Work for Canadian company being in US on TD

P

PP25

New Member
Hi,

If one spouse is on TN and other is on TD, can the spouse work for Canadian company being in US on TD?
Both are Canadian citizens.

I'm not sure from legal point what is Ok here, hence seeking your expert advice here (work, crossing border for trips, visa status). There will be for sure some tax thing that i will need to check with my Accountant, but from employment and status wise if you can shed some light it will help us out.


Thanks
PP25.
 
The general rule is that you can work for a foreign company on TD, or any other non-immigrant status, as long as these criteria are met:
(a) your foreign employer has no US presence,
(b) the work for the foreign company is not being done for a US client
(c) the firm is not benefitting from your physical presence in US (ie. you/they do not have access to resources in US that you would not have if you were not present there)

From a tax point of view it would be better if they work a contractor rather than an employee.
 
This is definitely a grey area. I am not sure where Nelsona obtained his "general rule" from, but I am not aware of any rules other than the strict interpretation that people on TD are only allowed to study, no employment is authorized.
Also note that having a number corporation in Canada while living in the US causes all sorts of IRS reporting requirements.
I recommend consulting with a tax expert in the US and the Canadian province that you setup a consulting company.
I found it extremely difficult to get clear answers, thus this is definitely a grey area.
 
It is indeed gray, but the rule (of thumb) is indeed as I outlined above.

Tax issues are not for this forum; I post cross-border answers to that of serbinski, but there is no need for a Cdn corporation to do this work , or to be paid as a consultant.
 
I investigated 2.5 years ago and i found accountants saying it should be okay, but immigration lawyers saying it is not okay.
If the long term plans are to remain on TD for several years and then return to Canada in the future, this may be okay.
But if the long term plans are to file AOS at some point in the future, and the person on TD status declares on the I-485 form their place of residence in US and their occupation as employed for a Canadian company, does this not raise questions?
 
No. One doesn't have to be living in US to submit I-485 (they need only to be present), and one could be commuting. Let's not overthink this. CBP is not interested in the specifics of your income taxes. they only want to know that you have filed; they let IRS worry about taxes.

This is based on 18 years of research, most done years ago, but nothing in the law has changed since, and telecommuting has increased since then, with no repercussion experiences reported.

However, if you have the opinion of an immig lawyer that you personally paid for advice, feel free to share that lawyer's opinion.
 
2.5 to 3 years ago I investigated this same question, can a person on TD status work for a Canadian company remotely, being in the US. (as contractor working for Canadian numbered corporation or as remote employee).
I do not know what the answer to this question is.
I do not think there is a definitive answer. thus it is a grey area.

When you file AOS I-485 you need to provide exact dates of residence and exact dates of employment status.
If you are a real commuter you can say you lived in Canada. But if you lived in the US and worked remotely, not sure how this would be handled on the I-485. (there is no option for tele-commuter). Do you have any experience in how to handle this?

The good sign is no repercussion experiences have been reported (as per your message above).
 
You are allowed to telecommute, per the guidelines I listed above, so CIS will have no issue.
 
You must log in or register to reply here.
Top