On Wednesday, April 22, 2020 U.S. President Donald Trump issued an Executive order suspending the entry of individuals who seek "Lawful Permanent Residence" in the U.S. for the next 60 days.
While this Executive order only applies to individuals seeking to immigrate to the U.S. permanently, towards the ends of the Executive order President Trump calls on various Government Departments who handle immigration matters to determine whether additional measures are needed for non-immigrant or temporary work-based visas. President Trump requests that reports are provided on these programs within the next 30 days with a view to implementing "other measures" for the prioritization, hiring and employment of United States workers. The end of the thirty day period will be May 22, 2020.
Essentially, this means that the U.S. will be reviewing all programs used by Canadians and other non-Americans to enter the U.S. for business purposes with an intent to ensure that U.S. workers are being given priority for U.S. jobs. For Canadian businesses that rely on their employees being able to access the U.S. market, this is a potentially alarming development. Canadian businesses in this position may want to consider submitting applications for work statues in the U.S. within the next month under existing and tested guidelines. For more information on the various U.S. non-immigrant statuses Canadian businesses can use and how these work, please see our firm's e-book on Tips for Travelling to the U.S. for Work.
On May 7, 2020 four influential U.S. Senators wrote to President Trump urging him to take the restrictions even further and apply them to "guest worker visas". The Senators not only raise concerns with a number of specific guest worker visa categories, but go further and call for modifications to the processing and a full suspension of all new guest worker visas for at least the next 60 days and have requested that particular visa categories be suspended for the next year.
While the Senator's letter and their comments are merely suggestions, considering the tone of the April 22 executive order, it is anticipated that we will see significant changes to guest worker visa processing in the near future.
What are the "nonimmigrant programs" that could be restricted?
The term "nonimmigrant programs" includes any visa program a Canadian or other non-American uses to enter the U.S. for temporary work. When President Trump's executive order is read in conjunction with his immigration tweet from earlier this week, it is clear that he intends to restrict Canadians and other non-Americans from working in the U.S. to give U.S. citizens first priority for jobs following the COVID-19 outbreaks in the U.S.
No substantiated reports or further guidance has been provided at this time, but discussions and initial reports suggest that the current administration is considering revisions such as:
- Suspending acceptance of applications for guest worker visas for an indefinite amount of time;
- More restrictive guidelines for existing processes;
- More restrictive and more widely used labour certification process for guest worker visas
- Limiting or restricting annual allotments of visa categories that were not previously capped.
How would this "Americans first" policy affect Canadian businesses?
Canadian businesses typically send thousands of their employees into the U.S. every year to work for related companies or to serve U.S. customers and clients. Any restriction on the ability of Canadian businesses to send their employees to the U.S. could have a dramatic impact on their operations, productivity and bottom lines.
Examples of nonimmigrant statuses used by Canadian businesses for their employees are TN Status and L Status. TN status allows for a select group of professionals to work in the US. If the U.S. decides to suspend or restrict Canadians from obtaining TN status, engineers and engineering technicians, computer systems analysts, management consultants, accountants and other professionals who rely on this status could see their ability to work in the U.S. impeded.
L status is used by executives, managers and specialized knowledge workers of multinational companies who are required in the U.S. operations of a related Canadian business. If the U.S. decides to suspend or restrict Canadians from obtaining L status, CEOs, CFOs, other senior executives, senior and middle managers, and highly-specialized technical employees, among others, could also be restricted access to carry out their duties.
Because TN, L and E visa categories are used by Canadians are part of the NAFTA and have been left in the upcoming Canada-U.S.-Mexico Trade Agreement, , many question whether President Trump has the ability to unilaterally make modifications to the processing of these visas. While it is a relatively untested issue, the general consensus among immigration attorneys is that President Trump does have the ability to unilaterally make these modifications without Congressional approval.
This does not necessarily take into consideration the ramifications President Trump could face from Canada and Mexico , but within the U.S., he could, theoretically make these changes. If he proceeds in such a manner, these changes could come into effect quickly and swiftly and significantly change the landscape of U.S. Immigration Visa availability.
Is there anything Canadian businesses can do if they need employee mobility to the U.S.?
Much of what could or will come from the executive order's call for reports is still unknown. It remains unclear what, if any, measures will be implemented. What we do know is that these statuses and other statuses Canadian businesses rely on for regular travel to the U.S. will all be under review.
For businesses that need to send their employees to the U.S. for work, the safest course of action may be to secure U.S. nonimmigrant statuses before further restrictions are implemented. However temporary restrictions on nonimmigrant applications may be, Canadian businesses could find themselves effectively locked out of the U.S. market for an undetermined amount of time.
What U.S. nonimmigrant statuses should Canadian employers focus on in the next 30 days?
In practical terms, Canadian businesses should focus on U.S. nonimmigrant statuses that employees can get right away. This means that companies should carefully consider the L and TN status applications as Canadian citizens can apply for these at the U.S. border or at U.S. pre-flight clearance when entering the U.S. Other statuses, including E status for traders and investors and H status for a variety of workers, typically take more than a month to process and require interviews at a U.S. Consulate or Service Center, all of which, are currently closed.
Can my employees even apply to enter the U.S. because of COVID-19?
Some companies have been hesitant to send employees to the U.S. in recent weeks because they believe that the border is essentially closed due to COVID-19. While there are certain travel restrictions and precautions that Canadian businesses must take when sending their employees to the US during the COVID-19 pandemic, the border remains open and many legal and attainable options still remain active.
Originally published by MLT Aikins, April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.