Restrictions on non-essential travels across U.S. land borders with Canada and Mexico continue to be enforced by U.S. Customs and Border Protection (CBP) through September 21, 2021, with possible extensions beyond this date if deemed necessary.1 “Non-essential” travel generally refers to travel that is considered tourism or recreational in nature.
Restrictions on non-essential travel at land borders between the U.S., Canada, and Mexico were originally implemented on March 21, 2020, for a period of 30 days, and have been extended on a monthly basis since.2 These restrictions remain applicable to travelers seeking admission to the U.S. via ferry and passenger rail, while air travel continues to be unaffected at this time.
WHY THIS MATTERS
Employees traveling to the U.S. via land borders, ferries, and passenger rail must be prepared to explain how their employment or business activities in the U.S. are “essential.” As CBP has wide discretion to inspect those seeking entry, travelers should expect detailed questioning on their intended activities in the U.S., and make sure they have documentation further evidencing their exemption from the border restrictions.
Border restrictions will continue to impact those who frequently travel between the U.S., Canada, and Mexico as business visitors. It is prudent to limit business travels, if possible, to prevent complications and the possibility of being refused entry at the border, as the situation continues to be fluid and highly discretionary. Where travel is unavoidable, travelers should confirm specific requirements at the particular port of entry through which they would be traveling, and anticipate increased scrutiny from CBP when seeking admission to the United States.
“Essential” Travel Defined
The U.S., Canada, and Mexico have confirmed that normal operations and processes for entry will be limited to only those travelers engaged in “essential” travel. CBP defines “non-essential” travel as travel that is considered tourism or recreational in nature.
The Department of Homeland Security (DHS) has discretion to determine what qualifies as essential travel. Authorities can also determine that other forms of travel, such as those in furtherance of economic stability or social order, constitute essential travel. Such determinations can extend to individual humanitarian services or other purposes in the national interest. In accordance with earlier restriction guidelines, the current border restrictions will not impact trade between the countries nor disrupt critical supply chains that help to ensure food, fuel, medicine, and other critical materials continue to reach individuals on both sides of the border.
Exemptions from Border Restrictions
The following non-exhaustive list indicates those people who continue to be exempt from the border restrictions on U.S. entry by land, ferry, and commuter rail:
- U.S. citizens and lawful permanent residents returning to the United States;
- Individuals traveling for medical purposes (e.g., to receive medical treatment in the United States);
- Individuals in the Visa Waiver Program who are not otherwise subject to travel restrictions;
- Individuals traveling to attend educational institutions;
- Individuals traveling to work in the United States who hold valid travel documents (e.g., individuals working in the farming or agriculture industry who must travel between the United States and Canada in furtherance of such work);
- Individuals traveling for emergency response and public health purposes (e.g., government officials or emergency responders entering the United States to support federal, state, local, tribal, or territorial government efforts to respond to COVID-19 or other emergencies);
- Individuals engaged in lawful cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada);
- 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 United States; and
- Individuals engaged in military-related travel or operations.
Further communications have emphasized that those who work in a critical infrastructure industry, as defined by the DHS, have a special responsibility to maintain their normal work schedules.
Air travel continues to be unaffected at this time. Those travelling by air, however, should anticipate additional scrutiny from CBP officers, and be prepared with relevant documentation describing the critical nature of their activities in the United States.3
Travelers should also be aware that effective January 26, 2021, all airline passengers bound for the U.S. are only permitted to board their flights if they have received a negative COVID test result within three (3) calendar days of departure, or can provide documentation confirming recovery from COVID-19 and clearance for travel. For more details on this pre-departure requirement for air travel to the U.S., see GMS Flash Alert 2021-026 (January 15, 2021).
KPMG Law LLP in Canada is tracking this matter closely. We will endeavor to keep readers of GMS Flash Alert posted on any important developments as and when they occur.
1 For further information, please see the Department of Homeland Security’s (DHS) “Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service between the United States and Canada” and “Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service between the United States and Mexico” as published (online) in the Federal Register.
2 For prior coverage of the U.S., Canada, and Mexico border restrictions, read the following issues of GMS Flash Alert: 2021-187 (June 29, 2021); 2021-136 (May 7, 2021); 2021-097 (March 30, 2021); 2021-062 (February 24, 2021); 2021-031 (January 19, 2021), 2020-512 (December 23, 2020), 2020-475 (November 30, 2020), 2020-407 (September 23, 2020), 2020-366 (August 21, 2020), 2020-286 (June 17, 2020), 2020-240 (May 21, 2020), 2020-194 (April 23, 2020), and 2020-110 (March 25, 2020).
* Please note the KPMG International member firm in the United States does not provide immigration or labour law services. However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.
The information contained in this newsletter was submitted by the KPMG International member firm in Canada.
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