L-1 Intracompany Transfer Petitions under NAFTA–The Latest

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.