Certain professionals who are citizens of Canada or Mexico can apply for TN visa. For example, architects, engineers, lawyers, management consultants, psychologists, and computer system analysts with required qualifications can apply for TN visa. Here are the requirements you have to meet to obtain the TN visa:
- You must be a citizen of Canada or Mexico
- Your profession qualifies under the TN regulation
- The employer in the U.S. requires a TN professional
- You have a pre-arranged job with the U.S. employer
- You have the required qualification to practice in the profession (education or experience)
Do I have to work full time on TN visa?
The answer is no. You can work either full time or part time on TN visa.
Can I set up a company in the U.S. and work for this company on TN visa?
Self-employment is not allowed on TN visa. Therefore, you cannot work for a company on a TN visa where you are the sole or controlling shareholder or owner. A CBP officer will look at the following factors (among others) in considering whether you have substantial control: whether you established the enterprise, whether you have the sole or primary control of the U.S. enterprise, whether you are the sole of primary owner of the business, and whether you are the sole or primary recipient of the business income. There is some flexibility when you are under the management consulting category but you should speak to an experienced immigration lawyer to go over those options.
If you want to start a company in the U.S. and then run the company, E-2 visa may be the right visa for you.
Can I work as an independent contractor on TN visa, or do I have to be a W-2 employee?
Most TN visa holders are employees, but it is possible to be working on a 1099 basis. One category of TN professionals that often work as independent contractors are management consultants. Management consultants provide services that are directed towards improving the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity’s goals.
The question that sometimes arises is whether one can work as an independent contractor if the TN applicant is not a management consultant. There is no clear answer to this question in the TN regulations, but this is generally permitted given there is no explicit requirement in the TN regulations that the TN employees is W-2 employee rather than independent contractor. That being said, most TN applicants are employees so this may be an expectation (or the norm) with an examiner. As such, TN applicants who will work in the U.S. as independent contractors should be ready for additional questioning at the border, as the officer may have doubts whether there is a real job that will continue for the TN independent contractor. Please note that this blog post only analyzed this issue from an immigration law perspective, and the TN applicant should review applicable labor and IRS laws to make sure that he/she can work in the U.S. as an independent contractor.
If you do not qualify for TN visa, please see our blog post discussing work visas in the U.S.
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