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Inconsistent Application of “Non-Essential” Travel Restrictions at US Land Borders

Posted July 30, 2020Sheila Kumar - Sr. AssociateArticles

Northern and Southern Land Border Closure Extended to August 20, 2020

In response to the COVID-19 pandemic, on March 20, 2020, the Trump Administration issued an order restricting travel from Canada and Mexico into the U.S. across the northern and southern borders.  The travel restriction across the northern and southern border has been extended until August 20, 2020 and applies to all non-essential travel by land and ferries.  The travel restrictions do not apply to air, freight or sea travel. 

The DHS has vaguely defined exceptions to the land border travel restrictions for essential travelers, including “traveling to work in the U.S” and “traveling for emergency response and public health purposes,” as well as other essential travel reasons.  U.S. Customs and Border Protection (CBP) officers have significant discretion in deciding what is considered “essential travel” and who is eligible for these exemptions. 

Recommendations for Travel Across the Border

Reports indicate at some ports-of-entry CBP officers are challenging whether nonimmigrants holding valid status and work authorization in the U.S.  are entering to perform work that is essential and qualifies under one of the travel restriction exemptions.  Nonimmigrants entering at a land border should:

  • Be prepared to answer questions from CBP on why they should be deemed an essential  .  
  • Carry a letter from the employer outlining the essential nature of their work in the U.S.  
  • Be ready to prove exemption from the travel restriction for each individual attempting to cross, including spouses and children.  

“Essentiality” can be defined in terms of critical contribution to the infrastructure of a company, such as IT support, finance, vital human resource professionals or other roles that make it possible for other employees of the company to continue working from home.  The Cyber and Infrastructure Security Agency’s (CISA) Essential Critical Workforce Memorandum released by the U.S. Department of Homeland Security on March 19, 2020 provides additional helpful reference on workers who conduct a range of operations and services that have been deemed essential to continued critical infrastructure viability. 

Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: consultation@meltzerhellrung.com