The North American Free Trade Agreement (NAFTA) signed in 1992 was meant to make North America more competitive in the global economy by reducing trade barriers and increasing business development among the U.S., Canada and Mexico.  It essentially created a free-trade zone, but always faced criticism.  Opponents believed and have argued, among other things, that the agreement actually harmed U.S. workers.

In 2018, President Donald Trump renegotiated NAFTA in part to lower the trade deficit between Mexico and the U.S.  In September 2018, the U.S., Mexico and Canada agreed to sign onto the new “NAFTA” which would be known as the USMCA, the United States Mexico Canada Agreement.

Throughout the history of NAFTA/USMCA, special status was accorded to Canadian workers.  Because Canadians do not need visa stamps in their passports to enter the U.S., they were able to apply for L visa classification at ports of entry.  There was no need to go to a consulate nor file a petition with USCIS.  But that benefit is now being limited.  After twenty years of adjudicating renewals of L status at ports of entry, CBP is refusing to adjudicate anything other than an initial L petition or applications for intermittent/commuter Ls at the border.

This means that employers who want to “renew” or “extend” L status for Canadians must apply to USCIS.  Not only does this extend the adjudication process but it also means that L applicants will not have an in-person opportunity to explain their circumstances to officers who are very familiar with the process.  While this does not seem in accord with the ideals behind NAFTA and USMCA, it is consistent with President Trump’s Buy America, Hire America Executive Order (BAHA).  With BAHA, the Administration seeks to protect U.S. workers by making it more difficult for foreign nationals to obtain work authorization in the U.S. and, the thinking goes, take jobs that would be filled by those workers.

The Request for Evidence (RFE) and denial rate for temporary visas has grown exponentially and adjudication timelines have created long delays.  The USCIS denial rate for L-1B petitions in the first quarter of FY 2018 was approximately 30% and the denial rate for L-1A petitions rose 67% during FY 2017 to 21.4%, far higher than has been generally experienced at the ports of entry.

If you have questions about options for obtaining L visa classification for Canadians, please reach out to your Jackson Lewis attorney.

 

 

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.