Working in TN Status with No U.S. “Employer”

The TN nonimmigrant classification provides Canadian and Mexican citizens with the opportunity to work in the United States in specified professional roles. As discussed in the MurthyDotCom InfoArticle, TN Status: Employment Option for Canadian and Mexican Citizens (04.Oct.2021), this visa category provides a streamlined process for bringing professional workers into the U.S. While the TN classification is often associated with a traditional employer-employee relationship with a U.S. employer, it also accommodates less conventional employment arrangement, under certain conditions.

Flexibility in TN Classification: Beyond the Traditional Employer-Employee Relationship

Unlike the H1B nonimmigrant classification, a key benefit of the TN nonimmigrant classification is its flexibility in several key aspects, one of which allows the Canadian or Mexican citizen to render prearranged services in the United States without requiring a formal employer-employee relationship with a U.S. entity. Instead, Canadian and Mexican citizens may qualify for TN status based on a formal agreement, such as a signed contract, to provide prearranged professional services to a U.S. individual or entity.

For example, a foreign company that has entered into a contract with a U.S. company to provide services to the U.S. company potentially could sponsor a Canadian or Mexican citizen for a TN to provide services in one of the specified TN professional occupations. Based on a legacy Immigration and Naturalization Service (INS) letter, it is even permissible for a Canadian or Mexican citizen to directly contract with a U.S. entity, and apply for a TN based on that contractual relationship, without the requirement of becoming a W-2 employee of the U.S. company.

Restriction on Self-Employment

An important distinction to note is that TN workers are prohibited from establishing a U.S. entity where they effectively will be self-employed. Per regulation, a TN worker is not permitted to have a controlling interest in the U.S. entity sponsoring the TN.

On the other hand, ownership of a foreign company contracted with a United States entity to provide services in the United States does not automatically preclude eligibility for TN classification. A Canadian or Mexican citizen who owns or controls a foreign company may enter the U.S. under the TN classification to fulfill a contractual agreement between their foreign company and a U.S. entity, assuming there is an agreement for prearranged services in the United States.

Conclusion

The TN nonimmigrant classification offers significant opportunities for Canadian and Mexican citizens to work in the United States. However, navigating the distinction between permissible work and prohibited self-employment is essential to ensuring compliance with U.S. immigration laws.

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