United States: Potential Changes To U.S.-Canadian Border Policy

Last Updated: May 23 2019
Article by Jorge R. Lopez and Elizabeth Whiting

On April 25, 2019, the American Immigration Lawyers Association (AILA) issued a practice alert announcing that the nationwide immigration association had "been in discussions with CBP [Customs and Border Protection] related to what appeared to be an unannounced policy change in L-1 adjudication at the port of entry under NAFTA."1 AILA advised the immigration community that—contrary to existing policies allowing Canadian citizens to apply for extension of L-1 intracompany transfer visas at ports of entry along the U.S.-Canadian border or pre-clearance locations at Canadian airports—"CBP [had] begun to interpret NAFTA's implementing regulations to require that L-1 petition 'extensions' must be filed with [the U.S. Citizenship and Immigration Services]."2 Increasingly, CBP is reportedly refusing to adjudicate renewals based on existing individual petitions or existing individual petitions pursuant an approved Blanket L petition, the company-wide certification process allowing large multinational companies to receive approval to transfer employees in L-1 status.3

What is an L Visa?

The L nonimmigrant visa classification permits international companies to temporarily transfer qualified employees to the United States for the purpose of improving management effectiveness, expanding U.S. exports, and enhancing competitiveness in markets abroad.4 There are two variants: the L-1A classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States, while the L-1B classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization's interests from one of its affiliated foreign offices to an office in the United States.5

Changes to L-1 Renewals

While early reports of CBP refusals to adjudicate subsequent L-1 petitions focused on ports of entry near Calgary, Canada, AILA reports that the list of ports of entry refusing to grant "renewals" has grown to include pre-clearance airport locations and other nationwide ports of entry, including Calgary International Airport; Edmonton International Airport; Montreal-Pierre Elliott Trudeau International Airport; Ottawa/Macdonald-Cartier International Airport; Pembina, North Dakota; Point Roberts, Washington; Seattle, Washington; Sumas, Washington; Warroad, Minnesota; Toronto Lester B. Pearson International Airport; Vancouver International Airport; and Winnipeg James Armstrong Richardson International Airport, which have all taken the position that they will only process initial applications for admission by Canadian citizens requesting L admission to the United States.6

Pursuant to this new unannounced CBP policy, a subsequent petition to renew or extend L-1 status must be filed with the U.S. Citizenship and Immigration Services (USCIS), whether or not the extension includes a request for "extension of stay." Reportedly, CBP will require individuals with current L-1 status to provide officers at the border with an already-USCIS-approved Form I-129 in order to be readmitted to the United States, uprooting a framework that had, until now, afforded Canadian citizens more relaxed procedural requirements for renewing their L-1 petitions to work for multinational employers' U.S. entities.

Prior Policy

Based on the North American Free Trade Agreement (NAFTA), effective in 1994, Canadians seeking to renew L-1 intracompany transferee status could previously petition for the L-1 classification with CBP at a port of entry along the U.S.-Canadian border or at a pre-clearance location at an airport and concurrently file an application for admission to the United States.7 This practice stemmed out of the implementing regulations for NAFTA, which provide specialized instructions on adjudication of L-1 petitions for Canadian citizens, as opposed to general L-1 applicants. The regulations at 8 C.F.R. §214.2(l)(17)(i) provide that "a United States or foreign employer seeking to classify a citizen of Canada as an intracompany transferee may file an individual petition in duplicate on Form I-129 in conjunction with an application for admission of the citizen of Canada." The regulation expressly states that "[s]uch a filing may be made with an immigration officer at a Class A port of entry located on the United States-Canada land border or at a United States pre-clearance/pre-flight station in Canada." Under the long-standing framework, CBP would adjudicate these petitions and applications for admission within the day, quickly facilitating transfers of employees from Canada to the U.S. with renewed L-1 status. Under the new policy, L-1 "extension" seekers must file extensions with the USCIS and cannot file for renewal under 8 C.F.R. §214.2(l)(17)(i) at ports of entry. This may be of concern to employers because L-1 petitions are the subject of high rates of Requests for Evidence when adjudicated by USCIS. A Request for Evidence (RFE) is a post-filing request from the USCIS for more information before the case can be adjudicated. There has been a substantial increase in the rate of Requests for Evidence regarding L-1A and L-1B petitions to the USCIS, which require additional documentation and prolong the process for many candidates for L-1 renewals.8

Additional Concerns

The apparent change in policy is also of concern because the Immigration and Nationality Act's definition of "extensions" under the regulations governing general L-1 extensions (8 C.F.R. § 214.2(l)(15)(i)) is at odds with the process by which Canadian citizens would concurrently file L-1 applications at the time of application for readmission to the United States. Essentially, CBP has begun considering renewal L-1 petitions submitted at the Canadian border "extensions" under these regulations, despite the fact that the Canadian citizens are physically outside the United States, seeking admission, and are not eligible for an extension in the United States. An extension requires physical presence in the United States. As such, it is our belief that the regulatory language on general extensions should not defeat the legal justification for applying for a Canadian L-1 "renewal" concurrently with an application for admission at ports of entry along the U.S.-Canadian border as the process currently stands under 8 C.F.R. §214.2(l)(17)(i), which governs L-1 applications for Canadian citizens at the border.

Furthermore, the new practice overlooks that applying for an extension of an L-1 petition is distinct from a request to extend one's period of authorized stay in the United States. The regulations on extensions expressly distinguish between requests for "extension of stay" and "extension of petition validity," noting that separate determinations will be made on each.9 The language on general extensions instruct that "[t]he beneficiary must be physically present in the United States at the time the extension of stay is filed."10 Because Canadian L-1 holders seek only extension of petition validity, some have countered that CBP should maintain jurisdiction to process these petitions because Canadian L-1 beneficiaries applying for readmission at a port of entry are not applying for "extension of stay" based on physical presence within the meaning of 8 C.F.R. §214.2(l)(15)(i).

The regulations on Canadian Ls also provide specialized instructions for petitions filed under a Blanket L, which could present issues for companies that frequently transfer employees based on an approved Blanket L. Unlike most petitions for employees under a company's Blanket L, which are submitted to a consular post abroad that adjudicates the petition and interviews the employee, petitions for Canadian citizens have generally been submitted to CBP. This is because, pursuant to 8 C.F.R. § 212.1(a)(1), Canadian citizens falling under non-immigrant visa L are generally considered visa-exempt nonimmigrants and do not require a visa to the enter the United States. Under 8 C.F.R. § 214.2(l)(5)(i), an "application for a visa-exempt nonimmigrant seeking L classification under a blanket petition . . . shall be filed with the Service office at which the Blanket petition was filed." At the same time, the regulations on blanket petitions for citizens of Canada under NAFTA, 8 C.F.R. § 214.2(l)(17)(ii), allow that "[a]n immigration officer at a location identified in paragraph (1)(17)(i) of this section [i.e., a Class A port of entry located on the United States-Canada land border or at a United States pre-clearance/pre-flight station in Canada] may determine eligibility of individual citizens of Canada seeking L classification under approved blanket petitions." This has resulted in most Canadian individual petitions under a Blanket L being filed with CBP along the border.

The regulations generally addressing extensions under Blanket Ls state that "[w]hen the alien is a beneficiary under a blanket petition, a new certificate of eligibility, accompanied by a copy of the previous approved certificate of eligibility, shall be filed by the petitioner to request an extension of the alien's stay . . . The beneficiary must be physically present in the United States at the time the extension of stay is filed."11 Guidance from AILA, in combination with the similarity of the language in provisions relied upon in defining subsequent requests for L-1 status as "extensions," indicates that subsequent petitions under an approved Blanket L will likely be considered "extensions" that CBP will refuse to adjudicate (despite well-established processes to the contrary), while initial individual petitions under an approved Blanket L will likely continue to be adjudicated by CBP. The complexity of the regulations as applied to citizens of Canada under NAFTA as visa-exempt nonimmigrants and the ambiguity of CBP's interpretation of "extensions" to vest jurisdiction solely with USCIS may cause additional jurisdictional confusion as employers adjust to the new set of guidelines.

Implications for Employers

All of these changes will have effects on the process by which Canadian citizens live and work in the United States. While employees will remain in lawful status to live and work in the United States after the expiration date of lawful L-1 status, provided that timely extension petitions are submitted to USCIS by the expiration date of a person's lawful status, document validity and ability to travel may be impacted. Driver's licenses are often limited to the period of status expiration and may not be able to be renewed until status extension approval. Moreover, intracompany transferee employees may not be able to travel abroad and re-enter with L-1 status, as extension applications require physical presence. Because the regulations on extensions the CBP uses to reject subsequent L-1 applications clearly do not encompass initial petitions, Canadian citizens applying for initial L-1 petitions, as well as Canadians applying for initial individual petitions under approved L-1 Blankets, should be able to continue to seek admission at ports of entry in conjunction with initial applications for intra-company status. However, the broadening of the definition of "extensions" to include Canadian concurrent renewals at the time of admission will most certainly require increased employer monitoring of the need for formal extensions of Canadian intracompany transferee nonimmigrant visas through USCIS.

Footnotes

1 See Am. Immigration Lawyers Ass'n, AILA Practice Alert: Filing Subsequent L-1 Petitions for Canadian Applicants at Ports of Entry, Doc. No. 19030730, AILA (Apr. 25, 2019),

2 Id.

3 Under Blanket L requirements, the company must evidence that it is engaged in commercial trade or services, have at least three or more overseas or domestic branches, affiliates or subsidiaries, and have an active office present in the U.S. for not less than a year. In addition, the company must prove that (1) it has had ten or more L-1A or L-1B visas approved in the past year; (2) its U.S. subsidiaries or affiliates have a combined annual sales of at least $25 million; or (3) it has a U.S. workforce of 1,000 employees minimum.

4 9 Foreign Affairs Manual 402.12-2 (Overview of L Visas).

5 See USCIS, L-1A Intracompany Transferee Executive or Manager, USCIS (Updated 4/29/2019); see also USCIS, L-1B Intracompany Transferee Specialized Knowledge, USCIS (Updated 4/29/2019).

6 Id.

7 See 8 C.F.R. §214.2(l)(17)(i) provides that "a United States or foreign employer seeking to classify a citizen of Canada as an intracompany transferee may file an individual petition in duplicate on Form I-129 in conjunction with an application for admission of the citizen of Canada." The regulation states that "[s]uch a filing may be made with an immigration officer at a Class A port of entry located on the United States-Canada land border or at a United States pre-clearance/pre-flight station in Canada."

8 National Foundation for American Policy, Policy Brief H-1B Denial and RFE Increase, NFAP (July 2018), https://nfap.com/wp-content/uploads/2018/07/H-1B-Denial-and-RFE-Increase.NFAP-Policy-Brief.July-2018.pdf (indicating a Q4 2017 rate of 39.6% for L-1A petitions and 45.7% for L-1B petitions, as well as a near doubling of the denial rate for L-1A applications from 12.1% in Q1 2017 to 21.4% in Q4 2017 and a substantial rise in denial rate for L-1B applications from 21.7% in Q1 2017 to 28.7% in Q4 2017).

9 See 8 C.F.R. § 214.2(l)(15)(i) ("Even though the requests to extend the visa petition and the alien's stay are combined on the petition, the director shall make a separate determination on each.").

10 See 8 C.F.R. § 214.2(l)(15)(i).

11 Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions