U.S. L-1 renewal practice shifting for Canadian applicants

While U.S. Customs and Border Protection has not officially confirmed a change in policy or practice, Canadian nationals applying for L-1 readmission at various Canadian ports of entry are not being allowed to renew their L-1s under the North American Free Trade Agreement. Instead, they are being told that they must have an approved I-129 petition from U.S. Citizenship and Immigration Services.

Under NAFTA, Canadian nationals have been authorized to appear at Canadian border U.S. ports of entry or Canadian pre-clearance airports to apply for a renewed or extended L-1 without first obtaining an approved USCIS petition.

Key points:            

• Reports of refusals are coming from various Canadian ports of entry and pre-clearance airports.
• The reports of refusals are from both Canadian L-1 blanket and individual L-1 petition-based applicants.
• When providing a reason for the refusals, CBP officers are advising that despite prior agency practice to the contrary, a separate legal provision applies to L-1 “extensions” and that therefore these cases need to be requested by filing Form I-129 with USCIS.

BAL Analysis: Despite the lack of a formal agency policy letter or advisory, individuals are being rejected at the ports of entry. There are strong legal arguments that Canadian L-1s presenting at U.S. ports of entry are not seeking extensions and therefore the regulations cited by CBP officials do not apply to them. Nevertheless, employers and Canadian L-1 applicants should be aware of the situation and should work closely with their BAL professional to determine the best method for renewing their L-1.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.