December 17, 2019

Canadian Citizens & U.S. Port of Entry Work Visas

Canadian citizens currently enjoy a significant advantage when it comes to work visa options in the United States. Not only are they eligible for a category which is only made available through the North American Free Trade Agreement (soon to be the United States – Mexico – Canada Agreement), they are also the only foreign nationals who have the ability to request work authorization directly at a U.S. Customs and Border Protection Port of Entry.

In fact, Canadian citizens have two options when it comes to Port of Entry work authorization requests: (1) TN status, for professional occupations listed in NAFTA / USMCA; or (2) L-1 status, for intracompany transfers of managerial or specialized knowledge employees (initial or intermittent traveler petitions only).

When Canadian citizens apply for L-1 or TN status at a Port of Entry, a U.S. Customs and Border Protection officer will serve as the adjudicator of their petition, by reviewing the documentary evidence, conducting an interview with the applicant, and making a final decision.

In practice, when it comes to applying with U.S. Customs and Border Protection, not all port of entries are the same. Immigration petitions inherently involve subjective interpretation of government regulations. For example, in the context of an L-1B petition, what exactly is “specialized knowledge”? Or another example, in the context of a TN petition, what types of bachelor’s degrees are relevant to the professional occupation of a Computer Systems Analyst?

Given that two different Port of Entries may have different adjudication standards or different policies in place, which can impact whether the petition is approved or denied, it is critical that employers work with a licensed attorney in identifying the optimal Port of Entry for their Canadian citizen employee or new hire.

If the wrong Port of Entry is selected from the outset, it may not only lead to refusal of the initial petition but may also make it difficult for the employee to later choose a different Port for submission of the petition. Canadian citizens who are rejected at one Port, and subsequently apply at another, are often refused entry the second time for a reason known as “Port Shopping”. In some “Port Shopping” cases, the employee may even be banned from returning to the U.S. for a period of five years.

In summary, Canadian citizens are in an ideal position when it comes to requesting work authorization to begin or continue their careers in the U.S. Such individuals are encouraged to consult an attorney to ensure they not only have all of the required documents, but also choose the optimal port of entry for submission of their petition.