Can a business visitor/ESTA holder “sell” their products in the U.S.?
February 4, 2022
Here’s an issue that comes up with some frequency - a foreign entrepreneur/small business overseas has seen some success selling their product (e.g. a fashion item, or a line of home goods) in their home jurisdiction and start setting their sights on the U.S. market. Selling online is an obvious first step, as no U.S. subsidiary or physical presence is required to set up on Amazon or Ebay. In order to grow and market their products, a logical next step are trade shows - the kind of multi-day events held in warm-weather cities (e.g. Orlando, Tucson etc.) that bring together purchasers and suppliers.
While obviously foreign entrepreneurs and business owners can enter the U.S. to attend trade shows and conferences, is there a limit on the commercial activities they can engage in while there? The answer is yes, and awareness of the specific rules is critical to avoid problems at entry. Take this as a scenario - an entrepreneur from the UK has designed a line of jewelry pendants that have sold well there. He decides to attend an upcoming trade show in Florida and decides to take along some of his product. Thinking he might be able to sell them on site, he takes 300 along in his suitcase.
When arriving in the U.S. he’ll face two issues: the first is customs. As part of the entry process, he’ll be asked to declare any commercial items he’s carrying - any failure to do so (and pay the appropriate customs duty) can lead to the products being seized (i.e. confiscated) by U.S. customs.
The second problem is immigration. If asked during the immigration inspection (i.e. the brief interview with the Customs & Border Protection officer) specifically what he plans to do in the U.S. and he responds that he’s hoping to sell his products, he risks being denied entry to the U.S. This is because selling is not a permitted activity for travelers entering the U.S. in B-1 (visitor visa) or ESTA (visa waiver) status - from CBP’s own guidance which states that “you can temporarily bring goods or products into the United States to solicit orders but you cannot sell them or make money in the United States”.
Worse, if he isn’t truthful about his intention to sell the products and CBP finds 300 pendants in his suitcase, they can accuse him of misrepresentation which can lead to expedited removal (i.e. deportation) from the U.S. and can result in a life time bar from re-entering the country. Is this the most likely outcome? No. Does it happen? Absolutely.
So if he can’t sell, what can he do? He is permitted to show his products, meet with potential customers and suppliers, and even discuss potential sales contracts. Any actual selling however must be done once he’s outside the U.S., and unless he’s giving away free samples, he’ll have to bring any commercial items with him when he leaves the U.S.
