Don’t Let Things Go South When Going South

Cross-Border Considerations When Planning Events in the United States

With a shared language, similar culture, and the general ease with which most Canadians are still able to cross the border, it is important to remember that doing business in the United States does come with legal requirements. Ignoring them may expose you to serious consequences that can impact your future ability to enter and do business in the United States. This article will focus on the pros and cons of the two most common visa options for independent event planners: the B-1 business visitor and the O-1 for individuals who can demonstrate extraordinary ability or achievements in their field.

Let’s say you organized a corporate retreat at an Ontario winery for a U.S.-based company. The client loved every minute of it and now wants you to plan and organize their annual conference in Miami. Great news! A few weeks later, you’re on a plane to Florida to meet with the client’s conference executive committee and visit some of the sites proposed by the client. All goes well and you find not only the perfect venue but also a great local caterer and an amazing florist. The client also wants photos and a video of the conference highlights for their corporate website, so back in Toronto you get in touch with your go-to photographer who, luckily, is still available.

Things progress well, and after a few more site visits and meetings with your client and the local vendors in Florida, the conference is only a few days away and you and your photographer are heading to the airport.

During the pre-flight inspection, the CBP officer asks more questions than the last few times you entered, but you feel confident. After all, you’re only going for a week, you have strong ties to Canada, a return ticket, and you already told the officer that you are visiting the U.S. for business. To further make your case, you present an email from your client confirming your arrival to oversee and manage all vendors and event activities during next week’s conference.

But this time the officer sends you into secondary inspection where you are informed that your entry is denied because you don’t have authorization to work in the United States.

Your photographer, who was in line right behind you, tries to think on his feet and tells the officer that he is going to Miami to visit friends and relax at the beach – but the officer notices his professional grade camera equipment and he is denied entry as well, having misrepresented the purpose of his visit. Back at your office, you immediately spring into crisis control mode and try to come up with solutions in time for the conference, but the client – who had always insisted that you “should be perfectly fine” entering the U.S. as a business visitor – is now livid and threatens to sue.

The limitations of entering the U.S. as a B-1 visitor for business.
The rules regarding permitted activities for business visitors are quite complex, but generally boil down to this: Canadians who enter the United States as business visitors may not perform hands-on work or professional services in the U.S. that are compensated from a U.S. source (with the exception of reasonable reimbursement of travel or other incidental expenses). In other words, a Canadian event planner may enter the U.S. as a business visitor to meet with existing or potential U.S.-based clients or vendors and to negotiate contracts. Site visits for the purpose of researching potential venues and gathering information may also be permissible under certain circumstances – but the actual hiring of U.S. vendors for U.S.-based clients as well as overseeing the actual event is a prohibited B-1 activity.

On the other hand, if a Canadian client wants you to organize an event at a U.S. destination, you and your support staff are permitted to do so as B-1 visitors, as long as all of you are paid from a Canadian source. In either case, having the proper documentation is key, including but not limited to: evidence of your Canadian business operations; executed contracts for other clients; proof of initial contract negotiations undertaken by email or phone; a letter from the U.S. client confirming the limited scope and purpose of the business visit; or, in case of a Canadian client’s event at a U.S. venue, a copy of the services contract and evidence of payment from a Canadian source. When in doubt if planned activities in the U.S. will be permissible while in B1 visitor status, it is always recommended to consult an experienced immigration attorney in advance of travel.

“O” – but how can I work in the United States for U.S.-based clients?
For Canadian event professionals who want to plan and organize events in the United States for U.S.-based clients, applying for O-1 status might be the best way to go. The O1 category was created for individuals who have demonstrated extraordinary ability in their field of endeavour and who want to enter the United States temporarily to work or provide services in their area of expertise.

Show U.S. Immigration that you are an event planner extraordinaire.

Have you been nominated and received nationally recognized industry awards for excellence? Are there articles about you and your work in industry publications or other major print or online media? Have you written articles or blog posts that were published in professional trade publications or major media, or have you given talks and presentations at industry events? Have you organized or hosted events for distinguished or “big name” clients? Do you  charge higher than average fees for your services? Have you come up with fresh and original ideas that have made some kind of impact in the event planning industry? Have you ever judged the work of other event professionals, for instance in the context of awards or competitions? If you can say “yes” to three or more of these questions, you may qualify for O-1 status as an event planner of extraordinary ability.

Additional O-1 requirements.
The O-1 regulations prohibit self-employment, which means that you will need a U.S.-based entity to file the paperwork with U.S. immigration authorities on your behalf. A typical scenario:

A U.S.-based organization or company hosts recurrent events which it wants you to plan and organize. This will require you to periodically enter the U.S. for site visits and meetings with the client and vendors, as well as being present to organize and oversee the actual events.

An alternative approach that offers even greater flexibility is to have a U.S.-based agent file an O-1 petition on behalf of several unrelated U.S. clients, allowing you to provide event planning services to all of them.

In either case, you will need to provide a contract or deal memo outlining the terms of your services for each U.S. client named in the petition, as well as an overview of the planned events and related activities, along with the approximate dates and U.S. locations where you will perform your services, such as meetings, site visits, and event management and supervision.

While this so-called “itinerary” need not be written in stone, it should provide an adequate preview of the services and activities you expect to perform in the U.S. for each client. In order to be granted the maximum allowable validity period of three years, your activities in the U.S. should be evenly spaced throughout the years with only short gaps between scheduled activities.

Finally, it is recommended to obtain an advisory opinion letter from a U.S.-based industry organization, such as Meeting Professionals International (MPI) or the Convention Industry Council (CIC), confirming your experience and qualifications as an event planner.

The costs and logistics of applying for O-1 status.
Filing an O-1 petition does require some initial investment: Apart from the time and effort it takes to gather the required documentation and to present the evidence of your extraordinary abilities in the best possible light, there are government filing fees and attorney costs. However, once granted, O-1 status is valid for up to three years. After that, you can extend your status in one year increments or have a different U.S.-based petitioner file a new petition for another initial period of three years.

The government filing fees for an O-1 petition are currently US$460 and processing takes approximately two months, but for payment of an additional US$1,225 the government offers expedited processing within 15 calendar days.

And what about my support staff and preferred suppliers?
Under certain and very limited circumstances, support staff may be able to accompany you in O-2 status. This requires the filing of a separate petition for the staff member(s), submitted by the same U.S. petitioner and in conjunction with your O-1 petition. The O-2 support staff need not demonstrate any extraordinary abilities, but must provide proof that they are essential to the successful completion of your work and have critical skills and experience in working with you that cannot be readily replaced by a U.S. worker. Since the O-2 category was originally tailored to the needs of O-1 athletes or performing artists, this standard may be exceedingly hard to meet for the staff of a typical event planner and not worth the added costs and effort. However, for support staff and suppliers that aren’t compensated by the U.S. client but rather paid through your Canadian business, entering as B-1 business visitor may still allow for many support activities. Again, an in-depth consultation with an immigration attorney is highly recommended to protect your support staff and suppliers, your client, and – most importantly – your business.

Conclusion
Considering the significant limitations of activities permissible for B-1 business visitors and the serious consequences resulting from status violations, the O-1 can be a great option for established Canadian event planners who have advanced plans to expand their business into the United States. A consultation with an experienced immigration attorney will help you to determine your eligibility and chances of approval, as well as the visa option that is the best fit for your personal and business needs.

Katja Frommer is an attorney at Serotte Law Firm based in Buffalo, NY (www.SerotteLaw.com). She specializes in extraordinary ability visas.

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