Cross-border travel and business have made a significant comeback with life largely returning to normal in the post-COVID-19 world. Canadian businesses and United States (U.S.) businesses employing Canadian nationals should be aware of the post-pandemic U.S. immigration processing times for Canadian nationals and formal and informal policy changes impacting certain visas frequently used by companies for cross-border business. These include:
Employers should also note that there may be other discretionary actions by ports of entry (“POEs”) or individual U.S. Customs and Border Protection (CBP) officers regarding the need to provide original documentation.
In order to minimize work disruptions, employers should be aware of the following changes and build the appropriate processing times into their planning.
For multinational companies that have a U.S. and foreign entity, L-1A and L-1B visas are available for temporary intracompany transferees who work, respectively, in managerial or executive positions, or in positions requiring specialized knowledge. All first-time Canadian L-1A and L-1B applicants are able to apply directly at the border for admission. However, in an ongoing reversal in CBP’s long-standing practice, individuals who spend more than 180 days per year in the U.S. and seek to renew this status are no longer permitted to apply for their subsequent “L” status at the border — they must apply through U.S. Citizenship and Immigration Services (USCIS). CBP has taken the stance that such requests are “renewals” or “extensions” and not applications for admission.
This change — made without notice — is not supported by the regulations, is highly detrimental to Canadian nationals seeking “L” visa admission, and harms the U.S. companies for whom they work. It is also in direct contrast to the spirit of the United States-Mexico-Canada Agreement (USMCA) which promotes trade between member nations. This policy change has received significant pushback and continues to be a major point of discussion between the American Immigration Lawyers Association and CBP.
For now, employers with Canadian “L” employees who spend a majority of their time in the U.S. and have or will have a need to extend their status, should plan accordingly. Applications with USCIS do not enjoy instant adjudications like they do at the border, and premium processing of an application to get a response within 15 calendar days will cost an additional $2,500. It is also not uncommon for businesses to face additional legal fees and time delays when filing L-1 applications with USCIS as a very high percentage of these cases receive onerous requests for additional evidence.
Fortunately, all news is not bad on the “L” visa front. As a result of successful litigation against USCIS, spouses of L-1s now officially have the benefit of employment authorization incident to status. What this means is that L-2 spouses no longer need to apply for and obtain an Employment Authorization Document (“EAD”) prior to commencing work in the United States. Beginning in March 2022, CBP began issuing L-2 spouses their I-94 documents with L-2S admission codes to confirm that they are indeed an L-2 spouse (L-2 dependent children are not authorized to work). If an L-2 dependent spouse has the new “S” designation on his or her Form I-94, an EAD is no longer required for that individual’s work authorization. Note that E-1 and E-2 spouses also enjoy employment incident to status as a result of this litigation.
In another change of policy, some POEs, including those in the Buffalo Niagara region, now require appointments to apply for USMCA applications. This specifically impacts Canadian “L” (see above) and “TN” applicants. “TN” status is a nonimmigrant employment status that allows Canadian and Mexican citizens with specific professional occupations to work in the United States. The CBP Buffalo Field Office announced this revised process in April 2021.
Appointment requirements were originally put into place to safeguard the health and safety of CBP officers and the traveling public during the COVID-19 pandemic. Currently, there is up to one month’s wait for appointments at some of the Buffalo area ports. Buffalo CBP has not publicly announced plans to roll back this process. Applicants planning to apply at the Buffalo POEs for USMCA applications should plan accordingly and factor in these appointment wait times to their travel plans.
In many areas, POEs and individual CBP officers have wide discretion regarding the necessity of providing original documentation. Requirements will vary from POE to POE. To help ensure things go as smoothly as possible:
Note that, if possible, it’s nearly always best to go to the trouble to obtain original documentation. Typically, it’s easier and less time consuming than being turned around at the border just to come back again with originals, despite an otherwise approvable application.
Two other common immigration options for Canadian businesses are E-1 and E-2 visas for owners, managers and executives, and essential employees. While E-1 and E-2 visas have distinct eligibility requirements which we will detail further below — both require that the sponsoring company be at least 50% owned by individuals of the treaty country (for the purpose of this article, the treaty country is Canada).
An E-1 is a treaty trader status afforded to an individual to engage in trading activities between their home treaty country and the U.S. The key requirement is that the foreign entity in the home treaty country must be engaging in substantial trade between its home treaty country and the U.S. Substantial trade can be defined as a significant (51% or more) portion of the foreign entity’s international sales and involves the transfer of goods and/or services.
While it is frequently the owner of the foreign entity seeking E-1 status, such status is also available to employees who are coming to the U.S. to engage in duties of an executive or supervisory character and/or employees whose services are considered “essential” to the efficient operation of the business enterprise. The employee must also possess the same nationality as the foreign entity to be eligible.
An E-2 is a treaty investor status afforded to an individual who has invested a substantial amount of capital in a real and operating enterprise in the U.S. and is seeking to enter the U.S. to develop and direct the enterprise. An E-2 applicant must be able to demonstrate that the funds being invested were lawfully acquired and are truly “at risk” in the commercial sense. The E-2 applicant must also demonstrate that the investment is not marginal (i.e., it cannot solely provide income to the foreign national) and is not being used within a passive investment.
Besides an owner/principal investor, E-2 visas can be obtained for employees – either managerial/executive or those with specialized skill sets. Again, the employee must have the same nationality as the owner/investor.
The U.S. Consulate in Toronto handles all new company registrations for E-1 and E-2 visas. Owners, investors or employees of businesses not previously registered, or whose registrations have expired, are required to schedule their “E” visa interviews in Toronto, Canada. Employees of registered companies are able to schedule their “E” visa interviews in Calgary, Montreal, Ottawa, Vancouver or Toronto.
For new company registrations and re-registrations with the U.S. Consulate in Toronto, we are currently seeing very lengthy processing delays — potentially delays of six months or more for the processing and interviewing of these applications. In some cases, applying for an “L” or “TN” may make sense while keeping the “E” visa process on a parallel track or on the back burner. Interview wait times are better for “E” employees of registered companies applying in Calgary, Montreal, Ottawa or Vancouver. However, appointment times can still be booking several months out.
While business travel and cross-border work are back, business as usual with regards to U.S. immigration has changed. Therefore, it’s important for employers to be aware and to plan and strategize accordingly.
Zabrina V. Reich is a partner at Phillips Lytle LLP and leader of the firm’s Immigration Practice. She assists companies and individuals in strategically navigating the complex U.S. immigration system and handles a wide array of immigration matters. She can be reached at (716) 847-5446 or email@example.com.