Question: I make digital products and sell them online in Canada. Can I continue to run this small business in Canada while I work with a TN Visa in the USA?

Reply: Under the U.S. immigration laws, a nonimmigrant (such as a TN visa worker) who fails to maintain his/her nonimmigrant status may be deported from the U.S. INA § 237(a)(1)(C)(i). A nonimmigrant worker may only engage in the employment he/she was authorized to perform by U.S. immigration authorities. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status. 8 C.F.R. § 214.1 (e).

If you are providing any services to a U.S. client, or U.S. customers are purchasing your products, then I think the result would be clear: most immigration officers would consider this unauthorized employment. As indicated above, this could result in your removal from the U.S. Alternatively, if discovered by U.S. border officials when traveling this could lead to a denial of entry to the U.S., the revocation of your TN visa status, and potentially an expedited removal charge, which results in a 5-year bar to the U.S.

Whether this same result would occur for someone who is only working for a Canadian company providing services or products exclusively for Canadian customers is a gray area under US immigration law. If your business has no U.S. office, has no U.S. customers, is not competing with U.S. workers or taking jobs from U.S. workers, and there is no benefit to the Canadian business with your being in the U.S., then you could argue that the Canadian-based work does not violate your TN status and is not considered unauthorized employment.

However, keep in mind that every time you enter the U.S. you will be subject to inspection and a border's officer's discretion in whether to re-admit you to the U.S. If a border officer discovers the Canadian work, you may be required to prove that the work does not violate U.S. immigration law. The burden will be on you to establish this, and given that U.S. immigration authorities have not formally stated whether such work is permissible, I would exercise caution.

If you do decide to continue the Canadian work while in the U.S. under TN status, I would recommend having pre-existing documentation available showing that you only service Canadian clients, and that the business has no U.S. nexus as described above.

TN VISA SERVICE USED:    

• Our Full TN Visa Application service, and Emergency Visa Appointment Request service.

SOLUTION:    

• We first assisted the applicant in securing an emergency visa appointment at the U.S. Embassy in Mexico. This involved helping draft a statement to the Embassy explaining the applicant had an urgent need for the visa appointment because her research was critical to her prospective employer’s Covid 19 response programs. The Embassy agreed, and granted the expedite appointment.

• To establish that the applicant’s position qualified for TN status, we helped craft an employer support letter that fully described the Economist tasks involved in the position. The applicant possessed a degree in Economics, and as such, was a perfect match for the Economist TN occupational classification.

• We provided the applicant with a cover letter to the Embassy, and supporting evidence to show that her job involved the performance of Economist duties, and that her work was in response to the Covid 19 pandemic.

• We also briefed the applicant for her visa interview so that she was prepared to fully respond to any questions the consular officer may ask.

FILING PROCESS:    

• TN visa application filed at the U.S. Embassy in Mexico.

PROCESSING TIME:    

• Embassy expedite appointment review completed in 1 day, and visa appointment scheduled for 2 weeks afterwards.

Statements regarding prior application approvals our office has obtained are provided for informational purposes only. Prior results do not guarantee a similar outcome.