Christopher V. Flett

The USA is an interesting and profitable market for Canadian business owners.  The population is impressive and I’ve found Americans to be very invested and engaged when it comes to business. You are welcomed into the US to do business exploration, but you can’t earn money from a US client, doing the work in the US, without having the proper documentation.  Doing so will not only put you at risk of not being allowed back in the country, but when your US clients find out that you are doing business illegally, your reputation will not survive. Your clients look bad for doing business with someone ‘shady’.

I’ve been working in the US for a number of years under an E-2 Visa. It’s a ‘Treaty Trader/Investor Visa”.  They are difficult to get and are defined as below:

The E2 Investor Visa allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every other year, but there is no limit to how many times one can renew. Investment must be “substantial.” An investor must “contribute” to the US economy. (Setting up a small shop alone is not enough.) Investor visas are available only to “treaty nations”.

The dollar amount of cash investment normally should exceed $100,000, depending on the type of business (new or existing).  This is an approximated amount and applicants should consult an immigration lawyer prior to making any offers for existing business. The dollar amount should only be money spent on the business. Any expenses not directly spent on the actual business itself will not count toward the required amount.

For new start ups, the investment must be large enough to start and operate the business. The amount of investment varies on the type of business. The $100,000 dollar amount would not be a substantial investment for a business such as the construction and management of a shopping center or office complex. The investment will not be considered substantial if it is not large enough to capitalize the venture. The USCIS will use an ‘Inverted Sliding Scale’ to determine whether the investment is substantial in proportion to the overall cost of the enterprise.

There are other visas that allow you to enter the US legally:

The H-1B classification is for professional-level jobs that require a minimum of a bachelor’s degree in a specific academic field. In addition, the employee must have the degree or the equivalence of such a degree through education and experience.

TN (Trade NAFTA) status is a special non-immigrant status in the United States unique to citizens of Canada and Mexico. Professions identified in the Canada – United States Free Trade Agreement which began in 1988 are permitted TN Visas for legal work in the United States and Canada, creating freedom of labor movement. TN status is recognized in the North American Free Trade Agreement (NAFTA) which began in 1994. It allows U.S., Canadian and Mexican citizens the opportunity to work in each other’s countries in certain professional occupations. It bears a similarity, in some ways, to the H-1B visa, but also has many unique features. Within the TN set of occupations, an American, Canadian or Mexican can work for up to three years (until October 16, 2008, one year) at a time. However, the TN status may be renewed indefinitely in three-year increments, although it is not a ‘permanent’ visa and if US immigration officials suspect it is being used as a de facto green card, they may elect to deny further renewals. The set of occupations permitted to petition for TN status is also quite a bit more limited than for the H-1B visa.

The most common non immigrant visa is the multiple-purpose B-1/B-2 visa, also known as the “visa for temporary visitors for business or pleasure.” Visa applicants sometimes receive either a B-1 (temporary visitor for business) or a B-2 (temporary visitor for pleasure) visa, if their reason for travel is specific enough that the consular officer does not feel they qualify for combined B-1/B-2 status.

The reason you get a Visa is so that the country you are working in has given you permission to work in their country legally.

Let’s say a female professional is  ”saying that she is on a visitor visa – tourist”, but is actually conducting paid business while in the country, in this case training/speaking. While this isn’t a horrible thing in itself, it shows a disrespect for the country that she is ‘sneaking into’ and in fact, shows somewhat the type of business person they are. Rather than doing things along the proper lines, she puts herself at risk at getting a ‘non-entry’ where the US government decides she can no longer enter their country for any means (tourism included).

Although her chances of getting called on this (by the government in question) are probably not high, what happens if she upsets a client in the US who files a complaint against her to their Chamber of Commerce or Small Business Administration. The inquiry begins and when it is found out she has been operating illegally, a non-entry could likely be issued. What happens if she creates some unrest in her own markets (Canadian) and someone tips off the border that she is illegally entering their country. This could be an upset staff member, disgruntled vendor, or even past business partner. It takes one call to the Border Patrol and you’ll be flagged the next time you try to cross their border.

It’s better to err on the side of being safe and legal by following the process and getting the right documentation in place. It will take some time and money, but out of respect, you owe it to yourself to do it right. Whether you have a speaking engagement in California or are seeing a client on the East Coast, the last thing you want is to be blocked from a country because you don’t have the integrity to do what’s right. For more information on Canadians following the right protocol on entering the US, check out: http://www.usimmigrationsupport.org/