If an L petition presented by a Canadian citizen in conjunction with an application for admission is lacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shall return it to the applicant for admission.
The officer should instruct the applicant for admission to obtain the necessary documentation from the petitioner to correct the deficiency. Id. The officer should not accept the filing fee for a petition lacking necessary documentation or that is otherwise deficient. Id. Instead, the filing fee should be accepted once the necessary documents are presented or the deficiency overcome.
The foregoing paragraph contains several noteworthy observations. First, the Code of Federal Regulations governing the Canadian L petition adjudication procedures uses mandatory language, not permissive language. The regulations clearly state that the CBP inspecting officer “shall return” such a petition to an applicant. Officers do not have discretionary authority in this matter. Accordingly, CBP officers are required to return to the applicant any L‐1 petition lacking necessary documentation or that is otherwise deficient.
Second, officers should not accept a petition filing fee for any petition that lacks necessary documentation or is otherwise deficient. Of necessity, officers will be required to conduct an initial review of an L petition presented by a citizen of Canada concurrently with an application for admission to the United States in order to determine if the petition includes all necessary documentation or is otherwise deficient. Only after making such a preliminary review will an officer be able to determine whether the petition includes sufficient documentation and information or whether it should be returned to the applicant along with the tendered filing fee. Only when an applicant returns with sufficient documentation or information to overcome a deficiency may the officer accept the filing fee for the L petition.
Third, there is an implicit rationale underlying the procedures described in 8 CFR §214.2(l)(17)(iv). As noted in the section above, the petitioner, not the Canadian citizen applicant for admission, is responsible for preparing and filing the L petition. Furthermore, the petitioner is not required to appear when an L petition is filed, whether this takes place at a USCIS Service Center or at a port of entry.
Therefore, the Canadian applicant for admission, in most circumstances, will not have documentation or information demonstrating that the petitioner is a qualifying organization. Documentation relating to the duties to be performed by the beneficiary also is unlikely to be available at a port of entry. Such documentation normally would be needed to provide details concerning the qualifying nature of the duties performed. In apparent acknowledgment of these realities, the regulations instruct inspecting officers to return incomplete or deficient petitions to the applicant in order to gather the needed documents or information from the petitioner.
Clearly Deniable Petitions
In some cases, an L petition presented by a Canadian citizen concurrently with an application for admission to the United States will be clearly deniable. In such circumstances, the inspecting officer should accept the petition with the filing fee and notify the petitioner of the denial, the reasons for the denial and the right of appeal. 8 CFR §214.2(l)(17)(iv).
It may initially appear that there is a conflict between the regulatory mandate to return to an applicant an L‐1 petition lacking documentation or otherwise deficient, with the instructions to deny clearly deniable petitions. Upon closer examination, however, these two instructions are not difficult to reconcile. Consider first the definition of the term “deficient.” This word is defined as an item “lacking in some necessary quality or element.”1 Useful synonyms are terms such as incomplete, fragmental, fragmentary, partial. Id. In contrast, the term “clearly” is defined as an activity performed “in a clear manner.”2 Useful synonyms are terms such as “inarguably, incontestably, incontrovertibly, indisputably.”
When a petition is deficient, it is incomplete. Information or documentation will not be present with the petition. The absence of information will leave a question remaining about whether the petitioner is a qualifying organization or whether the beneficiary is eligible for classification as an L‐1 intracompany transferee. When a petition is deficient, it is only partially complete. There remains the possibility that production of additional documentation or information may demonstrate the petitioner and/or the beneficiary are eligible to utilize the L‐1 intracompany transferee category.
Conversely, a petition that is clearly deniable cannot be cured by presentation of additional documentation or information. No question remains unanswered by the documentation or information presented with such a petition. Instead, the facts will indisputably demonstrate that the petitioner is not a qualifying organization or that the beneficiary does not satisfy the eligibility requirements for L‐1 classification.
Since current business structures and employment relationships may be complex, examples help to distinguish those fact patterns presented which are clearly deniable from those that are merely deficient. Clearly deniable petitions are easier to identify since these must be situations that obviously, incontestably demonstrate ineligibility for L‐1 classification.
Example #1: To be a qualifying organization, a petitioner must be engaged in business as an employer in the U.S. and at least one other country. 8 CFR §214.2(l)(1)(ii)(G). Therefore, an employer that has no affiliate, subsidiary, parent, or branch outside the U.S. and conducts business as an employer solely in the U.S. clearly is not a qualified L petitioner. Where an L petition demonstrates that the petitioner has no direct or indirect presence outside the U.S., the petition is clearly deniable.
Example #2: An alien worker must have engaged in employment outside the U.S. for the petitioner, or an affiliate, subsidiary, parent, or branch of the petitioner, for at least one year during the three years preceding the filing of the L petition. 8 CFR §214.2(l)(1)(ii)(A). Therefore, an alien worker who has never been employed outside the U.S. by the petitioner, or an affiliate, subsidiary, parent, or branch of the petitioner, clearly is not qualified for L classification. Where an L petition demonstrates that the beneficiary has never worked outside the U.S. for the petitioner, or any related entity, the petition is clearly deniable.
Those situations in which a petition is deficient or lacking supporting documentation which, if produced, may demonstrate eligibility for L classification usually involve more complex fact patterns.
Example #3: To be a qualifying subsidiary of a petitioner, an entity normally must have at least 50% common ownership with that petitioner. In some circumstances, an entity that has less than 50% common ownership may be a qualifying subsidiary provided that there is managerial control over the entity. 8 CFR §214.2(l)(1)(ii)(K). Where a petition indicates that a company inside the U.S. has less than 50% common ownership with the beneficiary’s employer abroad, it is possible that the petitioner could produce additional documentation to demonstrate the existence of the required managerial control. Since additional documentation may exist to demonstrate the existence of facts supporting L‐1 eligibility, such a case is an example of a deficient petition rather than one that is clearly deniable.
Example #4: To qualify as an intracompany transferee, an alien worker must have been employed outside the U.S. for at least one year during the preceding three years by a qualifying entity in a capacity that involved executive, managerial, or specialized knowledge duties. 8 CFR §214.2(l)(1)(ii)(A). An alien worker may be classified as an intracompany transferee and admitted to the U.S. in L‐1 status if he possesses advanced knowledge of an organization’s processes or procedures. 8 CFR §214.2(l)(1)(ii)(D). An L‐1 petition may describe duties performed by the alien beneficiary relating to the organization’s processes or procedures that requires knowledge that is beyond the elementary or basic level.
A question may remain about whether such knowledge is sufficiently advanced to qualify as “specialized knowledge” as defined in 8 CFR §214.2(l)(1)(ii)(D). In this situation, it is possible that additional documentation or information could be provided by the petitioner that would demonstrate the advanced nature of the knowledge required to perform the job duties described. Accordingly, in such cases, the inspecting officer should not accept the filing fee and should return the L‐1 petition to the applicant affording the opportunity to overcome the deficiency. filing fee and should return the L‐1 petition to the applicant affording the opportunity to overcome the deficiency.
The examples given are not intended to be a comprehensive list of those situations in which an L‐1 petition may be deficient and correctable or clearly deniable. The examples provided here are intended, instead, to be illustrative of some situations in which an L‐1 petition may be clearly deniable or be merely deficient requiring CBP to return the petition and filing fee to the applicant.