Canadian employee, rejected entry into the US due to lack of visa for a business trip

[scottstwo]

Hi there,

Could someone help me out with this scenario? I work for a Canadian company, and they wish to fly me down to one of our locations in the US which involves training employees there on a Canadian software. Both the US and Canada locations are using this software, with the US slowly starting to use it more and more, thus the need for a Canadian to be sent there to train.

What happened though is that I was rejected entry into the US. Border officers claimed that PROVIDING training is not valid for a regular business trip (B1 visa) and that I need an L1 visa instead. I cannot find any more info on this. I looked up L1 visas and it looks like those are for TRANSFERRING employees from Canada to the US to do work. This is definitely not the case I am in, no transfer of locations, job or position from the Canada to the US is intended.

Can someone point me to information on whether providing/conducting training is permissible on a B1 visa? Note that this is for a Canadian visiting the US to visit the US office counterpart of the Canadian office. I have only seen that receiving training is permissible, but have not seen anything on providing training on whether that is allowed or not. It really looks like I was rejected entry for the wrong reasons.

[inadmissible]

They were correct in denying you entry, but they were incorrect in advice moving forward.

Never take immigration advice from border agents, even when they mean well they have very rudimentary knowledge.

Your employer's US entity needs to sponsor you for a employee visa. The easiest route are the cap-exempt TN visas.

Don't take it personally if your employer can not afford an immigration attorney to handle this correctly . It is their problem.

You must not try entering the country illegally again, as this all reflects poorly on your personal immigration record. Some day, you may want to visit or live in the United States for personal reasons... you do not want your employer-driven mistakes to be held against you.

[scottstwo]

Thanks inadmissible, I have sent you a private PM with more questions as well. Thanks again.

[inadmissible]

Hi Scott.

The officers were correct in denying admission to someone who could not clearly demonstrate eligibility for admission. Most aliens are denied admission on other grounds, such as the inability to overcoming the presumption of immigrant intent. In your case, you failed to convince the CBP officer that you were seeking admission for business rather than work.

I urge you not to freak out about being flagged. They did not accuse you of fraud in writing. They may have made notes in their computer system to that effect, but chances are they just asked you to withdraw your application for admission, without actually denying you admission. The result seems similar on the surface but has different legal ramifications.

The quickest way to find out if you are flagged is to visit the United States as a bona fide tourist, and find out if you get stuck in 2 hr secondary processing for no reason. If they let you in after making you wait while they check on things, you are flagged. The surest way to find out if you are flagged is to request a copy of records from CBP pertaining to your application for admission at that port of entry on that date. Federal law provides that aliens may request this information, it is called the Freedom of Information Act. Specifically, you should request records using the phrase "Records Regarding My Inspection or Examination upon My Arrival at a U.S. Port of Entry". Provide them as much information as possible in order for them to respond to your request, including: dates, times, officer names if available, lane you drove in, location of port of entry, and color/license/make/model of the car drove.

If you are flagged, you will be flagged forever; but there are ways to challenge this. Lets cross that bridge when we get there. I sincerely doubt you would be flagged given your description of events, assuming that you are Caucasian. (I can not always defend my countrymen; we are all explicitly biased to some degree, and none of us are self-aware of our implicit biases)

Is a B-1 visa appropriate for the work you intend to perform in the United States? CBP officers don't have the same depth of training in visa issues as consular officers. I think many aliens cruise through with a B-1 for borderline or even work intent. If a B-1 visa is appropriate for your work/business activities, I strongly recommend getting a visa sticker from the consulate. They are more likely to understand the nuances of visa rules, and CBP officers are likely to pass you through without much critical thinking.

The Department of State Foreign Affairs Manual is binding on consular officers, and in the case of B-1 visas please reference Volume 9, Section 41.31. They acknowledge in Note 7(b) how difficult it is to distinguish between business and work activities.

The prototypical business activities are listed at Note 8:

Aliens should be classified B-1 visitors for business, if otherwise eligible, if they are traveling to the United States to:
(1) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
(2) Negotiate contracts;
(3) Consult with business associates;
(4) Litigate;
(5) Participate in scientific, educational, professional, or business conventions,
conferences, or seminars; or
(6) Undertake independent research

There are other business activities listed, but the one that is most likely to apply to you involves aliens commercial or industrial workers. Note 10 part(a) states:

An alien coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller’s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source.

Consular officers these days consider software to be akin to such equipment or machinery, although obviously it would be an easier sell if your software was sold as a turnkey solution including hardware. (think Oracle Exadata vs Oracle Database)

If you can not be pigeonholed into any of the 9FAM41.31 listed B-1 activities, your employer needs to get you a work visa.