Immigration Law – Black & White & Very Grey
Last week, I presented what must be close to my three hundredth L-1 intra-company transfer visa. Most of the time, I take my Canadian clients to the Pacific Highway Border Crossing in Blaine, WA. I like this Port of Entry because the Customs and Border Protection officers tend to be very experienced and not opposed to me accompanying my clients. Due to the fact that it is a Service Port, the officers deal with all the trucks and busses, as well as special registration of certain aliens, the importation and exportation of vehicles, agricultural regulations and numerous other issues.
As with many visa categories, eligibility requirements under the Immigration and Naturalization Act for the L visa category appear straightforward, but are subject to widely varying interpretation. Before we decide to present an L visa and assemble the petition, offer letter, notice of appearance, cover letter and supporting evidence, we carefully go through the eligibility requirements –
1. Is the candidate a Canadian citizen? (If not, we do it by mail because the right to present the visa in-person at the border flows from the NAFTA and only applies to Canadians)
2. Does the candidate have a valid passport or government issued ID and their original birth certificate, baptismal certificate or other primary document?
3. Is there a proper relationship between the foreign company and the U.S. Company? (The same group of people must have ownership and control)
4. Has the candidate worked for the foreign company for one continuous year in the past three years immediately preceding the application?
5. Was the candidate working in a capacity for the foreign company that was executive, managerial or one that required specialized knowledge?
6. Will the candidate be working for the US Company in a capacity that will be executive, managerial or one that requires specialized knowledge?
7. Do both companies have proof of systematic, continuous, on-going business?
8. Has the US Company been operating for less that one year?
9. Do both companies have employees, leases, tax documentation, photographs of premises and an up-to-date organizational flow chart?
Some things, like whether someone is a Canadian citizen, are very objective (black or white). You are either a citizen of Canada or you are not. Other things, such as whether a person was an employee, working in a managerial capacity or has specialized knowledge, are much more subjective (grey).
It is my experience that candidates tend to give themselves enormous credit toward the eligibility requirements, whereas the CBP officers tend to give them much less. After all, it is the CBP officer’s job to ensure that there is no doubt when issuing the visa. For example, if the candidate did not receive T-4 statements for payments from the Canadian company, CBP may not consider them to have been an employee, but may qualify them as an executive for L visa purposes if listed as a director. If the company had numerous persons working as independent contractors, CBP may not consider them employees for the purpose of showing that the candidate was working as a manager. And if the company is based out of a residential structure, CBP may consider it a ‘paper company’ and not worthy of having executives or managers.
I often tell my clients that it is our job to slightly overdo everything so there is as little doubt as possible, and to provide a clear roadmap for the officer to find the facts he or she requires. Even the smallest thing can cause doubt, and then it is much more difficult to convince the officer that they should make assumptions in the candidates favor. CBP officers have an incredibly difficult job, and cannot be expected to take any risks or to fill in any blanks. As with many things, the presentation at the border is about the look and feel of the paper work and the rapport between the officer and the candidate, that is, whether there is any reason to disbelieve the candidate. All presentations require benefit-of-the-doubt, so you can never be too thorough. If a fact can be proven, provide the proof. If a fact cannot be proven, provide enough supporting evidence to create a favorable impression in your favor and be respectful to the officer.
As with many visa categories, eligibility requirements under the Immigration and Naturalization Act for the L visa category appear straightforward, but are subject to widely varying interpretation. Before we decide to present an L visa and assemble the petition, offer letter, notice of appearance, cover letter and supporting evidence, we carefully go through the eligibility requirements –
1. Is the candidate a Canadian citizen? (If not, we do it by mail because the right to present the visa in-person at the border flows from the NAFTA and only applies to Canadians)
2. Does the candidate have a valid passport or government issued ID and their original birth certificate, baptismal certificate or other primary document?
3. Is there a proper relationship between the foreign company and the U.S. Company? (The same group of people must have ownership and control)
4. Has the candidate worked for the foreign company for one continuous year in the past three years immediately preceding the application?
5. Was the candidate working in a capacity for the foreign company that was executive, managerial or one that required specialized knowledge?
6. Will the candidate be working for the US Company in a capacity that will be executive, managerial or one that requires specialized knowledge?
7. Do both companies have proof of systematic, continuous, on-going business?
8. Has the US Company been operating for less that one year?
9. Do both companies have employees, leases, tax documentation, photographs of premises and an up-to-date organizational flow chart?
Some things, like whether someone is a Canadian citizen, are very objective (black or white). You are either a citizen of Canada or you are not. Other things, such as whether a person was an employee, working in a managerial capacity or has specialized knowledge, are much more subjective (grey).
It is my experience that candidates tend to give themselves enormous credit toward the eligibility requirements, whereas the CBP officers tend to give them much less. After all, it is the CBP officer’s job to ensure that there is no doubt when issuing the visa. For example, if the candidate did not receive T-4 statements for payments from the Canadian company, CBP may not consider them to have been an employee, but may qualify them as an executive for L visa purposes if listed as a director. If the company had numerous persons working as independent contractors, CBP may not consider them employees for the purpose of showing that the candidate was working as a manager. And if the company is based out of a residential structure, CBP may consider it a ‘paper company’ and not worthy of having executives or managers.
I often tell my clients that it is our job to slightly overdo everything so there is as little doubt as possible, and to provide a clear roadmap for the officer to find the facts he or she requires. Even the smallest thing can cause doubt, and then it is much more difficult to convince the officer that they should make assumptions in the candidates favor. CBP officers have an incredibly difficult job, and cannot be expected to take any risks or to fill in any blanks. As with many things, the presentation at the border is about the look and feel of the paper work and the rapport between the officer and the candidate, that is, whether there is any reason to disbelieve the candidate. All presentations require benefit-of-the-doubt, so you can never be too thorough. If a fact can be proven, provide the proof. If a fact cannot be proven, provide enough supporting evidence to create a favorable impression in your favor and be respectful to the officer.
Labels: Immigration Attorney
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