Multiple reports have been received from AILA (American Immigration Lawyers Association) members that certain ports of entry (POE) along the Canadian border are refusing to process petitions for readmission in L-1 status that are presented by Canadians pursuant to the North American Free Trade Agreement (NAFTA).  Several locations have implemented the new CBP policy of refusing to process subsequent L-1 petitions presented by Canadians pursuant to NAFT. The reported list of CBP ports of entry (POEs) and Preclearance locations that have implemented this policy is the following: Toronto, Winnipeg, Vancouver, Calgary, Montreal, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts, and Sumas.  This is not an exhaustive list.

Renewal and extension petitions will instead need to be filed with USCIS.

The POEs that are refusing to process these petitions are relying upon 8 CFR §214.2(l)(15)(i), which states that petition extensions which include requests for extension of stay should be made by filing an I-129 petition with USCIS. However, when a Canadian citizen submits an L-1 petition at a POE, 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 of stay.” As such, there does not appear to be a legal basis for the refusal to process subsequent L-1 petitions for Canadians seeking readmission. It should also be noted that different POEs are applying this policy differently.

Some refuse to process any L-1 petition for anyone who was previously in the U.S. in L-1 status and who has not spent more than 365 days outside the U.S.-including those who commute regularly to work in the U.S. in L-1 status-while others will process petitions for readmission only for those who reside in Canada and spend less than 50% of their time in the U.S.

This policy has a negative impact on U.S. companies, as well as employees. AILA will continue to update this alert as new information becomes available.