Posts Tagged ‘Port of Entry’

U.S.-Canada Preclearance Agreement In Effect

Friday, August 16th, 2019 by W. Scott Railton

The Department of Homeland Security announced this week that a preclearance agreement is now in effect with Canada. This basically means that major Canadian airports will be on equal footing with land port of entries, legally speaking.

Expedited removal is now a tool airport CBP inspectors can use to find Canadians inadmissible and banned for five years, in cases of fraud and unlawful immigrant intent. Previously, this type of removal –basically a legal fiction with real impacts for someone not in the U.S.—only occured to someone presenting themselves for admission at a land port of entry, or when illegally seeking entry outside a port.

There is very limited recourse for an expedited removal order. In clear cases of error, sometimes they can be overturned. There is also a waiver process, but this usually works best after some time has passed. The criticism of expedited removal is it leaves no real route for appeal: CBP can be judge, jury, and executioner, so to speak, when they apply this measure. Sometimes agents have been known to be a bit too zealous in lowering this boom.

When I testified in the Canadian Senate in 2018 on marijuana legalization, some Senators had new reservations about their passage of the preclearance bill. There have been situations, particularly where someone has already been denied entry once, where I’ve felt better having them seek entry anew at an airport than at a land port of entry, just so expedited removal is not a consideration.

The preclearance rule will also possibly lead to joint operations at smaller ports of entry, such as can be found in rural border crossings. This can save money and lead to efficiencies, though one has to wonder about the sharing of information.

Here is the full announcement:

United States and Canada Implement Preclearance Agreement
Release Date:
August 15, 2019

WASHINGTON, D.C. – The U.S. Department of Homeland Security announced today, in partnership with the Public Safety and Emergency Preparedness Canada, the implementation of an agreement to improve mutual security and expedite lawful travel through preclearance for travelers and their accompanying baggage on certain transports. The collaboration is articulated in the Agreement on Land, Rail, Marine, and Air (LRMA) Transport Preclearance between the Government of the United States of America and the Government of Canada, which supersedes the previous 2001 U.S.-Canada Agreement on Air Transport Preclearance, and expands upon the two countries’ partnership.

Preclearance is the process by which officers stationed abroad inspect and make admissibility decisions about travelers and their accompanying baggage before they leave a foreign port, simultaneously increasing efficiency and security. The LRMA provides the legal framework and reciprocal authorities necessary for U.S. Customs and Border Protection (CBP) and the Canada Border Services Agency to carry out security, facilitation, and inspection processes in the other country.

“Preclearance strengthens economic competitiveness and mutual security, and benefits travelers by expediting their clearance into the U.S. before they ever leave Canada,” said Acting Secretary Kevin K. McAleenan. “This agreement provides the opportunity for CBP to build on six decades of successful operations and, for the first time, to conduct full preclearance in the rail, ferry, and cruise ship environments. This achievement is important for the Department’s security objectives and is another example of just how close the U.S. – Canada relationship stands.”

CBP currently conducts preclearance operations at eight Canadian airports: Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg. CBP officers also conduct immigration pre-inspection at multiple locations in British Columbia in the rail and marine modes; these locations will have the opportunity to convert to full preclearance, per the terms of the Agreement.

“The new Canada–U.S. Preclearance Agreement is now in force, creating new opportunities in all modes of transportation in both Canada and the United States,” said the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. “Expanding preclearance makes travel faster and bolsters trade, while better protecting our rights.”

As the Agreement is fully reciprocal, in addition to the potential expansion of CBP preclearance operations in Canada, the Agreement permits Canada to pursue preclearance operations in the United States. This agreement also enables exploration of co-location at small and remote ports of entry and includes additional tools and authorities to help enforce immigration, customs, and agriculture laws, facilitate lawful travel, and ensure officer protection and accountability.

The LRMA was signed by the U.S. Secretary of Homeland Security and Canadian Minister of Public Safety and Emergency Preparedness on March 16, 2015, fulfilling a commitment of the Beyond the Border Action Plan (Beyond the Border Action Plan). The U.S. Congress passed the necessary supporting legislation in December 2016 and Canada’s Parliament did so in December 2017. Canada published their required implementing regulations in June 2019, paving the way for entry into force following an exchange of Diplomatic Notes today.

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Posted in General, Marijuana and Immigration, Scott Railton |

CBP Halts L-1 Extensions and Renewals at Ports of Entry

Friday, April 12th, 2019 by W. Scott Railton

I doubt you’ll find this written on any government website, but U.S. Customs and Border Protection (CBP) has decided to stop adjudicating extensions and renewals of L-1 status for Canadians at Ports of Entry and Pre-Flight Inspection.  The agency’s position is these applications must be filed at U.S. Citizenship and Immigration Services (USCIS). “L-1 status” refers to intracompany work and stay authorization for executives, managers, and employees with specialized knowledge.

We first heard this news via attorney meetings with the agency. Specifically:

QUESTION:  How are Canadian L-1 extensions treated at the border? Must intermittent L-1 applicants also apply for an L-1 extension with USCIS?

 ANSWER: CBP officers shall not approve any requests for extension of stay or renew petitions for L-1 nonimmigrants; those requests will be reviewed and approved by USCIS exclusively for all nationalities.

This important policy change is nowhere to be found on the agency’s website, unsurprisingly. We hear though that the policy is being implemented. One officer is said to have told an individual, “Spread the word.” By all appearances, CBP wants to stop adjudicating immigration benefits, and U.S. Citizenship and Immigration Services wants to take this responsibility over.

This is bad news, even if it hasn’t actually made the news. For decades, Canadian businesses have been able to present applications at the border, and receive on-the-spot adjudications. A lot of Canadian executives and managers travel back and forth, and live in Canada.  USCIS is painfully slow in adjudicating applications, although it is possible to pay for “premium processing” and receive initial adjudication in 15 days, for $1410 USD.  Of course, that’s not as good as on-the-spot adjudication, for the base application fee, which Canadian businesses now can receive. L-1 extensions for Canadians will only be adjudicated so fast now, and USCIS has become justifiably notorious for issuing lengthy requests for evidence, which bury employers in paperwork.

The United States government seems committed to making immigration harder, when it should be going for smarter.  L-1 holders are typically job creators, adding value to the U.S. economy. By definition, an executive or manager is presiding over many more workers. The U.S. should be making it easier for Canadian businesses and their executive management teams to do business stateside.

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Posted in General, Scott Railton |