TN Visa Filed by Sole-Proprietor Permissible?
Question: A former client of mine wants to hire me to help him with mortgage finance related activities for his office in California. The question is that he has been operating as a sole proprietor for 20+ years. Is it still possible to obtain TN visa status via "him"? He is also willing to set up an LLC to facilitate. Would there be any problems in an application if his company is in progress or newly formed?
Reply: Technically, under the law the petitioner for a TN visa can take any legal form (i.e. “any entity entirely constituted or organized under applicable law, whether or not for profit, and whether privately-owned or government-owned, including any corporation, trust partnership, sole proprietorship, joint venture or other association”). See NAFTA Handbook, pg. 48.
However, in practice, where the TN petitioner is a sole-proprietor or small business, U.S. immigration may frequently question whether the petitioner can support a professional TN visa worker. For example, if the petitioner seeks the services of an Accountant, U.S. immigration may want assurances that the individual would only be performing professional-level accounting duties and not job tasks that would not qualify for a TN (e.g. bookkeeping or other administrative functions). The application will need to assure the inspecting officer that the applicant will only perform professional-level duties in the applicable TN occupation.
In these types of cases, officers may also question whether there is a legitimate U.S. business enterprise, and a bona fide job offer, and not an accommodation enabling a friend or colleague to unlawfully reside in the U.S. The application should, therefore, be supported with documentation evidencing the petitioner’s business operations, and need for the applicant's services.
With a sole proprietorship or smaller company, there is also the risk that U.S. immigration may question whether the applicant is assuming an ownership interest in the business as part of the employment engagement. An individual cannot obtain a TN for a company that he/she has an ownership interest in that results in his/her “substantial control” of the company. Many inspecting officers believe that any ownership interest in the TN petitioner precludes the issuance of a TN. This is not accurate.
Eligibility for TN visa status is only prohibited when the ownership interest results in “substantial control” of the company. The NAFTA Handbook describes the factors to assess in making this determination. See NAFTA Handbook pg. 48. In this scenario then, it may be advisable for the application to make clear either that (1) the applicant will not have an ownership interest in the company; or (2) if the applicant will have an ownership interest in the business, it does not provide the applicant with substantial control over the business.