Juroviesky & Ricci

Under What Circumstances may Canadian Citizens Enter the United States as a Business Visitor?
By Juroviesky & Ricci LLP
Feb 23, 2005

Purpose

 

The purpose of this article is to examine the particular status and entry privileges that are available to Canadian citizens who enter the United States for business purposes, otherwise commonly referred to as “B-1” type business visits to the United States.

 

When a Canadian citizen[1] enters the United States for purposes of conducting legitimate activities of a commercial or professional nature on U.S. soil (i.e., business), the United States Citizenship and Immigration Services (“USCIS”) officials have an interest of knowing the “details” of such entry.

 

When the Canadian citizen claims to be visiting the United States temporarily for the specific purpose of engaging in business (i.e., a “Business Visitor” or “BV”), it is important that they understand the acceptable parameters of their “visit”, as well as the permissible underpinnings of their “business” purpose prior to arriving at a U.S. port of entry.

 

Introduction

 

When a person visits the United States for the purpose of engaging in business there, they need to obtain status as a non-immigrant B-1 visa holder, as well as permission to enter or be admitted to the United States as a BV.  The requirement to obtain a physical non-immigrant B-1 visitor’s visa[2] is waived for Canadian citizens requesting a visit to the United States on business.  However, this visa waiver does not include a waiver from any of the key requirements that must be fulfilled by a Canadian citizen (at the port of entry) when visiting the United States on business.  Such key requirements are necessary to overcome a presumption that every visitor applicant is an intending immigrant (i.e., intends to stay in the United States on a permanent basis).  The key requirements can be broken down into three important concepts:

 

(1) The BV entering the United States must prove that they are a “Canadian citizen”;

 

(2) The BV entering the United States must qualify as a “visitor” (i.e., entering the United States on a temporary basis); and

 

(3) The BV’s purpose of such temporary visit to the United States qualifies as permissible “business” as opposed to non-permissible “gainful employment”.

 

Canadian Citizen

 

As mentioned above, a Canadian citizen is able to obtain status as a B-1 BV and obtain permission to enter the United States to carry out specific permissible business activity at the port-of-entry (as opposed to being subject to the regular application/interview process).[3]  However, in order to be afforded this privilege, the Canadian citizen must show “proof” of Canadian citizenship at the border.  Although a Canadian passport is not required of a Canadian citizen at the border, it is the best “proof” that such person is a Canadian citizen.[4]  Other forms of proof are a birth certificate and certain types of government issued photo identification.[5]

 

Temporary Visitor

 

Peeling apart the term “Business Visitor”, as the name suggests, the person seeking entry into the U.S. must be a “visitor”.  The law mandates that the “visitor” only seeks to enter the U.S. for a “temporary visit”.  The term “temporary visit” is generally defined as a limited period of stay with the intent to return.  In this regard, when a Canadian citizen enters the United States on a business visit, the business to be performed in the United States must be on a strictly “temporary” basis and must last only for a period of time which is fair and reasonable for the completion of the purpose of the visit.  While at the border port of entry, the Canadian citizen would need to successfully prove that the nature of the trip to the United States is “temporary”.

 

At the outset of proving the temporary nature of a visit to the United States, the Canadian citizen must demonstrate one or more of the following:

 

  1. He or she has a residence in Canada (i.e., an actual dwelling place, in fact);
  2. He or she has NO intention of abandoning the Canadian residence for the duration of stay in the United States; and
  3. He or she intends and agrees to depart the United States at the expiration of the requested temporary stay and has permission to re-enter Canada at that time.

 

As supporting documentation for the Canadian citizen to prove that the visit is “temporary” in nature (and thus, to prove the above 3 factual assertions), he or she may need one or more of the following on their person at the port of entry (note that this is not an exhaustive list):

 

  • Proof of ownership of a home (i.e., title, mortgage documents, and pictures);
  • Proof of other residence where you have resided for the past 6 months (i.e., rental/lease, confirmation of rent/lease payments, mail containing address);
  • Proof of Canadian telephone numbers (personal and business);
  • Proof of Canadian employment (details of position, company, manager/supervisor, and business card (if any));
  • Names and addresses of spouse, children, and/or close family members remaining in Canada (pictures may be acceptable).  Additionally, the BV must demonstrate that adequate provision for financial support of dependants has been made while the BV is in the U.S. (especially if the BV is the family’s principal wage earner);
  • Bank and investment account statements, indicating wealth in Canada;
  • If traveling to the U.S. by air, a return ticket;
  • Complete itinerary of BV’s U.S. visit (including places visiting, details of people visiting, accommodation information, and return dates);
  • Evidence of any social ties in Canada;
  • Details of BV’s prior trips to the United States (This is useful to USCIS because if BV traveled to the U.S. before on a visit, and left the U.S. when BV claimed to leave, BV’s prior behavior indicates that BV can “honor” the requirement to return to Canada, which is a positive factor); and
  • Details that BV can be self-supported financially for the temporary amount of time that BV will spend in the United States (to avoid the suspicion of unlawful employment while in the U.S.).[6]

 

Permissible Business

 

The next element of the term “Business Visitor” is the meaning of “business”.  Canadian citizen’s may obtain status and be admitted as a temporary BV to the United States for the purpose of engaging in “business” activity, but not for the purpose of being “gainfully employed”.  Note that "gainful employment" may require another type of U.S. work visa/authorization.

 

Boiling down section 101(a)(15)(B) of the Immigration and Nationality Act (“INA”) into its essential elements, an individual eligible for B-1 status is defined [in part] as an alien (other than one coming for the purpose of performing skilled or unskilled labor) having residence in a foreign country which he/she has no intention of abandoning, and who is visiting (as discussed above) the United States temporarily for “business”.  Thus, this section mandates at least two requirements: (1) BV only conducts “business” in the U.S., and (2) BV does not conduct any skilled or unskilled labor while in the U.S.  A delicate balance is needed to comply with both of these requirements simultaneously.

 

The term “business”, as used in INA section 101(a)(15)(B), commonly refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature.  It does not include local employment or labor for hire.

 

It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States.  The following may help with this distinction:

 

  • The principle place of business and the actual accrual of profits from the business activity conducted in the U.S., is in a foreign country (i.e., Canada);
  • The principle purpose of the business activities performed in the U.S. must be to further, or is incident to, “international commerce of business”;
  • Activities performed in the U.S., must be incidental to work (which will principally be performed outside the United States);
  • No salary or other remuneration is received from a U.S. source (other than incidental and minor expenses); and
  • A full and candid description of the purpose of the trip is provided (in the form of a letter from the Canadian business/employer).  Note that the purpose must fall within one of the categories of allowable “business” visits and the BV may need proof to substantiate the stated purpose (i.e., a member of a board of directors of a U.S. corporation attending a meeting in the U.S., may need the documents to prove such membership).

 

In this regard, under the appropriate circumstances, the following examples may[7] constitute a permissible “business visit” purpose (note that all other requirements discussed above apply and that this is not an exhaustive list of permissible activities under a B-1 visit):

 

  • Canadian citizens traveling to the U.S. to engage in commercial transactions which do not involve “gainful employment” in the United States (such as a merchant who takes orders for goods manufactured in Canada and shipped from Canada to US customers)[8];
  • Negotiate (but not close) contracts;
  • Consult with business associates;
  • Participate in (not teach or lecture) scientific, education, professional, or business conventions, conferences, or seminars;
  • Undertake independent research;
  • A Canadian citizen who is a member of the board of directors of a U.S. corporation seeking to enter the U.S. to attend a meeting of the board or to perform other functions resulting from membership on the board;
  • With exceptions to building or construction workers[9], a Canadian citizen entering the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company in Canada or to train U.S. workers to perform such services (note that the contract of sale must specifically require the seller to provide such services or training, the contract must be chiefly for the purpose of the “physical product” and not the service, the Canadian citizen must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training, and must receive no salary from a U.S. source);
  • Commercial truck drivers engaged ONLY in “international hauling”; and
  • A Canadian citizen entering the U.S., to open or be employed in a new branch, subsidiary, or affiliate of the Canadian employer, if the Canadian citizen will become eligible for status as an L-1 upon securing proof of acquisition of physical premises.

 

North American Free Trade Agreement (“NAFTA”)

 

NAFTA and certain rules in the U.S. Code of Federal Regulations provides for an expanded class of persons who can enter the United States as BVs as long as the requirements discussed above are met, and the Canadian citizen BV provides evidence that they will engage in one of the occupations or professions set forth in Appendix 1603.A.1 to Annex 1603 of NAFTA, 8 C.F.R. section 214.2(b)(4)(i)(A)-(G).  These occupations and professions include (but are not limited to):

 

  • Research and Design (technical, scientific, and statistical researchers);
  • Growth, Manufacture, and Production;
  • Marketing (Market researchers and analysts, trade fair and promotional personnel attending an event);
  • Sales (Sales representatives and agents taking orders or negotiating contracts for goods and/or services, but not delivering goods or providing services);
  • Distribution (including transportation officers and customs brokers); and
  • General Service (including management and supervisory personnel engaged in commercial transactions, financial service personnel, public relation personnel, tourism personnel, tour bus operators, translators, and other recognized professionals as set out NAFTA.[10]

 

Conclusion

 

The B-1 “business visit” classification and admission thereunder may be a beneficial tool to begin exploitation of the U.S. marketplace.  Given the informative name of the B-1 visa classification (i.e., “Business Visitor”), many travelers may have a tendency to mentally oversimplify the legal requirements for this visa by relying on their intuition as to the legal meaning of the term “Business Visitor”.

 

However, hopefully, as demonstrated above, the requirements for this visa are anything but “simple” or “intuitive”.  Accordingly, given the legal nuances and complexities of the B-1 visa classification, it would be highly judicious for Canadian businesses to gain an understanding of the permissible parameters of the “Business Visit” and to obtain appropriate instruction for Employees and/or Service Providers as to the appropriate and truthful representations to make to the USCIS representatives.

[1] The requirements and documentation differ between a Canadian citizen and a non-citizen (i.e., a Canadian landed immigrant) when visiting the United States temporarily for the purpose of engaging in business.  This article will focus on the requirements of a Canadian citizen only.

[2] For example, administrative requirements to complete specific immigration application forms and/or conduct specific interviews with USCIS personnel (other than at the “border port of entry”) are waived.

[3] Id.

[4] Further, such passport should be valid for a minimum of 6 months beyond the period of admission.

[5] Note also that, from a technical perspective, the USCIS representative has a right to require that a Canadian citizen, as well as a non-citizen, prove that he or she is otherwise “admissible” and/or has obtained the necessary U.S. waiver for any infractions (i.e., acts of moral turpitude or other violations) that might appear on the traveler’s record (via RCMP name check or other record reporting agency).

[6] Note that the above are merely USCIS guidelines as to the admissible entry of a Canadian citizen into the United States.  A USCIS consular officer may always refuse entry based on personal unsatisfaction as to the Canadian citizen’s intent to return to Canada or abide by the terms of the non-immigrant status.

[7] Note that even if all requirements discussed above are met, the following list of activities provide a strong indication to be admitted as a BV to the United States and thus, are not determinative in allowing the potential BV “automatic admission” into the U.S.

[8] Please note that the focus of this article is Immigration Law and not Tax Law.  The U.S. Federal and State tax implications of these activities is beyond the scope of this article.  That being said, the reader would be well advised to seek competent counsel prior to engaging in any activities connected with the U.S.

[9] There is an “exception to the exception” where a Canadian citizen is visiting the U.S. for the purpose of supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work.

[10] Note that all occupations and professions listed above have certain requirements attached and the BV should consult with a U.S. immigration expert prior to crossing the border.



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