The following article covers CBP standards for accepting L-1 petitions for Canadians under NAFTA. The standards discuss the burden of proof, package completeness, review of the petition, and submission to USCIS by CBP.
With the institution of the North American Free Trade Agreement (NAFTA), the use of L-1 visas has been supplemented by the use of E-1 and E-2 visas. However, the L-1 can be easier to apply for because it requires less documentation and can be immediately obtained at the border and other Ports of Entry. The L-1 visa, therefore, continues to be a useful immigration tool for companies that do not qualify for E status.
1. The burden of proof for establishing eligibility rests with both the petitioner who is filing the petition; and the beneficiary, who is applying for admission.
2. CBP will review an I-129 petition submitted for an L-1 applicant to ensure the application is complete.
a. Two copies of the I-129 with original signatures on each copy.
b. Supporting documentation is included with the I-129 petition to establish the
petitioner and beneficiary are demonstrating that the petitioner and beneficiary meet
the requirements for the L-1 class of admission are:
-The applicant is coming to work for an entity in the U.S. that is the parent,
branch, affiliate, or subsidiary of the entity in the foreign country. ii. Qualifying capacity:
– Executive or Managerial.
-Specialized Knowledge. iii. Qualifying past employment:
– An alien who within the preceding three years has been employed abroad for one continuous year.
-Qualifying citizenship – the applicant is a citizen of Canada.
3. CBP will review the I-129 petition in accordance with 8 CFR 214.2(l)(17)(iv):
a. If a petition or certificate of eligibility submitted concurrently with an application for
admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return the I-129 petition to the applicant for admission in order to obtain the necessary documentation from the petitioner or for the deficiency to be overcome.
b. The fee to file the petition will be remitted at such time as the documentary or other deficiency is overcome.
c. If the petition or certificate of eligibility is clearly deniable, the CBP officer will accept the petition (with fee) and the petitioner shall be notified of the denial, the reasons for denial, and the right of appeal.
d. If a formal denial order cannot be issued by the port of entry, the petition with a recommendation for denial shall be forwarded to the appropriate U.S. Citizenship and Immigration Services (USCIS) Service Center for final action.
4. To ensure prompt processing by USCIS, including creating a Form I-797, Notice of Action confirming the adjudication result (e.g. approval of the L-1 classification and the dates of validity); sending the Form I-797 to the petitioner; and entry by USCIS into the Department of State’s Petition Information Management System (PIMS) to facilitate the issuance of L-2 (dependent of L-1) nonimmigrant visas for non-citizens of Canada, the completed I-129 petition package must be mailed by CBP to the USCIS Service Center after the petition has been adjudicated by CBP.
a. CBP will permit petitioners to prepare and CBP will accept a prepaid Express Mail Flat Rate Envelope submitted with the L-1 petition and an application for admission.
b. The prepaid mailer must to be addressed to either the USCIS California Service Center or the USCIS Vermont Service Center, depending on the location where the beneficiary will work.
The NAFTA provisions affect those applying for admission in B-1, E, L, or TN status. Citizens of Canada or Mexico applying for admission in other nonimmigrant categories do not benefit at all from NAFTA. Even those who do qualify under NAFTA must still meet the admission requirements under all other provisions of U.S. immigration law.
The NAFTA parties did not intend to harmonize their immigration regimes or create a common labor market or a passport union. Instead, each country intended to maintain its sovereignty over immigration in order to protect its domestic labor market and continue to drive competition.
We routinely escort our clients to the port of entry for TN and L cases, if you need support feel free to email us.