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United States – Hurdles for Canadians Filing L-1 Petitions at U.S. Ports of Entry

United States – Hurdles for Canadians Filing L-1 Petiti

This report covers a change to existing policies and procedures; certain ports of entry (POE) along the Canadian - U.S. border are refusing to process L-1 renewal petitions presented by Canadians.

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In an abrupt change to existing policies and procedures, certain ports of entry (POE) along the Canadian - U.S. border are refusing to process L-1 renewal petitions presented by Canadians pursuant to the North American Free Trade Agreement (NAFTA).  Instead, Canadian L-1 visa holders seeking work authorization extensions have been directed to file I-129 Petitions for Nonimmigrant Worker with the U.S. Citizenship and Immigration Services (USCIS).1

Although U.S. Customs and Border Protection (CBP) has not officially published a change in policy, there have been numerous reports of this issue across several land border POEs and at pre-clearance locations at major Canadian airports.

WHY THIS MATTERS

Pursuant to long-standing practices for processing L-1 visa applicants under NAFTA, Canadian nationals were permitted to apply for admission at a Canadian-U.S. port of entry or CBP pre-clearance location, and concurrently request an extension of their L-1 work authorization.  Adjudication of the L-1 renewal petition and request for admission was often made same-day allowing the Canadian L-1 visa holder to enter the U.S. and continue employment with the L-1 employer.  This practice allowed Canadian L-1 visa holders and their employers to by-pass the step of first having to file an I-129 Petition for Nonimmigrant Worker and obtain petition approval from the USCIS, a process that is more costly and time consuming.

This is frustrating and administratively burdensome for these individuals seeking L-1 renewal petitions at the border, which has been the customary practice for many.  Travelers on these visas, and their immigration counsel and global mobility managers, should be prepared for additional processing times and procedures in order to accomplish the work authorization extensions.

KPMG NOTE

The POEs and pre-clearance locations refusing to process L-1 renewal petitions are relying on legal provision, 8 CFR §214.2(l)(15)(i), which states that petitions for visa status and work authorization extension should be made by filing an I-129 Petition for Nonimmigrant Worker with USCIS.

That said, there are strong legal arguments supporting the position that this provision does not apply to Canadian L-1 visa holders appearing before CBP at a land POE or pre-clearance location.  A prerequisite to filing an I-129 Petition for Nonimmigrant Worker with USCIS requesting extension of visa is that the beneficiary be physically present in the United States.  However, Canadian nationals submitting L-1 petitions at a POE or pre-clearance location are not physically present in the U.S. but seeking admission to the U.S. and therefore are not applying for an extension of status.  As such, there does not appear to be a legal basis for such refusals.

Despite strong legal arguments against such refusals, we continue to receive reports of refusals at various Canadian–U.S. POEs and pre-clearance locations, from both Canadian L-1 Blanket and Individual L-1 petition-based applicants.  In light of this emerging trend, employers and Canadian L-1 applicants should seek the advice of immigration counsel to determine the best strategy for L-1 visa renewals.

KPMG LLP Law in Canada will endeavor to keep readers informed of developments as and when they occur.

FOOTNOTE

1  See the USCIS webpage on “Operating Instructions \ OI 214 Nonimmigrant classes. \ OI 214.2 (l).”    

* Please note that KPMG LLP (U.S.) does not provide any immigration services.  However, KPMG Law LLP in Canada can assist clients with U.S. immigration matters.   

 

The information contained in this newsletter was submitted by the KPMG International member firm in Canada.

© 2019 KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative (“KPMG International”), a Swiss entity. All rights reserved.

Flash Alert is an Global Mobility Services publication of KPMG LLPs Washington National Tax practice. The KPMG logo and name are trademarks of KPMG International. KPMG International is a Swiss cooperative that serves as a coordinating entity for a network of independent member firms. KPMG International provides no audit or other client services. Such services are provided solely by member firms in their respective geographic areas. KPMG International and its member firms are legally distinct and separate entities. They are not and nothing contained herein shall be construed to place these entities in the relationship of parents, subsidiaries, agents, partners, or joint venturers. No member firm has any authority (actual, apparent, implied or otherwise) to obligate or bind KPMG International or any member firm in any manner whatsoever. The information contained in herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

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