Exporting to the United States – A Team Canada Inc Publication

6.2 Entering the U.S. under NAFTA classifications

A Canadian citizen travelling to the United States for "pleasure" (for a vacation, for example) usually needs only basic identification; again, a passport is preferable. However, if you're a Canadian citizen and you're travelling to the U.S. for business purposes, you'll also need documentation that states the purpose of your entry and indicates that you don't intend to remain in the U.S. indefinitely. And while the temporary-entry provisions of NAFTA make it easier to enter the United States, they don't 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 aren't a Canadian citizen, please refer to Section 6.6, "If you're not a Canadian citizen").

There are four classifications of business persons covered by NAFTA's temporary-entry provisions. Each of the four has its own requirements, which you must meet before you can enter the United States. NAFTA entry regulations can change, of course, so be sure to check current requirements before you leave for the border.

You can find additional information about the classifications and their related documentation in a brochure published by International Trade Canada: Cross-Border Movement of Business Persons. Another useful source of information is Foreign Affairs Canada's Canada-U.S. Relations Web site.

The NAFTA classifications are:

Business visitors (B-1)

Under NAFTA, business visitors are people "who plan to carry on any business activity related to: research and design, growth, manufacturing and production, marketing, sales and distribution, after-sales service and general service".

You can qualify for the B-1 classification at the time you enter the U.S. To do so, you must present a letter from your company that outlines your itinerary in the U.S., the names and addresses of the U.S. businesses you intend to contact, and a statement that you will not receive income of any kind from an American source. In addition, if you're entering to perform after-sales service, you'll need a copy of the sales invoice and the related warranty and/or service agreement. You'll also need to present suitable identification; a Canadian passport is best.

Under the B-1 classification, you can remain in the U.S. until you conclude your business, as long as you don't stay for more than a year. If you expect to make frequent trips across the border, it's 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. Remember, though, that the length of your stay is at the discretion of the U.S. authorities.

The need for honesty about your business intentions in the U.S. can't be stressed too much. In particular, resist the temptation to declare your visit as tourism. If you do, and if the customs officer discovers business materials such as brochures or samples in your possession, you may be barred from entering the U.S. for up to five years.

As a business visitor, you are very likely to be granted entry under the B-1 classification, provided you are engaged in marketing activities on behalf of your company – that is, promoting your goods for subsequent orders. However, you can be refused entry if you intend to sell anything – that is, if you'll be taking orders and accepting payment while in the United States. Doing this is not permitted under the B-1 classification.

Finally, another prohibited activity under the B-1 classification is entering the United States to market U.S.-made products.

Professionals (TN-1)

NAFTA defines these as "business persons who plan to carry out professional activities... for an employer or on contract to an enterprise located in a member country other than one's own".

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.

There are other general qualifications you'll need to meet; you can find out about them and about the list of eligible professions, on the Cross-Border Movement of Business Persons Web page. Because of the amount of documentation needed, you should contact U.S. immigration officials to find out whether they will want to check your papers before you arrive at the border. The Web page referred to above lists contact numbers for U.S. Free Trade Specialists at various U.S. entry points who may be able to assist you.

Intracompany transferees (L-1)

NAFTA defines these as "business persons employed by an enterprise, who are seeking to render services to a branch, parent, subsidiary or affiliate of that enterprise, in a managerial or executive capacity or in a manner that involves specialized knowledge".

In plain language, if your company has a branch or subsidiary in the U.S., you can send qualified Canadian staff to work there. You'll find details of the required qualifications on the Cross-Border Movement of Business Persons Web page.

The L-1 classification is very flexible; for example, Canadian transferees may be paid either by the Canadian parent company or by the U.S. subsidiary, and spouses of L-1 holders are allowed to work in the U.S. Extensions allow management transferees to work there for up to seven years, while special-knowledge transferees are limited to five years.

To obtain an L-1 classification, you submit a Petition for Temporary Worker form (I-129) to U.S. Citizenship and Immigration Services and pay a processing fee. In Canada, you can submit the application in advance to the U.S. embassy or a U.S. consulate. U.S. authorities recommend that you do so at least 60 days before you intend to enter the United States.

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

According to the NAFTA definition, traders are people who "conduct substantial trade in goods or services principally between their country of residence and the country into which entry is being sought". Investors are people who "establish, develop, administer or provide advice or key technical services to the operation of an investment to which you or your enterprise has committed... a substantial amount of capital".

To obtain the E-1 or E-2 classification, you'll need to complete Form OF-156E, available from the U.S. consulate in Toronto (call 416-595-1700), and pay the applicable processing fee. You'll also have to meet the qualifications listed on the Cross-Border Movement of Business Persons Web page.