I’m pleased to post here that Greg Boos recently procured a U.S. Customs and Border Protection (CBP) memorandum of great significance, through persistent use of the Freedom of Information Act. This is really a great find.
The memo, dated February 22, 3103, instructs CBP officers to admit persons as Visitors for Business (B-1) who seek to enter the United States to provide services to commercial or industrial equipment, machinery, or computer software that has been leased from an enterprise located outside the United States. Such admissions have in the past been limited strictly to after-sales agreements. This memo helps businesses who wish only to lease their equipment, machinery or computer software to U.S. customers. It amounts to an expansion of the rules for temporary admission for business visitors.
The full memo and guidance to agency officers is available here.
This memorandum reflects a policy decision which favors business interests at the border, and is a result of U.S.-Canada “Beyond The Border” discussions, which Greg has been following very closely for some time. We commonly work with clients that would prefer or need to enter into lease agreements rather than sales agreements.
The after-sales service agreement visitor rules which are spelled out in 8 C.F.R. § 214.2(b) are now also applicable to lease agreements. The rules apply to persons seeking to enter to install equipment, provide warranty work, or training related to agreement. One of the key requirements is the service agreement must be called for in the original lease agreement.
Applicants for admission on this basis should bring with them a copy of the lease or sales agreement, to point to the actual clause which authorizes the after-lease or sale work. The memo also restates the basic rules for admission for any B-1 Visitor for Business, including:
• Establish and maintain employment with the foreign entity
• Maintain a residence in a foreign country which the applicant does not intend to abandon
• Maintain the principal place of business and place of remuneration in the foreign country
• Temporary intent for entry
• The nature of the temporary work must require specialized knowledge which would not be something that could be hired out locally.
After-sales and lease visitors for business can include installers, repair and maintenance personnel, and supervisors having specialized knowledge of equipment, machinery or computer software that was sold or leased.
We routinely help businesses with immigration challenges related to after-sales installation, service, and training issues related to immigration, and will of course be available now in relation to after-lease agreements as well. Advanced planning is key to the process.