U.S. Customs and Border Protection (CBP) officers at Class A Ports of Entry along the U.S. – Canada border and in Preflight Inspection at International Airports in Canada have “original jurisdiction” to adjudicate L-1 petitions presented by Canadian citizens when seeking admission to the United States in L-1 status.  Until recently, CBP officers have interpreted their jurisdiction to extend to both first-time L-1 petitions and subsequent “renewals.” 

What Has Changed?

In recent weeks many CBP posts in Canada have begun to reject L-1 renewal petitions presented by Canadians seeking readmission to the U.S. in L-1 status after a brief departure in order to obtain an additional two-year period of L-1 status.  CBP officials at most border posts and airports are now indicating that such “renewals” fall within the jurisdiction of U.S. Citizenship and Immigration Services (USCIS) in the United States and must be filed as extension petitions with USCIS.
 
Although CBP has determined that the renewal petitions are “extensions” that must be filed in the United States, this interpretation goes against all prior interpretations and longstanding practice over the course of decades.  Further, this current CBP interpretation fails to account for the fact that when the petition is presented at the port of entry, the individual is physically outside the United States seeking admission to the U.S., and is not at that time physically present and eligible for an extension in the U.S.  It is true that petitions also seeking an extension of status may be filed only with USCIS. However, it is also true that petitions accompanied by a Canadian citizen’s application for admission to the U.S. are specifically within the jurisdiction of CBP at the ports of entry.
 
Although the new, erroneous CBP interpretation is demonstrably in error, as a practical matter currently it is not possible to present “renewal” L-1 petitions at most U.S.-Canada border crossings and international airports in Canada.  While a shrinking list of posts currently accepts them, the trend has been spreading among these posts and could soon become the standard procedure for all posts for the foreseeable future.

What Does This Change Mean?

This drastic change in government procedure means that Canadian citizens who hold L-1 status in the United States will likely be required to extend their L-1 status in the United States rather than renewing at a convenient border post or through preflight inspection.  It will no longer be possible to quickly renew an L-1 in conjunction with an employee’s regularly scheduled holiday travel or home visit to Canada.
 
As a result, employers and their Canadian citizen L-1 employees must plan ahead and prepare for a lengthier renewal process that involves often lengthy CIS adjudication times and higher costs in terms of CIS government filing fees. 
 
Because the renewal process will be less convenient and will take longer, employers should begin the process earlier.  L-1 extensions for Canadian citizens should be initiated as early as for other L-1 visa holders.  Whenever feasible employers should initiate the L-1 extension process seven or eight months in advance of an employee’s current status expiration date.
 
For more information regarding the potential impact of these recent CBP procedural changes, and to initiate L-1 extension petitions for filing with USCIS, contact your Foster immigration attorney.