TN Visa status is reserved for Mexican and Canadian nationals who will be working for a U.S. employer or servicing a U.S. client. Employment is required to obtain TN Visa status, and self-employment is not allowed under it. We discuss the TN Visa status employment requirement and what is considered self-employment here.
What is the employment requirement for a TN visa?
To qualify for a TN Visa, one of the main requirements is having prearranged employment or a business relationship at a professional level with a U.S. client or employer. This visa cannot be granted for prospective or speculative employment opportunities. Applicants must have a verifiable job offer or contract that clearly outlines the terms of employment. The job must be in a profession that qualifies under the NAFTA agreement, such as engineers, scientists, accountants, or teachers. This documentation is essential to support the application and demonstrate that the employment is legitimate and meets professional standards.
What is considered “self-employment” for a TN Visa?
Employment in the United States rises to self-employment when the TN Visa professional provides professional services to a U.S. entity that they own or hold a controlling interest (50% or more). As outlined in 8 CFR 214.6, engaging in business activities at a professional level under a TN Visa means performing prearranged business activities for a U.S. entity, including an individual. However, this does not authorize the establishment of a business or practice in the United States in which the professional will, in substance, be self-employed. A professional will be deemed self-employed if they render services to a corporation or entity of which they are the sole or controlling shareholder or owner.
Additionally, the USDOS Foreign Affairs Manual and Handbook, 9 FAM 402.17, specifies:
Self-Employment: An applicant cannot qualify for a TN visa to establish a business or practice in the United States in which the professional will be, in substance, self-employed (including by rendering services to a corporation or entity of which the applicant is the sole or controlling shareholder or owner). If the applicant seeks self-employment, they should pursue that employment under another visa category, such as the Treaty Trader (E-1) or Investor (E-2) visa classifications.
Factors to consider when determining self-employment include:
- Did you establish the U.S. entity?
- Do you have sole or primary control of the U.S. entity (regardless of your ownership percentage)?
- Are you the sole or primary owner of the business?
- Are you the sole or primary recipient of income from the business?
If you cannot sufficiently separate yourself from the U.S. entity, your arrangement might be considered self-employment. In such cases, the E Visa or L Visa might be the more appropriate visa status.
What if I have a foreign company and a contract with a U.S. client?
If you own a foreign company and have contracts with a U.S. entity, this is generally not considered self-employment. Ownership of a foreign company does not typically bar TN Visa status. This arrangement is common for self-employed IT professionals and management consultants. For example, a foreign corporation may contract with a U.S. entity, requiring employees to travel to the United States under the contractual agreement.
Many self-employed business professionals work as independent contractors. This alone does not necessarily signal self-employment. Suppose a business professional performs work in the United States under an employment agreement or a prearranged contract with a U.S. employer or U.S. entity. In that case, they can still qualify for a TN Visa. In these scenarios, their work in the United States is tied to a contract with a U.S. entity that controls their employment, and either party can terminate the contractual relationship at any time. Such employment arrangements are not typically considered self-employment for TN Visa purposes.
What should I do if I’m self-employed?
Many scenarios exist in which CBP has denied foreign professionals entry to the United States on a TN Visa for merely having a U.S. company due to the perception of self-employment. If you are self-employed or have 50% or more interest in a U.S. company, the L-1, E-1, or E-2 Visa might be a better fit. Consulting an experienced immigration attorney can help determine the most appropriate visa classification based on your circumstances and ensure compliance with U.S. immigration laws.
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Citations
- USDOS Foreign Affairs Manual and Handbook: 9 FAM 402.17
- § 214.6 Citizens of Canada or Mexico seeking temporary entry under USMCA to engage in business activities at a professional level.
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