The TN Visa, designed for Canadian and Mexican nationals, allows professionals to engage in activities with U.S. employers or clients. However, it’s essential to understand the limitations regarding self-employment under this visa category. In this post, we explain these limitations.
Employment Necessities for TN Visa Eligibility
A crucial condition for obtaining a TN Visa is having confirmed employment or business engagements with a U.S. employer or client. The visa process demands concrete proof of a valid job offer or contract. Unlike other visas, the TN Visa does not accommodate potential or speculative employment opportunities.
Defining Self-Employment within TN Visa Constraints
“Self-employment” for TN Visa purposes occurs when a professional provides services to a business they own or control substantially. According to the USDOS Foreign Affairs Manual and Handbook (9 FAM 402.17), the TN Visa is not intended for establishing or managing a U.S. business where the visa holder is essentially self-employed. Indicators of self-employment include owning, controlling, or being the principal income earner of the U.S. entity.
Situations Involving Foreign Company Ownership
If you own a foreign company with U.S. contracts, this arrangement is not classified as self-employment under TN Visa standards. This model is frequent among IT professionals and management consultants, where a foreign company is contracted to provide services to a U.S. client. Here, the employment dynamics still align with TN Visa regulations.
Independent Contractors and TN Visa Compliance
Being an independent contractor does not automatically equate to self-employment. TN Visa compliance is maintained if the professional works in the U.S. under an employment agreement or a contract with a U.S. entity wherein the U.S. party controls the employment terms.
Alternative Visa Options for Self-Employed Individuals
Alternative visa options like the L-1, E-1, or E-2 might be more fitting for individuals who are genuinely self-employed or significantly involved in a U.S. business. The E-1 and L-1 visas are mainly suitable for those with multiple U.S. clients, offering a more appropriate pathway for entrepreneurs and self-employed professionals seeking to work in the United States.
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Citations
- 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
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