Small Shift in Handling Some Canadian Visas Could Make Big Waves

March 29, 2018, 11:42 AM

A Homeland Security Department pilot program is shifting the decision-making process on certain temporary visas for Canadians away from the border.

But what is starting out as a relatively small test run could have much broader implications for this and other visa programs if the pilot is expanded, according to some immigration attorneys.

U.S. Citizenship and Immigration Services March 26 announced that, starting April 30, it would start processing petitions for Canadians seeking L-1 visas and who will be coming through the ports of entry in Blaine, Wash. The announcement was made during a stakeholder teleconference, according to attorneys who were on the call.

Customs and Border Protection agents normally decide at the border on whether a Canadian worker is eligible for the visa, which allows multinational companies to transfer their employees temporarily to their U.S. operations. The process was established under regulations implementing the North American Free Trade Agreement.

A USCIS spokeswoman confirmed the details of the pilot program to Bloomberg Law March 28.

“The adjudication of L petitions at a port of entry was a responsibility of the former Immigration and Naturalization Service, when the agency had examiners at the ports,” the spokeswoman said. “Given the structural changes and the creation of the Department of Homeland Security, a new interagency process will help determine how to efficiently and properly adjudicate these employment based benefits.” A representative for Customs and Border Protection referred Bloomberg Law to the USCIS.

Expansion, Projects Potentially Stalled

“We deal with a lot of Canadian businesses that are expanding their operations into the U.S.,” Rosanna Berardi of Berardi Immigration Law in Buffalo, N.Y., told Bloomberg Law March 28. The L-1 visa holders are helping to “set up shop,” such as a factory that will then hire U.S. workers, she said.

L-1 visas also are widely used to bring in workers with specialized knowledge to use that knowledge for a high-profile U.S. project, Berardi said. If the visa takes a while to process, “that project’s at a standstill and that company’s going to lose money,” she said.

“This isn’t a new idea,” Berardi said. L-1 petitions are “complicated” because they include information such as the employer’s corporate structure and shareholders’ voting rights, she said. CBP agents consider themselves to be law enforcement officers and “have always complained” about performing the adjudications, she said.

But the pilot, which is set to run for six months, is likely “just a glimpse of what’s to come” for the visas nationwide, Berardi said. And the concern is that what’s starting as a small pilot program could ultimately cause delays not just for Canadians seeking L-1 visas, but across the board, she said.

“They want to shift as much as they can to USCIS,” Danielle Rizzo of Harris Beach in Buffalo told Bloomberg Law March 28.

Delays Expected

The USCIS is promising to adjudicate the Canadian L-1 petitions within two to three days, but that isn’t likely to happen in reality, both Berardi and Rizzo said.

“There are already really bad delays at USCIS,” Rizzo said.

The DHS Office of Inspector General, for example, recently found that the agency is failing to meet its processing goals for green card applications.

The agency’s goal of L-1 processing within three days is a fraction of the time it normally takes to make a decision with premium processing—a fast-track option that requires a decision or request for evidence within 15 days if the petitioner pays an extra $1,225. Essentially, the USCIS is promising to decide petitions more quickly than what is already its fastest processing time for other types of visas, and for free, Rizzo said.

Unless there’s a regulation requiring the USCIS to complete L-1 decisions within three days, longer processing times are “essentially taking away the benefit” of easy border crossings that NAFTA bestowed to Canadian professionals, she said.

And that doesn’t count the extra time that will be added if the USCIS issues a request for evidence, which gives employers 87 days to respond, Berardi said.

“They didn’t get into the logistics of how requests for evidence will work” during the teleconference, Rizzo said. “That could significantly delay things,” she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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