Travel Restrictions Between the U.S. and Canada

The United States and Canada announced on Wednesday, March 18, 2020 that certain travel restrictions will be introduced between the two countries in an attempt to limit the spread of the coronavirus, Covid-19. Details of the travel restrictions remain unclear at this writing but it appears that there will be exceptions and exemptions for certain persons. While leisure travel will be restricted, it appears that business and employment-related travel may still be possible.

While the way the specific limitations of the U.S.-Canada travel restrictions will be implemented has not yet been defined, currently existing virus-related travel restriction procedures for citizens of other countries provide an example of what to expect. For example, under the Presidential Proclamations restricting travel from the Schengen Area, the U.K. and Ireland, there is a list of exemptions such as U.S. resident aliens (i.e., those with “green cards”), the spouse of a U.S. citizen, etc. Also, there are separate exceptions for, among others, those who do not pose a significant risk of transmitting the coronavirus and those whose presence would be in the U.S. national interest. Both the U.S. Department of State (DOS) and the Department of Homeland Security (DHS) have authority under the Proclamations to make determinations for the exceptions.

The DOS would be involved in relatively few determinations for Canadians since visas are not required for Canadians to enter the U.S. in most cases. The DOS role will be relevant, however, to many Canadian businesses utilizing the treaty trader (E-1) and treaty investor (E-2) visas categories to send key workers to the U.S. since a visa must be obtained from a U.S. consulate for such travel. On March 16th the DOS indicated that it anticipates that national interest determinations allowing an exemption from the travel restrictions will rarely be granted. That messaging, however, may be intended to discourage mass applications for waivers. Furthermore, the information being reported about the U.S.-Canada travel restrictions indicates that interruptions to trade should be limited and those with appropriate immigration documentation should be able to continue traveling. The specific rules are developing in a highly fluid situation and may change rapidly.

The DHS, through the agency of Customs and Border Protection (CBP), would most likely be exercising authority to make national interest exception determinations at ports of entry at the land border and at CBP Pre-clearance Offices located in certain Canadian airports. As a result, CBP may be delegated the authority to determine whether to grant a national interest exemption to citizens of Canada seeking admission as L-1 intracompany transferees, TN professional-level workers and other nonimmigrant worker categories.

To be clear, the discussion above draws from the travel restrictions currently in place under the Presidential Proclamations relating to the Schengen Area, the U.K. and Ireland. It is anticipated that similar language and procedures may be used in connection with cross border travel between the U.S. and Canada. Once a more information becomes available, this column will be updated. Please check back for updates as further details emerge.

For general information about health-related travel restrictions, visit the Center for Disease Control (CDC) webpage found here Coronavirus Disease 2019 (COVID-19) Travel webpage to find the current travel health notice level for international travel.

This article was prepared by Kenneth Harder, www.DunbarHarder.com.

At this time, travel restrictions and entry screening apply only to travelers arriving from some countries or regions with widespread ongoing spread of COVID-19. [Note: US policies are subject to change as the COVID-19 pandemic evolves.] If you are coming from a country or a region with widespread ongoing transmission of COVID-19 (Level 3 Travel Heath Notice), you may be screened when you arrive in the United States.

As part of Department-wide, layered response, U.S. Customs and Border Protection (CBP), the DHS Countering Weapons of Mass Destruction Office (CWMD), U.S. Coast Guard (USCG), Transportation Security Administration (TSA), Federal Emergency Management Agency (FEMA), U.S. Immigration and Customs Enforcement (ICE), the Cybersecurity and Infrastructure Security Agency (CISA) and others are actively working to protect the nation.

CBP and CWMD, which houses the Department’s Chief Medical Officer, are providing direct support to the Centers for Disease Control and Prevention (CDC) efforts by conducting enhanced health screenings at 13 major airports. The list of airports can be found here: https://www.dhs.gov/protecting-air-travelers-and-american-public.

At and between all air, land and sea Ports of Entry (POEs), CBP Officers (CBPOs) and Border Patrol Agents (BPAs) continue to identify and refer individuals with symptoms of COVID-19 or a travel history to China, Iran, or certain European countries in the past 14 days to CDC or local public health officials for enhanced health screening.