Management Consultants under NAFTA are generally independent contractors when they are not employees of consulting firms under contracts to U.S. entities. In situations where a TN worker is not an employee of a consulting firm, it is beneficial to establish and evidence that the Management Consultant is engaged as an independent contractor. If a TN worker clearly is an independent contractor, a complete agreement to that effect is useful and recommended.
Generally, if the sponsoring company has significant control over how, when, and where the TN worker performs services, then it is more likely that an employer-employee relationship exists. The Internal Revenue Service has identified “twenty factors or elements” for determining whether an individual is an employee or independent contractor. This list can be helpful to establish the nature of the TN engagement if questioned.