A few weeks ago, stories of Canadian citizens being refused admission to the U.S. as individual or blanket L applicants requesting an additional period of stay in the U.S. started to increase. The sheer number of reports suggests a possible new policy versus an errant occurrence at certain ports of entry along the Canadian border or at Canadian preclearance airport locations.
What has changed?
While U.S. Customs and Border Protection officials (CBP) are reviewing this reported trend, on the ground it appears that many if not most CBP officers at U.S. ports of entry along the Canadian border as well as at preclearance airport locations in Canada are taking the position that they will process only “initial” applications for admission by Canadian citizens requesting L admission to the U.S. This position appears to be based in part on an interpretation of the regulations implemented under the North American Free Trade Agreement (NAFTA) at 8 CFR §214.2(l)(17). CBP officers are reported as refusing admission requests from those applying for subsequent periods of authorized stay in the U.S. in L-1 status. The regulations, however, make no reference to a limitation for processing by CBP as to initial applications for L-1 admissions.
Any Canadian L applicants for re-admission to the U.S. are being advised to apply for such authorization first from U.S. Citizenship and Immigration Services (USCIS). The terminology used by CBP is important to review. USCIS adjudicates “extensions” of status in the U.S., based on the applicant being physically present in the U.S. at the time of filing an I-129 petition. See 8 CFR 214.2(l)(15)(i). A consular officer at a U.S. consular post approves a visa’s renewal, but Canadians are exempt from the requirement of a nonimmigrant visa issuance at a consular post for most nonimmigrant visa categories. There are technically no extensions/renewals of L visa status adjudicated by CBP ever. There have been, however, applications for admission adjudicated by CBP historically under NAFTA for back-to-back periods of status in the L nonimmigrant category, since the implementation of the regulation over two decades ago.
What is the motivation for this change?
Speculation is that the change is based on CBP’s desire to reduce adjudicative responsibilities of nonimmigrant status. NAFTA was meant to eliminate barriers to trade and investment among the trading partners. CBP was burdened, however, in the NAFTA implementing regulations with adjudicating certain nonimmigrant visa status requests without a prior review process conducted by USCIS. For example, Canadian citizens applying for admission as nonimmigrants require CBP to make determinations of status qualification and terms of admission for B-1 business visitors, B-1 tourists, Trade Nafta (TN) professionals, and L-1 intracompany transferees, since these nonimmigrants do not have to apply for a visa at a U.S. consular post and they do not need a previous adjudication by USCIS to qualify for admission review by CBP. Of course, CBP still addresses both status qualification and terms of admission for those foreign nationals presenting visas as well. The difference is that since the Department of State and USCIS are not involved in adjudications for visa exempt Canadians nonimmigrants, CBP bears a higher burden in the adjudication process.
Who is impacted by this change? (Please note the application of the change is inconsistent at present.)
- Applicants for admission (individual and blanket) with current I-94 admission records in L status asking for an additional period of stay in the U.S.
- Applicants for admission (individual and blanket) without current I-94 admission records in L status, who were previously admitted to the U.S. in L status. (It is still unclear what sort of gap is applicable as to prior L status yet.)
Note: This changed policy apparently is also affecting those exempt from L status limits on consecutive periods of the stay in the U.S. (e.g. part-time, seasonal, or intermittent work in the U.S.) Please note that under 8 CFR §214.2(l)(12)(ii), the normal maximum stay limits in L status also do not apply to those not residing continually in the U.S., who are employed in the U.S. for an aggregate of six months or less per year.
If this change is not reversed, what are some of the effects?
A. The true impact of this change depends on CBP’s view of when they are asked to “extend” an applicant’s L status. If CBP considers any subsequent application for an additional admission period to the U.S. by a Canadian L nonimmigrant after or during their initial period of admission in L status, then applicants must deal with an I-129 petition filing with USCIS, which is new. Applicants may choose to file an extension if physically present in the USCIS at the time of filing with USCIS or they may elect to file an I-129 petition to approve L nonimmigrant status. Either way, the requirement is an additional burden from prior practice and vitiates the procedural benefits provided under the NAFTA regulations to Canadian nationals without any change in the current regulations.
For that matter, there has been no published policy change provided by CBP to the public regarding this new process. The current USCIS processing times for I-129 L extensions of stay range from 1.5 to 4 months, depending on the processing center. While a timely filed extension allows continued employment for the L beneficiary with the petitioner for up to 240 days (unless adjudicated earlier) past the expiration of the I-94 admission record, it is not the same as an extension of status for international travel purposes. See 8 CFR §274a.12(b)(20). So, while NAFTA was meant to facilitate international trade and travel for favored trading partners, the result of this change is that visa exempt Canadians are essentially trapped in the U.S. or stuck in Canada, if they file an I-129 petition without an extension request, since CBP is apparently no longer adjudicating subsequent applications for L admission without a USCIS approval. Of course, applicants can pay $1,410 for expedited processing by USCIS of the I-129 petition with the filing of an I-907 request to obtain an answer from USCIS in 15 calendar days, when available.
B. It is also important to remember that for L-2 dependents, the I-539 petition for extensions requires the intake of biometrics as of March 22, 2019. On average at the moment, biometric notices post filing are being received in about 17 days and the adjudication of the application takes from 3.5 to 12.5 months depending on the USCIS Service Center. There is no premium processing request allowed to be submitted with an I-539 petition. So, an L-2 dependent filing an extension faces many months of waiting in the U.S., unless they wish to leave the U.S. and wait abroad for the adjudication of the extension application by USCIS.
C. Canadian L nonimmigrants not subject to the typical maximum period of stay in the U.S. under L regulations because of their intermittent work in the U.S., for example, who maintain their residence in Canada, apparently may be facing finding longer term accommodations in the U.S. For example, if such L nonimmigrants must be available to perform services in the U.S. and do not have the latitude to depart the U.S. while waiting for USCIS to adjudicate an extension application, they may be waiting months in the U.S. away from their homes in Canada, unless the premium processing fee of $1,410 can be paid to USCIS for expedited review.
What should employers consider doing?
- Contact your U.S. Senators and Representatives about the practical harm to your company regarding this change.
- Consider E visa and other nonimmigrant visa alternatives, as applicable.
- Consider L visa applications at a U.S. consular post, although to date, some U.S. consular posts have turned away Canadian L visa applicants. See 9 FAM 402.12.
- Consider requiring Canadian L nonimmigrants to remain in the U.S. and apply for L extensions with USCIS using premium processing as needed being mindful of current processing times in order to reduce any potential disruption to travel or work authorization.
- Consider the advance filing of I-129 petitions with USCIS rather than extension requests based on current I-94 admission periods to avoid gaps.
- Reduce activities of intermittent L nonimmigrants to comply with possible B-1 visa admissions, when legally advisable and possible.
- Prepare for possible ongoing problems procedurally under the new U.S. Mexico Canada Agreement (USMCA), when and if enacted.
- Notify U.S. Trade Representative Robert Lighthizer regarding the negative effect of this procedural change to U.S. employers.
- Be on the lookout for any announcements related to this issue from CBP.
About the Author:
Kathleen Campbell Walker is a member of Dickinson Wright PLLC and serves as a co-chair of the Immigration Practice Group. She is a former national president and general counsel of the American Immigration Lawyers Association (AILA) and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She serves on the AILA Board of Governors. In 2014, she received the AILA Founder’s Award, which is awarded from time to time to the person or entity, who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950). She has testified several times before Congress on matters of immigration policy and border security. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.