On March 24, 2020, the U.S. Department of Homeland Security (DHS) provided formal notices in the Federal Register of an earlier Trump Administration order, which limited travel between Canada and the U.S. as well as Mexico and the U.S. at land ports-of-entry, and ferries service effective March 20, 2020, 11:59 p.m. through April 20, 2020, 11:59 p.m. The DHS also defined the meaning of “essential travel” as a guideline to the U.S. Customs and Border Protection Service (CBP). Only travel by land and ferries is limited. The travel restrictions do not apply to air, freight rail or sea travel. The limitation do apply to passenger and ferry rail.
Under the President’s proclamation, “essential travel” is not to be so restricted that legitimate trade between our neighbors to the north and south is disrupted, neither to be disrupted are critical supply chains bringing food, fuel, medication and other critical materials to both sides of each border.
DHS has defined “essential travel” to be the following:
- U.S. Citizens and Lawful Permanent Residents returning to the U.S.
- Individuals traveling for medical purposes (g. to receive medical treatment in the U.S.).
- Individuals traveling to work in the U.S. (g. individuals working in farming or the agricultural industry who must travel between Canada and the U.S. and Mexico and the U.S. in furtherance of such work.).
- Individuals traveling for emergency response and public health purposes (e.g. government officials or emergency responders entering the U.S. to support federal, state, local, tribal or territorial government efforts to respond to COVID-19 or other emergencies.).
- Individuals engaged in official government travel or diplomatic travel.
- Members of the U.S. Armed Forces and the spouses and children of members of the U.S. Armed Forces, returning to the U.S.; and,
- Individuals engaged in military related travel or operations.
DHS also defined what is not “essential travel:
- Travel for tourism (g. sightseeing, recreation)
- Gambling
- Attending cultural events
CBP has been also directed to consider humanitarian or other purposes in the national interest for travel not deemed essential.
The above guidelines leave much discretion to officers of the CBP to make decisions on what is considered “traveling to work in the U.S.” as well as other essential travel reasons as defined in the Federal Register. The guidelines permit “individuals” to travel to the U.S., which would presumably include nonimmigrants. Reports from the ports-of-entry are mixed. Some report that holders of valid nonimmigrant status/visas with work authorization have been challenged by CBP in all types of professions and business categories, while others indicate that new applications for work authorization and admission to the U.S. are being approved. We do know that all travel will be subject to additional screening.
Nonimmigrants holding valid work visas and status and their U.S. employers should be prepared to answer questions from CBP on why the nonimmigrant worker should be deemed an essential traveler. It is recommended that nonimmigrants carry with them “essential traveler” letters from their employers outlining the essential nature of their work in the U.S. Nurses and other health care professionals holding TN-1 status should not experience problems, but in this author’s opinion, those who are traveling to work for all types of manufacturing operations and especially those that have already been shut-down under “shelter-in-place” orders from various U.S. governors should be prepared to discuss how their being in the U.S. is critical to the maintenance of the infrastructure of the organization. Each shelter in place order should be reviewed carefully regarding exemptions as to critical infrastructure that would be deemed as essential or otherwise qualifying for travel. Such critical infrastructure might be I.T. support, financial support, vital human resource functions or that the essential traveler has a role in the organization that would permit other employees to continue to work at home. In some cases, it is important to refer to the guidance provided by the U.S. Department of Homeland Security Cyber and Infrastructure Security Agency’s (CISA) Essential Critical Workforce Memorandum dated March 19, 2020 (CISA Memo) as to industries able to continue to operate as appropriately modified to account for Center for Disease Control (CDC) workforce and consumer protection guidance.
Dickinson Wright will continue to monitor this situation and report back on its Blog as new information becomes available.
About the Author:
Elise S. Levasseur is a Member in Dickinson Wright’s Troy office where she practices in the area of immigration. She can be reached at 248-433-7520 or elevasseur@dickinsonwright.com and you can visit her bio here.
