NAFTA Visa Lawyer: L1A and TN Visa Admissions Tips for Canadians

Canadians have unique procedural options to apply for admission in a status that authorizes employment. The different procedural options primarily are for L‐1 intracompany transferees and TN professional workers.

Intracompany Transferees L1 Visa:
Under the North American Free Trade Agreement (NAFTA), citizens of Canada are authorized to present a petition for L‐1 classification concurrently with an application for admission to the United States. Customs and Border Protection (CBP) officers are authorized to adjudicate such L petitions.

That sounds like a Canadian can self‐petition for L‐1 classification. Is that what is happening?
The alien worker is not the petitioner; the alien worker is the passive beneficiary of the petition filed by the employer. A qualifying employer prepares and files an L petition on behalf of a prospective alien intracompany transferee employee. Regardless of whether an L‐1 petition is filed at a Service Center or with CBP, the petitioning employer is not required to appear. When an L‐1 petition is presented at a port of entry (POE) by a Canadian concurrently with his application for admission, the beneficiary is conceptually functioning as the courier service for the L petition.

Can this be done at any port of entry?
An L petition filed by a citizen of Canada concurrently with an application for admission must be presented at a Class A port of entry located on the United States‐Canada land border or at a United States preclearance/pre‐flight station in Canada. The Department of State’s FAM also suggests that L petitions can be filed at any Class A POE, such as an international airport, but CBP does not appear to agree with this position.

Does CBP issue an approval notice?

Upon adjudication of an L petition by a CBP officer at a port of entry, the petition and a record of the action taken by the CBP officer are sent to the appropriate United States Citizenship and mmigration Services (USCIS) Service Center. The USCIS is responsible for creating a Form I‐797, Notice of Action and sending it to the petitioner.

Which is better, filing at a CBP POE or with a USCIS Service Center?

As with many immigration options, both have advantages and disadvantages. Filing with CBP usually has the advantage of a faster adjudication.

Also, 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, regulations say that the inspecting CBP officer shall return it to the applicant for admission. The CBP officer should instruct the applicant for admission to obtain the necessary documentation from the petitioner to correct the deficiency. Although the regulations do not refer to this process as an RFE, that is effectively what is supposed to happen.

There is another important difference between presenting an L‐1 petition to CBP and filing it with USCIS. According to regulations, the CBP officer should not accept the filing fee for a deficient L‐1 petition. Instead, the filing fee should be accepted once the necessary documents are presented or the deficiency overcome.

Does this mean CBP officers should never deny an L petition?

In those cases where an L petition presented by a Canadian citizen is clearly deniable, the inspecting officer should accept the petition with the filing fee, deny the petition and notify the petitioner of the denial.

What is the difference between a deficient petition and one that is clearly deniable?

It can be difficult to parse that out. Clearly deniable petitions are easier to identify since these must be situations that obviously, incontestably demonstrate ineligibility for L‐1 classification.

For example, to be a qualifying L‐1 petitioner, an organization must be engaged in business as an employer in the U.S. and at least one other country. Therefore, an employer that conducts business as an employer solely in the U.S. and has no affiliate, subsidiary, etc. outside the U.S. clearly is not a qualified L petitioner and a petition filed by such a company would be deniable.

On the other hand, a petition may be deficient if a CBP officer is not satisfied that it adequately describes the specialized knowledge that qualifies the alien worker as an intracompany transferee. If a petition raises that sort of question, 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. In such cases, the inspecting officer should not accept the filing fee and should return the L‐1 petition to the applicant. This affords the petitioner the opportunity to overcome the perceived deficiency.

TN Visa Applicants

Just as with the L‐1 category, a citizen of Canada may apply for TN classification concurrently with an application for admission to the U.S. Applications can be presented at a Class A port‐of‐entry, or at a U.S. pre‐clearance/pre‐flight station. Also, by regulation, a Canadian can present an application for TN classification at a U.S. airport handling international traffic.

There was a recent change in Canadian TN application procedures. What happened?

On Oct. 1, 2012, USCIS began accepting TN petitions for Canadian citizens who are outside the United States and seeking classification as a TN nonimmigrant. Previously, USCIS accepted TN petitions only to extend the stay of a TN nonimmigrant alien or to change a nonimmigrant’s status to TN.

So is it now necessary to file a TN petition with USCIS?

Canadian citizens continue to have the option of applying for TN classification with CBP in conjunction with an application for TN admission to the United States. No petition is necessary in such cases.

Is one procedure recommended over another?

The considerations are virtually the same as with L‐1 petitions filed by Canadians. You are weighing time against the certainty of having a pre‐approved petition. The adjudication time obviously is much shorter for applications presented at the border. Having an approval notice from USCIS in hand, however, can be a big benefit, particularly for TN occupations that present problems for CBP officers.

What are some of those occupations?

TN applications that use company job titles rather than occupational titles that appear in the regulations tend to confuse CBP officers. Also, hybrid titles such as engineering manager or sales engineer routinely create problems, as CBP officers tend to read only “manager” or “sales” and conclude the worker does not qualify for TN classification.

It is important to use the NAFTA occupational title followed by the company title in parenthesis may help steer the officer in the right direction. Also, it is important that the job description in the supporting letter offering TN employment clearly demonstrates that the intended job duties require the advanced, technical knowledge that pertains to the particular TN occupation.

If you need more information about the TN and L1 visa process, feel free to email us.