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| Sergio R. Karas |
The U.S. Supreme Court, in Florida v. Royer, 460 U.S. 491 (1983), held that government officers do not violate the Fourth Amendment protection against unreasonable search and seizure simply by questioning individuals in public spaces, so long as the individuals are not involuntarily detained during such interactions. This means Canadians seeking entry into the U.S. are expected to answer questions posed by border officers as part of their application for admission. However, if a traveller changes their mind during the process, they have the right to withdraw their application by verbally notifying the officer. The officer is expected to allow the withdrawal unless they exercise their authority to detain or arrest the individual.
According to a review by the Guardian of Department of Homeland Security (DHS) data, U.S. immigration enforcement officials arrested more people in the first 22 days of February 2025 than in any month over the last seven years. Immigration officials are not only arresting more people but also placing increasing numbers in detention. DHS announced that immigration detention had been filled with 47,600 detainees. As per the federal data, in November 2024, individuals without criminal convictions made up about six per cent of those in Immigration and Customs Enforcement (ICE) detention. By February 2025, that number had increased to 16 per cent. These searches aim to identify digital contraband and assess travellers’ admissibility.
U.S. Customs and Border Protection (CBP) reportedly detained a French scientist after they found messages on his phone criticizing President Trump’s science funding cuts while he was attempting to attend a conference. Similarly, Canadian entrepreneur and actress Jasmine Mooney was arrested at the southern border and detained for nearly two weeks before being released, but the reason for detention is somewhat unclear. More seriously, Lebanese physician Rasha Alawieh had her visa cancelled and was deported after CBP found photos related to Hezbollah on her phone at Boston Logan International Airport. She had travelled to Lebanon to attend the funeral of Hezbollah leader Hassan Nasrallah.
An Indian Columbia Ph.D. student had her visa revoked and self-deported to Canada after ICE raided her apartment over pro-Palestinian social media posts and campus protests. In the most serious incident, graduate student Mahmoud Khalil, a pro-Hamas protest leader, is being held in detention in Louisiana over his participation in pro-Palestinian violent protests at Columbia University. Most recently, a Georgetown University researcher from India is facing deportation over alleged connections to a Palestinian militant group.
Unlike the U.S., Canada focuses on post-entry compliance rather than strict border surveillance. Citizens of visa-exempt countries can stay up to six months with an electronic travel authorization (eTA), while U.S. citizens don’t need a visa or eTA for visits of up to six months. Visitors are prohibited from working without authorization, but loopholes — like remote work for foreign employers — and enforcement gaps have led to violations. Though most comply, a growing number misuse their visitor status to work illegally, violating s. 183(1)(b) of the Immigration and Refugee Protection Regulations, which prohibits foreign nationals from working or studying without proper authorization. Others use their visitor status to make bogus refugee claims to extend their stay, collect social assistance or access free health care services.
This situation raises serious concerns regarding immigration compliance, worker exploitation and the integrity of Canada’s labour and border enforcement systems. Several factors contribute to the growing trend of visitors entering Canada and working without authorization. One major reason is the ease of entry, especially for individuals from visa-exempt countries who can travel to Canada without undergoing intense scrutiny.
Additionally, many visitors are drawn by the desire for economic opportunity, hoping to benefit from perceived job shortages or higher wages in sectors such as construction, hospitality, caregiving and agriculture. Some Canadian employers, knowingly or unknowingly, contribute to this issue by hiring undocumented workers to fill low-wage positions, often to reduce labour costs. In some cases, visitors may lack a clear understanding of Canadian immigration rules and mistakenly believe that informal work or “volunteering” is permitted. Others may deliberately misrepresent their intentions at the border, entering Canada under the pretext of tourism while planning to seek employment.
Kelly Sundberg, a professor at Mount Royal University specializing in migration and border security, has stated, “The Americans are well aware that Canada’s capacity to screen people is really limited,” he said. “I mean, we do screen, kind of, but we don’t do a proficient or effective job. The Americans are well aware of this, so they can’t trust our system.” Although Canada is a member of the Five Eyes intelligence-sharing alliance, Sundberg noted that it is often referred to as the “lazy eye” due to its lax and disorganized approach to screening individuals.
Canada should consider adopting U.S.-style compliance policies. To strengthen existing efforts, the government should enhance Canada Border Services Agency (CBSA) enforcement, increase the frequency and scope of random workplace inspections and expand the use of stricter entry screening methods. Additionally, penalties for employers who hire undocumented workers should be made more stringent and consistently enforced. Individuals working in Canada on valid work permits but paid through U.S. payroll systems should be required to transfer to a Canadian payroll to ensure compliance with Canadian employment standards and tax regulations, and to prevent revenue loss through offshore arrangements.
Immigration, Refugees and Citizenship Canada (IRCC) could further enhance compliance by requiring proof of income tax filing as part of the work permit renewal process. Additionally, Canada must strengthen pre-arrival risk assessments and visa application screening, sharing information with allied countries (like through the Five Eyes partnership), and imposing more rigorous interview requirements for high-risk visitors. Measures should also include denial of entry based on past criminal convictions and inadmissibility, as well as the development of a comprehensive exit tracking system to monitor visitor compliance.
Canada should implement stricter security reviews of visa applicants who may have sympathies toward terrorist groups, or are residing in countries that openly support terrorism, or are hotbeds of gang activity, or drug trafficking, or have a high likelihood of overstaying their visas. Canada should increase enforcement activity to detain and deport quickly those involved in criminal activity, support of terrorist groups, or illegal work to change its image as of being a soft target for those who wish to engage in prohibited conduct. The message should be sent around the world that Canada will not tolerate the entry of individuals who are not law-abiding and wish to cause disruption to the public.
Sergio R. Karas, principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian citizenship and immigration law by the Law Society of Ontario. He is co-chair of the ABA International Law Section Immigration and Naturalization Committee, past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and a fellow of the American Bar Foundation. He can be reached at karas@karas.ca. The author is grateful for the contribution to this article by Jhanvi Katariya, student-at-law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice
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