Which nonimmgrant visa will allow foreign workers to enter the United States to service leased industrial equipment?

Question:

I am a U.S. citizen business owner living in Pennsylvania. I am considering leasing heavy industrial equipment from a Canadian company, and then training my U.S. workers to use the machines with the assistance of the manufacturers employees. Is there a nonimmigrant visa available to bring employees of the Canadian manufacturer to train my employees on how to properly use the equipment?

Answer:

Thank you for your question. Based on the facts you provided above, a B-1 business visitor visa may be an option to bring in the Canadian workers for training purposes. While your situation involves the “lease” of heavy machinery and the subsequent training of your employees by foreign national workers, it is nonetheless treated the same as an after-sales service.  

After-Sales Service

Under a B-1 business visitor visa, foreign nationals may enter 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, 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.

Services During A Lease

Foreign nationals entering the United States to service leased equipment and machinery are treated similarly to those seeking admission to provide after-sales services.

In 2013, a U.S. Customs and Border Protection memorandum stated that foreign nationals seeking admission into the United States to provide services to leased commercial and industrial equipment should be processed under 8 CFR § 214.2(b) as a B-1 visitor for temporary business. Thus, a temporary business visitor admitted into the United States to service leased equipment should be able to establish the following: (1) the terms of the lease agreement between a the foreign entity, including that the lease calls for service during the period of the lease, (2) continued employment with the foreign entity, (3) continued foreign residence, (4) entry into the United States is temporary in nature, and (5) that the nature of the business does not include ordinary labor for hire.

I hope this information is helpful; however, if you have any additional questions, please feel free to call the office or email me directly at nmurchie@murchielaw.com