Exporting to the United States – A Team Canada Inc Publication

6.5 Avoiding entry problems

To ensure a smooth border crossing, find out exactly what documentation you'll need and prepare it carefully. This is especially important if you're in some types of service sector, if you're an artist or craftsperson, or if you're participating in a trade show.

Immigration issues for construction services

Cross-border movement of workers has become a difficult issue for Canadian construction companies engaged in projects in the U.S. The entry of construction workers and tradespeople is not covered by NAFTA; instead, the entry of these types of workers is subject to labour certification by the U.S. Department of Labour.

As a result, scheduling can be a major issue for a construction company; getting workers cleared for U.S. entry can take weeks, which can cause serious problems with project deadlines. Managing the application process yourself will be complicated and time-consuming, and your best strategy may be to hire a legal expert to deal with it. You can obtain more detailed information from the Canadian Construction Association's Guide to Doing Business in the United States, available through your local construction association.

Immigration issues for after-sales services

Repair, warranty, maintenance and related services are described under NAFTA as work done by:

"...installers, repair and maintenance personnel and supervisors, with specialized knowledge essential to a seller's contractual obligation, performing services or training workers to perform services, pursuant to a warranty or other service contract which is incidental to the sale of commercial or industrial equipment or machinery. This includes computer software, purchased from an enterprise located outside the U.S."

U.S. immigration officials can be quite sensitive about after-sales service. Hands-on building and construction work do not fall under the after-sales service provision of the NAFTA business visitor category, so you'll need to prove that the work you'll be doing inside the U.S. does, in fact, fall under the NAFTA regulations. To do so, you'll need a copy of the original sales contract, which must clearly state the service work to be done. Showing a company letter that describes the reasons for the business trip is also a good idea.

Trade shows and sales staff

NAFTA allows Canadian business people to enter the U.S. to attend a trade fair or convention. Sales staff can also enter to take orders or negotiate contracts for goods or services, provided they don't deliver these goods or services (that is, do the work) and provided they don't accept payments for them. If you're transporting samples or business gifts, you'll have to declare them at the border, as described in Section 6.4.

Immigration issues for people in the performing arts

During the past few years, it has become harder for Canadian performers to enter the United States. Some have been forced to cancel performances because they couldn't obtain visas, and a few visa holders have been turned back at the border. The cost of obtaining the visas and documents for a large number of people, such as an orchestra, can be considerable. If you hope to enter the U.S. under one of the performing artist classifications, make sure that you complete all paperwork flawlessly, allow plenty of time for delays and be prepared for the expenses involved.

Immigration issues for artists and craftspeople

If you're a craftsperson or visual artist, you'll likely enter the U.S. under the business visitor (B-1) classification. If you're exhibiting your work at a U.S. art show or craft fair, however, you cannot personally exchange your work for money there, because the B-1 classification doesn't allow it. If you're caught doing so, the penalties include seizure of your work, fines and being barred from entry to the U.S. for five years or more. You are allowed to take orders, however, for filling after you return to Canada. Another alternative is to hire an American to handle the sales. This is legitimate because the intent of the regulations is to protect American jobs, not to prevent you from selling your work to Americans.

Before you and your work leave for the U.S., you must prepare documentation for both its U.S. entry and its re-entry into Canada, if that turns out to be necessary. This involves documenting the work and having Canada Border Services Agency (CBSA) verify the shipment before it leaves the country.

Having CBSA verify the shipment upon export is not required, but it's highly recommended because your export documents will prove the origin of your goods when you return to Canada. Without such documents, you may find yourself trying to convince a Canadian customs officer that the goods in your possession did in fact originate in Canada.

On your return, you'll fill out a CBSA B-3 import form that declares your work to be under HS code 9813.00.00, which is the code that Canada Customs uses for "Canadian Goods Returning". The alternative to doing this yourself is to use a customs broker; unfortunately, this may be very costly relative to the value of the work you're hoping to sell.

If you need comprehensive information on exporting crafts and visual arts to the U.S., you'll find it in the Marketing Guide for Fine Contemporary Craft in the United States. It's available in print through International Trade Canada's Enquiries Service at 1 800 267-8376 or 1 613 944-4000; you'll also find it in electronic form on the Canadian Trade Commissioner Service Web site (register, then do a search for the title).

If you're a producer of Aboriginal art, you'll find information of particular interest in the U.S. Market Report: A Guide for Canadian Exporters of Aboriginal Arts and Crafts, also available in print through International Trade Canada's Enquiries Service at 1 800 267-8376 or 1 613 944-4000.