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How to apply for admission as a business visitor under USMCA (NAFTA) B-1 Category for Canadian Citizens

A business man working on the analytics of his business on his laptop

I am a Canadian engineer employed by a Canadian company which develops manufacturing equipment. We recently sold some of our equipment to a U.S.-based client who needs assistance monitoring the installment and evaluation of the equipment. I am seeking to enter the United States for a 1-week period to provide these services at the U.S. client’s premises. Do I need a visa to enter the United States?

Many Canadian professionals think TN visa as their “go-to” option for applying to enter the U.S. to perform any service in the United States. But in some circumstances, especially when you receive compensation for your services from a Canadian entity (not a U.S. entity), the USMCA “business visitor” category may be more appropriate.

For example, if you are a Canadian professional seeking to enter the United States on behalf of a Canadian employer to provide services to a United States company attendant to a sales contract between your Canadian employer and a U.S. client company, where you are compensated for your services from your Canadian employer not the U.S. client, you could apply at a port-of-entry or preclearance station to enter the United States under the USMCA “business visitor” category.

Eligibility to enter the US as a USMCA (NAFTA) Business Visitor

To apply for admission as a USMCA business visitor at a U.S./Canada port of entry, a Canadian applicant would need to show the following evidences:

  • Proof of Canadian citizenship;
  • Documents demonstrating the applicant’s engagement and purpose of entry;
  • Evidence that the proposed business activity is “international in scope” and that the person is not “seeking to enter the local labor market.”

See USMCA, Annex 16-A, Section A.1.

How to prove that the applicant is not entering the U.S. labor market?

USMCA Annex 16-A, Section A.2. provides that applicants may prove two factors that may establish the fact that the business activity is “international in scope” and that the applicant is “not seeking to enter the local labor market” (i.e., that the applicant is not competing with U.S. workers):

  • The primary source of remuneration for the proposed business activity is outside the United States.
  • The applicant’s principal place of business and the actual place of accrual of profits, at least predominantly, remain outside the United States.

Applicants should be prepared to present paperwork evidencing the structure of compensation, which should make it clear that the applicant is being compensated by a Canadian entity (as opposed to the U.S. entity to whom the applicant will provide services). Section A.2 also notes that normally an “oral declaration” as to the principal place of business and the place of accrual of profits should be sufficient; where further proof is required “it shall normally consider a letter from the employer attesting to these matters as sufficient proof.”

In conclusion, especially when a Canadian professional is providing services on behalf of a Canadian employer to a U.S.-based entity, it may be appropriate for the professional to apply to enter the United States as a USMCA business visitor, as opposed to a TN visa. It is recommended to check with an experienced lawyer to figure out the right category for your specific circumstances to minimize any disruptions caused by a visa denial.

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