CBP Refusing to Adjudicate L-1 Renewal Petitions for Canadians at Many Ports of Entry

The American Immigration Lawyers Association (AILA) has reported on developing changes in adjudication policies related to L-1 petitions at several ports of entry (POEs) along the U.S. / Canada border. According to AILA, numerous practitioners have reported that U.S. Customs and Border Protection (CBP) officers are refusing to process L-1 petitions for Canadians who previously have been granted L-1 status. This policy is affecting both individual L-1 petitions (I-129) and blanket L-1 petitions (I-129S).

According to the developing reports, CBP officers are requiring Canadian citizens, who are requesting admission on subsequent L-1 petitions, to present I-797 approval notices from the U.S. Citizenship and Immigration Services (USCIS) in order for CBP to grant admission in L-1 status. This abrupt change in policy is presenting problems for employers of L-1 nonimmigrants as well as L-1 beneficiaries.

Canadians are Visa Exempt: Policy Change is a Departure from Current Law

Unlike citizens of other countries, Canadian are able to apply for admission in L-1 status directly with CBP at a POE, without first having to obtain either an L-1 petition approval from the USCIS or a blanket L-1 visa from a U.S. consulate. Historically, CBP has adjudicated both initial L-1 approvals and subsequent L-1 admission requests. That is to say, if a Canadian was admitted in L1A status for three years, prior to the expiration date on the I-94, the individual could leave the U.S. and submit another L1A petition at the POE to request admission for an additional three years.

Under this new policy, however, CBP at many POEs are refusing to adjudicate subsequent L-1 petitions, relying on a regulation that requires employers of L-1 beneficiaries to file requests to extend an employee’s L-1 status directly with the USCIS. Members of AILA and other legal professionals have countered that Canadian L-1 beneficiaries applying for readmission at a POE are only requesting an extension of their respective L-1 petitions – not an extension of status – and therefore are not required to file through the USCIS. But, thus far, this argument apparently has not swayed CBP officials.

No Formal Policy Published

While CBP has not published official policy guidance on this change, CBP representatives at Toronto Lester B. Pearson International Airport did confirm with AILA representatives that, effective immediately, Pearson pre-clearance will no longer adjudicate subsequent L-1 applications.

In total, the following POEs and pre-clearance locations, reportedly, have implemented this new policy:

• Calgary International Airport
• Toronto Lester B. Pearson International Airport
• Montreal-Pierre Elliott Trudeau International Airport
• Vancouver International Airport
• Winnipeg James Armstrong Richardson International Airport
• Edmonton International Airport
• Pembina, ND
• Point Roberts, WA
• Seattle, WA
• Sumas, WA
• Warroad, MN

Conclusion

Again, while CBP has not made a formal announcement of a change in policy regarding L-1 applications at the POE, employers of Canadian L-1 nonimmigrants, who plan to renew an L-1 petition, may be forced to do so by filing a petition with the USCIS.

Copyright © 2019, MURTHY LAW FIRM. All Rights Reserved