The United States Customs and Border Protection (CBP) has made an unannounced shift in how it will process subsequent L-1 petitions (i.e. renewals and extensions) along the U.S. / Canadian border. Due to the lack of any formal announcement, clear details on how this shift will impact L-1 renewals and extensions are not yet fully known. Myers Thompson Medeiros is continuously gathering anecdotal evidence from our clients and reports around the United States. We will continue to provide updated guidance as we receive it. In the meantime, the following is a summary of what we do know about the change:
• Previously, CBP would not process a renewal petition that listed “extension” on the form. CBP would accept such cases if the form listed “new employment,” “amended petition,” or “change in previously approved employment,” as long as these cases did not specifically request an “extension” of stay. This formula would suffice even if the individual was previously in the United States on L-1 status and was renewing that status with the same employer, because when a Canadian citizen submits an L-1 petition at a Canadian port of entry, it means that they are seeking admission to the United States in conjunction with filing the petition, and therefore they are not seeking an “extension” (the logic being that one who is not physically in the United States does not have a status to extend).
• CBP would accept and process subsequent petitions filed under a company’s approved Blanket L petition (these petitions do not ask whether or not the employer is requesting an “extension.”
• In recent weeks, CBP now appears to be scrutinizing these subsequent petitions and requesting information to determine: (1) whether the employment is with a new employer petitioner, (2) whether the applicant has a previously established residence in the United States, and (3) whether the Beneficiary had been outside of the United States for over 1 year. If a new employer petitioner is not identified, or if the foreign beneficiary has an established residence in the United States, and/or if the foreign beneficiary has not been outside the United States for over 1 year, CBP is refusing to process the subsequent L-1 petition. Alarmingly, CBP is also implementing this policy against individuals attempting entry pursuant to an approved Blanket L petition, as well as those seeking readmission intermittently. It is unclear at this time if there are further factors that are trigging CBP’s refusal to process these petitions. What is known is that CBP officers at Canadian ports of entry and pre-flight inspection locations are refusing to process any subsequently filed L-1 petition that is not filed as a “new petition.”
• In making this decision, CBP is erroneously relying upon the immigration regulations found at 8 C.F.R. § 214.2(l)(15)(i), which state that petition extensions should be made by filing an I-129 petition with U.S. Citizenship and Immigration Services (USCIS) for adjudication. As a practical result, petitioners and L-1 Canadian workers looking to file a subsequent L-1 case (to renew or extend status) under the North American Free Trade Agreement (NAFTA) will now be forced to submit these applications to USCIS.
• At the moment, it appears that this policy shift is only impacting cases presented by Canadians pursuant to NAFTA. As of the writing of this advisory, the CBP ports of entry and pre-clearance locations that have implemented this policy include: Toronto, Winnipeg, Vancouver, Calgary, Montreal, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts, and Sumas, among others. The policy does not appear to be affecting Canadian TN cases or Mexican cases filed under NAFTA.
• There does not appear to be a legal basis for CBP’s refusal to process these subsequent L-1 petitions for Canadians because the regulatory text (8 C.F.R. § 214.2(l)(15)(i)) makes a clear distinction between requests for extension of status and requests for extension of petition validity. This distinction allows a Canadian L-1 beneficiary seeking admission at a port of entry to seek only an extension of the petition validity period and not an extension of status. Therefore, it appears that CBP should have the authority to continue to process these subsequent petitions under NAFTA. Nevertheless, Canadians looking to file subsequent L-1 petitions at any port of entry or pre-clearance location should be advised of the likelihood of CBP’s refusal to process the petition.
Myers Thompson Medeiros will continue to provide the most effective and efficient immigration processing in light of this change and the other changes issued by the Trump Administration. As new information emerges, we will advise clients and update our systems accordingly. If you have questions, please contact any attorney in our office by email or through our main phone line at (612) 349-3030.