The United States-Canada border is not only the world’s longest international border, but it includes some of the busiest commercial crossings in North America. New travel restrictions have been implemented as the COVID-19 pandemic continues.

Non-Essential Travel Ban

The land border has been closed to “non-essential” travel since March 2020 due to COVID-19. Restrictions include:

  • Individuals are not admitted for tourism, sightseeing, recreation, gambling, attending cultural events, or other non-essential purposes. They are admitted for “essential” purposes, which include travel for work, medical reasons, to attend educational institutions, and diplomatic or military related travel.
  • Citizens or permanent residents of the country they are entering are excepted from the ban.
  • Testing Requirements
    • Anyone entering Canada at a land port of entry must show a negative COVID-19 test that was taken within 72 hours of seeking entry.
    • No parallel testing requirement for entering U.S. land ports of entry.

The “non-essential” travel ban does not apply to individuals entering the United States or Canada by air. However, testing requirements apply:

Quarantine Requirements

While the U.S. government has the authority to enforce quarantines upon entry, the current CDC guidelines have no specific penalties for failure to comply. Canada regulations, on the other hand, include penalties.

Jackson Lewis attorneys are available to assist with any questions regarding travel between Canada and the United States, as well as any other international travel.

Over 40 percent of counties in the United States are experiencing population declines, and the country is experiencing a decline in the working-age population. Together, these demographics, some say, may signal an eventual slowdown of the economy. How to reverse the trend? Immigrants moving to targeted areas could help stem the decline.

Countries such as Australia and Canada have already adopted immigration programs that focus on their particular states’ or provinces’ needs for workers.

In the United States, various internal economic development programs have targeted immigrants for training and have found way to “match” immigrants with local businesses. But these programs are aimed at tapping immigrants who are already in the United States. For at least 10 years, some states have been trying to gain permission to establish their own work visa programs. The American Citizenship Act of 2021 (ACA 2021), proposed by the Biden administration, would provide such an opportunity. One of its many features is a five-year pilot program that would allow states to essentially recruit immigrants from abroad to join particular industries in specific geographic areas.

The ACA 2021 program would allow an additional 10,000 immigrant visas a year based on localized economic development strategies. Labor certifications proving there are not sufficient U.S. workers in the area to fill the need would be required. The bill also would give the Department of Homeland Security (DHS) the authority to adjust the number of green cards available annually based on macroeconomic conditions.

The “heartland visa” program discussed in Congress is similar to the ACA 2021 pilot program. It is also geographically targeted, with communities and foreign skilled workers “opting-in.” The heartland visa program would require communities to provide funding to “welcome” the new immigrants in exchange for the immigrants remaining in the community for at least a certain amount of time. Similar programs have been adopted by states outside the immigration context to welcome new residents to work and build their state economies. A couple of examples include Tulsa, Oklahoma, which has a remote worker program that includes a $10,000 stipend. Newton, Iowa, also offers a $10,000 grant toward purchasing a home to bring residents to the city.

As the country looks toward a post-COVID-19 economy, targeted immigration programs could speed the recovery. Jackson Lewis attorneys will provide updates particularly regarding the progress of the ACA 2021 as they become available.

Due to the global coronavirus (COVID-19) pandemic, land border travel between the United States and Canada has been restricted since March 21, 2020, and will likely continue through at least January 21, 2021. Individuals may not be admitted for tourism or other non-essential reasons. For the most part, work has been considered an essential activity. Until recently, however, the restrictions have not affected those flying between Canada and the U.S.

Starting January 7, 2021, due to the worsening of the COVID-19 pandemic, Canada’s new policy requires those flying to Canada to show a negative COVID-19 test. Passengers five and older will need to provide proof of a negative laboratory test result for COVID-19, taken within 72 hours of flight departure, prior to boarding a flight to Canada. Absent that documentation, individuals will be denied boarding. Once they have arrived in Canada, the travelers will be subject to Canada’s 14-day quarantine rules. Those showing indications of illness will be referred to the Public Health Agency of Canada for further assessment and screening. Canada aggressively enforces its quarantine rules and violations can result in possible jail time and up to $750,000 in fines.

Canada, like the United States, had banned travel from the United Kingdom based on the new strain of COVID-19 that was identified there. The U.S. Centers for Disease Control and Prevention (CDC) is expected to release a universal testing requirement like Canada’s by the end of January: all individuals flying in from abroad, including U.S. citizens, would have to present a negative COVID-19 test.

Other countries also have been strictly patrolling their borders due to the COVID-19 uptick. Following is a sample:

Travel restrictions are changing quickly to meet safety measures during the pandemic. Individuals should check relevant sources for travel updates prior to undertaking any travel, international or domestic, including embassy websites, Department of State travel pages, state COVID-19 websites, the CDC, and specific airline companies.

If you have questions regarding the panoply of travel and quarantine restrictions, Jackson Lewis attorneys are available to assist you.

In a move that was not surprising due to the spike of COVID-19 cases in the United States, Prime Minister Justin Trudeau of Canada and the Mexican Foreign Ministry have both announced the continuation of the COVID-19 border restrictions between Canada, Mexico and the United States.  These restrictions were first announced in March and have been extended four times since then.  The restrictions are now set to expire on August 21, 2020 but are subject to further extensions.

These closures are not meant to affect essential goods and services.  But travel for tourism including but not limited to sightseeing, recreation, gambling or attending cultural events is non-essential and not allowed.  The restrictions only affect land ports of entry.

Please reach out to your Jackson Lewis attorney for any questions regarding this border closure.

On April 20, 2020, Chad Wolf, Acting Secretary of the Department of Homeland Security (DHS), announced that the previously announced travel restrictions on the Northern and Southern U.S. borders would be continued for another 30 days until May 20, 2020. In March, DHS had announced that due to the COVID-19 crisis, individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until April 20, 2020.

For more information on these restrictions, please click here.

DHS and CDC have announced a new travel restriction at the Southern and Northern borders due to the coronavirus (COVID-19) outbreak. According to the announcement, DHS will do what it can (including repatriation flights) to prevent the introduction of “affected individuals” into “congregate settings” at land ports of entries (POEs) or Border Patrol Stations at or near the Mexican and Canadian borders.

Basically, those “affected individuals” are undocumented individuals who end up remaining at POEs or Border Patrol Stations for hours and days or more. CDC is issuing this rule because the POEs and Border Patrol Stations simply do not have the medical equipment or facilities to deal with these large numbers of people safely during the pandemic.

The order does not apply to:

  • U.S. citizens, Lawful Permanent Residents, and their spouses and children;
  • Members of the U.S. armed forces, associated personnel, and their spouses and children;
  • Persons from foreign countries who hold valid travel documents;
  • Persons from foreign countries in the visa waiver program who are not otherwise subject to travel restrictions; or
  • Persons DHS, in consultation with CDC, determines should be excepted based upon the totality of circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests.

The order does not specifically address individuals appearing at the POE for in-person TN or L-1 applications. Although CDC probably did not intend to include this group of individuals as “covered aliens,” inconsistent interpretation by each individual POE is possible.

It was previously announced that individuals attempting to enter the United States from Canada or Mexico for non-essential purposes would be turned back from land border crossings until at least April 20, 2020. Non-essential purposes include travel for tourism, including, but not limited to, sightseeing, recreation, gambling, or attending cultural events.

This is on top of previously issued travel suspensions issued by President Donald Trump for individuals seeking entry from:

  • China (excluding Hong Kong and Macau);
  • Iran;
  • The 26 Schengen Zone Countries; and
  • The United Kingdom and Ireland.

There are still certain individuals from the following countries who cannot enter the U.S. due to Travel Ban 3.0:

  • Iran (again);
  • Libya;
  • Yemen;
  • Syria;
  • North Korea;
  • Somalia; and
  • Venezuela.

If you have questions about the various restrictions and bans, please reach out to a Jackson Lewis attorney. We will continue to provide updates on U.S. travel restrictions as they become available.

The North American Free Trade Agreement (NAFTA) signed in 1992 was meant to make North America more competitive in the global economy by reducing trade barriers and increasing business development among the U.S., Canada and Mexico.  It essentially created a free-trade zone, but always faced criticism.  Opponents believed and have argued, among other things, that the agreement actually harmed U.S. workers.

In 2018, President Donald Trump renegotiated NAFTA in part to lower the trade deficit between Mexico and the U.S.  In September 2018, the U.S., Mexico and Canada agreed to sign onto the new “NAFTA” which would be known as the USMCA, the United States Mexico Canada Agreement.

Throughout the history of NAFTA/USMCA, special status was accorded to Canadian workers.  Because Canadians do not need visa stamps in their passports to enter the U.S., they were able to apply for L visa classification at ports of entry.  There was no need to go to a consulate nor file a petition with USCIS.  But that benefit is now being limited.  After twenty years of adjudicating renewals of L status at ports of entry, CBP is refusing to adjudicate anything other than an initial L petition or applications for intermittent/commuter Ls at the border.

This means that employers who want to “renew” or “extend” L status for Canadians must apply to USCIS.  Not only does this extend the adjudication process but it also means that L applicants will not have an in-person opportunity to explain their circumstances to officers who are very familiar with the process.  While this does not seem in accord with the ideals behind NAFTA and USMCA, it is consistent with President Trump’s Buy America, Hire America Executive Order (BAHA).  With BAHA, the Administration seeks to protect U.S. workers by making it more difficult for foreign nationals to obtain work authorization in the U.S. and, the thinking goes, take jobs that would be filled by those workers.

The Request for Evidence (RFE) and denial rate for temporary visas has grown exponentially and adjudication timelines have created long delays.  The USCIS denial rate for L-1B petitions in the first quarter of FY 2018 was approximately 30% and the denial rate for L-1A petitions rose 67% during FY 2017 to 21.4%, far higher than has been generally experienced at the ports of entry.

If you have questions about options for obtaining L visa classification for Canadians, please reach out to your Jackson Lewis attorney.

 

 

Ahead of Canada’s new law legalizing restricted recreational use of cannabis (marijuana), U.S. Customs and Border Protection spokesperson Stephanie Malin stated:

Although medical and recreational marijuana may be legal in some U.S. states and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. federal law. . .

The Canadian law goes into effect on October 17, 2018, and retail sales of cannabis will be permitted, including online or in physical stores. Essentially, the Canadian market will be open to the world.  Because cannabis has been legalized in Washington, Oregon, California, and Nevada, the West Coast of North America will become a contiguous region where marijuana is legal. That does not change the fact that the use and sale of cannabis is not legal under federal law and cross-border movement of cannabis is illegal. A white paper released by the Border Policy Research Institute of Western Washington University noted that “this will result in a situation in which the border is the sole jurisdiction where enforcement occurs.”

Malin’s use of “facilitation” is significant. Facilitation has been broadly defined to include investment in U.S. public companies that trade in marijuana. Indeed, Canadians reportedly have already been denied entry or subjected to lifetime bans for investing in marijuana enterprises in the United States:

  • An individual was banned for life after admitting he was an executive in company that had a subsidiary involved in studying medical marijuana;
  • A chief executive of an agricultural equipment manufacturer was banned for life for attempting to enter the U.S. to discuss designing equipment for a cannabis producer in the U.S.;
  • Another individual received a lifetime ban for investing in marijuana companies in the U.S.

Congressman Luis Correa (D-CA) has asked Secretary of Homeland Security, Kirstjen Nielsen to clarify DHS policy regarding marijuana investments. His concern is that Congress never intended to enforce federal marijuana laws against Canadians involved in a business that is lawful in Canada. He had been seeking information by October 1, 2018, about DHS guidance on this subject, such as how the agency determines who to send to secondary questioning and how it decides that a permanent ban is appropriate.

It is not clear how often non-U.S. citizens are questioned about investments or marijuana use at the border. While it is possible to obtain waivers to enter the United States after being “banned,” that can be a long and detailed process and one that is best avoided, if possible. If you have questions about how to deal with this risk, please reach out to your Jackson Lewis attorney.

While at the Pentagon on January 27, 2017, President Donald Trump signed the “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order, essentially ordering that all foreign nationals from countries identified in the E.O. – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – be stopped from entering the United States.

By January 28, foreign nationals from those identified countries with visas, as well as U.S. green card holders, were being detained at U.S. airports. Lawsuits challenging the E.O. were filed and a federal judge in Brooklyn, New York, issued a temporary restraining order on January 28 staying the ban by halting deportations. Other federal district courts followed suit and further hearings are scheduled for February.

Secretary of the Department of Homeland Security John Kelly stated on January 29 that returning U.S. green card holders were not subject to the ban.

The final E.O. differs from the initial draft E.O. leaked on January 26 and neither contained guidelines or provisions for implementing the bans.

Some substantive changes in the January 27 E.O.:

  • Suspends the entry and issuance of all types of visas for at least 90 days (instead of 30 days) for those from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • Eliminates the creation of safe zones in Syria.
  • Expands the grounds for exceptions to the 120-day ban on refugees to include persons actually in transit to the U.S. if denying admission would cause undue hardship.

The E.O. also grants state and local jurisdictions a role in determining the placement or settlement of eligible aliens in their jurisdictions in fulfillment of a campaign promise that a “Trump Administration would not admit any refugees without the support of the local community where they are being placed.

Other countries have responded to the E.O.: Iran has blocked Americans from entry and Canadian Prime Minister Justin Trudeau has invited to Canada those refugees who are or may be turned away from the U.S. Reverberations are far flung, even affecting the world of sports – posing a possible threat to Los Angeles hosting the 2024 Olympics and the U.S. hosting the 2026 Soccer World Cup.

Those who might be affected by the bans should contact their Jackson Lewis attorney before undertaking any international travel.