USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

Under existing law, a Canadian citizen may apply for admission as an L-1 nonimmigrant by presenting a petitioning employer’s Form I-129, along with supporting documents, to an immigration officer at a Class A port of entry or pre-clearance airport. Alternatively, an L-1 petitioner may choose to file a Form I-129 for a Canadian citizen with USCIS, seeking to classify the individual as eligible for L-1 nonimmigrant status. If the petitioner chooses to file its petition with USCIS and USCIS approves the I-129, the qualifying Canadian citizen may then apply at a POE for admission to the United States in L-1 status.

U.S. Citizenship and Immigration Services’ (USCIS) California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) port of entry (POE) at Blaine, Washington, will implement a joint agency pilot program from April 30, 2018, to October 31, 2018, for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). USCIS said the pilot is designed to facilitate the adjudication and admission process for Canadians traveling to the United States as L-1 nonimmigrants. Department of Homeland Security regulations permit an employer to file an L petition on behalf of a Canadian citizen in conjunction with the Canadian citizen’s application for admission to the United States. USCIS said that petitioners choosing to participate in the joint agency pilot program will be asked to:

  • Submit Form I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the CSC before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine POE; and
  • Use a cover sheet annotated with “Canadian L” to ensure quick identification of the I-129 and for any correspondence thereafter, such as a response to a Request for Evidence (RFE).

If the petitioner chooses to send the applicant to the Blaine POE before USCIS makes a decision on the Form I-129, there may be delays while USCIS remotely adjudicates the form. In such a case, the applicant must bring a copy of the petition receipt notice for the Form I-129 and await adjudication of the Form I-129.

A petitioner who chooses not to participate in the pilot program may continue to file its L-1 petition on behalf of a Canadian citizen with CBP at the Blaine POE. In such a case, CBP will accept the petition but will adjudicate it at the next Class A POE. Initially, the pilot program will operate only at Blaine, Washington ports of entry. CBP is expected to continue to adjudicate Canadian L-1 applications for admission at other ports of entry until further notice.

USCIS Issues Policy Memorandum: Clarifies the “One in Three” Year Rule For L-1 Foreign Nationals

USCIS has issued a new immigration policy memorandum based on the Matter of S-P, which clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employment for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the “one-in-three” foreign employment requirement for immigrant classification as a EB-1 multinational manager or executive. This would be deemed an interruption in employment.

USCIS Issues Policy Memorandum: Clarifies “Related Entities” In Regard To Multiple H-1B Filings

On March 29th, 2018, USCIS issued a policy memorandum designating Matter of S- Inc., which addresses the prohibition on multiple H-1B filings by “related entities (such as a parent company, subsidiary, or affiliate).” 8 C.F.R. § 214.2(h)(2)(i)(G).

Matter of S- Inc. clarifies that the term “related entities” includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job is prohibited. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary. Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018)

US State Department Seeks to Add Social Media Questions to Visa Application Forms

The Department of State is seeking approval from Office of Management and Budget to revise the immigrant and nonimmigrant visa applications to include additional questions, including questions related to a foreign national’s social media history.

Some of the questions would require all visa applicants to list which social media platforms they used during the five years preceding the date of visa application, previously used telephone numbers, email addresses, and international travel; and whether specified family members have been involved in terrorist activities. The immigrant visa application will ask for a list of all prior immigration violations. The nonimmigrant visa application will ask whether the applicant has been deported or removed from any country.

Appropriations Bill Signed by President Trump

President Trump signed an appropriations bill that funds the federal government through Fiscal Year 2018. The spending package extends four immigration programs through September 30, 2018 and provides limited cap relief for the H-2B temporary non-agricultural worker program for this fiscal year only. It also includes additional funds for border security and enforcement, but does not provide relief for DACA, “Dreamers” beneficiaries.

Some of the highlights of the Bill include:

H-2B Cap Relief

The spending bill authorizes the Department of Homeland Security to increase the H-2B cap for this fiscal year if, in consultation with the Department of Labor, it determines that there are not enough U.S. workers to meet the needs of American businesses for temporary non-agricultural work. However, the cap increase cannot exceed the highest number of foreign nationals who participated in the now-expired H-2B returning worker cap exemption in a year in which that exemption was in place.

Border infrastructure and enforcement

The bill provides just over $1.5 billion for additional fencing and other barriers along the U.S.-Mexico border, far less than the $25 billion originally sought by the Trump Administration for a southern border wall. It also provides funding for additional Customs and Border Protection officers and continued funding for E-Verify.

Reauthorization of Expiring Programs

E-Verify, the Conrad 30 Waiver Program for foreign medical graduates working in underserved areas, and the Special Immigrant Non-Minister Religious Worker Program have been extended without changes through the end of this fiscal year.

The EB-5 Regional Center Program for foreign investors was also reauthorized without change through September 30, 2018. An EB-5 reform bill that would have increased EB-5 minimum investment amounts and redefined the types of projects eligible for a reduced investment threshold was under consideration, but was not ultimately included in the spending package. USCIS continues to consider rules that would revise the EB-5 program, according to the agency’s current .

Border Infrastructure and Enforcement

The bill provides just over $1.5 billion for additional fencing and other barriers along the U.S.-Mexico border, far less than the $25 billion originally sought by the Trump Administration for a southern border wall. It also provides funding for additional Customs and Border Protection officers and continued funding for E-Verify. (Pub. L. No. 115–141, Mar. 23, 2018, 132 Stat. 348).

Undeliverable Permanent Resident and Employment Authorization Cards and Travel Documents to be Destroyed After 60 Days

As of April, 2, USCIS will destroy Permanent Resident Cards, Employment Authorization Cards and Travel Documents that are returned to them as undeliverable by the U.S. Postal Service within 60 business days if USCIS is not contacted by the document’s intended recipient to provide the correct address.

It is critical that applicants for immigration benefits update their address with US CIS within 10 days of relocation using the procedures outlined.

USCIS Launches Pilot Program for Processing Times

USCIS has recently launched a pilot program to improve how the agency calculates and posts processing times. Processing times, as the term suggests, represent the time USCIS projects it will take to process various applications and petitions for immigration benefits. Processing times vary based on existing workload, incoming workload, resources, the location/office of processing, new policies, etc. USCIS posts processing times regularly on its website to inform sponsors, employers, and applicants how long they should expect to wait and to enable them to plan their lives, work, and travel accordingly.

In launching this pilot program, USCIS is responding to a significant need for better, more accurate information. USCIS is now piloting a system where processing times now consist of a range of dates instead of a single date. For four form-types (I-90, I-485, I-751, and N-400), the first date represents when 50 percent of the cases have been processed. The second date represents the date by which 93 percent of the cases are completed. The pilot program is also capturing data from USCIS databases more frequently, every two weeks instead of every six weeks, to make the processing time ranges even more accurate. For all remaining forms, USCIS will continue to use its old method to calculate processing times, but will post on its website a range in which the upper number generally reflects 130 percent of the estimated processing time.