On June 26, 2017, the United States Supreme Court unanimously overturned lower court decisions that delayed the implementation of President Trump’s Executive Order implementing travel restrictions against persons from 6 countries (Iran, Libya, Somalia, Sudan, Syria, Yemen). A limited version of President Donald Trump’s travel restrictions will go into effect Thursday morning (June 29). The travel restrictions are in effect for 90 days, and the refugee ban is in effect for 120 days.
The U.S. Supreme Court’s ruling exempts visitors and refugee applicants if they have a “bona fide relationship” with someone in the United States. What is a “bona fide relationship” will be open to interpretation by the front line U.S. CBP officers (and immigration officers).
The Canadian Government has indicated that Canadian citizens with dual citizenship including one of the 6 listed countries and permanent residents in Canada from one of the 6 listed countries will still be able to travel as usual. This will be the case until U.S. CBP officers exercise discretion to deny entry to dual-citizens and permanent residents.
It is important to take steps now to establish bona fides of relationships with U.S. persons and entities. Evidence will be important. Points of communication will be important. Communication will be important. Persons from one of the 6 designated countries will have to control their border travel by having paperwork and a contact telephone number. U.S. persons and U.S. entities will have to make the effort to assist people (such as, representatives, service providers, students, lecturers, etc.). For example, a U.S. university with a joint program with a Canadian university should help students by preparing a “Bona Fides Relationship” letter setting out the student’s name, courses the student is taking, information about the program at the university, other information that will be helpful to a U.S. CBP and immigration officers, etc. If a U.S. based business can write letters for persons crossing the border who might be impacted by the travel restrictions, it may improve the chances of their visitors being considered to be bona fide. It is common for business visitors to receive an invitation letter when going to other countries (e.g., the UAE, China).
NEXUS Card holders must be Canadian citizens or Canadian residents in order to be eligible for NEXUS. Based on statements by the Government of Canada, NEXUS Card holders are exempt from from the U.S. travel restrictions. That being said, if a NEXUS Card holder has a NEXUS Card cancelled by the U.S. Government, they should file an appeal with the U.S. CBP Ombudsman to protect their legal rights and contact the Government of Canada. We have contacts who are interested in knowing if Canadians/Canadian residents lose their NEXUS privileges as a result of Trump’s Executive Order. The U.S. processes for appealing NEXUS Card confiscations are less robust than the Canadian processes (and the U.S. process takes 9-12 months and usually results in a rejection letter). The Canadian Government should establish a fair and robust process for Canadians/residents whose NEXUS privileges are cancelled by the U.S.
For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or at Cyndee@LexSage.com. Please refer to the LexSage website for more information.