With a TN Visa, can one work as a self-employed professional? This visa status, primarily for Mexican and Canadian nationals providing services to a US employer or client, necessitates an employment component for eligibility. Self-employment, however, is not permitted under TN Visa rules. This article delves into the TN Visa’s employment requirements and how self-employment is defined.
Employment Requirement for a TN Visa
A primary prerequisite for a TN Visa is having predetermined professional-level employment or business with a US employer or client. A TN Visa cannot be issued for potential employment—rather, the visa application must be substantiated by a legitimate job offer or contract.
Defining “Self-Employment” Under a TN Visa
For a TN Visa, “self-employment” arises when the visa holder offers professional services to a US business entity they own or control significantly (ownership of 50% or more). As per the USDOS Foreign Affairs Manual and Handbook (9 FAM 402.17), a TN Visa cannot be used to establish or operate a business in the US where the professional is fundamentally self-employed.
Determining substantial control, and thus self-employment entails consideration of factors such as whether you established the US entity, have sole or primary control of it, or are the main owner or income recipient. If your relationship with the US entity suggests self-employment, an E Visa or L Visa might be more suitable.
What if I have a foreign company and I have a contract with a US client?
If you own a foreign company that has contracts with a US entity, this is not considered self-employment. The majority of ownership in a foreign company also does not bar TN Visa status—a type of arrangement that is common for self-employed IT professionals and management consultants. We also see this scenario when a foreign corporation has a contract with a US entity requiring them to send employees to the United States under the contractual agreement.
Many self-employed business professionals work as independent contractors, and this fact alone does not signal self-employment. If a business professional is performing work in the United States under an employment agreement or a pre-arranged contract with a US employer or US entity, they can still qualify for a TN Visa. In these scenarios, their work in the United States is tied to a contract with a US entity that controls their employment. Either party can terminate the contractual relationship at any time. Such employment arrangements are not typically considered self-employment for TN Visa purposes.
Ownership of a Foreign Company with a US Client Contract
Having a foreign company with contracts with a US entity doesn’t categorize it as self-employment. Even a majority ownership in a foreign business doesn’t preclude TN Visa eligibility—an arrangement often seen with self-employed IT professionals and management consultants. This scenario also occurs when a foreign corporation contracts with a US entity to send employees to the US.
A considerable number of self-employed professionals function as independent contractors, which doesn’t inherently indicate self-employment. If a professional is engaged with a US employer or entity under an employment agreement or predetermined contract, they can still be eligible for a TN Visa. The key is that their US work is linked to a contract with a US entity controlling their employment.
Alternatives for Self-Employed Professionals
In many instances, CBP has denied entry to foreign professionals into the US on a TN Visa because of perceived self-employment. If you’re self-employed or have a significant interest in a US company, visas such as L-1, E-1, or E-2 may be more appropriate. Particularly, E-1 and L-1 visas are generally better suited for foreign nationals with multiple US clients.
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Additional Outside Resources
- USDOS Foreign Affairs Manual and Handbook: 9 FAM 402.17
- IRS: About Form W-2, Wage, and Tax Statement
- IRS: About Form 1099-MISC, Miscellaneous Income
We Can Help!
You may have questions regarding TN Visa Regulations for Self-Employment. We invite you to reach out to our team at Richards and Jurusik for detailed guidance and assistance. Our goal is to provide you with the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today for an assessment of your legal situation.
