Canadian employers often need employees to travel to the United States for business. However, Canadians have to be aware of work status requirements and the difference between business travel and work travel.
The following frequently asked questions will equip employers with knowledge and tips that may assist personnel entering the U.S.:
Who is a U.S. business visitor?
Canadian employers and business people should take the time to understand what constitutes a legitimate business visitor activity. An individual going to the U.S. may enter as a “B-1” business visitor on behalf of his Canadian business or Canadian employer to:
•attend a business meeting
•negotiate the terms of a contract
•attend a conference or trade show
•provide after-sales service in connection with the sale of a product (in some cases).
In general, Canadian citizens who perform these business activities are “visa exempt” and do not require a visa to enter the U.S. If a U.S. customs and border protection (USCBP) officer is convinced the business travel is legitimate and other requirements for admission are satisfied, admission will be granted at the port of entry.
What are the U.S. immigration requirements for business visitors?
The traveller should be prepared to satisfy the USCBP officer at the port of entry that she meets the three distinct requirements outlined below. In the event the employee has had problems crossing the border in the past, it might be useful to ensure she has adequate supporting documentation prepared in advance.
• Permanent residence: An employee should have a home in Canada to return to. Proof of residence may be demonstrated by a title deed or a lease. In some cases, further evidence may be requested, such as utility or phone bills or evidence of assets.
•Intent to enter the U.S. for a temporary period: The business visitor must be prepared to demonstrate the intended entry to the U.S. is for a limited period. A detailed itinerary for the business trip, a return trip ticket and evidence of strong business and family ties to Canada would help.
•Intent to engage in permissible business activities: The third and often most onerous requirement is that the employee satisfies the USCBP officer the visit will not involve him engaging in unauthorized “work” in the United States. The most appropriate evidence is in the form of a letter from the Canadian employer identifying the specific business purpose, the employee’s position in Canada, the date Canadian employment commenced, annual salary and the date the employee will return to his job in Canada.
What is the difference between business and work?
As mentioned above, a business visitor enters the United States on behalf of her Canadian employer or business to engage in activities such as attending a business meeting, engaging in sales on behalf of her Canadian employer or attending a conference.
On the other hand, an individual who enters the U.S. to provide services to a client or business in the U.S. is viewed as engaging in work. The test USCBP often applies is whether or not the U.S. party could hire an individual in the U.S. to perform the service. If so, then it is work. Whether or not the U.S. entity attempted to find a U.S. professional to provide the services is not relevant in this determination.
A common misconception is that employees are permitted to perform services in the U.S. as business visitors as long as they are not getting paid directly from the U.S. source. This is not the case. In general, any service that is provided to a U.S. entity while the Canadian is on U.S. soil is considered an activity outside of B-1 business visitor classification and work authorization is required.
Here’s a good test: A Canadian company looking to attract a U.S. client may send the employee to the U.S. as part of the marketing effort for a meeting or contract negotiation. Once a contract for services is signed, any subsequent activity would generally be viewed as work and work authorization would be required.
May a Canadian provide any services to a U.S. entity as a business visitor?
Under the North American Free Trade Agreement (NAFTA), Canadian businesses that have sold a product to an American entity may send personnel to enter the U.S. to provide “after-sales service” incidental to the sale of the product. After-sales service may include installation, assembly, repair, maintenance and training.
The provision for after-sales service must be specifically provided for in the original sales agreement and the contract must be shown to USCBP officers at the port of entry. The individual entering to provide the after-sales service must possess specific specialized knowledge and skill pertaining to the services required.
The after-sales service can be a third-party contractor, as long as the provision was provided for in the original contract of sale. It is important to note the product must have been manufactured outside of the United States.
If the activity falls within the definition of work, what options are available?
If the activity does not fall within the after-sales service category, work authorization is required. Canadians may benefit from facilitated processing of work authorization at U.S./Canada land border crossings and airports. Canadians qualified in a profession listed in Appendix 1603.D.1 of NAFTA may seek treaty national (TN) status.
TN status is requested on behalf of the Canadian employee by the U.S. client or entity requesting professional services in the form of a letter. The TN letter must contain very specific elements to demonstrate the Canadian employee’s qualification for the status. Additional supporting documents must be shown by the employee.
Examples of supporting documentation for TN status include academic credentials, reference letters, a resumé and a Canadian employer support letter.
Work authorization options also exist for qualified intra-company transferee executives, managers and employees with specialized knowledge being transferred to a U.S. parent, affiliate, branch or sister company of a Canadian corporate entity.
For those who do not fit within the above categories, other options may be examined.
Taking the time to prepare and understand the requirements of U.S. laws can prove beneficial in removing the anxiety that can be associated with business travel. Often, activities are not easily identifiable as clearly falling within the definition of business or work. It may be best to consult an expert knowledgeable in immigration laws before sending employees across the 49th parallel.
Saba Z. Naqvi is an immigration lawyer at Boughton Law in Vancouver. She can be reached at (604) 647-4139 or email@example.com. Please note the above article is for informational purposes only and does not constitute legal advice.
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