Resources for 04-26-11 Seminar - AILA webCLE

airport handling international traffic…” as a location where such a petition may be presented.)Regardless of where an L‐1 petition is filed, the petitioning employer is not required to appear. 8 CFR§214.2(l)(17)(i); CBP Inspector’s Field Manual §15.5(e)(2).Procedures for Handling Deficient or Deniable Petitions1. Deficient PetitionsIf an L petition presented by a Canadian citizen in conjunction with an application for admission islacking necessary supporting documentation or is otherwise deficient, the inspecting CBP officer shallreturn it to the applicant for admission. 8 CFR §214.2(l)(17)(iv). The officer should instruct the applicantfor admission to obtain the necessary documentation from the petitioner to correct the deficiency. Id.The officer should not accept the filing fee for a petition lacking necessary documentation or that isotherwise deficient. Id. Instead, the filing fee should be accepted once the necessary documents arepresented or the deficiency overcome. Id.The foregoing paragraph contains several noteworthy observations. First, the Code of FederalRegulations governing the Canadian L petition adjudication procedures uses mandatory language, notpermissive language. The regulations clearly state that the CBP inspecting officer “shall return” such apetition to an applicant. Officers do not have discretionary authority in this matter. Accordingly, CBPofficers are required to return to the applicant any L‐1 petition lacking necessary documentation or thatis otherwise deficient.Second, officers should not accept a petition filing fee for any petition that lacks necessarydocumentation or is otherwise deficient. Of necessity, officers will be required to conduct an initialreview of an L petition presented by a citizen of Canada concurrently with an application for admissionto the United States in order to determine if the petition includes all necessary documentation or isotherwise deficient. Only after making such a preliminary review will an officer be able to determinewhether the petition includes sufficient documentation and information or whether it should bereturned to the applicant along with the tendered filing fee. Only when an applicant returns withsufficient documentation or information to overcome a deficiency may the officer accept the filing feefor the L petition.Third, there is an implicit rationale underlying the procedures described in 8 CFR §214.2(l)(17)(iv). Asnoted in the section above, the petitioner, not the Canadian citizen applicant for admission, isresponsible for preparing and filing the L petition. Furthermore, the petitioner is not required to appearwhen an L petition is filed, whether this takes place at a USCIS Service Center or at a port of entry.Therefore, the Canadian applicant for admission, in most circumstances, will not have documentation orinformation demonstrating that the petitioner is a qualifying organization. Documentation relating tothe duties to be performed by the beneficiary also is unlikely to be available at a port of entry. Suchdocumentation normally would be needed to provide details concerning the qualifying nature of theduties performed. In apparent acknowledgment of these realities, the regulations instruct inspectingofficers to return incomplete or deficient petitions to the applicant in order to gather the neededdocuments or information from the petitioner.AILA InfoNet Doc. No. 11030736. (Posted 3/7/11)