Immigration regulations and policies have long held that foreign national truck drivers may qualify for admission as B-1 Visitors for Business to pick up or deliver cargo traveling in the stream of international commerce.

Commercial Truck Drivers must meet the general entry requirements as Visitors for Business (B-1 classification) set forth in section 101(a)(15)(B) of the Immigration and Nationality Act (INA) and the Department of State regulations. B-1 visas are available to foreign nationals who will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

  • Consulting with business associates;
  • Engaging in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
  • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates;
  • Participating in short-term training;
  • Transiting through the United States: certain persons may transit the United States with a B-1 visa.

"Business" is defined by the regulations as including "conventions, conferences, consultations, and other legitimate activities of a commercial or professional nature."1 "Business" for B-1 purposes does not include "local employment and labor for hire."

A foreign national must demonstrate the following in order to be eligible for a B-1 visa (please see B-1 Temporary Business Visitor | USCIS at www.uscis.gov):

  • The purpose of his/her trip is to enter the United States for business of a legitimate nature;
  • He/she plans to remain for a specific limited period of time;
  • He/she has sufficient funds to cover the expenses of the trip and his/her stay in the United States;
  • He/she has a residence outside the United States that he/she has no intention of abandoning, as well as other binding ties that will ensure his/her return abroad at the end of the visit; and
  • He/she is otherwise admissible to the United States.

Canadian and Mexican nationals may apply for B-1 visas individually as Commercial Truck Drivers. As noted by the U.S. Board of Immigration Appeals in Matter of Camilleri, 17 I. & N. Dec. 441 (1980):

a Canadian citizen truck driver employee (owner-operator) of a United States firm seeking to deliver goods manufactured in Canada to a terminal in the United States and to pick up goods to be delivered to points in Canada is admissible to the United States as a nonimmigrant visitor for business under section 101(a)(15)(B) of the Act."

The Board found that the key factor permitting employment of the foreign national driver was that "transportation of commodities across the international boundary is an essential element of international trade" and is not considered work performed in the United States or local employment.

There are restrictions in place to prevent foreign nationals from competing with US based drivers – these restrictions aim to protect US workers by preventing the depression of US nationals' wages, among other concerns. For example, Canadian and/or Mexican drivers with B-1 visas cannot do a point-to-point run within the United States. A B-1 driver may pick up in Canada and deliver in the US. The driver may pick up in Mexico and deliver in the US. The driver may pick up in Canada and drive the load to Mexico, and vice versa. The driver is not allowed, however, to make a haul that runs solely within the United States.

There have been instances where trucking companies and foreign national drivers abuse the B-1 visa program and for these reasons, US Customs and Border Patrol (CBP) officers exercise heightened scrutiny when commercial trucks pass through the border. A common example is when a foreign national driver enters the US legally on their B-1 visa. The driver makes their initial legal run but decides to stay in the United States after making their delivery. Trucking companies within the US then hire these drivers to make runs for far cheaper than their American counterparts. Another example is when a Mexican (or Canadian) company hires their respective national drivers, but the Mexican (or Canadian) company then obtains US license plates for the Mexican (or Canadian) truck drivers, following which the driver is sent to the US and gets work there.

If Mexican (or Canadian) commercial truck drivers in B-1 status are being paid directly by US companies, there is a risk that the company paying the foreign national in cash or by check in their own name, might not withhold taxes, might not pay payroll tax, or the Mexican (or Canadian) national may not being paying taxes on that income. The US company should at the very least withhold taxes and the Mexican (or Canadian) national must pay taxes on income earned in the US (if that amount reaches the level that is taxable). Tax evasion is a serious offense and can lead to heavy fines imposed by the IRS onto the US Company, among other penalties.

There are some risks to the Mexican (or Canadian) commercial truck driver themselves. If a Mexican (or Canadian) national is found to have engaged in activities not allowed in B-1 status or has acted in a fraudulent manner, then their B-1 visas and/or Border Crossing Card can be revoked and they may be barred from re-entering the US for a specific amount of time. The Mexican (or Canadian) commercial truck driver must also be prepared to answer questions from the CBP officers and the US Immigration and Customs Enforcement (ICE) officer. If they do not answer these questions satisfactorily, they may not be permitted to enter the US, which in turn can result in a delay of services to the client.

The risks discussed above can be mitigated, however, by proper and through training of the Mexican (or Canadian) nationals, and proper payment and taxation for services rendered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.