On July 16, 2020, U.S. Department of Homeland Security’s (DHS) Acting Secretary announced via Twitter that DHS will continue to limit non-essential cross-border travel for at least another 30 days through August 20, 2020. This update has been confirmed as of July 17 by the U.S. Department of State with an updated Travel Restrictions Fact Sheet.    

On March 20, 2020, the governments of the United States, Canada, and Mexico announced joint initiatives to restrict non-essential cross-border traffic. Pursuant to this announcement, CBP published its restrictions on March 24, 2020, specifying that land ports of entry would suspend normal operations and process requests for admission to the United States only for travelers engaged in “essential travel.”   

On May 22, 2020, U.S. Customs and Border Protection (CBP) published a regulation extending its March 20, 2020 cross-border travel restriction until June 22, 2020, which was again extended on June 16th.

The restriction expressly exempts air, freight rail, or sea travel; however, some CBP officers are also questioning the “essential” nature of travelers through pre-flight inspection stations in Canadian international airports.   

CBP defined “essential travel” as including (but importantly, not limited to) the following: 

• U.S. citizens and lawful permanent residents 
• Individuals traveling for medical purposes (for example, those receiving medical treatment in the United States)
• International students 
• Individuals traveling to work in the United States (see below)
• Individuals traveling for emergency response and public health purposes 
• Individuals engaged in lawful cross-border trade (for example, cargo truck drivers)
• Individuals engaged in official government travel or diplomatic travel 
• Members of the U.S. Armed Forces and their spouses and children 
• Individuals engaged in military-related travel or operations 

The inclusion of “individuals traveling to work in the United States” among those whose travel is considered “essential” would seem to allow for the travel of any individual with valid entry documentation and work authorization in the United States who is returning to the country to work, although the only example provided as an exception to the restriction is for farming or agricultural workers.  

In practice, many CBP officers appear to be inquiring as to the essential nature of the individuals’ work in the United States. Travelers are therefore cautioned to be prepared to explain the essential nature of their work and to be refused entry if they are not able to demonstrate such to the satisfaction of CBP, even if they are in possession of valid entry documentation and work authorization in the United States, and they are returning to the country to work.   

CBP’s restriction specifies only one group of travelers whose travel is specifically excluded from the definition of “essential” – individuals traveling to the United States for tourism purposes. This does not mean that only tourists would be denied entry under this restriction; rather, it emphasizes that individuals entering only for tourism or recreation will almost certainly be denied entry.   

Foster will continue to monitor government closures and other action related to COVID-19 and will provide additional updates on the immigration-related impacts of COVID-19 via our firm’s website at www.fosterglobal.com.