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Exporting to the United States - Business travel to the U.S.

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6. Business travel to the U.S.

Since September 2001, the United States has become much more strict about its border security.While Canadians tend to receive preferential treatment compared to citizens of some other countries, American security concerns do affect Canadian business travellers who wish to enter the U.S.

6.1. Documentation required for entering the United States

The basic requirements for entry into theU.S. are set out under theWesternHemisphere Travel Initiative (WHTI). This is aU.S. law requiring all travellers, including Canadians, to carry a passport or other appropriate secure documentation when travelling to theUnited States. Before beginning your trip, check for updated information on these requirements through the Canada Border Services Agency website at www.cbsa-asfc.gc.ca/whti-ivho/menu-eng.html.

As of July 2012, the documentation requirements were as follows:

6.2. Entering the U.S. under NAFTA classifications –

A Canadian citizen travelling to the United States for personal reasons needs only the basic identification described in the previous section. However, if you are a Canadian citizen and you are travelling to the U.S. for business purposes, you will require authorization to enter the U.S. to work. In order to obtain this, you will need documentation that states the purpose of your entry and indicates that you do not intend to remain in the U.S. indefinitely.

While the Temporary Entry provisions of NAFTA make it easier to enter the United States, they do not replace existing U.S. Temporary Entry rules and immigration regulations — you must still comply with immigration laws and with regulations on national security, public health and safety. (If you reside in Canada but you are not a Canadian citizen, please refer to Section 6.6, "If you are not a Canadian citizen.")

Under Chapter 16 of NAFTA, four categories of Canadian businesspersons can enter the United States temporarily to conduct business. Each of the four has its own requirements, which you must meet before you can enter the United States, and it is generally advisable to check for recent changes in these requirements before you begin your trip.

Detailed information about the classifications is available on International Trade Canada's Cross-Border Movement of Business Persons website at
www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-1.aspx. Another source of information is Foreign Affairs Canada’s Canada-U.S. Relations website; refer to www.can-am.gc.ca.

6.2.1. Business visitors (B-1)

You may qualify as a business visitor if you enter the U.S. on a temporary basis to perform certain types of commercial activities such as research and design, growth, manufacturing and production, marketing, sales, distribution, after-sales service and general service. Refer to www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-2.aspx for further specifics.

More specifically, you may qualify as a NAFTA business visitor if:

You establish your B-1 classification at the time you enter the U.S. To do this, you must present proof of Canadian citizenship (ideally, your Canadian passport) and a letter outlining the purpose of your business trip. The letter should include your itinerary while in the U.S., the list of businesses and business contacts you plan to visit, and a statement that your primary source of remuneration is outside the United States. In addition, if you are entering to perform after-sales service, you will need a copy of the sales invoice and the related warranty and/or service agreement.

Under the B-1 classification, you can remain in the U.S. until you conclude your business, as long as you do not stay for more than six months. However, please remember that the length of your stay is at the discretion of United States Citizenship and Immigration Services (USCIS) officials. If you expect to make frequent trips across the border, it is a good idea to have a record of entry document (I-94) placed in your passport. The I-94 is valid for up to six months. If you are a frequent Business Visitor, but the purpose of entry is different for each visit, you will not be issued an I-94 document. You cannot apply for an I-94 before seeking temporary entry into the United States.

As a business visitor, you are very likely to be granted entry under the B-1 classification to provide marketing activities on behalf of your company, such as the promotion of goods for subsequent orders. However, you can be refused entry if you intend to provide products or services directly. Sales representatives and agents are authorized to take orders or negotiate contracts for good or services for an enterprise located in Canada, but are not authorized to deliver or provide the goods or services while in the United States. Entering the United States to market U.S.-made products is also prohibited under the B-1 classification.

The need for honesty about your business intentions in the U.S. is essential. Lying to a border official is a serious offence, and U.S. immigration officers have the authority to bar non-U.S. citizens from entering the U.S. for five years if they present false documentation or misrepresent themselves (for example, by saying they are on holiday when the real purpose of the trip is business).

6.2.2. Professionals (TN)

Under the NAFTA, certain Canadian professionals may enter the United States to carry out professional activities for an employer or on contract to an enterprise located in a member country. This includes performing training functions or conducting seminars related to your profession. Professionals are exempt from the job-validation process normally required of individuals seeking to work in another country.

More simply put, this means that you can be paid for working in your profession in the U.S., provided your profession is among the 63 listed under NAFTA, and provided you meet the educational requirements of the profession. The minimum requirement for most of the professions is a bachelor's degree. However, there are other qualifications as well; you can find out about them and about the list of eligible professions on the Cross-Border Movement of Business Persons website at
www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-3.aspx.

You may qualify as a NAFTA Professional if:

You may apply for entry to the U.S. as a NAFTA professional at major land border ports or airports handling international flights with pre-flight inspection stations. There is no written application, and no prior petition, labour certification or prior approval required for Canadians applying for admission to the U.S. under the NAFTA professional category. However, it should be noted that under the ‘Action Plan on Perimeter Security and Economic Competiveness’, recently signed by Canada and the United States, the U.S. intend to introduce a mechanism by which it will be possible to obtain approval in advance. This will provide better certainty to applicants before they get to the border.

At the U.S. port of entry, you must establish that you qualify as a NAFTA professional. You should carry with you proof of Canadian citizenship (ideally, your Canadian passport) and a letter from your prospective employer, or a signed contract, outlining the purpose of your entry. The letter or contract should include:

On approval, you will be issued an I-94 Record of Entry Document indicating the TN classification code. The I-94 is your employment authorization and allows you to obtain a social security number from the U.S. Social Security Administration. Please note that there is a processing fee for the TN employment authorization.

Also, please note that you must have pre-arranged employment to qualify for this category; individuals seeking work are not covered by the agreement.

6.2.3. Intra-company transferees (L-1)

Intra-Company Transferees (ICT) are business persons employed by an enterprise to perform managerial or executive functions, or functions which require specialized knowledge, and are being transferred to an enterprise, parent branch, subsidiary or affiliated branch located in the United States.

In other words, if your company has a branch or subsidiary in the U.S., you can send certain categories of qualified Canadian staff to work there. Again, you will find details of the required qualifications on the Cross-Border Movement of Business Persons website at www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-4.aspx.

This category is very flexible in NAFTA; for example, Canadian transferees may be paid either by the Canadian parent company or by the U.S. subsidiary. The L-1 visa is generally issued for three years (one year for a new company). Furthermore, spouses of L-1 holders can obtain a L-2 visa, which allows them to work in the U.S. Extensions allow executive and manager transferees to work in the U.S. for up to seven years, while specialized knowledge transferees are limited to five years.

An approved I-129, or petition for temporary worker, is required before you will be admitted to the U.S. as an Intra-Company Transferee. To obtain an L-1 visa, your U.S. employer must submit a petition for a Non-immigrant Worker through the U.S. Citizenship and Immigration Services at www.uscis.gov/portal/site/uscis . The form’s instruction sheet tells you where to send the completed petition. U.S. authorities recommend that you submit it no less than 45 days before you intend to enter the United States. While you may submit this petition at the port of entry, it is strongly recommended that your U.S. employer submit the petition in advance of your entry. You may be also asked to provide supporting evidence that could delay your entry into the United States.

At the U.S. port of entry, you must establish that you qualify as a NAFTA Intra-Company Transferee. You should carry with you proof of Canadian Citizenship, ideally your Canadian passport, a letter outlining the details of your transfer, and a job offer or contract for the position. This will assist in your inspection by U.S. immigration officials. The letter should include:

6.2.4. Traders (E-1) and investors (E-2)

The NAFTA allows Traders to enter the U.S. to conduct substantial trade (over 50 percent of business volume) in goods and services, principally between Canada and the U.S. The NAFTA also allows Investors to enter the U.S. to develop and direct a bona-fide company in which they have made a substantial investment of capital, and thereby own at least 50 percent, or maintain a controlling interest. Investors category applies to business persons who intend to establish, develop, administer or provide consulting or technical services to manage an investment to which foreign capital has been, or is in the process of being, committed. Investors must be involved in supervisory and executives activities, or activities requiring essential skills activities.

Request for Trader (E-1) and Investors (E-2) status are processed only at the U.S. consulate general in Toronto. Refer to toronto.usconsulate.gov/visas/treaty-trader-visas.html for more information.

To apply as a Trader or Investor in the U.S., you must complete form DS-156 and the supplement DS-156E, available at the U.S. consulate in Toronto, by phone at 1-900-451-2778, or on-line at toronto.usconsulate.gov, and pay the applicable processing fee. Once your application is approved, you will be contacted to arrange an interview in Toronto before your visa is issued. While the principal applicant must take the interview at the consulate in Toronto, dependants on your application may choose to have their interviews at one of the other U.S. consulates in Canada. You will be provided with an I-94 document at a U.S. port of entry, which is your employment authorization. You must present the I-94 to the U.S. Social Security Administration to receive a social security number.

When applying for NAFTA Trader status you must demonstrate that:

When applying for NAFTA investor status you must demonstrate that:

When crossing the borders, in addition to your application, you must establish that you qualify as a NAFTA Trader or Investor. Along with the relevant application forms, you will need to provide clear evidence of your qualifications as a Trader or Investor. You should include the following documents with your application:

6.3. Entering the U.S. under non-NAFTA classifications

If you have a job offer or signed contact from an employer in the United States or Mexico, but you do not qualify under the four categories of NAFTA businesspersons, you may still qualify for entry under U.S. general immigration provisions.

Occupations not covered under the NAFTA require different types of temporary worker authorizations. These include athletes, agricultural workers, computer programmers, journalists, performers, trades people, trainees, students and volunteers, among others. Information on the various processes for temporary entry into the U.S. is available on the USCIS Web site www.uscis.gov U.S. consulate general in Toronto.

Performing artists (O1, O2, P1, P2, P3)

Canadian performing artists (for example, individuals or members of a Canadian entertainment group in a creative field such as music, opera, dance, theatre or the circus), who have a signed contract with an enterprise in the U.S. for single or multiple performances, need a temporary employment visa. For more information, obtain the brochure Canadian Performers: How to Enter the United States, available at www.publications.gc.ca/collections/Collection/E2-171-2002E.pdf, or by calling 1-800-267-8376.

6.3.2. Specialty occupations (H1-B)

If you do not qualify under the temporary entry provision into the United States, you may still qualify under existing immigration regulations. Generally, a specialty occupation is defined as one that requires the theoretical and practical application of a body of highly specialized knowledge and a Bachelor’s degree in the specific specialty. A combination of education and experience and/or specialized training equivalent to a degree is also acceptable. To qualify, your prospective U.S. employer must secure a certified Labour Condition Application (Form ETA 9035) from the U.S. Employment and Training Administration of the Department of Labor. You must then submit an I-129 petition to the United States Citizenship and Immigration Services (USCIS). Upon approval of the I-129 petition, you may apply for temporary entry at any port of entry. For more information, refer to www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-6.aspx.

6.3.3. Medium-or lower-skilled workers (H-2B)

The H-2B non-agricultural classification for temporary workers can be used by U.S.-based enterprises (such as a U.S. subsidiary of a Canadian firm) to hire medium- or lower-skilled workers to perform temporary services or non-agricultural labour within the United States. An H-2B visa will not be issued if the labour or service displaces U.S. workers capable of performing such services or labour, or if the employment of the temporary worker has an adverse effect on the wages and working conditions of U.S. workers. For more information, refer to www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/temp05-6.aspx.

If you need H-2B visas and you are a novice at dealing with U.S. immigration laws, you should obtain legal advice from a U.S. lawyer who specializes in immigration procedures. You may save yourself a good deal of time, money and frustration by doing so.

6.3.4. The Jay Treaty

If you were born in Canada and have at least 50 percent Aboriginal blood, you may be entitled to certain rights and benefits in the United States. If you plan to enter the U.S. for business purposes under this provision, you should first obtain specialist advice about the procedures for doing so.

6.4. Travelling with samples and business gifts

If you need to transport samples and business gifts across the border, you have several ways of doing so:

More information about these arrangements is available on the U.S. Customs and Border Protection website at
www.cbp.gov/xp/cgov/trade/trade_programs/international_agreements/free_trade/nafta/commercial_samples_lp.xml.

6.5. Managing entry problems

Some types of entry can present difficulties, especially if you are in the service sector, if you are an artist or craftsperson, or if you are participating in a trade show.

6.5.1. Immigration issues for construction services

Cross-border movement of workers remains a difficult issue for Canadian construction companies engaged in projects in the U.S. The entry of construction workers and tradespeople is not covered by NAFTA; instead, the entry of these types of workers is subject to labour certification by the U.S. Department of Labour.

As a result, scheduling can be a major issue for a construction company; getting workers cleared for U.S. entry can take weeks, which can cause serious problems with project deadlines. Managing the application process yourself will be complicated and time-consuming, and your best strategy may be to hire a legal expert to deal with it. You can obtain more detailed information from the Canadian Construction Association’s Guide to Doing Business in the United States, available through your local construction association. For more information, refer to www.cca-acc.com/en/home-en-2/industry-practices/cca-general-publications.

6.5.2. Immigration issues for after-sales services

Repair, warranty, maintenance and related services are described under NAFTA as work done by

installers, repair and maintenance personnel and supervisors, with specialized knowledge essential to a seller’s contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract which is incidental to the sale of commercial or industrial equipment or machinery. This includes computer software, purchased from an enterprise located outside the U.S.

U.S. immigration officials can be quite sensitive about after-sales service. Hands-on building and construction work does not fall under the after-sales service provision of the NAFTA business visitor category, so you will need to prove that the work you will be doing inside the U.S. does, in fact, fall under the NAFTA regulations. To do so, you will need a copy of the original sales contract that provides for the after-sales service. Presenting a company letter that describes the reasons for the business trip is also a good idea.

6.5.3. Trade shows and sales staff

NAFTA allows Canadian business people to enter the U.S. to attend a trade fair or convention. Sales staff can also enter to take orders or negotiate contracts for goods or services, provided they do not deliver these goods or services (that is, do the work) and provided they do not accept payments for them. If you are transporting samples or business gifts, you will have to declare them at the border, as described earlier in Section 6.4, "Travelling with samples and business gifts."

6.5.4. Immigration issues for artists and craftspeople

If you are a craftsperson or visual artist, you will likely enter the U.S. under the business visitor (B-1) classification. If you are exhibiting your work at a U.S. art show or craft fair, however, you cannot personally exchange your work for money there, because the B-1 classification does not allow it. If you are caught doing so, the penalties include seizure of your work, fines and being barred from entry to the U.S. for five years or more. You are allowed to take orders, however, for shipment after you return to Canada. Another alternative is to hire an American to handle the sales. This is legitimate because the intent of the regulations is to protect American jobs, not to prevent you from selling your work to Americans.

Before you and your work leave for the U.S., you must prepare documentation not only for its U.S. entry but also its re-entry into Canada. It is highly recommended that you have the Canada Border Services Agency (CBSA) verify the shipment before you take it to the U.S., because the export documents they provide will prove the origin of your goods when you return home. Without such documents, you may find yourself trying to convince a Canadian customs officer that the goods in your possession did in fact originate in Canada. Check with the CBSA to find out what procedures you should follow; contact information is at
www.cbsa.gc.ca/contact/menu-eng.html.

6.6. If you are not a Canadian citizen

The regulations governing entry of non-Canadians into the U.S. vary according to citizenship and may change without much notice. If you are a Canadian permanent resident but a third-country national, check your status with U.S. immigration officials before you set out on your business trip.

The regulations governing entry of non-Canadians into the U.S. vary according to citizenship and may change without much notice. Consequently, if you are a Canadian permanent resident (defined as "someone who has been allowed to enter Canada as an immigrant, but who has not become a Canadian citizen"), check your status with U.S. immigration officials before you set out on your business trip. You can get information about doing this from the United States Citizenship and Immigration Services at www.uscis.gov. You might also wish to query the Government of Canada’s Consular Affairs Bureau at www.travel.gc.ca for additional information about your particular situation.

Having left Canada, you will presumably want to return. If you are a Canadian permanent resident, you will need a Canadian Permanent Resident Card to do so. You can apply for the card through Citizenship and Immigration Canada's website at www.cic.gc.ca/english/information/pr-card/index.asp or by calling 1-888-242-2100.

You will find further information on U.S. entry for third-country nationals - that is, citizens of nations other than the U.S and Canada - on the U.S. Consular Services website at www.travel.state.gov. Other resources are on the U.S. Citizenship and Immigration Services website at www.uscis.gov .

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