Does Trump’s latest migration clampdown contain a loophole? For Canadians, it might

Does Trump’s latest migration clampdown contain a loophole? For Canadians, it might

News of the United States slamming its door shut on broad categories of foreign workers has unleashed bewilderment from the border to the boardrooms.

Immigration lawyers are now untangling what it means for Canadians.

Several said they spent the day Tuesday on group chats, seeking information from industry associations and contacting sources inside the U.S. government.

That’s because of the wording of an executive order announced Monday by President Donald Trump that suspends, at least for the rest of this year, vast categories of business and student-work visas.

Some believe it might affect thousands of Canadians and potentially disrupt their jobs, cross-border businesses and families.

Most think it contains a giant loophole for Canadians. At least for now.

Immigration lawyers in touch with U.S. border offices said agents expressed conflicting views and were awaiting instructions from Washington.

“It’s going to be a little chaotic for a while,” said Theresa Cardinal Brown, a former U.S. Homeland Security official and immigration expert once posted at the American embassy in Ottawa

“My guess is we won’t know for a little while [what this means], until [U.S. Customs and Border Protection] and [the Department of Homeland Security] issue their guidance.”

She offered this advice: If you’re a Canadian unsure whether this order applies to you, try contacting officials at whatever U.S. border checkpoint you intend to cross.

The fine print in Trump’s order

The potential Canadian loophole is in Section 3 of the order, which suspends the processing of popular work visas in the L, J and H-1B category.

That section says the visa ban only applies to people currently outside the U.S., who lack a valid visa or travel document. It so happens that most Canadians already have a valid travel document to the U.S.

It’s called a passport.

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One immigration lawyer said that’s a distinction not shared by most citizens of other countries, who generally need a visa or visa waiver to enter the U.S.

“Canadian citizens are unique in the world,” said Danielle Rizzo, a partner at the Harris Beach law firm in Buffalo, N.Y., and former head of liaison between U.S. Customs and the American Immigration Lawyers Association.

“My take is [this order] does not apply to Canadian citizens but it’s not extremely straightforward. … I think it was probably an oversight [in the drafting of the order].”

Trump’s order constitutes a significant escalation of his immigration-curbing policies

He cast it as a measure to protect 525,000 U.S. jobs from foreign competition, amid a pandemic that has wiped out more than 18 million U.S. jobs.

An American ‘tragedy’

But to one former immigration official in the Obama White House, this is a heartbreaking moment in U.S. history.

“I think this is a tragedy,” said Doug Rand, who now runs a company, Boundless Immigration, that helps immigrants obtain U.S. residency and citizenship.

“And it’s a huge self-inflicted wound for this country — in terms of our values, our economy, and our ability to overcome this pandemic.”

He said that Trump has progressively chipped away at visa rules to make it more difficult to immigrate, and said it has caused one friend, a PhD in biomedical sciences, to move to Canada.

“Good job, Canada,” Rand said.

U.S. President Donald Trump speaks at the Dream City Church in Phoenix on Tuesday. (Carlos Barria/Reuters)

A Harvard business professor published a paper this spring warning that the U.S.’s out-of-date immigration system, which has not been reformed in decades, risks sapping the country of its great historical advantage in drawing top talent.

Trump has repeatedly said he wants to reform the system to prioritize skilled labour, like Canada’s points system

But there’s no sign of any such legislation passing Congress, and what Trump has mostly done instead is tighten existing policies by executive order, culminating in this week’s.

In crisis, some Canadians see opportunity

Now, as in any crisis, some see opportunity. 

Canadian tech companies are signalling their intention to recruit some of the workers now barred from the U.S. 

Canada had, before the pandemic struck, experienced a historic population boom, fuelled by foreign students and skilled workers. The OECD credited policies created by successive governments in Ottawa a role model.

One immigrant to Canada is now working to take advantage of Trump’s executive order.

Ilya Brotzky came to Canada from the Soviet Union when he was five, accompanying his mother, a horticultural engineer. 

He now runs VanHack, which has 32 employees, mostly in Canada, that has recruited 600 tech workers from India and South America on behalf of companies looking to expand Canadian operations.

Brotzky said he’s begun talking to colleagues about how to track down and recruit people who have been shut out of the U.S.

U.S. border agents are awaiting instructions from Washington. Different checkpoints are interpreting the rules for Canadians differently. Seen here is the Ambassador Bridge between Windsor, Ont., and Detroit in 2018. (Cole Burston/Bloomberg)

He said many of these people will be hired by the exact same companies and will work remotely outside the U.S. — and make money and pay taxes outside the U.S.

“These are highly skilled, coveted workers who have a lot to contribute,” said the Vancouver-based entrepreneur.

“I think it’ll hurt the U.S.”

One thing he wonders is whether Trump’s announcement was a mere election-year political stunt.

After all, during the pandemic, U.S. government offices are being shuttered and immigration applications have slowed to a trickle.

But Rizzo said companies are still moving people around.

What happens next?

She said she’s still processing L visa applications for Canadian intra-company transfers during this pandemic, and has reason to hope it will continue. 

What’s next, in light of Trump’s order? 

It depends who you ask. 

Cardinal Brown said she’s not sure Canadians get an exemption. The U.S. National Law Review called the Canadian situation unclear

And different cases might yield different results.

Rizzo said she received about 100 queries Wednesday and every situation is different. For example, she said, Canadian workers might be able to cross but not with a spouse who’s a non-Canadian.

Two Canadian-based lawyers specializing in U.S. immigration, Henry Chang at Dentons in Toronto and Andrea Vaitzner at Norton Rose Fulbright in Montreal, opined that the current wording of the order likely spares Canadians.

But both urged caution.

“It is too early to know with certainty whether [Trump’s order] will be applied in a manner that exempts Canadian citizens,” Chang wrote in an analysis.

“Hopefully, this issue will be clarified in the near future.”

Vaitzner said it would be a serious mistake for the U.S. to halt L-1 visas, used for transfers of executives between company offices.

“It would be a huge blow to businesses,” she said.

“[These executives] travel intermittently to the U.S. to do work at their company’s U.S. office or to visit [customers, suppliers and partners]. I do not understand how banning Canadian L-1  applicants from entering the U.S. would alleviate the unemployment rate in the U.S.”

Published at Wed, 24 Jun 2020 08:00:00 +0000