Client Alert: United States – Canada Border Closure Extension Creates Uncertainty But Spares Visa Holders

May 21, 2020

Dear Valued Clients:

The United States-Canadian Border closure to non-essential travel, first issued on March 21, 2020, has been extended thirty days, to June 21, 2020, amid the COVID-19 pandemic.

In an attempt to avoid cutting off trade, the travel ban allows for “Essential Travel” for work and transport of goods.

“Essential Travel” includes:

  • U.S. citizens and lawful permanent residents returning to the United States;
  • Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
  • Individuals traveling to attend educational institutions;
  • Individuals traveling to work in the United States (e.g., individuals working in the farming or agriculture industry who must travel);
  • Individuals traveling for emergency response and public health purposes (e.g., 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 (e.g., truck drivers supporting the movement of cargo);
  • 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.

“Essential Travel” for work in the United States implies that U.S. Customs and Border Protection (CBP) will accept NAFTA Professional (TN) visa applications, Canadian L-1 visa applications and E-1/E-2 visa holders based on the Trade Treaty, among others. However, applicants should be aware that they may encounter difficulties if attempting to apply for TN or L-1 visas at a U.S. Port of Entry.

Acting U.S. Secretary of Homeland Security, Chad Wolf stated, “We have been in contact with our Canadian and Mexican counterparts and they also agree that extending these restrictions is prudent at this time.” “The President has made it clear that we must continue to keep legitimate, commercial trade flowing while limiting those seeking to enter our country for non-essential purposes,” Furthermore, “Non-essential travel will not be permitted until this administration is convinced that doing so is safe and secure.”

The border closure could be indefinite as Canadian Prime Minister Justin Trudeau echoed the same sentiment stating he would resist opening the border until he had assurance “that we have the mechanisms and the materials in place to deal with any further spreads or spikes in COVID-19.” President Trump agreed to the extend the border closure despite his eagerness to get back to normal, stating “We love Canada, so we’re going to be talking, and at the right time, we’ll open that up very quickly. That will go very easily.” 

The U.S. and Canada border is the world’s largest border at 5,525-miles. Canada shares their borders with some of the hardest hit states by COVID-19, including: New York, Washington, Pennsylvania and Michigan.

With the increasing number of COVID-19 cases in the U.S., Canada’s trepidation in reopening the border and resuming business as normal is understandable. The number of COVID-19 cases in the entire province of Ontario, Canada’s most populous, is fewer than those in the city of Detroit alone.

Despite reasonable public health fears, the border closure only exacerbates U.S. economic uncertainty. The agreement to close the U.S. – Canada border promised to allow for transportation of goods and not affect U.S. and Canada trade relations.  However, the indefinite border closure has slowed down and will continue to slow down trade. Nearly three-quarters of Canadian exports go to the United States and one-fifth of American imports go to Canada.

Following the 2008 financial crisis, U.S. exports to Canada dropped 21% while imports decreased by one-third. According to Politico, it took almost two years for exports to reach pre-crisis numbers and three years for imports to recover. Given the enormity of the current economic fallout, recovery time from the COVID-19 pandemic will surely be longer.

The border closing has also exacerbated difficulties in business development, limiting the ability to create and maintain strong business ties and relations between the two countries. Commercial real estate, namely the hotel and retail industries will be hard hit by the continued border closing. EB-5 investments may potentially be adversely affected by these impediments.

The economic uncertainty the United States currently faces is unprecedented and the road to economic recovery remains to be seen. The U.S.-Canada border closure extension only exacerbates our economic difficulties, prolongs our economic recovery and, in effect, negatively impacts potential EB-5 investments. Nevertheless, we are hopeful that there are still some stable work visa options that are viable for those intending to cross the border, such as TN, H-1B, L-1, E-1/E-2, O-1, and OPT/STEM-OPT.

At Meyer Law Group, we continue to actively assist Canadians who are severely impacted by the closure of the border and those who foresee being impacted by the extension of the closure. Please contact Meyer Law Group if you have any questions or believe you may be adversely affected by the United States – Canada border closure extension.