Tightening of Regulations and U.S. Law
With U.S. immigration regulations tightening, it’s increasingly important to pay close attention to the rules and regulations around business travel to the U.S. and to be as proactive and prepared as possible when it comes to crossing the border. Recent developments at Canadian airports suggest that it could become more difficult for L-1 status holders to cross the border into the United States.
L-1 status allows executives, managers and specialized knowledge employees from foreign countries to work in the U.S. for up to three years for a related U.S. company. Following that, they can apply for a two-year extension. To qualify, the individual seeking entry to the U.S. must have worked abroad in a similar capacity for a related company for one continuous year out of the three years preceding the filing of the L-1 petition.
At the present time, Canadians applying for L-1 status at a point of entry for the first time are being processed in the normal fashion. However, Canadians applying for subsequent L-1 status after their old L-1 statuses have expired are facing uneven treatment. While some are still able to obtain L-status upon entry to the U.S., others are being turned back and told to apply by mail – a situation that could cause untold headaches for workers (and their employers) who conduct business in both countries. Travellers who show up at a port of entry expecting a renewal or extension of their L-1 statuses run the risk of being denied entry into the United States.
Given these developments, it’s important to ensure that any employees with L-1 statuses determine whether they can apply for renewals at the border. For those who cannot, they should file petitions well ahead of the expiration dates of the original L-1s and allow substantial time for the applications to be processed.
Often, business travellers do not have months to wait: they’ve already made travel plans in the immediate or short term, relying on the assumption that they can renew their L-1s at the point of entry.
Applications to enter the U.S. are reviewed by a real person, not an automated system. As a result, here are some measures you can take to ensure that your processing goes as smoothly as possible when applying for L status or any other status to work in the U.S.:
- Make it easy for border agents to locate the material and information they require by having copies of relevant and requested documentation on hand. The information provided to the border agent should be consistent with the documentation provided in the application package.
- Travellers should review submission materials ahead of time to make sure what they are telling the officer is consistent with the information presented in the immigration package. Any inconsistencies can lead to much bigger issues such as being turned away at the border. Be prepared to answer any questions accurately.
- Thoroughly know the important details of your travels such as your destination, the purpose of your trip and the duration of your stay.
- Arrive early to allow appropriate time for questioning to avoid rushing the appointment.
- Additionally, be sure to have enough cash on hand to cover the application fees to ensure there are no issues with processing credit/debit cards.
It is the individual’s responsibility to prove to the officer that what he or she is actually doing is consistent with the immigration status for which he or she is applying. If you cannot convince an officer, you run the risk of being refused. In addition, you run a greater risk of being refused at the border if you do not have appropriate documentation to support your request.
Earlier this year, we were approached by a number of different companies whose employees had been refused entry to the U.S. because they thought their employees were able to work in the U.S. as business visitors. In some of these cases, the issue was quickly solved by obtaining the correct documentation to make the correct application. However, in other cases, documentation could not be obtained quickly enough, resulting in company employees missing important meetings with colleagues and customers.
While employees may not have any problems at the point of entry, a traveller whose status is denied should not then try to get into the U.S. through a different port of entry. Never argue with the border agent. Instead, the thwarted traveller should politely request the reason for the denial, and then call legal counsel to help resolve the issue.
If a border agent feels that a traveller is in any way a threat, or misrepresenting his or her purpose in travelling to the U.S., the agent can deny that person entrance to the country indefinitely. It is not a risk worth taking.
Over the last number of years, we have seen an increasing number of cases where company employees have not only been refused entry to the U.S. for work but have also been banned from entering the U.S. In some of these cases, officers determined that the Canadian traveller had entered the U.S. numerous times in the past for work without obtaining the proper authorization to do so. In these cases, the Canadian travellers were banned from entering the U.S. because of the past conduct. The travel ban prevented these Canadians from not only travelling to the U.S. for work but also from travelling to the U.S. as tourists.
The recent denials at Canadian airports and U.S. ports of entry are one more sign of a very real tightening of the U.S. border – one that could have negative impacts for your business.
If you or your company is planning a business trip to the United States, take the necessary measures to be as prepared as possible when it comes to crossing the border. Contact your legal counsel to discuss the best way forward.
This article first appeared in HRmatters, a publication of CPHR Manitoba.
Reis Pagtakhan is a partner in the immigration law practice group at MLT Aikins LLP. Reach him at firstname.lastname@example.org or (204) 957-4640. Jessica Jensen is a foreign legal consultant in the immigration law practice group at MLT Aikins and licensed in the states of Minnesota and North Dakota. Reach her at email@example.com or (204) 957-4626.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.