Over the first few months of the Trump presidency, there has been a lot of coverage of the Executive Orders relating to immigration matters and, specifically, the attempts to put a temporary entry ban on citizens of several countries.

This article briefly sets out how this might affect Canadian-based workers. A future article will set out how the overall “tone” of greater U.S. restrictions relating to the entry of foreign nationals provides other challenges and opportunities for Canadian-based businesses.

Given how quickly things evolve on this topic, employers should ensure that they have the latest information regarding the travel ban and any judicial freeze of the travel ban. Note that content below may become outdated given how fluid the developments have been to date.

Executive Order / Temporary Travel Ban

On March 6, 2017, President Trump signed a new Executive Order temporarily blocking travel to the U.S. for 90 days by citizens of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). The March 6th Executive Order replaced the January Executive Order that was ultimately stayed by the U.S. courts. The March 6th Order is narrower.

The March Executive Order confirms that U.S. Permanent Residents (sometimes referred to as green card holders) who are citizens of the six countries will be able to re-enter the U.S.

Canadian-based employees with dual citizenship (Canadian citizenship and a second citizenship in one of the six countries) should be able to travel to the U.S. under their Canadian passport assuming that they are otherwise eligible to enter the U.S. for business purposes.

Companies employing Canadian Permanent Residents or temporary foreign workers in Canada who are citizens of the six countries may find that such employees are unable to travel to the U.S. for business purposes.

It appears that those who already had a valid U.S. visa will be able to continue to travel to the U.S. with the valid entry visa.

For Canadian Permanent Residents who did not have a U.S. visa already, there is text in the March 6th Order, suggesting that they may apply for a “waiver” that may be granted on a case by case basis. This suggests that there may be a route to entry for those seeking entry from Canada, but it remains unclear how this may be applied or interpreted. See the following excerpt from the March 6th Executive Order:

Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner's delegee, may, in the consular officer's or the CBP official's discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer's satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest…..Case-by-case waivers could be appropriate in circumstances such as the following….

(viii) the foreign national is a landed Canadian immigrant who applies for a visa at a location within Canada.

The March 6th Executive Order has been judicially challenged. A temporary freeze of it was ordered by a federal judge in Hawaii on March 15, 2017; and extended by the same judge on March 29, 2017. This Associated Press article provides some background on the judicial challenges and developments as of late March: AP Story on Judicial Challenges to Temporary Travel Ban.

The judicial process is therefore ongoing as of the date this article was written.

Further Information

Q&A from US Homeland Security website: DHS Information on March 6 Executive Order

Conclusion

Companies in Canada that employ citizens of the six banned countries need to keep up to date on the latest U.S. developments regarding the temporary travel ban, as the issue is quite fluid. While those with dual citizenship from a country outside of the six banned countries are not affected, Permanent Residents and temporary foreign workers in Canada from the six countries may be affected. Potential business travel to the U.S. for such employees in Canada will need to be assessed prior to having such personnel try to travel into the U.S. from Canada.

The Executive Order also faces judicial challenges, and it remains to be seen if it ultimately withstands that scrutiny.