by pnxblaw
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Extended Visitor Travel to the US and CBP Procedures at Vancouver International Airport

A few months ago a friend reached out to me for some guidance crossing the border. His long-time girlfriend had to attend an 8-month training in the US for work. Her company took care of her work-authorization, but my friend was on his own. Lucky for him, his employer was going to allow him to work remotely. “I will need a visitor visa that will allow me entry” he told me via e-mail, based on what someone at his girlfriend’s company told him.

Part 1: Preparation

Since my friend is Canadian, he didn’t actually need a visa. “The person from her company was almost correct,” I told him via e-mail.

You will apply for admission in the non-immigrant B-2 visitor category, but won’t need a visa. The person from her company is probably more accustomed to dealing with people from many different countries who require a visa to travel to the U.S., but less familiar with the special rules that apply to Canadians. For most non-immigrant categories, including B-2 visitor, Canadians do not require a visa to apply for admission to the U.S. You already know this because you have visited the U.S. many times without a visa, but the official citation is at 8 CFR § 212.1(a).

Visa exemption was good news for my friend because it allowed him to avoid (1) the visa application process (think online form created by the government, separate online form to schedule an appointment at the US consulate, an inconvenient interview, and other bureaucratic challenges), (2) the USD $160 Machine Readable Visa Fee, and (3) the USD $45 visa reciprocity fee. Instead, he could simply take his documentary evidence to any US port of entry and apply for admission as a B-2 visitor.
My friend needed to prepare documentation showing that he met the requirements for the B-2 visitor category. This category has 3 general requirements (see INA § 101(a)(15)(B) and 9 FAM 402.2-2(B)):
  1. a residence in Canada that you do not intend to abandon,
  2. a specifically limited duration of time in the U.S., and
  3. only legitimate activities in the United States.
I gave my friend some additional explanation of the meaning of each of these requirements, as well as some specific guidance on what documents to prepare and why.
He understood these instructions, but was unsure how to approach the residence requirement. As he put it, “because we’ve been at our place for over a year, I’ve been signing each subsequent year’s rental agreement as month-to-month. We would like to sublet our place ideally when away, but with this setup you must ask for permission to sublet… So we think that they will probably say no, and we’d have to give up our place.” He wanted to know if he could use his parents’ place as his “residence.”
“You’ve got challenges,” I replied.
Customs and Border Protection has very conventional views on living arrangements. A man in his late 30’s, going to live with his girlfriend in the US, and claiming that he is going to move back in with his parents will be highly suspect. If you want to use your parents’ address as your residence you will at least need to enter into a formal agreement with them, pre-pay the first month’s rent, and have evidence that they cashed the check (i.e. their bank statements). If you can show that you have skin in the game then your story is more credible. I would also get a copy of the deed or mortgage statement showing that they own the property. A better, though more difficult solution would be to sign a lease and pay the deposit for a place (other than your parents’) that you would take possession of when you return. Obviously, this is risky, but if you know someone with an extra room it would be worth reaching out.
From there he felt comfortable assembling and preparing the documents on his own. I didn’t hear from him again until the day before he was traveling.

Part 2: Execution

“We’ll be traveling tomorrow, and wondering if you can give me some pointers on what to say / how to approach the border crossing?” I responded with the following pointers:

  • Above all: tell the truth. If you lie and get caught you will need an I-212 waiver and an I-192 waiver (filing fees USD $985 and USD $585, respectively).
  • Hopefully, you have signed a lease and put the deposit down for when you return. If you get asked where your residence is, that’s where you reside. If you have to say you live with your parents, be prepared to give up their contact info for confirmation.
  • Read through all of the documents that you have so that you can ensure that your answers are consistent with the evidence.
  • Lastly, give yourself lots of time at the airport just in case you get called in for lengthy questioning. You don’t want to miss your flight.

Later, he confirmed that he was permitted to board his flight, and graciously provided a summary of U.S. Customs and Border Protection’s inspection procedures at Vancouver International Airport.

First, he went to the Automated Passport Control kiosk where he answered some basic questions on a touch screen, scanned his passport, and got a receipt for his answers. Next, he took his receipt to an inspecting CBP officer and was asked why he had so much luggage and how long he was planning to stay in the U.S. Once the inspecting officer learned how long my friend was planning to stay in the U.S. he wanted to know what my friend would be doing for so long. My friend explained, and was told to “go talk to that guy in the booth.”

I walked over to guy in the booth, kiosk guy said something vague like ‘problem in the system’ (kiosk guy was a bit more aggressive). Booth guy is chill, asks basically the same questions, maybe one or two more. Types up what I told him for a few minutes. Then motions me to come with him to secondary.

After a 5-10 minute wait in secondary his name was called, and he was treated to the secondary inspection experience.

At this point I’m not sure if this is just a detail thing, or I’m going to get strip searched (I can see the rooms with two-way mirrors behind the agents …. shit). When it’s my turn, I re-answer what I told the previous agents to this secondary agent. He asks  how I’ll support myself while i’m in the US, I tell him i’ll be working remotely while my girlfriend receives job training. He asks what I do, and I explain my occupation as a software developer. He asks for more info about them, and I say I have a letter from my employer that explains what I do and how I can work remotely.

After the secondary inspection officer read the letter from my friend’s employer, he did some typing and then stamped my friend’s passport “B-2.”

Part 3: Conclusion

Preparation is key when taking an extended trip to the U.S. as a visitor. Engaging only in  “legitimate activities” while in the United States includes declining unauthorized employment. According to Matter of Hira, working (remotely) from within the United States in visitor status may be allowed when

  • there is a clear intent on the part of the alien to continue the foreign residence and not abandon the existing domicile;
  • the principal place of business and the actual place of accrual of profits, at least predominantly, remains in the foreign country;

If my friend had not been prepared with a letter from his employer, and other documentation of how he would support himself in the U.S. his application for admission would have likely been denied. By preparing thorough documentation of his compliance with U.S. immigration law my friend was able to complete a stressful secondary inspection and obtain admission to the United States.

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