Problems at the U.S. Border
Key Background Chronology
On 20 January 2025, U.S. President Donald Trump signed two (2) Presidential Executive Orders:
- #14159, Protecting the American People Against Invasion; and
- #14161, Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. 1
On 4 April 2025, the Government of Canada (Global Affairs Canada) issued a Travel Advisory relating to travel to the United States.
On 7 April 2025, the U.S. Supreme Court issued a ruling, upholding the lawfulness of the 1787 American law (The Alien Enemies Act), and its recent use by the U.S. government to round up and deport citizens of Venezuela in the United States who are considered to be gang members and whose primary allegiance is to a foreign power who might also pose a national security risk. Before now, this ancient law had only been used during times of war.
N.B: Can U.S. border guards search your phone? Your rights explained – National | Globalnews.ca
Global News interviewed Warren Creates regarding what Canadians need to know with the recent Presidential Executive Orders and Travel Advisory referenced above on 8 April 2025. Please see the link here for details:
Sean Boynton, “Can U.S border guards search your phone? Your rights explained (8 April 2025)
Analysis:
As of April 11, 2025, visitors to the United States and foreign nationals visiting for periods longer than 30 days are required to register or face potential penalties, fines or even “misdemeanor prosecution.” 2 This requirement primarily applies to those entering the U.S. at a land border entry, as those flying in by air often already receive what is known as an I-94 admission form. 2
The Canadian Government (Global Affairs Canada) most recent Travel Advisory of 4 April 2025 includes the following,
“Every country or territory decides who can enter or exit through its borders and the Government of Canada cannot intervene on your behalf if you do not meet entry or exit requirements for the United States.
Individual border agents often have significant discretion in making those determinations. U.S. authorities strictly enforce entry requirements. Expect scrutiny at ports of entry, including of electronic devices. Comply and be forthcoming in all interactions with border authorities. If you are denied entry, you could be detained while awaiting deportation.
We have obtained the information on this page from the U.S. authorities. It can, however, change at any time.” 3
The updated advisory does not raise the travel risk level from “take normal security precautions” but adds guidance for long-term visitors.
The change comes amid reports of foreign nationals, including a Canadian, being detained or turned away at the U.S. border despite holding valid travel documents. Canadian citizen Jasmine Mooney was detained for nearly two weeks earlier this month after attempting to re-enter the U.S. under a NAFTA (2.0) professional work category. She has since described the experience, saying she was not initially given access to a lawyer and was held under restrictive conditions in two separate immigration detention centres. 4
Other countries have issued similar advisories in recent weeks. Germany cautions that a visa or ESTA (Electronic System for Travel Authorization) is not a guarantee of entry, while the U.K. warns travellers may be arrested or detained if they violate entry rules. France, Finland and Norway have flagged risks for transgender and nonbinary travellers due to binary gender requirements in U.S. immigration documents.
What Canadians Should know about the new rule for longer visits
As of 11 April 2025, U.S. authorities will require all foreign nationals visiting for longer than 30 days to register with U.S. Citizenship and Immigration Services (USCIS). 5
The rule applies to travellers aged 14 and older who have not already gone through a registration and fingerprinting process during a past U.S. visa application. Canadians who are issued a Form I-94 are considered registered and may be exempt from this new step. 6
Those who do not have a Form I-94 are required to register with USCIS for stays of more than 30 days. According to the advisory, “failure to comply could result in penalties, fines or misdemeanour prosecution.” 7
The New Registration Requirement
Canadians staying in the U.S. for longer than 30 days, and who do not have a Form I-94, must register online with USCIS by submitting Form G-325R through a USCIS account. The form is only accepted electronically (paper submissions and in-person filing are not allowed) and must be completed before travel. 8
Form I-94 is the Department of Homeland Security (DHS) Arrival/Departure Record issued to aliens who are admitted to the U.S., who are adjusting status while in the U.S. or extending their stay, among other things. A Customs and Border Protection (CBP) officer generally attaches the Form I-94 to the non-immigrant visitor’s passport upon U.S. entry. The visitor must exit the U.S. on or before the departure date stamped on the Form I-94.9
Children who turn 14 while in the U.S. are required to register within 30 days of their birthday unless they are U.S. citizens. Canadian citizens are exempt from providing fingerprints as part of the registration process. [1]0
Not all travellers need to register under the new rule. Exemptions apply to:
- S. permanent residents (Green Card holders)
- Canadians who entered the U.S. under a non-immigrant visa category (i.e. H-1B, L-1 or TN) and were issued a Form I-94, even if their stay has technically expired
- Canadians who have previously been issued a U.S. visa through a consulate or embassy. 11
U.S. Citizenship and Immigration Services
On 20 January 2025, President Donald Trump issued Executive Order 14159, Protecting the American People Against Invasion, which directed the DHS to ensure that aliens comply with their duty to register with the government under section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302), and ensure that failure to comply with the registration requirement is treated as a civil and criminal enforcement priority. 12
The INA requires that, with limited exceptions, all aliens 14 years of age or older who were not registered and fingerprinted (if required) when applying for a U.S. visa and who remain in the United States for 30 days or longer, must apply for registration and fingerprinting. Similarly, parents and legal guardians of aliens below the age of 14 must ensure that those aliens are registered. Within 30 days of reaching his or her 14th birthday, all previously registered aliens must apply for re-registration and to be fingerprinted. 13
Once an alien has registered and appeared for fingerprinting (unless waived), DHS will issue evidence of registration, which aliens over the age of 18 must carry and keep in their personal possession at all times.14
It is the legal obligation of all unregistered aliens (or previously registered aliens who turn 14 years old) who are in the United States for 30 days or longer to comply with these requirements. Failure to comply may result in criminal and civil penalties, up to and including misdemeanor prosecution, the imposition of fines, and incarceration. 15
Criminal Penalties for Failure to Carry Evidence of Registration
Any alien required to register who is 18 years of age and older and who fails to comply with the requirement that they carry evidence of registration and have in their personal possession evidence of registration will be guilty of a misdemeanor and will upon conviction for each offense be fined not to exceed $5,000 or be imprisoned not more than 30 days, or both. 16
President Donald Trump’s Travel Ban – Upcoming
In President Donald Trump’s first term serving as President, he a placed travel ban on 7 majority-Muslim countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen). There were various bans with the most recent one being upheld by the Supreme Court. President Donald Trump is expected to ban or severely restrict travel to the United States by citizens of more than a dozen countries, including Iran and Venezuela, in the near future. 17
President Donald Trump ordered his administration to establish vetting and screening standards and procedures for entry into the U.S. and submit a list of countries that do not meet them by 21 March 2025. The order follows a campaign pledge and an initiative from President Donald Trump’s first day in office. 18
He also directed officials to identify and potentially remove nationals from designated countries who entered the U.S. during the former President Joe Biden administration.
Supposedly, a list of more than 40 countries whose citizens could be barred or limited from entry into the United States is reportedly under consideration. That list includes, Afghanistan, North Korea and even tiny Bhutan, a majority-Buddhist Himalayan nation.19
President Donald Trump signed an Executive Order on 20 January 2025, calling on Cabinet members to submit a report identifying countries “for which vetting and screening is so deficient as to warrant a partial or full suspension” of admission to the U.S. He also asked for the report to identify “how many nationals from those countries” have entered or been admitted to the United States since 20 January 2021, the first day of former President Joe Biden’s term. 21
President Donald Trump tasked four individuals with producing the report: Secretary of State Marco Rubio, Attorney General Pam Bondi, Secretary of Homeland Security Kristi Noem and Director of National Intelligence Tulsi Gabbard. The structure of the second term ban of President Donald Trump’s administration appears to be different than the first one, creating a three-tiered list of nations that do not provide the United States with the level of information it is seeking or are otherwise deemed by officials as a national security threat.21 Countries on the “red” list would see travel to the United States banned altogether, while countries on the middle, or “orange” list would face visa restrictions. A lower tier of nations may be put on notice by the administration. Travel could be banned from 11 countries, according to The New York Times, which obtained a draft list of recommendations for the travel ban. Those are Afghanistan, Bhutan, Cuba, Iran, Libya, North Korea, Somalia, Sudan, Syria, Venezuela and Yemen.22
President Donald Trump previously banned travel from most of the countries on that list on 7 March 2017, with the exception of visa and green card holders. Bhutan and Cuba were not part of President Donald Trump’s previous travel ban. The U.S. State Department lists Cuba as a state sponsor of terror.23 An additional 10 countries, including Russia and Belarus, would see visas sharply restricted.
The remaining 22 countries, which includes many African nations, would have 60 days to address security concerns. They could ultimately be moved up on the list or completely left off, depending on their response. Based on what has been reported publicly supposedly their report is less focused on majority- Muslim countries and more about the amount of data the country provides to the U.S. 24 For example, one alleged factor the U.S. Administration is taking in consideration is how frequently a country reported lost or stolen passport data to Interpol. 25
What should Canadians prepare for?
U.S Customs officers have lawful authority to look through your mobile phone. Check comments you have made on social media and look through your laptop. They can also take devices or download all of their contents. Canadians should consider leaving their technology at home or bringing a burner phone rather than their personal phones.26
Several reports of people having their phones searched at the border, and a French researcher being denied entry reportedly due to U.S. Customs and Border Protection (CBP) finding messages on his phone critical of President Donald Trump. 27 Agents with U.S. Border Patrol have long been able to ask to search travelers’ belongings, but the Canadian government updated its online guidance on 4 April 2025 suggesting that the rules were being followed more stringently. It said that the Canadian government « cannot intervene on your behalf » if travelers do not meet entry or exit requirements for the U.S. and that individual border agents had « significant discretion » in making those determinations. 28
Overall, the Government of Canada’s Travel Advisory is this: « U.S. authorities strictly enforce entry requirements. Expect scrutiny at ports of entry, including of electronic devices…if you are denied entry, you could be detained while awaiting deportation.” 29
For a helpful summary of Executive Order 14161, please see the attached article written by Oliver Mercer, the Chief Editor at VisaVerge.com.30
N.B. This is informational only. It is not legal advice.
References:
1 National Archives, Federal Register, “2025 Donald J. Trump Executive Orders” (last visited: 11 April 2025), online: Federalregister.gov <https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2025>.
2 Sean Previl, “U.S clarifies new April registration rules, including for some Canadians” (March 12, 2025), online: Global News <https://globalnews.ca/news/11074444/canadians-travel-us-registration-rules-explained/>.
3 Government of Canada, “United States travel advice” (Date modified: 2025-04-04), online: Government of Canada <https://travel.gc.ca/destinations/united-states>.
4 Sofia Misenheimer, “What Canadians should know about a new U.S registration rule for longer visits” (April 1, 2025), online: Ottawa Citizen MSN <https://www.msn.com/en-ca/news/canada/what-canadians-should-know-about-a-new-us-registration-rule-for-longer-visits/ar-AA1C1Q7w?ocid=BingNewsSerp>.
5 Sofia Misenheimer, Ibid.
6 Sofia Misenheimer, Ibid.
7 Sofia Misenheimer, Ibid.
8 U.S Customs and Border Protection, “I94 Automation”, (last visited: April 7, 2025), online (pdf): U.S Customs and Immigration Enforcement <https://www.ice.gov/doclib/sevis/pdf/i94-fact-sheet.pdf>.
9 U.S Customs and Border Protection, Ibid.
[1]0 Sofia Misenheimer, Supra note 4.
[1]1 Sofia Misenheimer, Ibid.
12 U.S Citizenship and Immigration Services, “Alien Registration Requirement” (Last updated: 03/21/2025), online: USCIS <https://www.uscis.gov/alienregistration>.
13 U.S Citizenship and Immigration Services, Ibid.
14 U.S Citizenship and Immigration Services, Ibid.
15 Sofia Misenheimer, Supra note 4.
16 Sofia Misenheimer, Ibid.
17 Erin Mansfield and Francesca Chambers, “Trump travel ban 2.0 coming as soon as Friday. What countries it will affect” (March 21, 2025), online: usatoday <https://www.usatoday.com/story/news/politics/2025/03/21/donald-trump-travel-ban-countries-affect/82492460007/>.
18 Erin Mansfield et al., Ibid.
19 Erin Mansfield et al., Ibid.
20 Erin Mansfield et al., Ibid.
21 Erin Mansfield et al., Ibid.
22 Erin Mansfield et al., Ibid.
23 Erin Mansfield et al., Ibid.
24 Erin Mansfield et al., Ibid.
25 Erin Mansfield et al., Ibid.
26 Muriel Draaisma, “Expect extra questions, take a burner phone: Immigration lawyers weigh in on travel to the U.S” (April 1, 2025), online: CBC News <https://www.cbc.ca/news/canada/toronto/canadians-travel-to-united-states-advice-1.7498326>.
27 Brendan Cole, “Canada Updates Travel Warning for US Again” (April 5, 2025), online: Newsweek <https://www.newsweek.com/canada-updates-travel-warning-us-2055799>.
28 Government of Canada, “United States travel advice” (Date modified: 2025-04-04), online: Government of Canada <https://travel.gc.ca/destinations/united-states>.
29 Government of Canada, Ibid.
30 Oliver Mercer, “Canadian Born In Iran, Afghanistan Denied U.S Entry Under Trump Policy” (28 March 2025), online: visaverge <https://www.visaverge.com/news/canadians-born-in-iran-afghanistan-denied-u-s-entry-under-trump-policy/>.
For customized professional assistance on any particular case or situation, please consult qualified legal representation, which we are authorized and specialized to provide.
Please contact Warren Creates, head of immigration at Perley-Robertson, Hill & McDougall LLP/srl at (613)238-2022 and/or [email protected].