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Update on Canada’s ability to collect traveller data during entries/exits

The Entry/Exit Program is a joint initiative between Canada and the United States.  Implemented on June 30, 2013, it enables Canada Border Services Agency (“CBSA”) officers to collect information on foreign nationals (excluding U.S. citizens) who exited the country via land border crossing into the United States. 

Currently, the Customs Act[1] enables CBSA to record entries and exits via land border crossing for all travellers (including both Canadians and Americans), as well as entries by air.  CBSA is therefore able to maintain travel records which capture entries for all travellers by air and land, but only exits via land border crossings. 

Of course, as many travellers exit Canada by air, these travel records are largely incomplete.  However, CBSA’s access to traveller information will be further expanded as a result of Bill C-21, An Act to amend the Customs Act, which received Royal Assent on December 13, 2018.  Bill C-21 will enable Canada and the United States to exchange basic biographic entry data on all travellers entering into their respective countries.  Entries into one country will therefore indicate an exit from the other, and this information will be shared. 

CBSA and its United States counterpart, U.S. Customs and Border Protection, have entered into an information sharing memorandum of understanding, which includes safeguards and protections for the exchange of travellers’ biographic entry data.  The biographic data collected on each traveller during exits by land border crossing includes: (1) name, (2) date of birth, (3) nationality, (4) sex, (5) travel document type, (6) travel document number, (7) name of country that issued the travel document, (8) date and time of exit, and (9) name of land border crossing used during exit.  

Significantly, once the regulatory amendments and related information sharing arrangements are in effect (expected to take place in June 2020), CBSA will also be able to record exits by air for all travellers.  In this regard, exit information will be obtained directly from air carriers through passenger manifests. 

In summary, once fully implemented, Bill C-21 will enable CBSA to maintain accurate and increasingly complete travel records for all travellers.  More specifically, information on the date, time, flight information, and location of departure by air will soon be recorded for all travellers departing on outbound international flights, in addition to the biographic data noted above.  However, this information will not be shared with the United States under the current version of the joint Entry/Exit Program.

The stated purpose of the Entry/Exit Program, as well as CBSA’s broader ability to record the biographic data on travellers entering and exiting the country, is to maintain a strong and secure border.  Indeed, it does allow for the tracking of known high-risk travellers, and enables action on time sensitive situations, such as locating abducted children or runaways.  However, this information is also used in connection with the more common traveller.  Such routine uses of entry and exit data include:

  • Identifying individuals who remain in Canada beyond their authorized period of stay;
  • Determining whether applicants meet residency requirements for purposes of citizenship and permanent residency applications (including those applicants who seek to renew their permanent residence cards on an on-going basis); and
  • Verifying travel dates for purposes of applying duty and tax exemptions.

Canadian citizens, permanent residents of Canada, as well as foreign nationals currently present in Canada, can request their Travel History Report from the CBSA under the Privacy Act.[2]


[1] R.S.C., 1985, c. 1 (2nd Supp.).

[2] R.S.C., 1985, c. P-21.

Update on Canada’s ability to collect traveller data during entries/exits

History of the Start-Up Business Class

The Start-Up Business Class began as a five-year pilot program targeting foreign entrepreneurs with the skills and potential to build businesses in Canada that: (a) were innovative, (b) could create jobs for Canadians, and (c) could compete on a global scale.  Entrepreneurs seeking permanent residence under the Start-Up Business Class were not required to personally invest any capital in the proposed business. 

Despite the relatively small number of cases processed during its initial five-year period, the Government of Canada considered the pilot program to be a success.  On July 18, 2017, IRCC announced its intention to establish a permanent Start-Up Business Class once the pilot program expired on March 31, 2018.  The final regulations for the permanent Start-Up Business Class became effective on April 11, 2018.

I am pleased to have played a small role in the creation of Canada’s Start-Up Business Class.  Near the end of 2011, I first raised the idea of a start-up visa with Mr. Jason Kenney, during a fundraiser for a local political candidate.  Mr. Kenny is currently the Premier of Alberta but, at the time, he was Canada’s Federal Minister of Citizenship, Immigration and Multiculturalism. 

Earlier that year, the StartUp Visa Act of 2011 was introduced in the United States Congress.  During my discussion with Mr. Kenny, I mentioned the proposed bill.  I also explained that, since it was unlikely to become law in the United States, Canada could attract entrepreneurs who might otherwise be destined for the United States by establishing a start-up visa program of its own. 

Mr. Kenney initially believed that a start-up visa program would simply be a variation of the existing Entrepreneur Class (which was ultimately terminated 2013).  However, I explained that a start-up visa program would differ from existing investor and entrepreneur options to the extent that the entrepreneur would not need to be the source of investment capital.  Such a program would enable foreign entrepreneurs who established start-up businesses using capital contributed by third parties, such as venture capital firms or angel investors, to seek permanent residence in Canada.  By the end of our discussion, he warmed up to the idea of a start-up visa program. 

On April 18, 2012, Mr. Kenney announced public consultations on the possible creation of a new program to attract immigrant entrepreneurs.  On January 24, 2013, he announced that the Government of Canada would launch a start-up visa program to recruit innovative immigrant entrepreneurs who would create new jobs and spur economic growth.  On March 30, 2013, Citizenship and Immigration Canada published Ministerial Instructions in the Canada Gazette, which formally established the new Start-Up Business Class. 

Read Henry J. Chang’s full article on the Start-Up Business Class here.

History of the Start-Up Business Class

Cannabis in the United States and its implications in naturalization applications

In April 2019, the media reported that the United States Citizenship and Immigration Services (USCIS) had denied the naturalization applications of at least two lawful permanent residents who had worked for state-licensed cannabis businesses in the State of Colorado. The Mayor of Denver even wrote a letter to Attorney General William Barr, requesting formal guidance from the US Department of Justice, which would clarify and adjust policies that are negatively impacting the legal immigration status of individuals who work, or who have previously worked, in Colorado’s legal cannabis industry. 

The Attorney General has not responded to the Mayor of Denver. However, USCIS issued a Policy Alert a few weeks later, announcing that it had updated its Policy Manual to clarify this issue.1 However, instead of resolving the issue, the updated guidance simply reiterates that cannabis-related activities will likely bar a lawful permanent residence of the United States from naturalization, even if those activities take place in a state that has legalized cannabis. 

This article was first published on dentons.com. Read the full article.

Cannabis in the United States and its implications in naturalization applications

Immigration consequences of Canadian criminal offences

When criminal lawyers represent their clients, they may not always consider the immigration implications of the case. However, unless their client is a Canadian citizen, many criminal offences will have potentially adverse consequences. A brief discussion of immigration consequences arising from Canadian criminal offences is provided below.

This article was first published on dentons.com. Read the full article.

Immigration consequences of Canadian criminal offences

How US federal cannabis legalization would affect US immigration laws

During the 115th United States Congress, several Bills were introduced to legalize marijuana at the federal level. The Bills that received the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). However, when the 115th United States Congress ended on January 3, 2019, these three Bills (collectively, the Congressional Bills) died.

The Congressional Bills must be reintroduced in the 116th United States Congress before they may be considered again. Assuming that all three are eventually reintroduced (without change) during the 116th United States Congress, an analysis of how they might affect the ability of foreign nationals (i.e., individuals other than US citizens) to enter the United States is provided below. 

This article was first published on dentons.com. Read the full article.

How US federal cannabis legalization would affect US immigration laws