Cross Border Movement of Business Persons

Temporary Entry into the United States and Mexico under the North American Free Trade Agreement

A Guide for Canadian Businesspersons Published by International Trade Canada

2. Business Visitors

Business Visitors can enter the United States or Mexico on a temporary basis to perform work as follows:

RESEARCH AND DESIGN

• Technical, scientific and statistical researchers conducting independent research or research for an enterprise located in Canada.

GROWTH, MANUFACTURE AND PRODUCTION

• Harvester owner supervising a harvesting crew admitted under applicable law.

• Purchasing and production management personnel conducting commercial transactions for an enterprise located in Canada.

MARKETING

• Market researchers and analysts conducting independent research or analysis for an enterprise located in Canada.

• Trade fair and promotional personnel attending a trade convention.

SALES

• Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in Canada, but not delivering or providing the goods or services.

• Buyers purchasing for an enterprise located in Canada.

DISTRIBUTION

• Transportation operators moving goods or passengers to the U.S. or Mexico, or loading goods or passengers and transporting them back to Canada, with no unloading within the U.S. or Mexico. Purely domestic service or solicitation, in competition with American or Mexican operators, is not permitted.

• Customs brokers providing consulting services to facilitate the import or export of goods.

• Customs brokers providing brokerage duties related to the export of goods from the U.S. or Mexico to or through Canada.

GENERAL SERVICE

Professionals engaged in a business activity covered under the North American Free Trade Agreement (NAFTA), but not receiving salary or other payment from a U.S. or Mexican source (e.g. delivering speeches or giving presentations at conferences). Expense allowances or other expense reimbursements related to the temporary stay are permitted.

• Management and supervisory personnel involved in a commercial transaction for an enterprise located in Canada.

• Financial services personnel (insurers, bankers or investment brokers) participating in commercial transactions for an enterprise located in Canada.

• Public relations and advertising personnel consulting with business associates, attending or participating in conventions.

• Tourism personnel (tour and travel agents, tour guides or tour operators) attending or participating in conventions or conducting a tour that began in Canada.

• Tour bus operators entering the U.S. or Mexico.

• Translators or interpreters performing services as employees of an enterprise located in Canada.

AFTER-SALES SERVICE

This activity consists of installers, repair and maintenance personnel, and supervisors that:

• have specialized knowledge essential to the seller’s contractual obligations.

• perform services or train workers to perform services (pursuant to a warranty or other service contract related to the sale of commercial or industrial equipment or machinery, including software, manufactured in Canada). This provision, however, does not apply to residential sales or items.

IF ENTERING THE U.S. OR MEXICO TO PROVIDE AFTER-SALES SERVICE, YOU MUST PRESENT A COPY OF THE ORIGINAL SALES CONTRACT CLEARLY STATING THE REASON FOR WHICH YOU ARE ENTERING THE COUNTRY.

SPECIALIZED KNOWLEDGE, IN RELATION TO AFTER-SALES SERVICE, is defined as a high degree of knowledge that can only be passed on to an already skilled person through extensive training. HANDS-ON BUILDING AND CONSTRUCTION WORK, EITHER ON-SITE OR IN-PLANT DOES NOT FALL UNDER THE AFTER-SALES SERVICE CATEGORY. This applies regardless of the wording in the sales, warranty or service agreements, as it is not considered to require specialized knowledge. A Canadian businessperson, however, may supervise or train workers that carry out installation, repair or maintenance work involving building or construction activities.

THIRD-PARTY SERVICE takes place when a seller located in Canada contracts the after-sales service to a third party and is allowable under the NAFTA. The original contract or bill of sale
must clearly specify that a third party will perform the installation, warranty or service work.

The initial warranty or service agreement may be extended if the sales agreement, or the initial warranty or service agreement, provides for such an extension. In this case, the aftersales service continues to be part of the sale of equipment, machinery or computer software.

How do I qualify as a NAFTA Business Visitor?

You may qualify as a NAFTA Business Visitor if:

• you are a Canadian citizen

• you are seeking entry for one of the business purposes listed in the previous section

• the proposed business activity is international in scope you do not intend to enter the U.S. or Mexican labour market

• your primary source of remuneration is outside of the U.S. or Mexico

• the principal place of business, and the accrual of profits, remain outside of the U.S. or Mexico

• you meet the member country’s existing temporary entry immigration requirements

IF YOU WISH TO WORK FOR AN EMPLOYER OR UNDER CONTRACT TO AN ENTERPRISE LOCATED IN THE U.S. OR MEXICO, YOU DO NOT QUALIFY AS A BUSINESS VISITOR. IN THIS CASE, YOU NEED TO APPLY UNDER A DIFFERENT NAFTA CATEGORY OR UNDER THE MEMBER COUNTRY’S GENERAL PROVISIONS THAT APPLY TO TEMPORARY FOREIGN WORKERS.

What documentation do I need at the border?

At a U.S. or Mexican port of entry, you must establish that you qualify as a NAFTA Business Visitor.

You should carry with you PROOF OF CANADIAN CITIZENSHIP (ideally, your Canadian passport) and A LETTER OUTLINING THE PURPOSE OF YOUR BUSINESS TRIP. This will assist in your inspection by U.S. or Mexican immigration officials.

The letter should include:

• where you will be staying (itinerary while in the U.S. or Mexico)
• list of businesses you plan to visit (contacts and addresses)
• statement that your primary source of remuneration is outside of the U.S. or Mexico

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.

Tools of the Trade For information on commercial samples, trade show displays or professional equipment that you may wish to carry when travelling to the United States, please refer to the U.S. Customs Web site. For information on Mexican customs procedures, please refer to the Mexican Customs Agency Web site.

UNITED STATES

How can I apply as a Business Visitor?

You may apply for entry to the United States as a Business Visitor at a land border port of entry, or at an international airport preflight inspection station. There is no written application or prior petition required, apart from providing evidence that you meet the requirements of the category, as outlined in the section above, “What documentation do I need at the border?”

Normally, Business Visitors can stay in the U.S. for the time required to conduct business, but not longer than six months. United States Citizenship and Immigration Services (USCIS) admits
NAFTA Business Visitors under the B-1 CLASSIFICATION. Remember, the length of your stay is at the discretion of USCIS officials. Business Visitors entering the U.S. can request that an I-94 (RECORD OF ENTRY DOCUMENT) be inserted in their passport if they are involved in activities that require frequent cross-border movement or extended stays. 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. I-94 documents are issued for periods of up to six months. You cannot apply for an I-94 before seeking temporary entry into the United States. Please keep in mind that there is a nominal fee for issuing this document.

THE U.S. IMMIGRATION AND NATIONALITY ACT (INA) is based on the law of presumption. Therefore, an applicant for admission must prove that he or she fits into one of the nonimmigrant classifications or is presumed to be an alien.

How can I change or renew my status?

If you wish to obtain or renew Business Visitor status from within the U.S., you may apply to the
USCIS through FORM I-539 (APPLICATION TO EXTEND/CHANGE NON-IMMIGRANT STATUS), which is available on-line. Please keep in mind that there is a nominal fee and that applications may take three months or longer to process. You should remain in the U.S. while your application is being processed. Leaving the country at this time may negatively affect the successful completion of your application.

MEXICO

How can I apply as a Business Visitor?

Canadian Business Visitors entering Mexico must complete a MULTIPLE MIGRATORY FORM (FMN). You can obtain an FMN in advance from travel agencies and airlines, from the Mexican
Embassy or one of its consulates in Canada, or as you enter at a Mexican port of entry. You can also find more information on the Mexican Embassy Web site.

Besides the general information required above, the FMN requests information such as:

• personal data
• type of activity you will be carrying out
• purpose of your business trip
• the enterprise(s) you will be visiting

IT IS IMPORTANT TO KEEP THE FMN THROUGHOUT YOUR STAY IN MEXICO. YOU MUST, HOWEVER, RETURN THE FMN FORM TO IMMIGRATION OFFICERS UPON YOUR DEPARTURE FROM MEXICO. FAILURE TO DO SO CAN RESULT IN FINES AND DELAYS.

If you qualify as a Business Visitor but need to stay in Mexico for more than 30 days, you should obtain an FM-3 VISA from the Mexican consular office nearest your place of residence before departing for Mexico. This will allow you to remain in Mexico for a maximum period of one year with multiple entries. Application forms are also available on-line.

The FM-3 requires:

• completed application form
• valid passport
• letter from your company addressed to the Embassy of Mexico requesting the visa for its employee
• two recent, passport-size photos (no eyeglasses)

Please keep in mind that there is a fee for processing the FM-3 form, and that you may extend the duration of the FM-3 card.

How can I change or renew my status?

You cannot extend or renew the FMN. You will require a new one each time you re-enter the country. If you wish to stay in Mexico for more than 30 days, you must obtain an FM-3 visa, as
outlined above. If you wish to change your temporary residency status from within Mexico, for example, from an FMN to an FM-3, you can apply in Mexico at a National Migration Institute office.