US immigration is undergoing a myriad of changes. Canadians are now facing challenges with respect to L-1 adjudication at US ports-of-entry, due to changes in the manner in which US Customs and Border Protection ("CBP") officers are interpreting and applying US immigration legislation.
Previously, Canadians holding an L-1 could make subsequent L-1 applications at US ports-of-entry. Currently, only initial and intermittent L-1 petitions may be made at the ports-of-entry. There also remains uncertainty over which ports are adjudicating subsequent intermittent L-1 petitions.
Subsequent L-1s (extensions/renewals)
The L-1 nonimmigrant classification enables an employer to transfer managerial or executive (L-1A) or specialized knowledge (L-1B) workers with at least one year of continuous, full-time employment abroad to an affiliated US entity for a period of up to seven years (for an L-1A) or five years (for an L-1B). The initial L-1 is issued for up to a three year period, with extensions issued in two year increments.
CBP officers are now refusing to process petitions for subsequent L-1s for Canadian citizens, on the basis that such L-1 petitions are effectively "extensions" or "renewals" and should be properly filed through US Citizenship and Immigration Services ("USCIS") from within the US.
Canadians applying for their initial L-1 petitions should not be affected by this change. CBP officers at both land crossings and Canadian airport pre-clearance inspection sites are applying these new restrictions for subsequent L-1s.
Intermittent L-1s (also known as commuter L-1s) are defined as L-1 beneficiaries who reside in Canada and spends less than six months a year in the US in L-1 status. Intermittent L-1s qualify for indefinite extensions of stay under the U.S. Code of Federal Regulations. Intermittent L-1s should continue to be able to apply for subsequent L-1s at the border, although there have been reports of inconsistencies at the border as some ports-of-entry have refused to adjudicate subsequent intermittent L-1s.
Such travellers should be carefully prepared and include clear evidence of their intermittent status, including records of entries and exits to the US However, given the continuing uncertainty around the new CBP restrictions, it is recommended that you consult with an attorney in advance of travel to ensure the particular port-of-entry will adjudicate the petition.
What this means for employers
There are practical, procedural and financial implications to L-1 travellers and employers due to these restrictions by CBP.
Canadian L-1s are no longer able to apply tor renew their L-1 status at the border, and such applications will likely be refused by CBP officers. Canadian L-1s should renew their status from within the US by filing an extension of stay petition with USCIS. This applies to both individual and blanket L petitions.
Employers and individuals need to be aware of lengthy processing times and costs associated with filing L-1 extensions through USCIS. Due to processing times, premium processing (with an additional fee of $1,410 USD) will likely need to be considered in order to expedite processing to a 15 day timeline. Within the 15 calendar days, USCIS will approve, deny or issue a request for evidence on the petition.
If a request for evidence ("RFE") is issued, which has become commonplace, responding to the request will further delay the process. To lower the risk of an RFE, employers need to file very strong and detailed petitions to USCIS.
There are also additional considerations for individuals and employers relating to the L-2 extension process for family members to the main L-1 applicant. There have been recent changes to the Form I-539, Application to Extend/Change Nonimmigrant Status, new Form I-539A, Supplemental Information for Applications to Extend/Change Nonimmigrant Status, and the process for extending nonimmigrant status, including a new biometrics requirement. This is relevant to L-2 dependents of the L-1 applicant, and may affect strategy in terms of timing and process for extensions.
As there are many complexities involved with US nonimmigrant status, and there continue to be frequent changes occurring and challenges with respect to US immigration, we recommend speaking to an immigration attorney who specializes in L-1 applications to consider all options and the best strategy for your company or personal circumstances.