U.S.-Canada Border Closure Update

The U.S.-Canada border continues to be closed to “non-essential” travel, with extensions announced around the 20th of the month, for a month at a time. A return to “normal” is still some time off. Reopening the border does not poll well in Canada, and Canadian Prime Minister Trudeau indicates it will not open soon. The COVID-19 numbers in Canada are lower than in the U.S. in most places. Vaccines are less available in Canada. There are substantial differences north and south of the line, both in fact and opinion.

Whatcom and Skagit County businesses, and in particular the isolated Point Roberts, have endured great hardship. It is really sad. Canadian businesses which are reliant on U.S. customers that are suffering as well. For example, the cruise ship industry was halted, impacting both U.S. and Canadian ports of calls. Tourism-dependent businesses have suffered more than most, perhaps. These stories are all too familiar to everyone.

Discussions are being had on what a border re-opening will look like. Some call for a “science-based “re-opening, involving various pre-clearance measures and the sharing of vaccination records. Health passports, temperature checks, and tracing applications are all possible requirements. Trusted traveler systems which already involve the two governments could evolve to require COVID-19 information (e.g. vaccines). Similarly, a travel waiver pre-clearance system like the Visa Waiver program could be implemented, such that travelers upload vaccination and serology records. Ideas, suggestions. Necessary perhaps, but the burden new requirements will have on getting back to normal, and am reminded of post- 9/11 when minimum documentation requirements were heightened. Indeed, when experts speak about the border re-opening, post-9/11 responses are often mentioned.

Ideas such as these require bilateral cooperation between the governments and their respective agencies, as well as substantial public buy-in. They also mean an investment in time, money, and a bilateral sense of urgency. Increased sharing of information triggers privacy considerations, which can be a hard sell in Canada sometimes, and the U.S., to a lesser extent. Permanent measures of these sorts might cause long-term friction, decreasing flows when things get back to normal. Short-term implementation would really help some, but rolling out new programs takes a lot of money and time, usually.

From a U.S. federal standpoint, the northern border cannot be treated the same as the southern border. Each of these borders has different types of concerns and operational challenges, requiring different investments and timelines. For example, the southern border is receiving renewed scrutiny of a different sort right now, with the surge and asylum issues. That border is also closed to non-essential travel. Notably, the Federal Register notices announcing the continued closures, north and south, separately address each border.

There have been calls for more bilateral cooperation. President Biden required that discussions be commenced with Canada in an Executive Order. Rep. Del Bene, Rep. Larsen, and five others from the Washington Delegation wrote the White House in February, asking for border assistance. They specifically asked for:

1.      Establishing a bilateral plan for easing restrictions and restoring travel.

2.      Vaccinating and testing all necessary U.S. Customs and Border Protection staff to safely reopen travel. 

3.      Reciprocate the Canadian travel exemptions to allow families and loved ones to reunite. 

4.      Develop a policy for property owners to cross the border to maintain their properties. 

5.      Work with Canada to develop reciprocal access to transit through boundary waters. 

6.      Permit Point Roberts residents to cross through Canada and into the mainland United States.

7.      Advocate for American schoolchildren living in border communities and enrolled in Canadian schools to cross into Canada to attend school.

8.      Upon the safe resumption of cruises in the United States, ensure that U.S. home-ported cruise ships required to stop in Canada are able to make technical or service stops if the CDC and Canadian health authorities agree that all protocols have been established and are being met by cruise ships and cruise ports.

Air travel to Canada is now more difficult. As of February 21st, 2021, most non-essential air travel is now restricted. There are exemptions, and these rules are subject to change, but it cannot be assumed that booking a flight is a workaround to the land border closure anymore.

“Essential” travelers continue to be able to cross routinely. These are typically individuals with work authorizations (e.g. H-1B, L, E, H-2B, and other non-visitor categories). Below I have pasted an excerpt from the latest Federal Register notice, which provides non-exclusive definitions for who are “essential” and “nonessential” travelers. Note: we have seen CBP place persons in expedited removal (5 year ban) after approaching the border without prior authorization, and so squaring things away before approaching the border is advisable.

A bit of good news: Canada has made a border crossing exemption for Point Roberts residents, by not requiring COVID-19 testing for residents who have to travel through Canada to access essential services.

One thing that hasn’t changed too much is trade flows, which have been similar to before the shutdown. One expert cited a 13% decline in cross-border trade during the past year, and that decline largely reflects the initial shutdown. Trucks are still moving across the border, and up and down I-5. Cross-border trade is close to normal.

Cross-border business dealings may be suffering in the long-term, due to the closure. These things are hard to quantify in terms of cause and effect. However, in person meetings, conferences, and other events foster eventual cross-border investment, and so much of these sorts of things are just not happening right now. Like elsewhere, some of these activities have moved to the Land of Zoom. For example, the Doing Business in the USA seminars which Cascadia co-hosts are now on-line. The next one is May 6th, and is free to attend on-line. See: http://amchampacific.com/events.

We wish all the best in health and business, and look forward to better days ahead.

Federal Register excerpt on “Essential” and “Non-essential” travelers:

For purposes of the temporary alteration in certain designated ports of entry operations authorized under 19 U.S.C. 1318(b)(1)(C) and (b)(2), travel through the land ports of entry and ferry terminals along the United States-Canada border shall be limited to ‘‘essential travel,’’ which includes, but is not limited to—

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 traveling to attend educational institutions;

Individuals traveling to work in the United States (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 crossborder 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.

The following travel does not fall within the definition of ‘‘essential travel’’ for purposes of this Notification—

Individuals traveling for tourism purposes (e.g., sightseeing, recreation, gambling, or attending cultural events).

At this time, this Notification does not apply to air, freight rail, or sea travel between the United States and Canada, but does apply to passenger rail, passenger ferry travel, and pleasure boat travel between the United States and Canada. These restrictions are temporary in nature and shall remain in effect until 11:59 p.m. EDT on April 21, 2021.