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Can I receive a TN visa by working for a U.S. company that contracts with a Canadian or Mexican company that I own?

By August 18, 2022Immigration, TN Visa
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The TN visa can be an excellent option for nationals of Canada or Mexico who want to work in the United States. To qualify, the applicant must have an offer of employment from a U.S. employer to work in a listed profession, and the applicant must be qualified to work in that profession. The list of professions and their related qualifications is published in the TN regulations at 8 CFR 214.6. For more information on the TN visa and its requirements, please see our earlier post here.

One of the common questions we receive about the TN visa is whether the applicant for the TN visa can be self-employed. Let’s take a closer look at the question, and common scenarios that come up. Please note that this blog post will refer to employer “sponsorship,” but this simply refers to the U.S. company that will employ the TN applicant. As we discuss in our earlier blog post here, the TN visa does not require formal sponsorship by the employer.

I am a Canadian or Mexican national and own a company in the United States. Can my company in the United States sponsor me for a TN visa?

No. U.S. immigration law is clear that the TN applicant cannot come to the United States to work for a U.S. business that they own or control. 8 CFR 214.6(b) states that a TN applicant is self-employed “if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.” While the regulations do leave open the possibility that the TN applicant could work for a company of which they are a minority and non-controlling shareholder, it is likely that the government officer will scrutinize this arrangement.

For nationals of Canada or Mexico who own a business in the United States, the E-2 visa could be a great alternative to the TN. Both Canada and Mexico are E-2 treaty countries. The E-2 visa allows the owner to live and work in the United States, and the visa can be renewed indefinitely. For more information on the E-2 visa, please see our post here.

I am a Canadian or Mexican national and own a company in Canada or Mexico. Can a U.S. company contract with my foreign company to hire me to work in the United States?

Yes. A Canadian or Mexican who is self-employed by a business that they own in Canada or Mexico can apply for a TN visa based on an independent U.S. employer requesting the services of the TN applicant’s foreign company (for example, through a contract for services).

In this situation, it is generally recommended that the applicant provide a detailed contract for services between the U.S. and foreign companies that names the individual and describes the scope of work, the services they will provide, and the fees they will charge. In terms of compensation, the U.S. company could pay the foreign company directly, or pay the TN applicant as a 1099 independent contractor. For more information on working in the United States as an independent contractor, see our earlier post here.

Why would a TN applicant prefer to apply under their Canadian or Mexican company?

For some TN applicants, particularly those who are solo consultants or otherwise work alone as independent contractors, establishing a company in Canada or Mexico that they work under can reinforce the legitimacy of their business and services. Oftentimes, working under a separate legal entity can also provide additional benefits to the business owner, such as liability protection. Scott Legal practices only U.S. immigration law, so please be sure to consult with a qualified business or tax attorney to resolve any questions about liability, tax, or other consequences of setting up your own business entity.

Conclusion

In summary, the prohibition against self-employment applies to situations in which the TN applicant is an owner of the employer in the United States. A Canadian or Mexican who is self-employed by their business in Canada or Mexico can apply for a TN visa based on an independent U.S. employer requesting the services of the TN applicant’s Canadian or Mexican company (for example, through a contract for services).

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This website and blog constitutes attorney advertising. Do not consider anything in this website or blog legal advice and nothing in this website constitutes an attorney-client relationship being formed. Set up a one-hour consultation with us before acting on anything you read here. Past results are no guarantee of future results and prior results do not imply or predict future results. Each case is different and must be judged on its own merits.

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