On March 20, 2020, due to the global pandemic, U.S. and Canadian officials mutually agreed that non-essential travel between the United States and Canada should be temporarily suspended. U.S. Customs and Border Protection (“CBP”) published a Notification in the Federal Register regarding these restrictions on March 24, 2020. On May 19, these measures were extended until June 22; and on June 16, they were again extended until July 21.

The extended closing of the land border has introduced tremendous additional ambiguity into immigration matters of all kinds for business travelers. The process of migrating between Canada and the United States is now subject to a complicated framework of rules and regulations enacted by both nations, including the Canadian Quarantine Act.

According to the Notification, the following activities are considered “essential travel:”

• U.S. citizens and lawful permanent residents returning to the United States;
• Individuals traveling for medical purposes (g.,to receive medical treatment in the United States);
• Individuals traveling to attend educational institutions;
• Individuals traveling to work in the United States (eg.,individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
• Individuals traveling for emergency response and public health purposes (eg.,government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
• Individuals engaged in lawful cross-border trade (eg.,truck drivers supporting the movement of cargo between the United States and Canada);
• Individuals engaged in official government travel or diplomatic travel;
• Members of the U.S. Armed Forces, and the spouses and children of members of the U.S. Armed Forces, returning to the United States; and
• Individuals engaged in military-related travel or operations.

The Notification states further that the following activities do not constitute “essential travel:” Individuals traveling for tourism purposes (eg.,sightseeing, recreation, gambling, or attending cultural events).

Ambiguities in Notification

The Notification applies only to land border crossings and does not apply to air, freight rail, or sea travel between the United States and Canada.

The Notification is ambiguous in several ways. First, while it only bars tourist entry and expressly permits entry by those traveling to work in the United States, the examples provided of the types of permissible workers are very limited, so on its face the Notification is unclear as to whether non-essential employees could enter the United States. The Notification is also silent as to whether CBP officers would continue to process new applications for admission under NAFTA for those seeking entry in TN or L-1 status. Furthermore, the Notification is silent as to whether dependent family members of those seeking to enter the United States for employment purposes would be permitted to enter the country.

We have since learned from CBP that they continue to process initial TN applications and L-1 petitions under NAFTA/ USMCA, and that CBP is continuing to admit people in employment-based visa classifications. In addition, based on experience, it appears that CBP is admitting dependent family members. In short, only those seeking admission as visitors are barred, and even then they are only barred from entering over the land border.

While the closure of the land border is relatively limited, it still has a tremendous impact on foreign nationals. First, in addition to the limitation on travel across the land border, the Canadian government has also imposed a Quarantine Act that requires people entering Canada from any other country to self-quarantine for 14 days, with limited exceptions. This Act has no impact on Canadian citizens residing in Canada who seek to enter the United States during the quarantine; however, it does impact Canadian citizens residing temporarily in the United States who need to return to Canada for any reason during the quarantine.

For example, Canadian citizens who seek to renew their TN status at the port of entry are required to leave the United States and re-enter the United States to make a new application for admission. This is often done through a process called “flag-poling,” where the person crosses into Canada, clears Canadian Customs, then makes a U-turn near the international boundary flagpole to turn around and reenter the United States. The Quarantine Act raises the question of whether people can continue to “flag-pole” to apply for new TNs, or whether they must first spend 14 days somewhere in Canada. Anecdotally, the answer appears to be that flag-poling is still permitted, on the theory that people are not endangering other Canadians by doing so, as they are leaving the country immediately. There are many reports of people successfully doing this, although there is no official guidance on whether it is permitted.

Impact on Third-Country Nationals

The U.S./Canada land border restrictions also impact third-country nationals. Citizens of other countries often use the land border for departure and reentry to the United States so that the individual can take up a new status upon readmission. This involves some rather complex scenarios. For example, foreign medical graduates who received graduate medical training in the United States in J-1 status are barred from changing their status by mail in the United States, but are permitted to leave the United States, get a visa, and reenter the U.S. in another status (as long as they are not entering in H or L status). J-1 medical graduates thus often obtain an O-1 petition approval from USCIS, leave the United States, apply for a visa at a U.S. Consulate overseas, and then reenter the country in O-1 status.

Several problems with this scenario exist under the current travel restrictions. First, all of the U.S. consulates around the world have been closed since March, so there are no new visas being issued. There is a way around needing a visa, however; CBP can waive the requirement for an entry document per INA §212(d)(4) on Form I-193 at the port of entry in emergent circumstances. However, this can only be done at the land border. It can’t be done at an airport because it must be executed by CBP at the time of entry, and there’s no way for a foreign national to get in front of CBP at the airport if they lack a visa, because a visa is a required boarding document to be allowed to board the airplane in the first place.

Airline carriers are fined if they allow someone to board without a visa or other travel document. That leaves the land border as the only available venue for this relief, and the closure of the U.S./ Canada land border to tourist travel renders this relief inaccessible, because the third-country national would be entering Canada as a visitor and the Canadian government won’t deem that travel to be essential. They thus cannot get into Canada, and therefore once again cannot get in front of a CBP officer to seek readmission in O-1 status and a waiver of the visa.

This is only one example among many of the complicated repercussions of keeping the land border closed; it is resulting in highly skilled and talented physicians, among other professionals, with no option other than to depart the United States.