1099 on TN

S

sabih

Registered Users (C)
I am aware that this issue has been raised several times on this forum. However, my recent employer is unwilling to let me work on 1099 since according to it's lawyer, TN holders are allowed to work only on W2. Could someone kindly provide me a link to some official website that would say otherwise? Also, my company has provided the following information that suggests otherwise:

Both the TN visa and the H-1B visa are issued to temporary EMPLOYEES. Self-employed professionals, including 1099 and incorporated independent contractors, are precluded from obtaining TN-1 status, and the INS has advised its field offices that the E-2 "treaty investor" classification may be the appropriate alternative for these types of Canadian professionals, http://www.grasmick.com/invest.htm. The E-2 is complex and more difficult to qualify for. For this reason, Canadian contractors seeking work in the U.S. are generally advised to work as W-2 contract employees through a third party employer of record.
 
Last edited by a moderator:
http://www.immigration.com/nafta/section5.html

From the NAFTA handbook, available at various sites, including

(B) Pre-arranged Professional Services. In order to obtain “TN” classification, a businessperson, including one who is self-employed, must be seeking entry to render pre-arranged professional services to an individual or an enterprise. If the business activities are to be rendered to an individual or an enterprise, the enterprise must be substantively separate from the businessperson seeking entry.

Moreover, the business activities must not include establishment of a business or practice or any other type of activity in which the businessperson will be self-employed in the United States.

As used above, to constitute pre-arranged professional services, there must exist a formal arrangement to render professional service to an individual or an enterprise in the United States. The formal arrangement may be through an employee-employer relationship or through a signed contract between the businessperson or the businessperson’s employer and an individual or an enterprise in the United States.
Click to expand...

Note the difference between the 2 definitions of self-employment. The one your lawyer is quoting is known as 'self-petitioning'
 
Thanks alot Nelsona for your help. A couple of question regarding the same:

Should the company's TN letter metion 1099 at all? and if so, should the letter state that the said person working with them on 1099 is a temporary employee of that company? If not, then what should be the correct statement?
 
They are hiring YOU to do a specific JOB asa contractor. And they will pay you XX.
 
You must log in or register to reply here.
Top