On March 18 and March 19, respectively, President Donald Trump announced temporary closure of the U.S.-Canada and U.S.-Mexico borders to nonessential traffic as part of the effort to contain Coronavirus Disease 2019 (COVID-19). U.S. Customs and Border Protection (CBP) issued two notices in the Federal Register to implement the travel restrictions, which are scheduled to be published on March 24, 2020 (the Notices).1
According to the Notices, the CBP commissioner has determined that, given the risk of exposure to COVID-19 for persons traveling across the border, and pursuant to the authority granted under 19 U.S.C. §§ 1318(b)(1)(C) and (b)(2), land ports of entry along the U.S.-Canadian and U.S.-Mexican borders will suspend normal operations and process entry only for those travelers engaged in “essential travel.” The Notices define essential travel as including, but 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/Mexico 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 cross-border trade (e.g., truck drivers supporting the movement of cargo between the United States and Canada/Mexico);
- 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 list of essential travel in the Notices is not intended to be exhaustive, and the CBP commissioner has discretion to determine that other forms of travel, such as travel in furtherance of economic stability or social order, also constitute essential travel. The Notices also clarify that essential travel does not include traveling for any tourism purposes, such as sightseeing, recreation, gambling or attending cultural events.
Although the Notices state that the travel restrictions should not interrupt legitimate trade between the United States and Canada or Mexico, or disrupt supply chains on either side of the border, the guidance issued by CBP leaves it unclear whether the restrictions will allow cross-border travel for businesspeople who do not already have work visas or work authorizations in the United States. The Notices direct the commissioner of CBP to prepare and distribute guidance to CBP personnel on implementation of the restrictions, which could provide further clarity on this question.
CBP’s travel restrictions at ports of entry went into effect at 11:59 p.m. Eastern Daylight Time (EDT) on March 20, 2020, and apply to persons traveling through ports of entry, as well as to passenger rail and ferry travel between the United States and Canada or Mexico. The restrictions do not apply to air travel, freight rail or sea travel between the United States and either country.
The restrictions are temporary in nature and will remain in effect until 11:59 p.m. EDT on April 20, 2020.
WilmerHale attorneys are closely monitoring these developments and will provide further updates as circumstances warrant.