Since the April 22, 2020 announcement of Presidential Proclamation 10014, "Suspending Entry of Immigrants Who Present Risk to the U.S. Labour Market During the Economic Recovery Following the COVID-19 Outbreak" (85 FR 23441, 4/27/20), I have been waiting for the other shoe to drop. On June 22, 2020, the Trump administration issued another Proclamation; it will go into effect almost immediately on June 24, 2020 and be in place until December 31, 2020. At that that time the Proclamation could again be extended and expanded.
The Proclamation blocks access to the United States for certain non-immigrant workers including H-1B (Speciality Occupation) and L-1 (Intracompany Transfer) non-immigrants and their families. While the Proclamation will no doubt restrict many foreign nationals’ ability to work temporarily in the US, it does not clearly address the Canadian situation. The Proclamation states:
Suspension and Limitation on Entry. The entry into the United States of any alien seeking entry pursuant to any of the following non-immigrant visas is hereby suspended and limited ...
However, unlike most foreign nationals, Canadians do not enter the US with non-immigrant visas; Canadians are visa exempt except for E (Investor) visas. To further complicate matters, Canadians often enter to work pursuant to a trade agreement - the NAFTA. As such I await clarification from US Customs and Border Protection, which regularly adjudicates L-1A (Executives and Managers) and L-1B (Specialized Knowledge Worker) non-immigrant petitions at the US-Canada border and at airport Pre-Flight Inspection, on how it will interpret and implement the Proclamation.
Adding to the uncertainty, on June 17, 2020 the US announced an extension of restrictions limiting non-essential travel at US land ports of entry with Canada and Mexico for an additional 30 days. The travel restrictions, having been extended multiple times, were previously set to expire on June 22, 2020. However, essential travel continues to be permitted and this may include work, study, health/medical care services and critical infrastructure support.
Fortunately, the border closure has not prevented, nor does the Proclamation mention, Trade NAFTA or TN status. As such, despite the increased US restrictions it appears that Canadians can continue to avail themselves of this relatively quick option to working temporarily in the US. On a final and positive note, the USMCA, often referred to as the ‘New NAFTA’, will be implemented on July 1, 2020 – Canada Day.
This update has been compiled with the latest available information for the general information of Border Law clients and other interested parties. This Update is not comprehensive and should not be relied upon without appropriate legal advice.