Our newsletter typically focuses on immigration affecting those who wish to come to Canada, or remain in Canada (and related parties, such as relocation and global mobility providers, employers of foreign workers, etc.).
However, the sudden and drastic change to U.S. immigration procedures give rise to consideration of how Canadians – and others residing in Canada – will be impacted. There is no doubt that Canada is a major source of temporary entrants to the United States, whether for business or pleasure. In fiscal year 2015, there were some 13 Million temporary entries by Canadians into the United States, in addition to entry by another large number of people with other types of status in Canada (e.g. permanent residence, temporary work permits, etc.)
What the Ban Does
Though it is of course a matter of U.S. law, the ban, in accordance with information widely circulated, prohibits travel to the United States by citizens of seven specific countries: Syria, Libya, Iraq, Iran, Sudan, Yemen, and Somalia. The ban is set for 90 days from January 27. The ban also suspends all refugees from entering the United States for the next 120 days, and indefinitely for Syrians. It is not yet clear what measures will be implemented for the period after the temporary ban.
There are numerous questions about some of the details surrounding the ban, and the situation seems fluid. There are ongoing court rulings about various specifics, there have been questions about implications for U.S. permanent residents as well as dual citizens, and much more. We all can only watch and see what transpires vis-à-vis the United States itself, as the matter unfolds and changes on an hourly basis.
The Impact on Canadians and Others in Canada
Let’s break down the ramifications we see for Canadian citizens and residents of Canada – permanent or temporary.
- Canadian Citizens with No Other Citizenship
Based on the order itself, it would seem that Canadian citizens who hold no other citizenship are not affected by the ban. Whatever rights to entry existed before the order, continue to exist. (That being said, we are hearing reports that there is nonetheless a more stringent admission procedure being administered to everyone at U.S. ports of entry since the new administration took power.)
- Canadian Citizens Who Also Hold Citizenship in a Banned Country
On January 29, Canada’s Immigration Minister announced that the ban would not be implemented against dual citizens holding citizenship in Canada and one of the banned countries. Hopefully, this answers the question for such dual citizens. However, unfortunately, there appears to be doubt whether this statement can be taken as definitive, as it would need to come from an official U.S. source. And in any event, and as noted, many details remain unresolved, seemingly including this one. As such, no clear guidance can be provided, but we are not aware of anyone facing refusal of admission to this point.
- Permanent Residents of Canada
Similar to the dual citizen issue above, there has been some information to the effect that permanent residents of Canada holding citizenship in one of the banned countries would appear not to be caught by the ban. Yet again, this cannot be taken as definitive, and the same considerations as above would be applicable.
- People in Canada on Work or Study Permits (or otherwise visiting)
There would appear to be no relief available to anyone from a banned country, who is in Canada working or studying. That is, a citizen of a banned country on temporary status in Canada is indeed banned from entering the United States.
- Travelers Stranded in Canada Due to Implementation of Ban
Canada has announced that it will grant temporary status to people stranded in Canada based on the ban. There is no information on the long-term consequences for people in this position, but for now, people in this situation are not in danger of being in violation of Canadian law due to remaining here.
Long Term Prognosis for Canada
Canada, at least for now, remains the United States’ largest trading partners after the European Union. That trade brings with it the need for extensive cross-border travel, which, to date, has at least been operating under recognized parameters. There have always been legal issues about entitlements to enter or work in both the United States and Canada, but within a reasonable range of possible considerations. Any changes to the issues have necessitated legislative or regulatory compliance, and where appropriate, negotiations between the countries on common matters, notably NAFTA.
The ban not only throws many cross-border immigration issues into question, but also indicates that change can now come unexpectedly, and without notice. Further, that change can be dramatic. This creates uncertainty for not only individuals, but also businesses and even governments (including federal, state/provincial, and municipal) as there would now be uncertainty as to the ability to move forward as expected on projects or business ventures. At the very least, without opining on the validity or value of the ban vis-à-vis citizens of the banned countries generally, there is a need for certainty with regard to those already in Canada, whatever their status may be. Canada was not consulted in advance of the pronouncements, catching everyone off-guard. Whatever the legal allowance the U.S. government has to impose restrictions, it is hoped that at least the parameters are clear, or that there is advance discussion as to the impact on people already in Canada. It would seem that this level of cooperation should benefit everyone – including U.S. businesses.
There may be one unintended consequence of the ban in that U.S. companies with Canadian affiliates may find it preferable, where viable, to send employees to Canada, rather than the U.S. Yet again, that may serve to harm U.S. interests.
Where We Stand
At this juncture, and as noted, matters are still fluid. Hopefully, matters can be resolved favourably for those already in Canada. However, even if not favourable, it is hoped that at least some clarity can be given to the pronouncements, and that in future, such pronouncements are advised in advance or indeed discussed between such important trading partners.
For now, there is unfortunately still doubt for many of the situations noted above. We believe that in the end, any Canadian citizen will be excluded from the ban (even someone holding citizenship in a banned country), and that this will even be extended to permanent residents. But we all have to see how the dust settles over the next few days.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.