visit, Customs and Border Protection (CBP) officials may ask for detailed explanations about why they are visiting the U.S. frequently. If the explanation is not convincing, the visitor is likely to face secondary inspection and may be denied entry.

The Impossibility of Using Canada as a Travel Shortcut

The mere act of spending one night in Canada is not sufficient to avoid U.S. overstay requirements. This is often a misunderstanding. The foreign visitor must also rebut the presumption that they are in the U.S. with the intent to reside. This is a challenging feat because it requires irrefutable proof of their non-immigrant status.

For example, a friend who lives and cruises on a sailboat for a good percentage of the year in U.S. waters often faces scrutiny. Even then, he must ensure he regularly moves around, leaves U.S. waters, returns to Canada, and consistently demonstrates he is not living or working here. The U.S. Citizenship and Immigration Services (USCIS) can demand his presence at any time if they question his visiting status, and he must prove he is not an illegal immigrant.

Consequences of Immigrant Intent

Once the presumption of immigrant intent is established, it becomes extremely difficult for the foreign visitor to re-enter the U.S. legally. USCIS can suspect a non-U.S. citizen's intent to remain in the U.S. permanently, and this can stop the individual from entering the country unhindered for a long period.

Those who are found to have an immigrant intent risk having their U.S. property managed or sold by a U.S.-based agent because they will face significant challenges in returning to the U.S.

Expert Advice and Precautionary Measures

The advice is clear: don't try to game the system. It is a complex and nuanced area with significant risks. If someone is thinking about living in the U.S. while pretending to be merely visiting, it's likely that their visits will be stopped within a year. Understanding and respecting the U.S. residency and visa policies are critical.

To prevent issues, it is important to:

Ensure continuous movement and regular departure from U.S. waters. Return to Canada and make such return visible. Consistently demonstrate that you are not living or working in the U.S. Be prepared to provide documentation and prove your non-immigrant status when needed.

If faced with questions, it is best to consult with an immigration lawyer to ensure all steps are taken properly and to mitigate the risks.

Understanding the U.S. visa and residency policies is key to maintaining a legal and safe status within the country. Respect for these policies can prevent major complications and ensure smooth travel and residence for foreign citizens.