Self employed TN visa

TN Visa status is reserved for Mexican and Canadian nationals that will be working for a US employer or servicing a US client. Employment is a required component to obtain TN Visa status. Self-employment is not allowed under the TN Visa status. We discuss the employment requirement of TN Visa status and what is considered self-employment here.

What is the employment requirement for a TN visa?

One of the main requirements for a TN Visa is prearranged employment or business at a professional level for a U.S. client or employer. A TN Visa cannot be obtained for prospective employment. A verifiable job offer or contract must support the application for TN visa status.

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 US entity that they own, or in which they hold a controlling interest (50% or more). As defined by the USDOS Foreign Affairs Manual and Handbook, 9 FAM 402.17:

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, the applicant should pursue that employment under another visa category, possibly to include the Treaty Trader (E-1) or Investor (E-2) visa classification.

Another factor to consider when determining self-employment  in “substantial control”:

  • Did you establish the US entity?
  • Do you have sole or primary control of the US entity (Regardless of your ownership % or share ownership)?
  • 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 US entity it might be considered self-employment. In these cases, the E Visa or L visa might be the more appropriate visa status.

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.

What should I do if I’m self-employed?

We have seen many scenarios where CBP has even denied foreign professionals entry to the United States on a TN visa for simply having a U.S. company because of the perception of self-employment. If you are self-employed, or you have 50% or more interest in a US company, the L-1 Visa, E-1 Visa, or E-2 Visa might be a better fit. In fact, E-1 and L-1 visas are often a better option for foreign nationals who have multiple US clients.

About TN Visas

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We Can Help!

Don’t know where to start? If you have questions about whether your particular situation qualifies, contact Richards and Jurusik for help with your TN Visas. We have more than 30+ years of experience helping people live and work in the US on TN Visas.

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