Recently, an increasing number of Canadians have been denied entry to the U.S. and have been issued five-year bans from travelling to the U.S. For Canadian employers who send employees to the U.S. for work purposes, this issue is of concern.

Employers with employees who frequently travel to the U.S. for business or for work should ensure that applications for appropriate visas or U.S. nonimmigrant statuses are secured well before the employee travels to the U.S. to avoid the possibility that employees could receive a five-year ban.

Recent Cases

Earlier this month, a Saskatoon man was recently banned from entering the U.S. for five years for not having the proper work authorization to volunteer at an arts festival. In this case, the traveller was informed that he would be taking American jobs.

In another instance, a B.C. man was also banned from entering the U.S. He claims he had plans to visit the beach and buy some groceries. However, U.S. Customs and Border Protection (CBP) records show he was interrogated about his job, his home, his intentions in the U.S., and the items in his vehicle, which was packed up with the contents of his previous apartment. He was then told he was inadmissible and handed a five-year ban.

As well, there was a report of a Canadian traveller who failed to report CBD oil that she was carrying with her when crossing the border. That traveller was fined $500USD and was subsequently denied entry to the U.S. and issued a permanent lifetime ban, although the lifetime ban was later reduced to a five-year ban after further consideration.

In all of these cases, these Canadians were subject to what the U.S. calls an “expedited removal”.

What is an expedited removal?

“Expedited removals” occur when Canadians and other non U.S.-citizens are removed from the U.S. based on an order of an immigration officer. This can occur at or near U.S. borders and ports of entry. In these cases, Expedited Removals results in an automatic five-year ban from travelling to the U.S. Persons who receive an expedited removal cannot challenge the decision before an immigration judge.

When Canadians receive an expedited removal, they are banned from traveling to the U.S. for any reason. This means that if an employer sends an employee to the U.S. without the appropriate documentation and the employee is then hit with a ban, that individual cannot go to the U.S. to shop, go on family vacations, or apply for legitimate work visas during the time the ban is in place.

Why are expedited removal orders being issued?

Expedited removal orders can be issued for many reasons, the most common occurrences are issued when the U.S. Customs and Border Protection (CBP) deems an individual to be inadmissible for fraud or willful misrepresentation or the lack of proper visa or other travel documents.

For employers, the main issue that can arise is if an employee who is entering the U.S. for work lacks the proper visa or travel documents. In order to work in the U.S. temporarily, a traveller must fit within one of a number of U.S. nonimmigrant categories. If the traveller does not have documentation to prove that they fit within the nonimmigrant category appropriate for their work, they run the risk of facing an expedited removal.

While expedited removals have been around for years, the recent increase has come after the “Border Security and Immigration Enforcement Improvements Policies” Policy Memorandums issued by President Trump in 2017 and again in 2019. These Policy Memorandums have called for the expansion of the use of expedited removals. The expansion of the use of expedited removals provides even more ways for the U.S. to limit legal non-immigrant visas for Canadian Citizens.

Is there anything that can be done to allow for travel to the U.S. if a person is subject to an expedited removal?

To overcome an expedited removal order before the expiration of the five-year ban, a person must file an application for “permission to re-apply for admission to the U.S. after deportation or removal”.

Permission to reapply requires an applicant to show that “favorable” factors outweigh the “non-favorable” factors for allowing their re-admittance to the U.S. Favorable factors include, among other things, close family ties in the U.S. and general good moral character. Unfavorable factors, include, among other things, repeated violations of U.S. immigration law, unauthorized employment in the U.S. and evidence of a general bad moral character.

How can businesses avoid a five-year ban on their employees?

When travelling to the U.S. for any matter, a traveller must determine what US nonimmigrant status is necessary and what information and documents have to be submitted to support their entry to the U.S.

Upon entry to the U.S., travellers should be prepared to explain exactly where they are going, what they are doing and their intended date of return. When seeking entry for work, travellers should have with them the documents (and in some cases the application forms) that show that they meet the requirements of one of the U.S. nonimmigrant statuses.

When being questioned by U.S. officers, it is important that the traveller does not lie. Entering the U.S. for a legitimate purpose but lying about it can also result in an expedited removal.

Also, be mindful about what you bring across the border. Importing items not allowed into the U.S. can also provide a basis for an expedited removal.