Crossing the border could be harder under Trump

Republican presidential candidate Donald Trump has staked much of his platform on immigration reform. He’s promised to build a wall between Mexico and the U.S., but in the increasingly unlikely event that he wins, he could also make life difficult for Canadians with U.S. ties.

Meanwhile, Democratic candidate Hillary Clinton wants to loosen certain policies, which could improve conditions for Canadians with U.S. ties.

Advisor.ca asked two Canada-U.S. immigration lawyers to explain how the U.S. election could affect clients who are snowbirds, travel regularly to the U.S. or work in the U.S.

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Overall impacts

A xenophobic president could mean tougher stances, says Heather Segal of Segal Immigration Law. “If you get an executive branch or House that’s very anti-immigration, the translation of that to U.S. Citizenship and Immigration Services and the Department of Homeland Security is […] ‘It’s OK if adjudications are more difficult […] If we give you a hard time, us as officers are doing our job.’”

She adds the State Department, which issues visas, could also follow suit. “There could be a chilling effect across the board,” she says. “That would have serious ramifications. And they wouldn’t have to change any laws or go back on any agreements.”

Any clients who are concerned about a Trump win could apply for visas or permits before the election, she says.

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Trump proposal: Penalize visa overstays

Trump proposes to crack down on people who overstay visas.

Henry Chang, a cross-border immigration lawyer at Blaney McMurtry, explains that a visa is an entry document, like a driver’s licence, while the period for which a person is legally admitted is called status. “The visa could expire while I’m still in legal status in the U.S., and that doesn’t matter as long as I’m not leaving and coming in again.”

The U.S. now requires citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen (or people who have visited these countries after March 2011) to have a visa to visit. This requirement applies even if the person is a dual citizen of a visa-exempt country, such as the U.K. or Australia. For now, that law does not apply to Canadians with those nationalities. That’s because “Canadians are under a separate visa exemption,” says Henry Chang, a lawyer at Blaney McMurtry.

Trump uses wrong or vague immigration terminology, leaving observers to guess what he’s promising. “He could mean people who need visas who overstay their status, but I think he also means a Canadian who doesn’t need a visa to come in as a tourist […] and overstays,” Chang says. “I think his position is to keep [all] foreigners out.”

It’s easy to inadvertently become illegal. Snowbirds, like any Canadian tourist, can stay for six months from date of entry unless told otherwise. If they stay for longer, even by a day, they become illegal aliens. (The six months must occur consecutively. Someone who makes two five-month trips would not be overstaying.)

“If you’re a law-abiding Canadian who never mistakenly violates immigration law, you’ll be fine,” says Chang. “But the reality is, people will make mistakes.”

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And if you’re thinking of bending the truth to avoid penalties, Segal says there are “very serious repercussions” for lying to immigration officers. “You can be barred from the U.S. permanently, and you’ll need a Waiver [of Grounds of Inadmissibility to enter] for the rest of your life.” It costs US$585 to apply for the waiver, and “it can take four to eight months, even a year to get it approved,” she says.

Trump proposal: Hire U.S. workers first

The Republican candidate has promised to make it more difficult for foreigners to work in the U.S. and to ensure “that open jobs are offered to Americans first.”

One way to do that is to restrict work visas. But several work visas “are already subject to a labour market test,” says Chang. “To say ‘Americans first’ sounds really good, but the system is already built based on that.”

The only exemption, he says, is when a U.S. citizen or employer can justify that the business need outweighs the need to show that there’s no Americans available. If Google needs to bring some of its foreign employees into its California office, for instance, “That’s for the benefit of the [U.S.] economy and the employer.” Every country has a similar rule, he adds, and it’s impractical to remove such exceptions. “He might pass those laws, but it would be a disaster.”

Chang also points out that if Trump opts out of NAFTA as promised, several categories of work permits will no longer be available to Canadian citizens: namely TN, E-1 and E-2.

“There are other avenues to get visas, but they are much more onerous,” says Segal.

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Clinton proposal: End bars against entry

Aliens who enter and overstay their authorized period by at least 180 days can be barred from the U.S. for three years (10 years if the overstay is more than one year). Clinton is proposing to end those bars.

That would help Canadians who have previously overstayed, which is more common than you’d think, says Chang.

For instance, if a Canadian enters the U.S. as a tourist, marries an American a few years later and doesn’t file for permanent residency, they’ve technically overstayed their status (which is usually six months, as mentioned earlier).

“Up until a few years ago, that wasn’t really a problem,” says Chang.

That’s because Canadians did not receive entry records, known as I-94s, when they entered the U.S. “In the past, we could argue that since a Canadian never received an I-94, they could not have overstayed the expiration date and would therefore not be subject to an unlawful presence bar,” says Chang. “The only time the accrual [of an overstay] would start is if it comes to the immigration service’s attention when you’re applying for some sort of benefit,” such as an extension. “But the average person who overstayed, where U.S. Immigration never learned of it, there was no [technical] overstay.”

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As of 2013, Canadians receive virtual I-94s at air and sea ports, but not at land crossings. (Canadians can look up their I-94s and arrival/departure histories from the U.S. here.) For anyone with an I-94, the moment their tourist status expires (usually after six months), unlawful presence starts accruing. According to Chang, the U.S. Customs and Border Protection says that also applies even if the Canadian crossed via land and wasn’t issued an I-94. (Chang says he disagrees with this position and points out that U.S. Citizenship and Immigration Services and the Department of State also disagree with it.)

That means “you could come in as a snowbird, stay 180 days longer than your six-month default, and now you’re barred for three years the minute you leave the country.”

While it’s not common for Canadians to overstay deliberately, says Chang, it can happen accidentally. “Let’s say my [work permit] status ends today. My HR person was supposed to renew my status and forgets. Six months later, I found out they never renewed my status, and I’ve clearly overstayed by 180 days. The law’s the law, and I’m barred.”

Clinton’s proposal to end the bars “is good news,” he concludes.