Unannounced changes at the Canadian border have disrupted Canadian L-1 intra-company transferee visa applicants' admission to the United States.
U.S. Customs and Border Protection (CBP) appears to have shifted its longstanding policy of adjudicating L individual or blanket L petitions for intra-company Canadian citizens applying for admission at U.S. ports of entry from Canada when presenting renewals of L visa requests.
What Has Changed?
Historically, and pursuant to the North American Free Trade Agreement (NAFTA), CBP officials would routinely adjudicate initial L-1 visa petitions, requests for renewals of L-1 individual visa petitions and blanket L petitions for Canadian citizens at U.S. ports of entry and preclearance airport locations.
Since Canadian citizens are exempt from applying for L-1 visa stamps at U.S. consular posts and, under NAFTA, are exempt from filing individual advance L petitions with U.S. Citizenship and Immigration Services (USCIS), the option to present L-1 petitions and requests for L-1 visa renewals has remained compelling and appealing for Canadian citizens. It has also assured a swift adjudication of the petition at ports of entry, facilitating a three-year initial period of stay with options of renewal of the visa in two-year increments.
This process has been incredibly cost-effective for employers and has granted ease of admission to the United States for Canadians with L-1 visa eligibility.
In addition, it has promoted trade and investment between the United States and Canada pursuant to NAFTA, which the current administration is hoping to replace with the United States–Mexico–Canada Agreement (USMCA).
Now, it appears that a majority of CBP officials are only processing Canadian citizens' initial applications for admission to the United States. In part based upon an interpretation of the regulations implemented by NAFTA in 1992, CPB officers are refusing admission requests from those applying for subsequent periods of authorized stay in the United States in L-1 status. The regulations make no reference, however, to limitations for processing by CBP for initial applications for L-1 visa admission.
Applicants requesting readmission to the United States in L-1 visa status are being instructed to submit petitions for review and adjudication by USCIS Service Centers located in California or Texas. While the historic precedent has been that CPB will adjudicate all L-1 visa requests, in reality, CBP has never truly adjudicated extension or renewal requests for L-1 visa applicants.
How Does This Impact Canadian Citizens?
While no official published policy has been initiated by USCIS regarding the recent reticence of CPB to process L-1 visa petitions at U.S. ports of entry, the failure of CBP to honor a decades-long policy of renewals adds an additional submission requirement of the L petition to USCIS, which can create longer wait times (current wait times are between 3 to 12 months), adds a restriction in travel for Canadian L-1 visa holders and their families and may further restrict employment authorization for the spouse of the principal L-1 visa holder. Until the policy is better understood, it would be best to file L-1 petition extension requests well in advance, with the possibility of filing with a fast-track premium processing option.
Other Visa Options to Consider
Other visa options to consider include the E visa for employees of majority-owned Canadian companies or the B-1 business visa, which might require retooling the employee's activities so that they might be considered eligible for admission. If NAFTA remains in effect, the Canadian employee might qualify for the TN visa.
It is best to consult with immigration counsel to assess the continued viability of your L-1 visa petition approvability and continued admission to the United States and to learn about other options that might be available to circumvent new policies that may affect one without warning.
|Levine, Roxanne H. Partner||Partner||212.216.1122|