While focus on the southern border continues to captivate national and international media, some significant, yet quieter, changes are occurring across our norther border. In an unannounced policy change and despite longstanding regulations, U.S. Customs and Border Protection (CBP) is refusing to consider requests for renewal of L-1 visa status for Canadian specialty workers pursuant to the North American Free Trade Agreement (NAFTA). The L-1 visa category is available to intra-company transferees holding executive, managerial or specialized knowledge positions who have worked for a related entity abroad for a minimum of one (1) years. What began as isolated events at a single port of entry has now spread across the northern border and pre-clearance admission sites. As in other abrupt policy changes (such as the notorious travel ban), foreign workers are being caught unaware resulting in confusion and inconsistent experiences at the border. The policy change appears to be limited to L-1 renewal applicants, with or without a company blanket approval, and does not appear to be impacting those seeking initial L-1 entry into the United States or TN visa holders. It also is not impacting L-1 workers traveling internationally on existing approvals.
CBP is taking the position that all petitions to extend/renew L-1 visa status should not be adjudicated by CBP officials at ports of entry and preclearance sites. Instead, individuals seeking readmission must file these petitions with the U.S. Citizenship and Immigration Services (USCIS). This abrupt policy change appears to be consistent with President Trump’s Buy American, Hire American Executive Order, which directs federal agencies to “issue new guidance…to protect the interests of United States workers….” According to the American Immigration Lawyer’s Association’s (AILA) discussion with CBP, the unannounced policy does not apply to individuals applying for intermittent/commuter L-1 status, because these petitions are neither considered initial cases nor extensions. Individuals who reside in Canada and commute to the United States to work in L-1 status for less than 50% of their time are not subject to time limitations in L status. Thus, they can continue to apply for intermittent/commuter L-1 status at the northern border. CBP is also continuing to adjudicate initial L-1 petitions, per normal practice.
In the absence of Congressional intervention, it is likely that policy changes like these will continue to occur through agency discretion and beyond the reach of formal rule-making and statutory changes.
For questions regarding the L-1 visa program or any other immigration needs, please contact Jenifer M. Brown.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.