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Export: Crossing the U.S. border on business

05 September 2016

Businesspeople often forget that strict rules apply when crossing the U.S. border on business. Do you have proper documentation? Do you meet the restrictive conditions, including for your after-sales employees?


Businesspeople often forget that strict rules apply when crossing the U.S. border on business, and that NAFTA has established specific eligibility conditions for businesspeople, which are even more stringent for after-sales employees. Not everyone can enter the U.S. and do anything there. Moreover, most businesspeople don’t realize that they need documentation on the reasons for their business trip.


A businessperson crossing the border on land or by air will be asked questions on the purpose and details of their visit to the United States. They will be given “permission to enter” by a customs officer by virtue of their B1 status: “Temporary visitor for business.” The customs officer will have exercised his discretion by determining, in a few seconds or minutes of discussion with the person, that they are eligible. The officer could also have demanded additional documents or even have refused entry.


These documents could include a detailed letter from the company explaining what the nature and purpose of the company is, who the employee is, what their job is and exactly what they are going to do in the United States. Other documents may be required, for example, a copy of the sales contract proving that after-sales service was included in the sale of the equipment, as well as the warranty. I will get back to this later.   


If the officer is not satisfied with the answers given or the documents presented, the person may be refused entry, which is something that happens more and more frequently. A note will then be entered into the computer system, which will pop up each time they try to enter the United States. The person’s photo and fingerprints will normally be taken.


“Temporary visitor for business” (B-1) is the status that is most often applicable, for example, to attend a trade show, to meet with a distributor or an agent, or to visit a potential customer. Or it could be to meet with a customer to obtain the necessary information for the design of equipment or software which will then be made in Canada and delivered from Canada.


However, when it comes to after-sales service, such as installation, training, or repairs under warranty, the services concerned are permitted only if they were part of the initial sale of the equipment, machinery or software. They cannot be added afterwards. Companies must therefore explicitly state in the sales contract that they will do the installation or provide training as part of the sale of the equipment, machinery or software, and the customs officer will want to verify this by examining the initial sales contract.


By Me Micheline Dessureault, Lawyer and Trademark agent, Director of the Intellectual Property Law department and International Business Law department, Joli-Cœur Lacasse


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