Question: I am minority owner of a US company. I have not worked for this company in the past but would like to start under a TN visa. Will my ownership stake in this business cause problems? I am not the sole owner and not the sole employee, although there are only a few employees total.
Reply: The TN regulations specifically prohibit an applicant’s self-employment in the U.S. An individual is considered self-employed under NAFTA “if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.” 8 C.F.R. § 214.6 (b).
This rule prohibits an application for a TN where the applicant is the sole proprietor of the sponsoring company. Inspector’s Field Manual § 15.5 (f) (1) (D). It also prohibits an application for a TN even where the sponsoring company is legally distinct from the applicant (i.e. a corporation), but is still “substantially controlled” by the applicant. Id.
U.S. immigration considers the following factors to determine whether an applicant ''substantially controls'' the sponsoring company:
- Did the applicant establish the sponsoring company?
- Does the applicant, as a matter of fact, have sole or primary control of the sponsoring company (regardless of the applicant's actual percentage of share ownership)?
- Is the applicant the sole or primary owner of the business?
- Is the applicant the sole or primary recipient of income of the business?
If you answer “No” to these questions, then you may make an argument for a TN. You should have documentation to show how these factors do not apply to your case, e.g. articles of incorporation indicating that you did not establish the company; affidavits or statements from majority shareholders, directors, or executives, attesting that you do not exert primary control of the company; documentation of your minority shareholder status; or documentation of income.
If you answer “Yes” to these questions, then you should consider as an alternative the E-2 visa category that permits company ownership.