L-1 and L-2 Renewal and Extension Petitions Refused at Select Ports in Canada
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
Various U.S. Customs and Border Protection (CBP) ports of entry (POEs) and Preclearance locations have implemented a policy of refusing to process L-1 extension petitions presented by Canadians pursuant to the North American Free Trade Agreement (NAFTA). Renewal and extension petitions will instead need to be filed with U.S. Citizenship and Immigration Services (USCIS). The reported list of CBP POEs that have refused L-1 and L-2 applications are: Toronto, Winnipeg, Vancouver, Calgary, Montreal, Pearson, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts and Sumas. American Immigration Lawyers Association (AILA)’s CBP Liaison Committee has followed up with CBP on this inconsistent policy, which has had a negative impact on U.S. companies as well as their employees.
Please note that this list is not exhaustive and is merely anecdotal. The POEs that are refusing to process these petitions are relying upon 8 CFR §214.2(l)(15)(i), which states that petition extensions should be made by filing an I-129 petition with USCIS. When Canadian citizens submit an L-1 petition at a POE, however, it means that they are seeking admission to the United States in conjunction with filing the petition, and therefore they are arguably not seeking an "extension." As such, we believe there is no legal basis for the refusal to adjudicate subsequent L-1 petitions for Canadians seeking readmission.
8 CFR §214.2(l)(15)(i) distinguishes between requests for extension of stay and requests for extension of petition validity. With individual applications, the petitioner must apply for the extension and the employee beneficiary’s extension of stay concurrently on Form I-129. The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary's extension of stay. The beneficiary must be physically present in the United States at the time of filing the extension of stay. A Canadian L-1 beneficiary seeking admission at a port of entry seeks only an extension of the petition validity period and not an extension of stay. CBP should therefore retain jurisdiction to process these petitions under NAFTA, but certain CBP offices clearly do not agree.
If you have an employee for whom a subsequent L-1 petition has been rejected at the POE, please let us know immediately so that we can assist with solutions.