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New Protocol at Northern Border Could Strand Canadian Workers

April 24, 2019, 10:00 AM

The process for bringing skilled Canadian workers into the U.S. was supposed to be quick and easy. That’s no longer the case.

Canadians who had been working in the U.S. in a temporary immigration status known as L-1 now aren’t allowed to renew that status at ports of entry. After at least 20 years of adjudicating those renewal applications, Customs and Border Protection officers are telling the workers they need to file applications instead with U.S. Citizenship and Immigration Services.

The CBP says Homeland Security Department regulations require the change.

The shift is leaving skilled Canadian workers stuck outside the U.S. while their employers scramble to assemble USCIS petitions and supporting documents, which still must be done on paper. Even if that can be assembled quickly, it can be months before the agency makes a decision, and an approval isn’t always guaranteed, immigration attorneys say.

What had been an expedited process now will take more time and cost more money, Ron Matten of Matten Law in West Hollywood, Calif., said. “These are businesses. They need to get their business done,” he said.

The workers likely feeling the brunt of the new policy are Canadians who primarily live in Canada and commute across the border to work, said Jennifer Behm of Berardi Immigration Law in Buffalo, N.Y. They’re used to applying for an L-1 and getting the approval paperwork “that very same day,” she said.

Now, they and their employers are “having to regroup” and figure out how to perform the work remotely while the application is pending, she said.

Change After 20 Years

A multinational company can bring to its U.S. branches foreign workers who either are executives or managers at the company or employees with specialized knowledge. Companies that transfer large numbers of employees can file a “blanket L” petition, which allows them to apply once rather than submitting numerous individual petitions.

In fiscal year 2018, there were 75,570 L-1 northern border crossings, according to CBP data. There have been 30,709 so far in fiscal 2019, as of March 31.

The data don’t break down first-time L-1 admissions versus renewals, nor do they indicate how many were multiple crossings by the same person.

Under the North American Free Trade Agreement, CBP allowed Canadian workers to apply for L-1A (executive or manager) or L-1B (specialized knowledge) status at certain ports of entry, regardless of whether it was a first-time application or a renewal.

Now, the agency says DHS regulations require that anyone who has been working in the U.S. in L-1 status must have his or her employer file a petition with the USCIS to do so again.

“CBP cannot accept applications for extensions of L-1 status if the applicant is not in the United States as the regulations require an L-1 applicant to be present in the United States when a request for an extension of status is filed,” a CBP spokesman said in an email. “In this instance, the request for an extension must be filed with USCIS.”

The agency, however, denies that there’s been a change of policy.

A USCIS spokesman referred Bloomberg Law to the CBP.

Not an Extension

Immigration attorneys say the CBP is right that the regulations require temporary visa extension applications to be filed with the USCIS. But those regulations don’t apply in this situation.

When someone outside the U.S. is trying to come in, “by default it has to be an application for admission,” not an extension, Matten said. Canadian admissions are covered by another section of the regulations, he said.

But unless the CBP backs down or is otherwise challenged, businesses will have to turn to the USCIS to get L-1s for their Canadian workers. And that means more time, money, and work to get their employees to the U.S. office.

There’s “a lot more pushback from USCIS” than the CBP in terms of the amount of proof required to grant an L-1 petition, Laura Danielson of Fredrickson & Byron in Minneapolis said. It’s highly likely that the agency will ask an employer for additional evidence, which translates to more delays and increased legal fees, she said.

More than half (51.8 percent) of L-1 petitions have received a request for evidence (RFE) so far in fiscal 2019, according to USCIS data. That’s up from 45.6 percent in FY 2018 and 36.2 percent in FY 2017.

And “if USCIS doesn’t agree that the petition should’ve been granted in the first place,” then “everybody’s stuck,” Danielson said.

‘Cumbersome Process’

“It’s such a cumbersome process dealing with an agency that doesn’t have the benefit of speaking to an applicant in person and understanding the nature of a cross-border enterprise,” Behm said. The ability to have a back-and-forth between the CBP officer and the worker was “the beauty of CBP adjudications.”

Not having that in-person interview built into the decision is likely what’s leading to the USCIS constantly seeking more information, she said.

“We have to make really thorough arguments” to try to avoid an RFE and the additional time and work it entails, Danielson said. “It’s a boon for immigration lawyers, but not in a good way,” she said.

Businesses, meanwhile, are exploring workarounds, such as exploring other visas or trying to get an L-1 visa through the State Department.

Nationals of other countries can relatively easily get an L-1 visa at a U.S. consulate if their employer has an approved blanket L petition from the USCIS. But traditionally that’s not an option for Canadians, who don’t need visas to enter the U.S.

It’s a “weird Catch-22 for Canadians,” Matten said.

It wouldn’t be surprising if at least some of the companies trying to bring over Canadian workers ultimately decide that it’s “too much hassle” to maintain operations in the U.S., he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com