Canadian on TN Visa, pandemic, remote work

This is our main tax information forum which deals with topics concerning Canadians living and working in the U.S., U.S. citizens contemplating working in Canada, and all aspects of Canadian and U.S. income tax and related adminstrative issues.

Moderator: Mark T Serbinski CA CPA

Post Reply
b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Canadian on TN Visa, pandemic, remote work

Post by b8res »

My husband is a Canadian working on a TN Visa for a united states employer. He use to commute and cross the border daily for work, and come back home. Since the pandemic, they were all told to work from home remotely, since he held a non essential position, that would mean he is working in Canada all this time.
Now they are saying he must go back immediately or else his TN visa is at risk, even though travel hasn't completely opened up. Can they terminate it? Are tn visa holders considered essential?

Obviously he knows sooner or later he must return, but I was just wondering, under the pandemic, what are any potential legalities and or tax implications. From what I understand, in a regular non pandemic scenario, a tn visa would not actually be needed, and taxes would need to be withheld in Canada. But since we are still under a pandemic, what are the legalities?
nirvana_1959
Posts: 53
Joined: Fri Mar 18, 2016 9:17 am

Re: Canadian on TN Visa, pandemic, remote work

Post by nirvana_1959 »

I am in a similar situation. There is no issue working remotely as long as you are doing the work and getting paid for it. If you're "on bench" and not getting the salary mentioned in the employment letter then you may get into trouble when crossing the border.

Who is "they" in "Now they are saying he must go back immediately or else his TN visa is at risk..." ?
b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Re: Canadian on TN Visa, pandemic, remote work

Post by b8res »

Thank you so much for your response.

The HR "lady," who claims to have spoken to an immigration specialist, is saying that not fulfilling his work on site is a violation of his TNVisa, and that he could risk losing it.

While other people are working from home, they are forcing him on site as a requirement for his TN.

Doesn't add up to me.
nirvana_1959
Posts: 53
Joined: Fri Mar 18, 2016 9:17 am

Re: Canadian on TN Visa, pandemic, remote work

Post by nirvana_1959 »

HR lady is not making sense. We are in a pandemic. People who can work remotely are urged to do so. If your husband is required to be on site for work reason then it makes sense. From immigration perspective it doesn't make any sense IMO. There are lot of immigration lawyers that do free initial consulting. Call and ask them.

I have come across a case where someone was hired. This person spent 2 months in USA and returned to Canada to work remotely for 6 months (due to some family issue). After six months he went back to USA and he did have problems at the border. He was asked to show paystubs for the six months (among other things) to establish that he was actually working and getting paid for it as per the employment contract. Once he produced them he was fine.
nelsona
Posts: 16806
Joined: Wed Oct 27, 2004 2:33 pm
Location: Nowhere, man

Re: Canadian on TN Visa, pandemic, remote work

Post by nelsona »

You do not need a TN to work in Canada, even for this US firm. However, it could be raising issues for the company, but CRA has taken the position that those US firms with employees "stuck" in canada due to COVID are not going to be considered as having Cdn ties.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D
b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Re: Canadian on TN Visa, pandemic, remote work

Post by b8res »

Thank you for the clarification Nelsona and Nirvana.

From what I just learned, only the canadian workers got told to go back immediately, though the border remains closed for non essential travel, while the American workers can transition to on site work according to pandemic safety policy. Seems misguided. Perhaps his workplace is afraid of taxation legalities down the line..it was my understanding that under the pandemic these legalities would be on hold. Thanks for clarifying that Nelsona.

My main concern was, 1) is it a requirement to be on site to maintain a tnvisa. 2) Is remote work forbidden under the pandemic with a TN visa. It seems to me that it's not the case they are making.

Thank you for sharing your input and experience.
nirvana_1959
Posts: 53
Joined: Fri Mar 18, 2016 9:17 am

Re: Canadian on TN Visa, pandemic, remote work

Post by nirvana_1959 »

nelsona wrote:
> You do not need a TN to work in Canada, even for this US firm. However, it
> could be raising issues for the company, but CRA has taken the position
> that those US firms with employees "stuck" in canada due to COVID
> are not going to be considered as having Cdn ties.

This is another option. Return the TN at the border now and continue to work remotely. Have a corp-to-corp invoicing set up (if the company doesn't have a branch here for the paystub).
Apply for a fresh TN status when good and ready to return to USA.
nirvana_1959
Posts: 53
Joined: Fri Mar 18, 2016 9:17 am

Re: Canadian on TN Visa, pandemic, remote work

Post by nirvana_1959 »

b8res wrote:
> Thank you for the clarification Nelsona and Nirvana.
>
> From what I just learned, only the canadian workers got told to go back
> immediately, though the border remains closed for non essential travel,
> while the American workers can transition to on site work according to
> pandemic safety policy. Seems misguided. Perhaps his workplace is afraid of
> taxation legalities down the line..it was my understanding that under the
> pandemic these legalities would be on hold. Thanks for clarifying that
> Nelsona.
>
> My main concern was, 1) is it a requirement to be on site to maintain a
> tnvisa. 2) Is remote work forbidden under the pandemic with a TN visa. It
> seems to me that it's not the case they are making.
>
> Thank you for sharing your input and experience.

As long as you're working for that company and getting paid as per the employment contract (keep paystubs, bank statements, etc) you should be fine maintaining the TN status. I think the CBP checks this to crack down on bodyshops that hire TNs and keep them on bench in Canada while trying to place them in USA. Again this statement is based on my experience.
nirvana_1959
Posts: 53
Joined: Fri Mar 18, 2016 9:17 am

Re: Canadian on TN Visa, pandemic, remote work

Post by nirvana_1959 »

b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Re: Canadian on TN Visa, pandemic, remote work

Post by b8res »

My husband continues getting paid, and it would be great to go Corp-to-Corp forever. Not sure if his company would be up for that. Great link! Especially reference on remote work while on TN!

Thanks so much!
b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Re: Canadian on TN Visa, pandemic, remote work

Post by b8res »

Here is the response of the workplace..

"This is federal regulations. All TN services must be done in the US. The same is for all employees in any visa status. Additionally, we are not set up to run as a corporation in Canada or any other country. There are many taxation and physical presence requirements that we cannot meet. Therefore, we can’t pay you in a non-TN status. USCIS has provided no exemptions to this federal regulation and neither can we."

Hmmm.. a lot of things here are making me scratch my head..
nelsona
Posts: 16806
Joined: Wed Oct 27, 2004 2:33 pm
Location: Nowhere, man

Re: Canadian on TN Visa, pandemic, remote work

Post by nelsona »

This is not correct; it is the inverse: all work on US soil needs TN. Once you leave US, yopu are not in TN anymore.

Your firm is blowing smoke up your a$$
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D
b8res
Posts: 7
Joined: Thu Mar 14, 2013 10:28 pm

Re: Canadian on TN Visa, pandemic, remote work

Post by b8res »

Thank you. That's what I thought too.. wish I could tell them that:)
Post Reply