Is there new hope for Canadian L visa holders seeking renewals at the border?
For the past year, U.S. Customs and Border Protection (CBP) has been refusing to process L-1 petitions for Canadian nationals who have previously held L-1 status with the same employer. This abrupt and unannounced shift has caused major delays for companies transferring Canadian executive, managerial, and specialized-knowledge personnel to the U.S.
The situation, however, may be changing, at least for certain Canadian L visa holders who work less than six months per year in the U.S. At several ports of entry (POEs), CBP is now consistently allowing so-called “intermittent” Canadian L holders to renew their L-1 status at the border.
Under longstanding regulations, multinational companies have been able to move key Canadian staff to the U.S. quickly and reliably by having their L petition adjudicated by a CBP officer without prior approval by U.S. Citizenship and Immigration Services or applying for a blanket L from a U.S. Consulate. Furthermore, CBP has historically permitted Canadian L-1 holders to renew their status by simply returning to a POE and submitting another L-1 petition; again, without the need to file a lengthy petition with USCIS or wait for a consular appointment. This process allowed Canadian L visa holders to conveniently renew their L-1 status during business or holiday travel. CBP is now turning away Canadians seeking L renewals and instructing their employers to file an L-1 extension of stay petition with USCIS.
However, recent trends indicate CBP will now renew “intermittent” L-1 petitions. Initially this policy was applied inconsistently, though as of late, CBP officers at several ports of entry are adjudicating intermittent L visa renewals.
Intermittent L-1 status allows employees who reside in Canada to work in the U.S. for shorter periods not to exceed six months in any given year. An added benefit of being classified as intermittent is that the L status is not subject to the same five/seven-year maximum stay limits and may be extended indefinitely; again, as long as the employee spends less than six months per year in the United States. Canadians seeking to classify as intermittent L-1s must document all entry and exit dates during their previous L-1 visa validity period, demonstrating their total number of days in the U.S. during the preceding period of admission.
CBP border processing is an important option for companies to efficiently move their sales, engineering and other critical personnel between their Canadian and U.S. operations. Companies are encouraged to work with their BAL professional to determine whether their Canadian employees are eligible for border adjudication as intermittent L employees.
Timothy Thiel is an Associate Attorney in the Walnut Creek, Calif., office of Berry Appleman & Leiden LLP.
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