The recently announced travel ban has resulted in uncertainty for employers in Canada. The following overview will provide guidance in developing a corporate strategy.

On January 27, 2017, President Trump signed an executive order entitled Protecting the Nation from Foreign Terrorist Entry into the United States. There has been a lot of confusion as to the extent of the ban and its potential impact on your organization. Over the last few days there have been many updates and changes in position by the US Department of State and the US National Security Advisor, some of which have been due to lawsuits that have been filed. The situation continues to evolve. For now, we can advise you of the following:

90-day ban on entry to the US of seven nationalities

The key feature of the executive order that impacts employers is that, effective immediately, nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen are banned from entering the United States until April 27, 2017, at the earliest. If a foreign national (i.e. non-US citizen) was born in any of these seven countries, that is sufficient evidence to the US government that the individual is a national of that country. The foreign national does not need to hold a valid passport from one of the banned countries.

Does it apply to US green card holders?

The ban applies to non-immigrants (such as business visitors and work permit holders), applicants for adjustment of status with advance parole, foreign nationals holding a US immigrant visa and US lawful permanent residents (green card holders).

There has been a lot of debate as to whether green card holders will continue to be included in the ban. Initially, the Trump administration was insisting that US green card holders were covered by the ban and will need a special national interest waiver to get into the US. However, the Secretary of Homeland Security has issued a formal proclamation that admission of US green card holders is in the national interest. Therefore, US green card holders should have some degree of assurance that they would be admitted to the US, notwithstanding the ban. This does not, however, mean that they may not undergo significant and/or aggressive questioning and potential detention.

Does it apply to dual nationals and Canadian permanent residents?

The plain reading of the executive order as well as subsequent statements from the Department of State suggested that the ban would apply to dual nationals (e.g., Iranian-Canadian, Iraqi-British, Syrian-French, etc.). This would mean that a Canadian citizen born in any of these seven countries would not be permitted travel to the US during the ban.

However, the US National Security Advisor’s opinion directly contradicts what the US Department of State has officially put on its website. The US National Security Advisor has advised the Prime Minister’s Office that dual nationals are not subject to the ban. Furthermore, Canadian Immigration Minister Ahmed Hussen has advised during a press conference that Canadian citizens, including dual nationals, will not be subject to the ban. He also advised that the ban will not apply to Canadian permanent residents who are nationals of one of the seven countries.

The minister's assurances regarding Canadian dual citizens and permanent residents are gratifying. However, they are not the force of US law.

We have also confirmed with US Customs & Border Protection at Pearson Airport that Canadian passport holders born in one of the seven countries will not be banned from travelling to the United States. However, we were told that such individuals may be subject to enhanced examination.

The US Department of State website has not been updated to confirm that dual nationals and Canadian permanent residents are exempt from the ban. We are hopeful the website will be updated in the next few days. There is currently no written document confirming the exemption on which a Canadian traveller or company can rely. This means individual immigration officers and airports are free to use their discretion and may take differing views.

Unless and until there is a formal proclamation similar to the one issued for US green card holders, Canadian dual citizens and permanent residents should not safely assume that they are permitted entry to the US without problem.

In practical terms, what may happen when nationals of the seven countries travel to the US?

Regardless of whether dual nationals, Canadian permanent residents and US green card holders are permitted entry to the US, it is certain that every person who has any connection to one of the seven countries will undergo extra examination, and US officers will have the discretion to detain individuals and/or refuse entry. The questioning may be aggressive, intense and prolonged.

Since the ban came into place, we have been in continual contact with various legal organizations and government agencies. There have been a number of incidents involving dual nationals being detained for several hours for questioning.

Is it possible that more countries may be added to the list of banned nationalities and can the moratorium date change?

Yes, over the next few months additional countries may be added to the list of banned nationalities. Furthermore, it is possible that the April 27, 2017, date may be extended.

Our recommendations

It is important that employers show support for employees potentially affected by this ban. We recommend the following:

  • Employees who are nationals of one of the banned countries and are currently in the United States as non-immigrants and adjustment applicants should avoid international travel for the duration of the ban. If they are in the US, they should remain in the US as they may not be permitted to re-enter the US.

  • Employees who are nationals of one of the banned countries and are currently outside the United States should avoid travel to the United States for the duration of the ban.

  • Affected employees planning future trips to the United States should be prepared for the possibility of an extension of the travel ban beyond April 27, 2017. No travel plans should be made until a formal announcement has been made that the ban will not be extended.

  • Employers should be aware that travel delays are likely for employees who are not subject to the entry ban but who are applying for US visas at embassies and consulates, as these offices will have higher caseloads due to the impact of some of the other terms of the executive order.

  • Although dual nationals, Canadian permanent residents and US permanent residents are likely to be exempt from the ban, they will not be exempt from enhanced examination. The questions will include, but not be limited to, their connections and sympathies to their country of origin and terrorist organizations, as well as their involvement in community and Muslim activities in Canada. Given that the questioning could be severe, lengthy, traumatizing, demoralizing and potentially perceived as discrimination based on religion and origin (that their employer may knowingly have enabled), we recommend that employees whose origins are from one of the seven countries not be directed or pressured to travel to the United States. We advise that a refusal to travel to the United States during this period be respected and supported. From the perspective of the affected employees, the issue is far more than that of travelling to the US for a business trip – it is also a social, family, moral, religious and political issue.

  • Employers should not be surprised if employees whose origins are from Muslim-majority countries not listed on the ban are also reluctant or unwilling to travel to the United States.

  • For at least the next week, we do not recommend any travel in or out of the United States by employees who are nationals of one of the banned countries, regardless of dual nationality and permanent residence status, until firm and consistent guidelines are released by the Department of State and we are able to determine how these rules are being applied in practical terms.

  • Travel to the United States by employees who are nationals of one of the banned countries via airplane should be through major Canadian airports that have US pre-flight inspection services. This enables employees to more readily withdraw their admission to the United States and remain in Canada if they feel uncomfortable during a potential enhanced examination. We also believe the enhanced examination at US pre-flight inspection in Canada may be less aggressive than in the United States.

  • Given that employers do not track the country of birth of their employees, identifying the group of affected employees is extremely challenging. Therefore, we recommend a widely dispersed email or post on your intranet site advising employees, and thus managers, of the company’s position on travel to the United States during this period. We encourage this approach so that your organization is seen as getting ahead of this very sensitive situation. It will also limit potential disputes on travel. This approach serves to not only ensure that managers do not pressure employees to travel, but it also sends a supportive message to the employees affected directly, indirectly, or emotionally by the ban.

As the situation unfolds, we will provide you with further updates and recommendations. Our nation-wide team is available to assist your organization in developing its company policy and communication, as well as assist with any employee travel challenges.

Recent publications

Subscribe and stay up to date with the latest legal news, information and events . . .