Border Blues: Current Issues and Trends at the Canadian Border
by Howard S. (Sam) Myers, III, W. Scott Railton, and Heather N. Segal
Howard S. (Sam) Myers, III Co-founder of the Minneapolis, Minnesota-based law firm of Myers Thompson P.A., a firm with a
national business immigration law practice. Mr. Myers has consistently been selected for inclusion in the publications Best
Lawyers in America®, Super Lawyers™, and An International Who’s Who of Corporate Immigration Lawyers for his work in the
field of immigration law. He has been a board member of the American Immigration Lawyers Association (AILA) for which he
served as president, from 1991-1992.
W. Scott Railton limits his practice to U.S. immigration and nationality law, with an emphasis on employment-based
immigration and border-related matters. He practices at Cascadia Cross-Border Law in Bellingham, Washington, near the U.S.-
Canada border. He is vice-chair for AILA’s Washington State Chapter, a research affiliate to Western Washington University,
and a graduate of the University of Washington School of Law.
Heather N. Segal is a partner at Guberman, Garson in Toronto, Canada. Ms. Segal practices U.S. immigration law with a focus
on consular and border issues. She is a director on AILA Board of Governors and a member of the AILA National Department of
State Liaison Committee. She has spoken at numerous AILA conferences and was elected as one of the Best Lawyers in Canada.
This practice advisory discusses three aspects of in-person Canadian border applications.
Specifically, it offers practice pointers regarding B-1 After-Sales Service, L-1, and TN
submissions at Northern Ports of Entry (POE) and Pre-Flight Inspection. We do not attempt to
provide a comprehensive examination of the vagaries of these three types of applications; rather,
we highlight a number of current issues for practitioners to consider in anticipation of making
one of these border applications.
B-1 AFTER-SALES SERVICE
Primary legal resources regarding the adjudication of North American Free Trade Agreement’s
(NAFTA) B-1 after-sales service applications for admission include 8 CFR 214.2(b)(4)(i)(F); 9
FAM 41.31 N10.1; and Chapter 15 of the Customs and Border Protection (CBP) Inspector’s
Field Manual (IFM) S.15.4(b)(1)(B)(3).
After-Sales Service Parameters
The B-1 category under NAFTA provides specific provision to Canadian and Mexican citizens
outlining after-sales service. This category is particularly useful for individuals who intend to
enter the United States to perform activities that would be traditionally considered work, but
because of the NAFTA provision, are able to enter without obtaining a work permit. Individuals
enter to perform after-sales service or train workers to perform services, pursuant to a warranty
or other service contract incidental to the sale of equipment or machinery, including computer
software, purchased from an enterprise located outside of the United States during the life of the
warranty or service agreement.
The contract for this work must be signed before entering the United States, and the after-sales
provisions must be part of the original contract for purchase and sale of a product. After-sales
service that comes independent of a contract for purchase and sale will not be considered after-
As such, service personnel who are coming to work or perform services on equipment or
machinery that is either out of warranty, or when no service contract exists, will require a work
permit. Thus, it is important to advise clients that when contemplating potential entrance to the
United States to undertake work emanating from a purchase or sale agreement they should
include a component that incorporates either a warranty for service or an after-sales service
clause in the contract to ensure that individuals do not have to obtain a work permit.
Service Contracts. Service contracts are not valid in and of themselves. There must be a sale of
a good in order to qualify for the after-sales service.
Leases. Long-term leases will not facilitate after-sales services under this provision and a work
permit will be required when work is being done on leased machinery or software.
Training. It is also important to note that training is allowed under this provision. Whereas
giving training is typically not permitted for B-1 entries, individuals entering under the after-
sales provision, may enter to train workers to perform services pursuant to the warranty or
service contract. This is important as it is a good way to ensure individuals who need to enter the
United States for training can do this work without obtaining a work permit.
Manufacturing. The law requires that the machinery, equipment, or computer software, be
manufactured outside the United States and be purchased from an enterprise outside the United
States. This fact is critical as the CBP officers will ask where the equipment was purchased and
manufactured. Equipment that is manufactured in the U.S. will result in a denial under the B-1
after-sales service category.
Sometimes problems arise when the manufacturing occurs partly in a foreign country and partly
in the United States. The attorney must argue, with supporting evidence, that the bulk of the
manufacturing was done outside the United States so as to meet the criteria within after-sales
provision. As noted above, if a good case cannot be made in support of the fact that the
machinery or software was made outside of the United States, then the B application will be
Software. After-sales service also includes situations where the sales agreement or purchase
order is for software upgrades to operate previously sold equipment. A service person coming to
the United States to install, configure, or give training on the upgraded software, may enter as a
business visitor as long as the after-sales service activities are clearly articulated in the new sales
agreement or purchase order.
A sales agreement or purchase order for upgraded is a new contract for a new product. The fact
that the upgraded software will be used on older equipment that may no longer not be under
warranty or under a service agreement, is irrelevant.
Commercial or Industrial Equipment. It is important to note that the equipment or machinery
under the training or service agreement, including computer software, must be commercial or
industry, not household or personal.
Renewals. It is important to note that clients may be advised to incorporate a renewal provision
into their contracts to facilitate after-sales services ad infinitum. The after-sales service provision
may state that this contract will incorporate all service that will be required and may be
continually renewed as part of this contract on a periodic basis and this will facilitate future after-
Third-Party Services. A third-party services may be also considered to be part of this after-sales
service as long as the contract with the third-party is entered into at the same time as the original
contract of sale. It is an interesting question, whether it must be part of the sales contract, and
arguably, it should be part of the sales contract. Either way, it is important to know that the
service does not have to be provided by the seller, and may be provided by a third-party as long
as it is embedded in the original contract of sale.
Remuneration. Individuals under the B-1 categories must be paid from outside the United
Immigrant Intent. Further, individuals must “have a foreign residence abroad, which they do
not intend to abandon; intend to enter the United States for a period of specifically limited
duration; and seek admission for the sole purpose of engaging in legitimate activities relating to
business.” [See 9 FAM 41.31 N1].
Period of Stay. The B-1 Category under According to 8 CFR §214.2(b), B-1 visitors may stay
in the United States for not more than one year. Often individuals believe that they may only
remain in the United States for six months. This is not the case, unless a Form I-94,
Arrival/Departure Record, is provided, as an applicant may enter up to one year without the
document. Of course, only Canadians do not regularly get a Form I-94. Therefore, , only
Canadians may stay for up to one year. Others will receive a Form I-94 and be subject to the
duration of status based on the document.
9 FAM 41.31 N3.4 says that “the applicant must demonstrate permanent employment,
meaningful business or financial connections, close family ties, or social or cultural associations,
which will indicate a strong inducement to return to the country of origin.” This is important
because officers will look for ties abroad in order to determine whether the individual is staying
for an extraordinarily long period of time and, therefore, would not be completing the work for
the after-sales service. The officer may be suspicious that, in fact, the individual is working in a
much more extensive manner. Thus, evidence of the length of time that would be required to stay
in the United States in order to complete the duties would be useful in order to prove that the
request for the duration of time to enter is appropriate.
Complete Documentation. The applicant must bring copy of his or her valid passport, as well as
a copy of the contract with after-sales provisions and a letter from the company outlining who
the company is, what the after-sales service activity will be, why the applicant has the
credentials, and an assertion that he or she will be paid from outside of Canada.
Inspection. It is important that the documentation supports the information provided and that all
applicants are prepped properly so as to ensure that they are able to enter the United States under
this category. It is also important that language, such as “work,” is not used upon entering, as
that is not considered acceptable under the B-1 category.
L 1 INTRACOMPANY TRANSFERS
Primary Legal Resources regarding the adjudication of L-1 Intracompany Transfer petitions on
the Northern Border include INA §§101(a)(15)(L), 101(a)(44), 214; 8 CFR §214.2(l); Chapter 15
of the IFM [S.15.4(b)(1)(B)(3)]; the U.S. Citizenship and Immigration Services (USCIS)
Adjudicator’s Field Manual; and agency guidance, with particular reference to:
Legacy INS Memorandum, J. Puleo, “Interpretation of Specialized Knowledge” (Mar. 9, 1994),
published on AILA InfoNet at Doc. No. 01052171 (posted May 21, 2001).
See Legacy INS Memorandum, F. Ohata, “Interpretation of Specialized Knowledge” (Dec. 20,
2002), published on AILA InfoNet at Doc. No. 03020548 (posted Feb. 5, 2003).
See Legacy INS Memorandum, F. Ohata, “Definition of Manager” (Dec. 20, 2002), published on
AILA InfoNet at Doc. No. 03020549 (posted Feb. 5, 2003).
USCIS Memorandum, M. Aytes, “AFM Update: Chapter 22: Employment-based Petitions
(AD03-01)” (Sept 12, 2006), published on AILA InfoNet at Doc. No. 06101910.
These and other crucial authorities are discussed in Daryl Buffenstein and Bo Cooper’s excellent
treatise, Business Immigration Law and Practice (AILA 2011).
Hostile Environment. Immigration lawyers and our clients seeking L visas are facing immense
challenges. A recently published analysis by the National Foundation for American Policy
www.nafp.com reflects that denials and delays at the USCIS service centers of L and H-1B
petition have dramatically increased during the past four years. The report notes, “If one
considers that in FY 2011 63 percent of all L-1B petitions received a Request for Evidence and
27 percent were issued a denial, that means U.S. Citizenship and Immigration Services
adjudicators denied or delayed between 63 percent to 90 percent of all L-1B petitions in 2011.”
It seems that CBP officers at the airports and border POEs will follow the meaning of the L
regulations more closely than USCIS officers. Our objective, therefore, is to provide attorneys
with practice strategies to mitigate the risks of denial and delay at the border.
L-1A Executives and Managers
Achieve Clarity in Structural Presentation
Prepare a presentation to the CBP officer that explains the client’s eligibility in a clear and
organized fashion. In larger companies, a certification of corporate relationships by the corporate
secretary or general counsel is likely to be sufficient. Otherwise, present certified copies of stock
Most immigration officials want to see organizational charts showing levels and types of
individuals supervised by the employee. Submit a copy of the foreign and U.S. organizational
structure, showing the location of the beneficiary’s current position in the organization’s. You
may include indirect reports, contractors supervised, teams led, and other types of supervision
than direct reports. In close cases, do not hesitate to supplement your supporting documents with
a chart breaking down the managerial or executive duties of each position and the percentage of
time that the employee devotes to each. In cases involving smaller companies, submit payroll
records substantiating the information contained in these charts. Provide a copy of the payroll
register, pay stubs, and personnel records from the foreign company covering the time you claim
the beneficiary has been employed abroad.
Don’t Forget the Executive Classification or the Functional Manager
Despite most people’s legitimate fears that functional management no longer is recognized by
immigration officials, it is a proper form of management. The more critical to the corporation the
function is, the better. In addition, the more liberal standard for an “executive” should always be
considered for positions with a policy-making role.
L-1B Specialized Knowledge
Again, Clarity of Presentation
Your detailed description of the beneficiary’s duties abroad should be specific and should
explain how the employee’s previous education, training, and employment qualify him or her to
use the specialized knowledge in the United States. Indicating the percentage of time spent on
each of the duties abroad that require an advanced level of knowledge of the processes and
procedures of the company. In the not-so-obvious cases, provide evidence distinguishing the
beneficiary’s specialized knowledge from the elementary or basic knowledge possessed by
Consider including extracts from technical or training manuals, certifications, the beneficiary’s
training certificates, a chart differentiating the beneficiary’s skills from “normal” skills, and
explanations of technical aspects of the beneficiary’s previous related experience and how that
relates to the transfer.
For example, the job analysis may be broken down as follows:
Just because you don’t have to prove it, doesn’t mean you shouldn’t
Sometimes, CBP officers apply an express or implied “labor shortage” test to L applicants, under
the subterfuge of inadequately specialized. It may be helpful to explain the shortage of U.S.
workers who have the lack of knowledge in the United States that is being supplied by the
advanced knowledge possessed by the L-1B worker.
The Value of a Blanket L Petition
A useful strategy for a company is to apply for a blanket L classification. This achieves two
objectives. First, it gives the company a certain cachet with the CBP as one that is sophisticated
enough to have had the USCIS approve its corporate structure. In cases of Mexican visa
applications, it allows the employee to avoid the USCIS and present the visa application to a
consular officer, who is likely to be less unrealistic than a USCIS officer on the
The only trade-off a blanket L company makes is to limit the L-1B candidates to specialized
knowledge professionals, which is worthwhile.
The Value of Intermittent Ls
Often, we are using Ls to enable an individual to have more access to the United States without
fear of confusion or delay at the border. This is particularly the case with employees who will
continue to live in Mexico or Canada, but commute often to the United States.
In these cases, we explain that individual is probably on business visits, but the L visa is being
sought to avoid confusion at the border. There seems to be a split among the CBP officers
regarding whether an individual who lives in Canada or Mexico and commutes regularly is an
intermittent user, but, often they are considered intermittent. This comes in handy when the L is
sought for more than the five– or seven-year limits on L-1Bs and As.
Whenever possible, send the applicant to apply for a visa or admission before he or she has
any serious U.S. work commitments
Never assume your case is ironclad. When applying for a NAFTA status, always have ample
time clarify eligibility if there are any questions.
Primary legal resources regarding “Trade NAFTA” (TN) petitions include INA §214(e); 8 CFR
§214.6; 9 FAM 41.59; the NAFTA list of professions and minimum requirements, Annex 1603,
Appendix 1603.D.1 of NAFTA,; the IFM §15.5(f) et al.; and nearly twenty years of agency
guidance available on AILA’s InfoNet.
Choice of Forum. Adjudication trends vary locally and nationally, and choice of forum is a key
TN consideration. Original TN petitions can be submitted to U.S. Customs and Border Protection
(CBP) at any Class A POE, at U.S. airports as an international arrival, or at U.S. Pre-Flight
Inspection (PFI) at foreign airports. [8 CFR §214.6(d)(2)] TN extensions and change of status
petitions may be filed from within the United States to USCIS’s Vermont Service Center (VSC)
with a Form I-129, Petition for a Nonimmigrant Worker. [8 CFR §214.6(h), www.uscis.gov]
Alternatively, an applicant can leave the United States, and reapply for admission as a TN,
effectively renewing the status. The latter process is sometimes called “flagpoling.”
For the most current information on POEs, (1) review and post at the AILA’s Message Center
(TN Forum); (2) review CBP liaison minutes; (3) solicit advice from chapter listservs and mentor
programs; and (4) consult border attorneys. One positive factor in choosing a POE is past history
with a chief inspector. Sometimes, it is prudent to file extensions at VSC, simply because it is
required by regulation to issue a Request for Evidence (RFE) or Notice of Intent to Deny
(NOID), which provides counsel with some opportunity to respond. An unanticipated denial at a
POE on a renewal can be extremely disruptive for the employer and employee. Similarly,
sometimes the automatic 240-day extension available via a timely USCIS extension filing is also
a choice of forum consideration. [See 8 CFR §274a.12(b)(20)].
When to File. There are occasional reports of applicants being turned away from POEs because
they are not going directly to work at the time of application (e.g., Saturday application for job
that starts on Monday; arriving a week in advance to set up home). Applicants should be advised
to ask for a chief inspector before departing, as CBP indicates in liaison meetings that petitions
submitted a reasonable period of time before the employee is needed at work will be adjudicated.
Consider offering the H-1B 10-day grace period by analogy for earlier entries. [8 CFR
Complete Documentation. Documentation requirements are listed at 8 CFR §214.6(d)(3). Many
petitions fail for too brief a job description. The letter and exhibits should address licensure
requirements, health care worker certification, and other trending issues with the agency.
Contracts should be supplied when applicable (e.g., management consultants, contractors). All
documents should be translated. CBP sometimes requires original documents to compare with
copies appended to the letter.
Period of Stay. TN petitions and extensions may be granted for up to three years. [8 CFR
§214.6(e); 8 CFR §214.6(h)(1)(iii)]. The maximum period of time requested may only be
granted if the individual’s passport is valid for that full period. Otherwise, the TN could be
granted just until the expiration date of the passport. [AILA/CBP Liaison Committee, AILA/CBP
Liaison Committee Practice Pointer: TN Admissions for Citizens of Canada, published on AILA
InfoNet at Doc. No. 12011764 (posted Jan. 17, 2012)]. TN I-94s should always be reviewed and
calendared by counsel after issuance, as inconsistency and errors are common.
Immigrant Intent. There is no specific limit on the aggregate period of time an alien may hold
TN status. [8 CFR §214.6(h)(1)(iv)]. However, the doctrine of dual intent does not apply. [73
Fed. Reg. 61332 (Oct. 16, 2008)]. Risk factors should be examined in advance, including family
relations in and outside the U.S., existing Form I-140 or labor certification petitions, ties and
equities abroad, previous length of stay, and whether the job offer is temporary or permanent.
Inspectors do not have to find immigrant intent where a Form I-140 has been filed on behalf of
the beneficiary. See, e.g. [AILA/NSC Liaison Committee, “NSC Backs Off I-140/TN Policy
Change” published on AILA InfoNet at Doc. No. 02111431 (posted Nov. 14, 2002; USCIS Letter
to C. Herrington (Apr. 21, 2008), published on AILA InfoNet at Doc. No. 09021280 (posted Feb.
Treaty Dependents. Canadians are visa-exempt, but after a TN has been granted, non-Canadian
Treaty Dependents (TD) must first process for a visa at a consulate before seeking admission.
Consular posts require confirmation of the TN approval. A request should be made in the petition
and verbally to CBP to fax confirmation of the TN approval to the Department of State’s
Kentucky Consular Center for entry of the approval into the Petition Information Management
System (PIMS). [AILA/CBP Liaison Practice Pointer: PIMS, L-2, and TD Visa Issuance for
Non-Canadian Spouses and Children, published on AILA InfoNet at Doc. 11012063 (posted Jan.
Inspection. CBP is foremost a police agency. Inspectors employ several tactics to verify
applications. They routinely go online to confirm facts in the petition, and may call the employer
directly. Titles on company websites and business cards should match those listed in the support
letter. Renewals are particularly subject to “title drift” (e.g., vice-president rather than engineer).
CBP may ask the applicant to briefly write down his or her job description on a piece of paper in
their own words to be compared with the submission. Other inspectors begin the review of the
petition with a lengthy oral examination of the applicant, disregarding the TN submission.
Expedited removal is applied in limited circumstances, where there is a finding of
misrepresentation or immigrant intent.
The range of technical expertise on TN issues varies widely within CBP. However, know that a
government agency should not “unilaterally impose novel substantive or evidentiary
requirements beyond those set forth [by regulation].” [Kazarian v. USCIS, 580 F.3d 1030, 3440-
41 (9th Cir. 2010), citing Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008)].
Chief Inspectors will review adverse determinations. POE contact information is available at
General Occupational Considerations
Self-Employment. The TN status cannot be used to establish a business or practice in the United
States. [IFM §15.5(f)(1)]. However, professionals may enter into pre-arranged agreements with
businesses already operating in the United States. [Id.] The enterprise must be “substantively
separate” from the TN professional seeking entry. The IFM provides inspectors with a
“substantial control test” to help make this determination. [Id.] A Canadian engineer with an
existing firm in Canada may therefore obtain a TN to fulfill a contract for a U.S. company, but
cannot directly control that company.
Job Title. CBP generally relies on Department of Labor (DOL) resources, such as the O*Net,
the Occupation Outlook Handbook, and the Dictionary of Occupational Titles (DOT) for
occupation definitions, as well as a limited number of expanded TN definitions in the IFM.
Where a job title varies from the occupation title, it sometimes can be helpful to append the
support letter with DOL excerpts from these resources.
Degree Requirement. Degrees should be “in the field or in a closely related field.” [Legacy INS
Memorandum, J. Williams, “Guidance for Processing Applicants Under the North American
Free Trade Agreement (NAFTA)” (Aug. 1, 2000), published on AILA InfoNet at Doc. No.
00101705 (posted Oct. 17, 2000)] Inspectors use their judgment in determining whether a degree
in an allied field may be appropriate. [Id.] Expect an inspector’s judgment to be exercised
conservatively, but there is room for advocacy in this regard.
Licensure. TN applicants may be subject to individual state licensure requirements, but a state
license is not a mandatory documentary requirement for a TN admission. [CBP Memorandum,
M. Hrinyak, “Additional TN (Trade NAFTA) Occupations: Actuaries and Plant Pathologists”
(Oct. 26, 2004), published on AILA InfoNet at Doc. No. 05033173 (posted Mar. 31, 2005)] Best
practice still is to identify whether a license is needed or not, and include a copy if it is. For
example, the lack of bar licensure for an in-house attorney can be an issue requiring special
consideration and explanation.
Managers and Executives. Beware of the situation where a TN applicant who has the
underlying qualifications for at TN (e.g., lawyer, accountant, engineer), but has been promoted
out of their occupation into a management position. For instance, an accountant who becomes a
chief financial officer for a company could be denied a TN under the Accountant occupation
because his or her role with the company is primarily financial management. On the other hand,
Controllers are typically approved. Note that CBP may subsequently review an approved TN,
and take action against the beneficiary, due to a changed role, indicia of fraud, or an adjudication
deemed errant. Such action may include referral to an INA §240 hearing and expedited removal,
depending on the circumstances. [INA §235(b)(3) et al.]
Select Categorical Considerations
Engineers. Engineers should seek TN admission to work in a field related to their specific area
of training. For example, a civil engineer should be seeking admission to do civil engineering.
Software engineer applications are particularly suspect in these circumstances. Transcripts
should be presented, and education highlighted, if advantageous. [Legacy INS Memorandum, J.
Williams, “Guidance for Processing Applicants Under the North American Free Trade
Agreement (NAFTA)” (Aug. 1, 2000), published on AILA InfoNet at Doc. No. 00101705 (posted
Oct. 17, 2000)].
Scientific Technicians/Technologists. CBP takes a narrow view of the Scientific
Technician/Technologist category, generally requiring that the applicant work onsite and directly
in support of a degreed professional in the enumerated categories of agricultural sciences,
astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or
physics. Support letters should first directly address the credentials of the supervisor, with copies
of the supervisors credentials attached, and then provide the credentials of the Scientific
Technician/Technologist. [Legacy INS Memorandum, J. Williams, “Field Guidance on the
Admission of Scientific Technicians/Technologists under the North American Free Trade
Agreement (IN 03-01)” (Nov. 7, 2002), published on AILA InfoNet at Doc. No. 02121331 (posted
Dec. 13, 2002)].
Management Consultants. Management consultants must be temporary and supernumerary to
the business they seek to advise. CBP typically exercises greater scrutiny with this category. A
strong petition may include things, such as (1) an at-arm’s-length contract, (2) a company
hierarchy chart with a segmented line extending to the consultant’s temporary role, (3) third-
party evidence documenting at least five years experience in the field, (4) evidence of other
consulting experience, and (5) a request for a period of admission less than three years. A
salesperson is not a management consultant, though they might temporarily advise a company in
regards to its sales management.
Computer Systems Analysts. The Computer Systems Analyst (CSA) category does not include
programmers, but the CSA may do some programming. [IFM §15.5(f)(2)(H)] In practice, the
information technology professions often have crossover in skill sets. A successful petition will
emphasize the data processing needs and hardware needs of the user groups that the CSA will
support, rather than more specific software coding.
Economists. Transcripts and degree titles should either be in economics, or some close variant.
College graduates often taken multiple economics courses, but this does not make them
Economists. MBA recipients can sometimes fit as Economists, depending on the emphasis of
their coursework and the job offer.
Medical Laboratory Technologists. Medical Laboratory Technologists/Medical Technologists
(Clinical Laboratory Scientists) require health care worker certifications, as do Registered
Nurses, Occupational Therapists, and Physical Therapists. [INA §212(a)(5)(C); 8 CFR
§212.15(c)]. Many similar medical technology professions do not require certificates, such as
Nuclear Medicine Technologists, Radiologic Technologists, Biomedical Engineers, and Surgical
Technologists. [Commission on Graduates of Foreign Nursing Schools, Letter to DHS, B.
Nichols (Sept. 17, 2004), published on AILA InfoNet at Doc. No. 08080460].