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.
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
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.