June 27, 2016

TN Visas for Canadian & Mexican Entrepreneurs

TN Visas for Canadian & Mexican Entrepreneurs

TN VISAS: A STRONG OPTION FOR CANADIAN & MEXICAN NATIONALS

The TN visa is well suited for Canadian and Mexican citizens seeking to work in one of the professional occupations listed in the North American Free Trade Agreement (NAFTA). Professionals in various fields, including information technology, engineering, finance, marketing, and consulting, frequently use the TN to work in the United States.

The TN is also quick to obtain. If you’re Canadian, all you need is a brief letter, with supporting evidence, outlining the company, the position, and your qualifications, and within an hour or so at the border you can get your TN. If you’re Mexican, you need the same information, but you’ll have to schedule an appointment at a U.S. consulate.

The fee is only $56.00 (compared to thousands of dollars to file an H-1B petition), there is no annual limit on the number of TN visas, and you get up to a three-year work permit that can be renewed pretty much indefinitely.

TNs are straightforward if you have a job offer from a U.S. company and you have a bachelor’s degree in one of the fields listed in the NAFTA regulations at 8 C.F.R. § 214.6.

WHEN TN VISAS BECOME COMPLICATED

TN visa get trickier if:

  • You don’t have a bachelor’s or higher degree specifically listed in the NAFTA occupations;
  • You haven’t completed college;
  • You only have work experience since graduating from high school; or
  • You are or will be an owner of a startup.

NAFTA specifically prohibits ‘‘self-employment’’ for TNs. That poses problems for entrepreneurs or recent graduates from a U.S. university who want to start a business in the United States. Still, NAFTA regulations do not specifically define ‘‘self-employment.’’

HOW ENTREPRENEURS CAN MEET TN VISA REQUIREMENTS

DEGREE REQUIREMENT
Some NAFTA occupations require the minimum of a bachelor’s degree to qualify. Other positions require a specific degree or post-secondary diploma plus experience (e.g., interior designer, hotel manager, or computer systems analyst). While it appears NAFTA may limit individuals who possess a specific formal educational degree that is not on the list (e.g., visual arts degree), NAFTA regulations provide for expanded opportunities for both degreed and non-degreed applicants to obtain a TN visa.

NAFTA allows an applicant possessing a degree in an allied field to qualify for TN status http://www.eta-i.org/ambien.html under certain circumstances. For example, a Canadian professional may seek to fill a graphic designer position for a U.S. company. However, she has a visual arts degree, not a graphic design degree. The visual arts degree is not specifically listed in the NAFTA occupations. However, an evaluation of the person’s transcript may disclose classes taken where the knowledge gained could be used to perform graphic design work. Consequently, a TN application could be prepared and presented as a graphic designer.

WORKING FOR A U.S. STARTUP AS A CANADIAN ENTITY
NAFTA allows TNs to work in the United States who are employed by a Canadian entity, provided they are entering the United States pursuant to a contract with a U.S. customer. For example, a Canadian entrepreneur may co-found a U.S. startup with U.S. citizens. Here, the entrepreneur would form an Ontario corporation, own it, and have it enter into a professional services contract (e.g., to provide software consulting services) with the U.S. startup.

The contract would be presented as part of the standard TN application, including the job offer letter on Canadian company letterhead, information about the Canadian company, and the applicant’s educational and work experience evidence. If forming the Ontario entity is not feasible, the Canadian entrepreneur should avoid having shares in the U.S. startup issued to him. If they want some level of formal corporate interest, the use of restricted stock, stock options, warrants and voting trusts offer viable strategies.

AVOIDING SELF-EMPLOYMENT
The prohibition against self-employment for TN entrepreneurs may also be addressed through:

  • A formal board of directors, where the applicant has only one of at least three board seats (the more board seats overall the better);
  • An executed employment agreement where a majority of the board can fire the TN applicant; or
  • An intellectual property assignment agreement is in place.

These strategies have been generally accepted by USCIS as it relates to H-1B entrepreneurs. While USCIS is a different agency than Customs and Border Protection, which handles TN applications at the Canadian border and airports, and the State Department, which decides TN applications at its consulates in Mexico, a colorable argument can be made that entrepreneurs with similar employer/employee arrangements should qualify for TN status.