Posts Tagged ‘L-1A’

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

Friday, October 12th, 2018 by W. Scott Railton

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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Posted in General, Scott Railton |

L-1 Pilot Program Coming to Peace Arch and Pacific Highway Crossings

Thursday, March 29th, 2018 by W. Scott Railton

The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implementing a “Pilot Program” for L-1 Intracompany Transfer petitions, beginning on or about April 30th. L-1 Intracompany transfers are employees who are Executives, Managers, or employees with specialized knowledge who are transferred from a commonly owned foreign company to a U.S. company. For decades, Canadian beneficiaries of L-1 petitions have been permitted to submit their applications at Class A Port of Entries, and receive immediate adjudication. The Pilot Program, while introduced with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.

On Monday, I attended a briefing session on a Form I-129 Pilot Program for Canadian L Nonimmigrants Pilot Program, held at the Peace Arch. The briefing was hosted jointly by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, and was led principally by USCIS Director L. Francis Cissna. The meeting was attended by more than a dozen officials of CBP, USCIS, and about ten attorneys representing stakeholders. The meeting was open to phone participants as well.

Director Cissna said that the stated intention of the L Pilot Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s hands. Director Cissna views this work as USCIS work, since it involves immigration benefits. CBP doesn’t seem happy with the function (my observation), as they consider themselves an enforcement agency first and foremost. There were indications that if the Pilot Program works, perhaps TN adjudications can be handled on the same process.

Under the Pilot Program, the petitioning company will send the petition to USCIS with a special cover sheet. USCIS will then try to adjudicate the applications with the cover sheet “super fast…faster than premium processing,” in an effort to provide adjudication service similar to what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence will be sent to employers directly. While USCIS says it would be best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt notice, and granted admission if the matter is adjudicated favorably. This was all described as “good organizational management.”

The goal is to launch the program at the Peace Arch and the Pacific Highway by April 30th, and then test run the program for 6 months. If it works, they’ll look at expansion to other northern ports of entry, and may need to commence the public notice and comment processes required under the Administrative Procedures Act.

The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port of Entry adjudication may still go to other Port of Entries. The process will be mandatory for Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The California Service Center is the designated USCIS service center for adjudication.

Some interesting statistics were mentioned during the meeting. We were told there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the overall total. The Blaine POEs are not handling too many per week now. One person said about half a dozen; another said about 50 per month. Issues raised by attorneys included the Request for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.

This could end up being a step back for Canadian businesses who may clearly qualify and benefit from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty quick process, and this method of application really helped Canadian businesses quickly get the people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for legitimate businesses in recent years, and this presents another opportunity for government delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.

If its not obvious, I am skeptical about the Pilot Program. In the big picture, this Administration is taking every step it can to cut legal immigration, in addition to its focus on illegal immigration. There are some in the Administration who only want to “put a pause” on immigration, and seem to have decided that most if not all immigration is bad. The L visa is a poor target, as the visa is dedicated to executives and managers—people who typically create jobs, which leads to a healthier U.S. economy.

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Posted in General, Scott Railton |

USCIS Filing Fees Rise Again

Thursday, December 22nd, 2016 by W. Scott Railton

On December 23rd, USCIS filing fees for most types of petitions will rise again.  I took a look back at petitions filed in the early 2000s, and the I-129 filing fee then for an H-1B was a straight $130.

Times have changed.  The base filing fee will be $460.  For H-1Bs, all new petitioners must then pay an additional $500 fraud fee.  If you have   25 or more full-time employees, and are not “cap-exempt,” there’s an additional $1500 ACWIA fee.  Many employers also opt for the 15 day “premium processing” fee, for another $1225, since the agency will otherwise take 6 months to adjudicate the petition.  Then, there’s the lawyer’s fee, if one is hired to help.

Here’s a brief list of the increases for some of the petitions we file:

  • I-129 Temporary Worker:  Was $325   Now $460
  • I-140 Petition for Alien Worker (permanent):  Was $580   Now $700
  • I-130 Petition for Alien Relative:  Was $420   Now $535
  • I-485 Adjustment of Status:  Was $985   Now $1140
  • N-400 Naturalization:  Was $595   Now $640
  • I-90 Permanent Resident Card renewal:  Was $365   Now $455

The full list of fees can be found at www.uscis.gov.

In the next year, there will probably be a fair amount of discussion and press coverage on foreign labor employment by U.S. companies.  Businesses usually operate with a profit motive, and will not look outside the local labor market, or pay more than they have to, to hire qualified workers.  There is a significant cost to hiring non-U.S. labor, which involves filing fees, legal fees, legal exposure in some cases, and timing factors.  In our experience, businesses invest a fair amount of time and resources if they determine they wish to hire a non-citizen candidate.

Here’s USCIS’s latest press release on the fee changes:

USCIS reminds applicants and petitioners to pay our new fees with forms postmarked or filed on or after Dec. 23, 2016, or we will not be able to accept the filings. We will only accept previous fees if they are postmarked Dec. 22 or earlier.

Beginning on Dec. 23, you will no longer have a 14-day grace period to correct a failed fee payment. USCIS will immediately reject a benefit request for nonpayment. We will also no longer hold benefit requests submitted without the correct biometric services fees. You must pay biometric services fees, if applicable, at the time of filing. We will reject a benefit request if it is received without the correct biometric services fee, as specified in the form instructions.

Along with the fee changes, we are introducing a reduced fee option for certain low-income naturalization applicants who do not qualify for a fee waiver. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee, and Form N-400, Application for Naturalization.

USCIS is funded almost entirely by fees. Read our Oct. 24 news release about our first fee increase in 6 years, which is needed to recover the full cost of services. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge or fee waivers and exemptions for those who are eligible.

 

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L-1 Intracompany Transfer Petitions under NAFTA–The Latest

Wednesday, January 11th, 2012 by W. Scott Railton

The North American Free Trade Agreement (NAFTA) permits Canadians to submit L-1 intracompany transfer petitions at ports of entry and pre-flight inspection for immediate adjudication by U.S. Customs and Border Protection (CBP). This past week, CBP published on its website standards for accepting and adjudicating such petitions.

Their “standards” provide little indication of the actual complexity of L-1 petitions, as the agency does not nothing to spell out fundamental points, such as the differences between filing for an Executive (L-1A), a Manager (L-1A), or for a person with Specialized Knowledge (L-1B).  Submitting an L-1 petition at the border can be something like walking into a minefield, for the uninformed.

The good news is CBP’s published standards include new procedures for making sure a petition submitted to the agency is subsequently forwarded to U.S. Citizenship and Immigration Services (USCIS). USCIS issues the I-797 notices for L-1 petitions.  I’ve heard of cases where the issuance of the approval notice can take months, or may never actually occur. If approved, CBP will provide an L-1 work authorized stamp on an I-94 admission card, but the I-797 is needed too, especially in the case of a denial at the border, for purposes of appeal.

So, Canadians have the choice–submit at the border to CBP, or by mail to USCIS.  This is a significant choice in managing an L-1 application successfully.  I usually discuss a number of factors with clients, before making a recommendation on which way to go.

One obvious factor is timing.  A CBP-submitted petition can lead to a fast “Yes” or “No”.  In the case of a Yes, this can be absolutely terrific, as the decision is made typically the same day you go to the border. A USCIS petition will take months to adjudicate. For $1225 fee, petitioners can purchase “premium processing” from USCIS, and buy their way to an initial adjudication in 15 days.

Another factor is the strength of the petition.  If CBP has an issue with the petition, they may ask the petitioner to come back with more documents. Or, they may deny the petition outright. They may in fact grill the applicant at great length, pursuing suspicions of misrepresentation or fraud. Or, they may approve quickly. The fact is, there can be a great deal of variation in the quality of adjudication of L-1s by CBP officers.

USCIS can also be unpredictable with adjudications. Although I typically get good results, I think most long time immigration attorneys would agree that requests for additional evidence have become much more common with L-1s over the past five years. However, a request for evidence does provide petitioners with opportunity to respond at their convenience, in a limited time window, without the pressure of cross-examination.

One final factor I’ll mention here is the culture of the agencies.  In the big picture, I think it is good to recognize that CBP’s mission is primarily enforcement based, whereas USCIS’s mission is much more focused on immigration benefits.

While quick adjudications are desirable, even more desirable is an approval.

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