L-1 Pilot Program Follow-Up Meeting With USCIS and USCBP

I attended a follow-up engagement meeting today with USCIS and CBP at the Blaine Peace Arch, concerning the L-1 Pilot Program.  Here is a brief summary of the meeting.

The L-1 Intracompany Transfer visa/status is a work authorization granted to certain Executives, Managers, and employees with “Specialized Knowledge.” It is an immigration tool used for multi-national businesses, to move key personnel around. The L-1 status is a part of Chapter 16 of NAFTA and the new USMCA agreement, and is also authorized by the Immigration and Nationality Act.

The L-1 Pilot Program was commenced on April 30, 2018, and terminates at the end of October. The basic goal of the program is to promote uniformity of adjudication of petitions by first routing them to USCIS’s California Service Center. Canadians have the option of choosing to submit these applications in person at a port of entry, or by mail/courier to USCIS.

15 submissions in 6 months; 80 Percent RFE Rate

At the meeting, USCIS reported they have had 15 submissions over the past six months. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I think many more. Conclusion: nobody is using the program. This must be a conscious decision by Canadian businesses and their attorneys. Indeed, attorney comments during the meeting said as much. “People are voting with their feet,” one said.

USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So far, they’ve approved seven cases and denied three, with the other five pending. They “outright” approved three cases, without RFEs.

RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is immigration these days.

Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the Service Center. Premium Processing is the program where employers pay $1410 for 15 day initial adjudication. In this case, petitioners did not have to pay this expense, but of course the process is automatically slower than the same day adjudication some Canadian companies are used to. Most of the cases have been receipted within days—the agency reported two or three days. When an RFE is issued, typically the Petitioner is given three months or so to respond.

Attorneys seemed universally opposed to the program. East Coast attorneys, calling in on the phone, expressly said they would not like to see this program move their way. Representatives of both agencies suggested they might try expanding the program to the Vancouver Airport or other ports of entry, but no decision has been made.

The meeting itself was well organized, with video and phone lines open for all, and both agencies seemed to genuinely want feedback, offering many opportunities for comment.

Concerns with Process, Concerns with Adjudication

From my point of view, there are two larger issues at play here: process and adjudication.

From a process standpoint, Canadian businesses receive no benefit from taking away the option of on-the-spot adjudication. There are times when this is very valuable, such as when an important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend). Also, there is a benefit to being able to make your case to a live officer, rather than have everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications, abandoning the preponderance of evidence standard applicable to all nonimmigrant work authorization petitions.

On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level. However, border adjudications are nothing new, and they have worked for Canadian/U.S. businesses for decades. Uniformity is also a myth–USCIS adjudicators handle matters very differently, from cubicle to cubicle.

Perhaps the biggest concern for Canadian businesses in this niche is USCIS’s extensive use and abuse of the RFE. Their templates are many pages long, and employers can spend the same amount of time they might in preparing an environmental impact statement, just trying to explain the technical aspects of one of their experts and why they are “specialized” or how they qualify as a “manager”. The RFEs are bogging down USCIS too, which has record wait times on many very-ordinary types of cases.

What Next?

Speakers at the meeting said they will take the feedback from the meeting, confer, and make next decisions.  They could close the program, but I think I suspect the Pilot Program is not done yet. I think CBP would like to punt adjudications to USCIS, and will keep looking for ways to do so.  I would like to see the agency embrace this responsibility as part of their northern border mission, because its good for business and U.S.-Canadian relations.  That may be wishful thinking, I’m afraid. My concern over the next few years is that the U.S. government may try to move all immigration benefits adjudication to USCIS, including TNs.  We’ll keep an eye on it.

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