What Canadians Can Do in the U.S. Right Now

All of the benefits available to Canadians under U.S. immigration law remain in place, however, the procedures for requesting these benefits have changed. While the new procedures may be more burdensome, some Canadians may find that the benefits of coming to the U.S. continue to offset any additional burden. With careful planning Canadians can continue to travel to the U.S. for business and pleasure.

Take a Vacation

You can take a vacation in the U.S. as long as you meet the requirements for visitor classification. Although land ports of entry to the U.S. are closed for non-essential travel, air travel remains available. Masks are required on planes, and passengers must present either:

  1.  a negative pre-departure test result for Sars-Cov-2, the virus that causes COVID-19, or
  2. Written or electronic documentation of recovery from COVID-19 after a previous infection in the form of a positive viral test result AND a letter from a licensed health care provider or public health official stating that the passenger has been cleared for travel.

Each province and territory has a slightly different procedure for obtaining a COVID test. If you present a negative test result, the test must have been performed within 3 days prior to boarding your flight.

When you arrive in the United States, you may be subject to more restrictive state and local regulations, and will almost certainly require a new negative COVID test before boarding your return flight home. Additionally, you will be required to quarantine when you return to Canada. Despite all of this, some retired Canadians living in densely-populated urban areas may prefer a brief retreat to an area with lower case counts, such as Seaside in Clatsop County, Oregon. If Canada’s new restrictions on entry prove too burdensome, you may also have the option of extending your stay in the United States.

President Biden has directed diplomatic outreach to Canada, and plans for public health measures at the border. At the same time Prime Minister Trudeau has acknowledged that he does not have the constitutional authority to prevent Canadians from traveling, but does plan to attempt to close this “loophole” by making U.S. air travel more difficult. While it’s troubling to hear the Prime Minister describe Canadians’ constitutional rights as a “loophole” travel to the U.S. remains available and accessible as long as travelers plan carefully and are prepared for the additional procedures required to slow the spread of COVID-19.

Work

Individuals traveling to work in the United States are included in the definition of essential travelers. Canadian managers or executives of multinational firms may be eligible to seek admission in L-1A work-authorized status at a Class A land port of entry, or preclearance flight inspection facility. Similarly, Canadian professionals who are coming to the U.S. to render services in their professional capacity may be eligible to apply for admission to the U.S. in TN status at either a designated airport or land port of entry. By seeking work authorization at the port of entry or preclearance flight inspection facility, Canadians can avoid the long processing delays faced by nationals of other countries who must submit their work authorization requests to to U.S. Citizenship and Immigration Services or the Department of State. Canadians seeking admission to the U.S. in L-1A or TN status must be prepared to present documentary evidence of their qualifications, and discuss their U.S. employment with a Customs and Border Protection officer.

Start a Business

Although the economy is struggling right now, some industries have benefitted from the new restrictions caused by the pandemic. Canadian firms in those industries may find that now is a good time to expand to the U.S. market, and may find the U.S. quite welcoming, particularly if their new U.S. venture will create or preserve employment opportunities for U.S. workers.

There are at least two ways to transfer workers from Canada to a new U.S. enterprise. If a Canadian firm wants to incorporate a U.S. subsidiary or branch office, it may transfer executives to open a new office in L-1A classification. As noted above, Canadian executives and managers may seek admission to the U.S. in L-1A status at Class ‘A’ ports of entry or preclearance flight inspection facility. Alternatively, if there is no affiliated company, a prospective investor may enter the United States as a business visitor to research and evaluate business opportunities (see 9 FAM 402.2-5(C)(7)). Although performing productive labor, such as managing a business, is prohibited in visitor status, an investor may later file a petition from within the U.S.to change to E-2 status. Once the petition is approved, the investor may begin managing the enterprise.

Conclusion

The substantive immigration benefits for Canadians remain the same, but the procedures for obtaining them have changed dramatically. Although the new procedures are somewhat more burdensome, they are not insurmountable. Businesspeople, professionals, and snowbirds may find that the benefits of coming to the U.S. continue to outweigh the procedural challenges. Lastly, please note that each of the options noted above are only described generally, and you will need a more careful review to confirm that you meet all of the requirements before proceeding.

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