There are increasing reports of U.S. Customs and Border Protection (CBP) refusing to review L-1 petitions presented at Canadian ports of entry for individuals seeking readmission into the U.S. in L-1 status. Pursuant to the North American Free Trade Agreement (NAFTA), Canadian nationals are permitted to request review of an L-1 petition at a port of entry in lieu of filing the petition with U.S. Citizenship & Immigration Services (USCIS). The option to file at the border carries the benefit of receiving an “on-the-spot” approval of the petition instead of awaiting the extended processing times associated with a USCIS filing. Canadians have routinely been submitting initial L-1 petitions as well as subsequent L-1 petitions for readmission at the border for years under NAFTA.
However, Canadians requesting review of their subsequent L-1 petitions for readmission are now being turned away at the border, with CBP refusing to adjudicate their cases. Initial reports of CBP rejecting these petitions originated from Calgary-area points of entry. However, since those early reports in March, the issue has been reported in both ports of entry and pre-clearance locations across Canada and the U.S. border, including Winnipeg, Vancouver, Montreal, Seattle, Buffalo, Peace Bridge, and Toronto among others. Canadians are still being allowed to process their initial L-1 petition at the border, but CBP is relying on 8 CFR §214.2(l)(15)(i) to justify its apparent shift in policy towards subsequent L-1 petitions. This section of the immigration regulations states that petition extensions that include a request for an “extension of stay” should be made by filing an I-129 petition with USCIS. Thus, CBP’s position is that they don’t have jurisdiction to process these petitions under NAFTA. However, the prevailing interpretation by practitioners (and formerly CBP) has traditionally been that when a Canadian citizen submits an L-1 petition at a port of entry, it means they are seeking admission to the U.S. in conjunction with filing the petition, and therefore they are not seeking an extension of stay. Further, a Canadian L-1 beneficiary seeking admission at a port of entry seeks only an extension of the petition validity period, not an extension of stay. The very same section of the immigration regulations CBP is relying on to reject L-1 readmission petitions actually makes an explicit distinction between a request for an extension of stay and a request for extension of a petition validity period. 8 CFR §214.2(l)(15)(i) states:
In individual petitions, the petitioner must apply for the petition extension and the alien’s extension of stay concurrently on Form I-129. … The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary’s extension of stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the visa petition and the alien’s stay are combined on the petition, the director shall make a separate determination on each.
Despite objections from immigration attorneys and organizations, the number of ports implementing the new policy is growing. In addition, the way the policy is being applied varies. Some ports of entry are rejecting petitions for anyone who was previously in the U.S. in L-1 status and who has not spent more than 365 days outside the U.S., including those who commute regularly to work in the U.S., while others are processing petitions for readmission only for those who reside in Canada and spend less than 50% of their time in the U.S. Employers will need to consult with counsel for the latest developments on the matter and to assess best options for their L-1 employees. Many may have to consider making USCIS filings for L-1 readmission petitions they would have previously had the beneficiary present at the border.