TN Visa and Opening New Business

Question: I'm currently in the US under TN status (Canadian). A friend (US citizen) and I are considering starting a computer related company in the US. We are funding the venture with some personal $ and some external investors. My contribution is approximatly 10K. I would be a owner / shareholder with an equal majority ownership in the company. If we are able to start the company, can I obtain TN status from USCIS being a shareholder of the startup?

Answer: Generally, the TN visa regulations do not authorize a Canadian citizen to establish a business in the United States and then have the business sponsor that individual for TN status. 8 CFR § 214.6 (b). A Canadian citizen may not obtain TN status for the purpose of providing services to a U.S. corporation or entity of which he is the sole or controlling shareholder or owner. Id. This rule prohibits the issuance of a TN to a Canadian citizen sponsored by a company that is solely owned by the TN applicant. Even if the sponsoring company is a separate legal entity, a Canadian citizen may not obtain TN status if he or she substantially controls the sponsoring company. The government will look at the following factors to determine whether a TN applicant “substantially controls” the sponsoring U.S. enterprise:

  1. Whether the applicant has established the sponsoring enterprise;
  1. Whether, as a matter of fact, the applicant has sole or primary control of the U.S. enterprise (regardless of the applicant's actual percentage of share ownership);
  1. Whether the applicant is the sole or primary owner of the business; or
  1. Whether the applicant is the sole or primary recipient of income of the business. NAFTA Handbook (November 1999).

The more you can personally move away from these factors, the better your chances at obtaining a TN for this company. Otherwise, you may have to look into the E-1 trader  / E-2 investor visa categories which allow a foreign citizen to enter the U.S. in order to develop and direct investment operations in the U.S. Now, you cannot hold two non-immigrant statuses in the U.S. at the same time. So it’s either the TN or some other non-immigrant category. Of course, you may still contribute financially to this new enterprise while remaining on your current TN provided you remain on the sidelines and do not actively engage in the management or operations of the new business.