In a dramatic departure from decades-long practice, U.S. Customs and Border Protection (“CBP”) is refusing to process L-1 petition extensions at some ports of entry. Since NAFTA was implemented in 1994, CBP has routinely processed L-1 petitions at the border for both first-time L-1 beneficiaries and those renewing their L-1s. L-1 extensions are available; as L-1 status typically is approved for an initial 3-year period and can be renewed in 2-year increments (for up to 5 years for L-1B beneficiaries who have “specialized knowledge,” and up to 7 years for L-1A beneficiaries who are “managers” or “executives”). However, in the past month, CBP officers at some ports of entry have begun turning away L-1 beneficiaries who seek to be readmitted for an additional period of stay.
The North American Free Trade Agreement (“NAFTA”) provides Canadian citizens with the ability to file applications for admission to the U.S. in certain nonimmigrant visa petition categories, directly at the port of entry. This includes admission in L-1 status for “intracompany transferees.” Because Canadian citizens are also visa-exempt, this means they can appear at a Preclearance Office (international airport with U.S.-bound flights in Canada) or a port of entry along the northern border of the U.S., present an L-1 petition and be admitted to the U.S. with work authorization on the same day. The L-1 petition is adjudicated by a U.S. Customs and Border Protection (“CBP”) officer directly at the port. Border processing of L-1 petitions is a distinct benefit, reducing the ordinarily 6-8 month adjudication period to one day at no additional cost.
In refusing to process petitions for readmission in L-1 status for Canadian citizens, some ports of entry have referenced the regulatory language found at 8 C.F.R. §214.2(l)(15)(i), entitled, “Extension of stay”:
In individual petitions, the petitioner must apply for the petition extension and the alien’s extension of stay concurrently on Form I-129. When the alien is a beneficiary under a blanket petition, a new certificate of eligibility, accompanied by a copy of the previous approved certificate of eligibility, shall be filed by the petitioner to request an extension of the alien’s stay. The petitioner must also request a petition extension. …
Because the regulations indicate that extension petitions “shall” be filed with USCIS, some ports have asserted, they cannot be filed with CBP. This reading of the regulations is erroneous, because this section of the regulations refers only to extensions of stay.
Extensions of stay are limited exclusively to individuals who are physically present in the United States, and are governed by 8 C.F.R. §214.1(c), which provides in the pertinent part that:
An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired …
This makes clear that extensions of stay are filed with USCIS and are available only to people who have maintained their prior nonimmigrant status and who are physically present in the U.S. Extensions of stay are legally distinct from extensions of visa petition validity. The L-1 regulations make this distinction very clear at 8 C.F.R. §214.2(l)(15)(i), which goes on to state:
In individual petitions, the petitioner must apply for the petition extension and the alien’s extension of stay concurrently on Form I-129. … The petitioner must also request a petition extension. The dates of extension shall be the same for the petition and the beneficiary’s extension of stay. The beneficiary must be physically present in the United States at the time the extension of stay is filed. Even though the requests to extend the visa petition and the alien’s stay are combined on the petition, the director shall make a separate determination on each. …
Therefore, if an L-1 beneficiary is physically present within the United States, the petitioning employer may file an I-129 petition with USCIS to extend both the petition validity period and the alien’s stay. However, in cases where the beneficiary is physically located outside of the U.S., extension of stay requests are unavailable. Therefore, the petition itself may be adjudicated but an extension of stay cannot be granted. These are the filings which CBP has processed routinely since 1994 and which they have abruptly stopped processing within the past month at most ports of entry. There has been no official notice that this policy has changed; applicants are finding out when they appear at the border or airport to file an L-1 petition and are turned away.
The Peace Bridge in Buffalo, NY continues to properly apply these regulations and is processing L-1 extensions. Harris Beach continues to monitor this evolving situation.