U.S. and Canadian flag. Credit: Wikimedia Commons

Canadian lawyers working in the United States on temporary, non-immigrant visas face more restrictions on their movement as a result of the COVID-19 border closures and travel bans.

"Anyone who's currently in the United States on assignment is anxious because if they have a family member who becomes ill abroad and they want to go visit that family member, for instance, the question is, will they [be able to] come back," said Betsy Morgan, head of Baker McKenzie's global immigration and mobility practice. "The short answer is no. The longer answer is if they're doing work that is essential, they may be able to get back in."

But the interpretation of "essential" varies and there is a high risk that a nonpermanent resident who needs to travel abroad will not be able to return until the travel ban is lifted, she said.

Compounding the concern for Canadian and other lawyers working in the U.S. is the White House executive order issued April 22, in which President Donald Trump temporarily halted the issuance of green cards and suspended immigration into the U.S. Although the new regulation does not apply to employment-based immigration for professionals who are in the U.S. on non-immigrant visas, it does leave open the possibility that these programs will be curtailed in the future.

Trump initially described a broad immigration ban but changed it so that temporary work visas would be exempt from the order—a move seen as a capitulation to business.

A Canadian lawyer currently in the U.S. on a TN visa, a temporary work visa granted to nonimmigrant professionals under NAFTA, said it's worrisome knowing that it's not advisable to cross the border. The U.S.-qualified lawyer, who practices in-house with a company in California and is registered with the state bar, has not left the U.S. since the travel ban was enacted but previously went back to Canada once a month.

"If you go, you don't know if you're going to be able to come back and your livelihood is here,"  the lawyer said. "It's a toss-up. I'm just hoping that no one [in my family] gets sick because family comes first."

Vaitiari Rodriguez, a lawyer with Foley & Lardner, said some of the temporary visas serve as a bridge to later become a permanent resident. Legal recruiter Jonathan Marsden also says this immigration pattern is not uncommon among lawyers.

"Although a number of lawyers who move internationally do end up just doing two-to-four years and then return home, a lot do actually remain in the country they move to," Marsden said.

For now, foreign nationals can still apply for a change of visa status without having to leave the U.S., but Rodriguez said she worries about the backlog of applications. In late March, the U.S. closed consulates and suspended the premium processing option.

"The tightening of international borders in reaction to COVID presents a challenge for cross-border lawyers and the cross-border legal industry," says Ivo Entchev, the president of the Canadian American Bar Association, which has a membership of approximately 250 lawyers.

In 2017, the association testified on the importance of the TN visa classification for the legal industry during NAFTA renegotiations. In 2016, almost 15,000 TN visas were issued, according to the Department of State. These were not classified by occupation.

"A sustained interruption to the free flow of legal labor across the Canada-U.S. border—under TN authorization and otherwise—will hurt the cross-border business community," Entchev said.

Morgan said individuals and companies are now applying earlier for status extensions regardless of their visa classification and are beginning to think about permanent residence sooner than perhaps they usually would.

"Planning ahead is important at this point," she said.