US-citizen-Canada

On March 6, U.S. president Donald Trump signed off on a new travel ban. His first attempt was blocked by a federal court judge shortly after its January implementation.

Here’s what you need to know about the new ban, which takes effect March 16, 2017.

Who cannot enter the U.S.?

Citizens from Iran, Libya, Somalia, Sudan, Syria and Yemen are prohibited from entering the U.S. for 90 days after March 16, 2017. Iraq is no longer on the list of banned countries.

Henry Chang, partner at Blaney McMurtry LLP in Toronto, points out that the new travel ban will only apply to citizens of designated countries who:

  • are outside the United States on March 16, 2017;
  • did not have a valid visa at 5:00 pm EST on January 27, 2017 (when the previous executive order became effective); and
  • do not have a valid visa on March 16.

Can Canadians with citizenship from one of the six countries enter the U.S.?

If they’re Canadian citizens: Yes, but they must travel using their Canadian passports. The new order explicitly exempts dual nationals.

If they’re Canadian permanent residents: The order explicitly states that Canadian permanent residents who apply for visas “at a location within Canada” may obtain a waiver to the ban, but that each case will be decided individually.

That explicit reference “is both reassuring and troubling,” writes Chang in a detailed analysis of the ban. “Although it suggests that Canadian permanent residents are likely to obtain a case-by-case waiver, it also makes clear that they require one.”

How should permanent residents go about obtaining a waiver?

“When they apply at the U.S. consulate here, they will be requesting not only a visa, but also a waiver of the travel ban at the same time,” Chang tells Advisor.ca. “The consulate will decide whether the visa is issued and whether or not to grant the waiver. […] The officer has to make a case-by-case assessment as to whether or not you deserve it. That adds some uncertainty to the process.”

Chang is waiting to see whether the Secretary of State will delegate the authority to grant waivers to consular officers or the consular chief — if that happens, there wouldn’t be much of a delay beyond the regular waiting time to get approved for a visa.

But it’s also possible that all waiver requests would have to go through the Department of State headquarters in Washington, D.C., which would slow things down.

Chang points out that people applying for waivers may not always get them, especially because applicants must prove there would be “undue hardship” if they didn’t travel to the U.S. “That language is new; it wasn’t in the previous order,” says Chang. “I don’t know how consular officers are going to interpret that.”

I’m not affected by the executive order. Does that mean it’ll be easy for me to cross the border?

Not necessarily. Border officers “can come up with any number of ways to say you’re ineligible, having absolutely nothing to do with the executive order,” Chang told us when we spoke in February. He says that under general U.S. immigration law, the onus is on the traveller to prove she doesn’t plan to immigrate or work in the U.S.

“When you talk to an officer, he doesn’t have to believe that you have immigrant intent [to deny entry]. He just has to conclude that you are unable to overcome the presumption that you have it,” Chang says. “It’s very easy for him to turn someone down.”

What should I do if I’m denied entry into the U.S.?

“Find out exactly why they’re claiming you’re ineligible,” says Chang. “At airports, they tend to do a Withdrawal of Application of Admission [Form I-275], which means you’re withdrawing your application to enter. That document will sometimes state the reason. Otherwise, you have the right to ask.”

You can also ask to speak to a more senior officer to see if they’ll reverse the decision, he says.

While a finding of immigrant intent is nearly impossible to overturn, Chang suggests consulting an immigration lawyer if the officers incorrectly claim the executive order applies. “If it’s something legally incorrect, we can fight them on that,” he says.

The consulates don’t have authority over the border, he adds, so they can’t help you.

Melissa Shin is Editorial Director of Advisor's Edge. Email her at melissa.shin@tc.tc.
Originally published on Advisor.ca
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