Question: I work as a physical therapist under a TN Visa in the United States. My husband, who is on a TD Visa, wants to start an online business. He has contacted our state Department of Labor (DOL) and filled out a master business application. The DOL says that there are no restrictions precluding him from starting his business while he is on a TD visa. Is this true? Does he have to apply for a different type of visa?

Reply: I don’t believe your husband has received accurate information from the state Department of Labor on this issue. A state governmental entity does not have jurisdiction to determine whether a foreign citizen may or may not engage in a business activity while in the U.S. under a particular non-immigrant visa classification. Employment authorization for foreign citizens working in the U.S. is governed at the federal level by the U.S. Department of Homeland Security.

The active management and operation of an online business from within the U.S. would violate an individual’s TD status. The NAFTA regulations do not permit the TD spouse of a TN worker to engage in any employment activities from within the U.S. See 8 C.F.R. § 214.6 (j) (3). This includes starting up, managing, and operating a business from within the U.S. regardless if it is a purely online, as opposed to a brick and mortar business.

Generally, the E-2 investor visa is the most appropriate non-immigrant visa classification for an individual who wants to start-up and run his or her own business from within the U.S.