This is a brief update on L-1 “intracompany transferee” visa processes for Canadian citizens, because those processes began changing in April 2018. As background, the L-1 intracompany transferee visa, in most cases, requires that the employer first file and obtain USCIS approval of an L-1 petition, and that the prospective L-1 employee (the beneficiary) then apply in person to a U.S. Consulate in their home country for a physical L-1 visa. Canadian citizens are usually “visa-exempt,” meaning they are not required to get a physical visa from a U.S. Consulate. Moreover, for L-1 visas, the North American Free Trade Agreement (NAFTA) allows for eligible Canadian citizens to submit their U.S. employer’s L-1 petition directly at a “Class A” port of entry (POE) for on-the-spot adjudication by U.S. Customs & Border Protection (CBP) at the same time the individual is asking CBP for admission to the U.S. Class A POEs include many of the land border entries along the U.S.-Canada border, as well as Pre-Flight Inspection-designated airports in Canada. CBP’s decision on the L-1 is on a same-day basis, usually at “secondary inspection” with a CBP officer trained in NAFTA adjudications. Thus, Canadian citizens eligible for L-1 admission to the U.S. have been able to avoid a burdensome and weeks- or months-long USCIS petition process by applying directly to CBP at the POE, while en route to the U.S.
Beginning in April 2018, however, USCIS and CBP launched a voluntary pilot program wherein direct L-1 applications made at the Blaine, Washington, Port of Entry were required to be sent to the USCIS California Service Center in advance for petition adjudication, thus eliminating or slowing the same-day application process for that POE. The voluntary pilot program was later extended to April 30, 2020.
Despite the voluntary nature of the Blaine Pilot Program, by late 2018 immigration lawyers began to receive reports that CBP was refusing to adjudicate some L-1 petitions filed directly at the POEs. Although this policy was never officially announced, it became apparent that CBP was taking the position that L-1 “extensions” must go through a prior petition process with USCIS and cannot be filed directly at the port of entry. This apparent restriction applies to Canadian L-1 extensions regardless whether their L-1 was individual or was pursuant to a company “Blanket L” designation. Initial first-time L-1 filings at a POE appear to be unaffected. Furthermore, while CBP has confirmed that intermittent or commuter Ls Canadian citizen L-1 beneficiaries continue to have their applications adjudicated at POEs per usual practice, it appears that intermittent and commuter “extension” applications are being inconsistently adjudicated at POEs.
It is worth noting that these apparent CBP policies run counter to the central concept behind the border extension process – saving time, burden, cost, and uncertainty by not having to prepare a USCIS petition or consular visa application, and thus streamlining the L-1 intracompany transfer process for the United States’ northern neighbor. The only alternatives to the POE filing are an individual USCIS-filed petition or, if the employer is eligible, a blanket-based L-1 visa application, both of which are much less convenient than a POE filing.
As of late 2019, this apparent but unannounced CBP policy continues to affect existing Canadian L-1 status holders. We are monitoring developments and will post further information as it becomes available.
© Jewell Stewart & Pratt PC 2019