CBP Now Using Checklist for U.S.-Canada Port-of-Entry L-1 Applications

The L-1 visa is for employees of multinational corporations who wish to come to the U.S. to work for a U.S. parent, branch, or subsidiary corporation. In order to obtain an L-1 visa, you must either be coming to the U.S. in a managerial or executive capacity or have specialized knowledge about the company. There is also the requirement that you must have worked abroad for the employer corporation continuously for one year out of the past three years, prior to coming to the U.S.  There are specific definitions in the law as to what constitutes a “managerial or executive capacity,” as well as “specialized knowledge.” Generally speaking, managers or executives are people who create the goals and policies of the company, have discretion to make decisions, receive minimal supervision or direction from higher-ups and have oversight over the organization and employees. Specialized knowledge involves advanced knowledge of the company’s products, markets, processes and procedures.

L-1 petitions are typically filed by the U.S. employer with U.S. Citizenship and Immigration Services (USCIS).  The employer and employee must then wait for USCIS to approve the petition before entering the U.S. in L-1 status and commencing employment.  Certain L-1 intracompany transferees who hold Canadian citizenship are eligible to apply for admission directly with Customs and Border Protection (CBP) at a U.S.-Canada Port-of-Entry, without first obtaining an approval from USCIS. Applying at a Port-of-Entry, while convenient and efficient, has reportedly resulted in arbitrary denials and inconsistent adjudications.

In order to streamline the process and improve consistency, in late 2014, CBP confirmed the deployment of an L-1 Checklist at U.S.-Canada Ports-of-Entry. L-1 checklists should now be used by CBP if any L-1 petition is deemed deficient when presented by a Canadian citizen seeking petition adjudication and admission under the North American Free Trade Agreement (NAFTA). CBP has also released a second L-1 checklist covering basic points of L-1 eligibility, which is intended to serve as a guide for applicants, as well as an internal officer training tool. The American Immigration Lawyers Association (AILA) played a central role in drafting these checklists in conjunction with CBP.

Any Canadian citizen who seeks L-1 adjudication at a U.S.-Canada POE and is refused should now be given the L-1 deficiency checklist, indicating the specific reason why the petition was lacking required evidence.  The purpose of the checklist is to better inform applicants of the deficiencies in their petitions so that they can return to the same POE to successfully re-apply with the appropriate documents. At the same time, the checklist is intended to assist the re-adjudicating CBP officer in simplifying their review of the petition, in only the areas which were previously found deficient.  For now, the checklist will be in use only at U.S.-Canada POE where NAFTA adjudications are commonplace.

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