On April 22, 2020, President Trump issued an Executive Order ("Executive Order") suspending the entry of individuals who seek lawful permanent residence.
As part of that Executive Order, President Trump called for reports on non-immigrant visa programs to be reviewed in light of COVID-19. In a follow up to the April 22 Executive Order, on June 22, 2020, President Trump issued a further Proclamation suspending the entry of certain immigrants and nonimmigrants into the United States ("Proclamation"). This Proclamation took effect on June 24, 2020. The Proclamation specifically restricts H-1B, H-2B, J and L visa categories; however, the wording of the Proclamation creates an exemption for Canadians.
The exemption is welcome news for Canadians and Canadian businesses with U.S. operations as the L-1 status category is one of the most commonly used petitions by Canadian businesses and are relied on to move key personnel between Canada and the U.S.
What is an L-1 Visa?
L-1 visas are nonimmigrant visas which enable employers to transfer specific employees from connected foreign offices to offices in the United States. There are two varieties: the L-1A Intracompany Transferee Executive or Manager and the L-1B Intracompany Transferee Specialized Knowledge. For Canadians, unlike applicants with any other citizenship, L-1 petitions can be made at the point of entry upon travel to the United States.
The Purpose and Effect of the Proclamation
The Proclamation cites the impact of foreign workers on the United States labour market in its current state, coupled with a predicted lengthy recovery, for the proposition that entry of certain immigrants and nonimmigrants would be detrimental to the interests of the United States. Therefore, the Proclamation subjects the entry of certain immigrants and nonimmigrants to restrictions, limitations, and exceptions.
The Proclamation continues Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak, until December 31, 2020. Section 3 of the Proclamation also introduces new restrictions, including suspending the ability to apply for L-1 status for any alien who (in relevant part):
- is outside the United States on the effective date of the proclamation;
- does not have a valid nonimmigrant visa on the effective date of the proclamation; and
- does not have an official travel document other than a visa that is valid on the effective date of the proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
For the Proclamation to apply, all three criteria above must apply to the applicant.
The Proclamation Will Not Impact Existing L-1 Holders
Interpretation of the first two criteria are relatively clear. In the case of a Canadian who was in the United States on the effective date of the Proclamation, the first criteria is not met and the Proclamation does not apply. In the case of a Canadian who held a valid L-1 on the effective date of the Proclamation, the second criteria is not met and the Proclamation does not apply. This allows Canadians who already hold L-1s to continue to rely on that their status to continuing working in the U.S., regardless of whether they have entered the U.S. before on that L-1.
Canadians Are Still Eligible to Make New L-1 Petitions
When the Proclamation was first issued, there was debate as to whether the language created an exemption for Canadian nationals who wished to apply for new L-1 status. Early interpretation of the Proclamation's third criteria appeared to create an exemption for Canadians seeking new L-1 status. Canadians are exempt from any requirement to hold a "visa" or an "official travel document" prior to travelling to the United States. As there is no such requirement, a Canadian has no way of securing a visa or travel document as outlined in the Proclamation and thus is exempt from the restrictions as the third criteria could not apply.
Unfortunately, the Proclamation did not expressly or directly state an exemption for Canadian nationals and there was some concern that the Proclamation was open to wide interpretation and could be applied differently by different officers. In 2019, we saw a similar issue occur which created different procedures at individual ports of entry for several months.
Fortunately for Canadian businesses with cross-border operations, the United States Customs and Border Protection Headquarters has confirmed that the language of the Proclamation would be interpreted to exempt Canadian nationals from the restrictions and the Proclamation will have no impact on Canadian nationals while it is in effect. This means that Canadian nationals will be able to continue to apply for new L-1 status.
Cross-Border Concerns Are Ongoing
Although it is great news that United States Customs and Border Protection Customs and Border Protection has interpreted the Proclamation to have no application to Canadians, there are still ongoing cross-border concerns that Canadian businesses should be aware of. The United States and Canada still have an active joint agreement restricting certain types of travel to the United States by land. There has also be increased scrutiny of travellers by customs officials at United States ports of entry. Canadian businesses seeking to send personnel to the United States during the COVID-19 pandemic should do so with caution and proper counsel to ensure they are up to date on all recent immigration developments.
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