TN or B1?

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Aulex
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Joined: Thu Aug 19, 2010 7:49 am

TN or B1?

Post by Aulex » Thu Aug 19, 2010 8:25 am

Scenario:
Canadian resident has his own corporation in Canada. This corporation has contract with US Company to perform services on various US client’s sites. Canadian resident travels frequently to US as an employee of Canadian company and remains in the US for total less than 183 days.
I cannot understand on what status should this Canadian enter US - TN or B1? As TN he should be employed by US Company. As B1 he cannot be paid by US funds for the work performed in US. Well technically he draws salary from his corporation in CAD which is in turn getting paid in US funds - so is this OK then and he should enter US on B1 as employee of Canadian company performing work in US? How to explain this properly at POE in order to not have any problems? What documents to have with you?

Thank you for your responses!

nelsona
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Post by nelsona » Thu Aug 19, 2010 10:08 am

You should be getting a TN, as a contractor, with the agency.

There is no requirmenet that a TN be an employee. he can be a contractor for one or several clients.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

Aulex
Posts: 11
Joined: Thu Aug 19, 2010 7:49 am

Post by Aulex » Thu Aug 19, 2010 11:07 am

Thank you!
1. So you don't really need to setup Canadian corporation - right? Just a letter from US Company confirming it's going to pay you as individual (corporation?) for the services performed.
2. What needs to go into the letter from US Company?
3. Can it state 3 year term to get maximum TN term? So it will be general letter stating they need my services for 3 years and will be paying such and such per hour in this area of my expertise?
4. If I understand right - in such scenario if corporation do exists you cannot really work under B1 and do need TN - right?

nelsona
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Post by nelsona » Thu Aug 19, 2010 11:15 am

Incorpoartion is not a deciding factor for B1 or TN -- self-emploment is the key.

If you are continuing to live in Canada, and are doing work that is allowed on B1 or TN, then you can have B1 or TN.

However, the work being done wil determine eligibility for either, which you wil find out at the border.

If you are TN-eligible, the letter shoud stae what you tasks will be and the remuneration. ne aware that recent tightening of H1B rules has some CBP officers insisting that TNers get client letters rather than agency letters. The fact that you intend to live in Canada may help avoid this.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

Aulex
Posts: 11
Joined: Thu Aug 19, 2010 7:49 am

Post by Aulex » Thu Aug 19, 2010 3:45 pm

So if you work for Canadian company, and Canadian company has contract with US company - can (and should? or even must?) you obtain TN in such case? My understanding so far is all determined by work done as you explained above, so if Canadian company is sending you in US and getting paid for your work from US company, even though you are receiving salary from that Canadian company in Canadian dollars, and even though you are in US just occasionally Mon to Wed every other week for less than 183 days (I know it's more for taxes but just mentioning to emphasize you are far from being considered as US resident) you would still be expected to have TN visa. Correct?
My initial confusion was that all determined by who you work for and how you are getting paid, so if you work for Canadian company and paid in CAD then no need for TN but seems I was wrong in such assumption. As question WHERE is determining factor here it seems.

nelsona
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Post by nelsona » Thu Aug 19, 2010 3:55 pm

It depends on the work being done.

There is a set of jobs that can be done on B1 -- as an employee of a Cdn company. There may be a differnce between an employee of the Cdn comapny, and a self-employed individual in the eyes of CBP -- that I do not know.

It is sometimes possible (required) that the Cdn employee get a TN, if the work falls outside the scope of B1 but within TN specifications.

All I know is that we have brought down about two dozen employees of Cdn company, doing B-1 eligible work -- and 3 of them, for no discernable reason, were forced to get TNs.
Nelsona Non grata. Non pro. Search previous posts. Happy Browsing :D

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