Recent high-profile cases don't reflect what's 'happening across the board,' they argue
As Canada grapples with recent news stories of Canadians being confronted by law enforcement either in the US or at its borders, some American immigration lawyers argue that the incidents have been cherry-picked and do not reflect US immigration authorities’ general approach to Canadians visiting or looking to work down south.
“There’s no change in the law, and there's no change in the treatment Canadians have received at the border,” says Christine Jurusik, managing partner at immigration firm Richards and Jurusik, which has offices in Toronto and Buffalo, New York.
“What’s changed is the exposure the news media has put upon these cases now that tensions between Canada and the United States politically have become hotter,” Jurusik says. “It’s turned into a news story now, where before these would have not been newsworthy.”
Jorge Lopez, a Miami-based shareholder at Littler Mendelson PC, one of the largest law firms representing management in the US, agreed that “the needle hasn’t really moved as far as stricter implementation of policy at the border or with [Canadians’ visa or work permit] applications” since US President Donald Trump took office in January.
“As we all know, the current administration does tend to change policy rather quickly at times,” Lopez says. “But right now, it’s been status quo.”
In early March, many Canadians were shocked when news broke that US Immigration and Customs Enforcement had detained a Canadian citizen and held her in multiple detention facilities for 12 days after she failed to secure a new TN visa at the San Diego-Tijuana border.
The Canadian, Jasmine Mooney, had previously held the TN, which allows certain types of professionals from Canada and Mexico to temporarily live and work in the US. Mooney was trying to reapply for the visa after it was unexpectedly revoked.
Later in the month, two Halifax musicians said police pulled them over on an Ohio highway. According to the musicians, the police indicated that their car would be searched for narcotics, spoke about how much fentanyl was coming into the US via Canada, and asked whether they preferred Canada or the US. In response, law enforcement described media coverage of the incident as “false reporting and hate-mongering.”
These stories – combined with recent, high-profile reports of US immigration officials detaining non-Canadian green card holders and the US State Department’s explicit crackdown on green card or visa-holding academics who have voiced pro-Palestinian views – have stoked fears in Canadians looking to visit or seek work in the US.
Jurusik, Lopez, and Rosanna Berardi, managing partner at Berardi Immigration Law, all say anxieties among their Canadian clients are high. Berardi – whose firm has offices in Buffalo, Newport Beach, Toronto, and London – says many Canadian clients have been asking whether they should proceed with plans to enter the US.
“I really want to clarify that what's being highlighted in most of the mainstream media is the exception and not the rule of what's happening,” Berardi says, adding she has been frustrated with how stories like Mooney’s are being extrapolated to make “it sound like that is what's happening across the board, and it’s not.”
Berardi says her firm represents thousands of Canadian corporations and individuals, and “we're still getting them across the border.”
Since taking office, the Trump administration has not made any policy changes for Canadians looking to visit or work in the US, except an upcoming rule that requires Canadian travellers to register with US immigration authorities if they plan to stay in the US for more than 30 days.
What has changed is immigration authorities’ enforcement of existing laws, where previous administrations may have been more lenient. For example, reports of phone seizures by US Customs and Border Protection have increased in recent months. However, that risk has existed for decades under the US Immigration and Nationality Act, which authorizes immigration officers to conduct searches and seizures.
“I've been doing this for 28 years, and US Customs and Border Protection has always had the authority to search and seize anything they wanted,” says Berardi. “They can always search your phone, they can look in your luggage, they can do whatever they want. That’s been the cornerstone of US immigration law forever.
“We’ve always advised our clients [that] the government can definitely search your phone,” she adds. “Make sure that you know you’re comfortable with the contents of it.”
Lopez, meanwhile, points to a recent example of a Canadian client whose application to extend their visa met multiple roadblocks before being denied. For Lopez, who has practised immigration law for more than 30 years, this experience seemed to align with immigration officials’ approach during the first Trump administration, when reviews of new applications and extensions were notably more rigorous and exacting.
“We were seeing in situations back then that somebody could have been here for multiple years on a TN, for example, and then at the time of an extension request, they were denied on the basis that [immigration officials] didn’t feel that they could qualify for the visa,” Lopez says.
Berardi says her firm recently issued a client alert on best practices for Canadian work permit holders but argues that the Trump administration’s stricter enforcement of existing rules was not unpredictable. Customs and Border Protection is simply “enforcing a law that many previous administrations chose to ignore and not enforce,” she says. The current administration’s approach is “a little bit more aggressive, and that's in the name of security and keeping the border buttoned up like the administration said they would do during the election.”
Overall, however, all three lawyers say they haven’t seen an uptick in Canadians encountering more travel or work-related issues than usual. While Jurusik doesn’t deny that there have been recent cases “that have gone sideways,” she insists that there have “always been sideways cases where people perhaps are applying for a status that they don’t necessarily qualify for, or the job doesn’t really meet all of the requirements.”
However, Lopez says he wouldn’t be surprised if concrete policy changes are coming. “I think it's only a matter of time,” he says, adding that some of Trump’s executive orders “do touch upon situations that could affect legal, employment-based immigration processing.”
In the meantime, Canadians looking to visit and work in the US should be proactive about following existing rules. Berardi notes that “the government is going on a firing spree of all sorts of government workers” and recommends that Canadians looking to file visa or work permit applications do so earlier to account for slower processing times.
“People are highly stressed about these situations, understandably so,” Lopez says, adding that there “should be a concern in doing the right thing.”
Still, he says, “I don't think that every person that's entering the United States is subject to being stopped and removed.”
