Under a pilot program commencing Monday, April 30, 2018, the Department of Homeland Security (DHS) will offer expedited mail-in processing of L-1 intracompany transfers for Canadian executives, managers and specialized knowledge personnel. Processing will shift from the DHS agency, Customs & Border Protection (CBP), to the sister agency, U.S. Citizenship & Immigration Services (USCIS). As a trade-off, same-day, in-person processing will cease, at a minimum, at the locations known as the Blaine Port of Entry, where the six-month pilot program will be implemented. This includes the Peace Arch crossing at Blaine, Washington, at Douglas, British Columbia, and the Pacific Highway Truck Crossing. DHS officials have indicated that additional ports of entry could be added to the list prior to the commencement of the pilot program. Starting April 30, at pilot program border locations, no L-1 petitions will be accepted, and L-1 Canadians will need to present evidence of approval before they may be admitted to the U.S. there. Other CBP locations will continue same-day L-1 processing.
The basic requirements for L-1 status are:
- A U.S. company has a parent, subsidiary, affiliate, or branch, outside the U.S.
- The person being transferred has worked for the company outside the U.S. for at least one year in the last three years.
- The person held an executive, managerial, or specialized knowledge role and is being transferred to the U.S. related company in one of those roles.
L-1 status is available regardless of citizenship. But under NAFTA, a treaty established to facilitate cross-border business, Canadians are offered same-day, in-person processing by CBP at Northern Ports of Entry and certain airports in Canada and a few other locations. Port processing is not available to non-Canadians. For non-Canadians, the U.S. company must mail the petition to USCIS, where processing can take several months, unless a premium processing fee of $1,225 is paid for 15-day processing. “Processing” does not guarantee approval. In about 30 – 40 percent of cases, USCIS sends a request for additional evidence (RFE) on one aspect or another of the petition, which adds processing time.
Under the pilot program, a special USCIS cover sheet sent with the L-1 petition will alert USCIS that a Canadian citizen seeks USCIS processing in lieu of while-you-wait processing at the border. USCIS will immediately email the company a receipt notice. They will process the pilot cases in less than 15 days, possibly in 1 - 3 days, and send either an RFE for more evidence or an email notifying the employer that an approval notice is forthcoming. Once the petition is approved, the L-1 worker can go to any Port of Entry (not just Blaine) with the approval email to request admission to the U.S. CBP still will ask questions to ensure that the person is admissible, but they have indicated they do not plan to review the L-1 worker’s petition documents or to readjudicate the USCIS decision.
This pilot program restricts the NAFTA guarantee that Canadian citizens can use on-the-spot processing. A benefit has been that when L-1 petitions are presented to CBP officers by the applicant, CBP is in a position to address questions or deficiencies promptly. This is meant to help keep business flowing across the border. However, CBP adjudication can be inconsistent from Port to Port, or from day to day. Eliminating the on-the-spot option could erode the flexibility under NAFTA, but the trade-off might be a pay-off for overall quicker and more predictable processing.