Exceptions, Resumptions and Some Restrictions: Canada-US Border Update

Exceptions, Resumptions and Some Restrictions: Canada-US Border Update

With proclamations and Orders-in-Council slowing down to a trickle, we can now take stock and note some trends in the new era of immigration law. While the Canada -US border will remain closed until at least June 21, 2020, Canada continues to accept most Temporary Foreign Workers and has implemented some expedited processing for the same. South of the border, President Trump has implemented restrictions for Chinese nationals while the United States Citizen and Immigration Service (“USCIS”) has simultaneously resumed some normal operations.

Canada Continues to Allow Entry for (most) Temporary Foreign Workers

Since the travel ban was initiated, it was understood that foreign nationals travelling to work in Canada were exempt from the travel ban. While this is still the case, the interpretation of “non-discretionary” travel remains ultimately subject to Canadian Border Services Agency (“CBSA”) Officer discretion.  The scope of this discretion is outlined in an internal document.

Long story short: unless the Foreign National is an “essential worker” (think hospital, agriculture workers), entry “Depends on the Circumstances”.  It is important for Canadian employers and foreign workers alike to make sure that the foreign national has either a valid work permit or a letter of introduction from  Immigration Refugee and Citizenship Canada (“IRCC”).  To avoid refusals or being turned back, it is important:

  • To have, as much as possible, the work permit before arriving in Canada (only US applicants can apply at the Port of Entry and then only in limited circumstances);
  • Obtain biometrics or seek a waiver for the same;
  • Ensure that the job offer is still “active”, i.e. the foreign national has work to do;
  • Make sure the foreign national has a Quarantine Plan  and will not risk being turned back under the newly enacted section 41(d) Immigration and Refugee Protection Regulations.

Fast Track for (some) Canadian Temporary Foreign Workers

There is good news for both employers looking to fill labour gaps and employees who have lost their previous jobs. In recognition of the impact of COVID-19, Canada has introduced a temporary policy aiming to reduce the time for temporary foreign workers to start a new job within Canada. While this policy is in place, a worker who is already in Canada and has a job offer backed by a Labour Market Impact Assessment (“LMIA”) can get approval to start their new job while their work permit is still being processed. IRCC reports that the policy will reduce a process that often takes 10 weeks or more down to 10 days.

The policy recognizes the new reality for many temporary foreign workers who have lost their jobs due to the pandemic. A quick turnaround into a new job has the benefit of keeping workers, especially in industries where there are shortages.

In order to qualify, the temporary foreign worker must:

  • Already be in Canada with valid temporary resident status (including implied status);
  • Have an employer-specific work permit or have been working under a work permit exemption;
  • Have submitted a new work permit application with a valid job offer under either the Temporary Foreign Worker Program (“TFWP”) or the International Mobility Program;
  • The applicant must then send a request to IRCC, which will be reviewed in 10 days and, if approved, will mean they are able to start working.

There is no change to the role of the employer in hiring foreign workers and a positive LMIA must still be obtained. They must name the worker in a position on the LMIA and notify service Canada.

The United States Implements (some) Restrictions but Resumes Processing

  • Suspension of Non-immigrants from the People’s Republic of China

As of June 1, the President’s Proclamation will be implemented, blocking certain Chinese nationals deemed to be associated with supporting or implementing China’s “military-civil fusion strategy” from using F or J visas to enter the United States.  The terms of this Proclamation apply to those who are:

graduate level or above, or a researcher who are requesting entry to:

(1) receive funding from or who are currently employed by, study at, or conduct research at or on behalf of; or

(2) been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s military-civil fusion strategy.

As with most of the proclamations we have seen in the last few months, exceptions exist, including undergraduates, lawful Permanent Residents, spouses of US citizens or Permanent Residents, and a number of others.  Immigration and Nationality Act Section 22(i) could however result in the revocation of some foreign national’s valid visas. Under the scope of this proclamation, recommendations will be made by the Secretaries of State and Homeland Security regarding mitigation of risk posed by the acquisition of sensitive US technologies and intellectual property, as it relates to non-immigrant and immigrant programs.  

  • 15 Day Processing Resumes

On March 20, 2020, premium processing was suspended for all I-129 (Petition for Non-immigrant Workers) and I-140 (Immigrant Petition for Alien Workers) applications in response to an increased volume of applications filed at USCIS due to COVID-19.  This suspension will be lifted starting June 1, in four phases and allows applicants to pay US$1,440 to expedite the adjudication of their applications.  The rollout of the expedited process will occur throughout June, completing the fourth phase on June 22, 2020, which will allow for all eligible applications to be filed with premium processing.  This sudden resumption is interpreted by some as an effort to generate revenue and clear the backlog of applications built up under the travel restrictions of the pandemic. Those applicants submitted or upgrading to expedited processing should be prepared that a quick turnaround does not necessarily mean a quick approval.  Officers may be more inclined to issue denials or request more information on specifics of the application to buy themselves more time.  Further specifics of eligibility for premium processing can be found here.

  • Opening of USCIS Field Offices and In-Person Appointments

USCIS also announced that it is preparing individual domestic offices to resume services on or after June 4, 2020.  Not all offices will re-open; however, those that remain closed will offer emergency services in limited situations. 

Upon reopening, offices will send notices to any applicants and/or petitioners with previously scheduled appointments and interviews. When attending a rescheduled, or a new appointment (if you can get one), individuals will be required to follow the additional protocols and precautions put in place by USCIS.  These include limiting entry to the applicant and only necessary accompanying representative, family members, etc., wearing masks, and adhering to social distancing guidelines.   Any individuals who do not receive rescheduling notices must reschedule through the USCIS Contact Center once their field office is open to the public. 

Conclusion

In these uncertain times with ever evolving travel restrictions, it is important for employers and travellers alike to ensure foreign workers and returning residents are well prepared to withstand scrutiny at the border.  If you have questions about this post, or have any other immigration questions, please contact the Immigration team at Field law. 

Orlagh O'Kelly

Orlagh O'Kelly

Orlagh is immigration lawyer who used to work for the Department of Justice advising on the implementation and enforcement of federal legislation. She has extensive experience advising and representing both government and private clients. As the lead of Field Law's Business Immigration practice, Orlagh offers strategic advice to employers and individuals to create cross-border business opportunities. Orlagh's clients have included government departments, law enforcement agencies, professional organizations, First Nations’ clients and private individuals. Orlagh provides strong representation to these clients, drawing on her experience before all levels of Court in Ontario, the Federal Court trial and appeal divisions, the Alberta Provincial Court (criminal), Alberta Court of Queen's Bench, the Tax Court and various tribunals, including the Canadian International Trade Tribunal.

Miranda Sinclair

Miranda Sinclair

Miranda Sinclair is a Calgary-based lawyer focusing her practice in labour and employment, and immigration representing both businesses and individuals. Miranda has experience in both US and Canadian immigration matters, allowing her to assist clients on both side of the border. In her practice, she has successfully helped individuals and employers with applications to the US in both immigrant and non-immigrant categories. Miranda has assisted multi-national companies around the world manage their immigration program, ensure compliance and develop strategies for anticipated policy changes.

Evie Thorne

Evie Thorne

Evie is an Edmonton-based lawyer, practicing in the areas of labour + employment, human rights, business immigration, and professional regulatory. Evie advises her clients with issues such as defending grievances, severance reviews and negotiations, human rights commission issues, employment litigation, drafting and assessing workplace policies and procedures, and professional regulator governance and discipline issues. Her in-depth research and personal experiences allow Evie to approach with a practical focus and mitigate risk from many perspectives.

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