Adding an Employer

[Botero]

-I'm on TN-2 (TN for Mexican Citizen) with Employer A part time, but I'm being paid on 1099 since I started. That shouldn't be a problem due to I engaged in prearranged business activity for a U.S. employer. I worked part time initially and now I'm working as needed few hours this month.

Question 1. Can it be confused as self employment due to the 1099? I was sponsored by Employer A and got the TN to work just for them.

-I received and offer from Employer B to work for its client, as temp to hire. I recently went to the US Consulate to request a second TN for Employer B. I would work full time for Employer B in W-2 and Part time with employer A. I didn't get the addition of Employer B due to in 9 FAM 41.59 N12 CHANGING OR ADDING EMPLOYERS OR STATUS (CT:VISA-1543; 09-27-2010) now states that I shall file an I-129 to add or change employers. And I was sent back to file the I-129 and send it out for approval. I'm waiting to know if Employer B's client wants to wait until I-129 is approved or wants to pay the Premium Process.

Question 2. I can file I-129 but there's only two options for TNs "Change Status" and "Extension of Stay". Which one should I choose to add Employer B?

Question 3. If I choose "Change Status", the Form I-129 Instructions (Rev. 01/19/11) requests:
1. A letter from the employer stating the activity to be engaged in, the anticipated length of stay, and the arrangements for remuneration.
2. A copy of the beneficiary's last 2 pay stubs and W-2 if employed in the United States; and
3. Evidence the beneficiary meets the educational and/orlicensing requirements for the profession or occupation.
In this case for line 2. My pay stubs only states what I earned on 1099 basis and the stub states my name as Vendor and obviously no tax withholding, therefore I won't receive a W-2 for this. I have W-2 from my previous employers but not for this one. Should I send this type of pay stubs and the 1099 when its received? Can it be confused as self employment? I think it can.

Question 4. If I choose "Extension of Stay" it doesn't state that I need to send copy of last 2 pay stubs and W-2. Does this apply better for the addition of employer B? I would work on W-2 for Employer B.

Question 5. In the assumption that I get the approval for employer B and I don't want to work anymore for Employer A, do I need to go to the POE or the Consulate to cancel the Visa and ask for a new TN stamp for Employer B?

My biggest concern is that even that I have a TN for employer A, I'm being paid on 1099 and in my recent interview with the US consulate officer before I was sent back to file an I-129, he also pointed out that I should work only on w-2, and not give invoices to get paid as I was asked from Employer A, I suspect that this action can be considered self employment. I didn't offer my service at a certain rate, the company offered me a job for a certain rate.

I'm comfused and I don't know how to remedy this if it turns out that it is a mess. My wife is in H1B and don't want this to jeopardize my stay in the US.

 

[nelsona]

1. No, this is not a problem.
2. You should be checking "New concurrent employemnt". That is exactly what you are asking for.
3/4. This would be an extension of stay. You will need all the same documents that were filed for your first TN, except a new letter for Employer B.
5. No.

As a mexican, you should realize that anytime you get a new sponsor, you will need I-129 approval. But you do not need to get a new TN Visa at the consulate until your current one nears expiry. When you do go for new visa, it will be based on latest employement, so the 1099 issue won't come up. It is perfectly fine to work on 1099 in TN as long as you have a TN for each client. This is not self-sponsorship. which is forbidden.

 

[Botero]

Thanks Nelsona, it does relax my mind now, and I have further questions. It's sometimes stressing and exciting at the same time to have unexpected situations, and I really want to thank you for your help.

Question 6. Just to extend a little bit on answer for question 5. If I get approved TN for Employer B, I will have two I-94s and one not expired stamp for Employer A to get in the US in the case I travel abroad. OK. In the case I decide to leave Employer A, then the answer for question 5 is No for going to the POE or Consulate to get it cancelled. I understand that if I wouldn't need to travel outside the US in a future. But if I travel abroad to visit family or whatever and I'm not working anymore for Employer A and then come back in, (the following is my assumption, could be right or not) I would need to have my stamp calling for Employer B, right?. Because if I have the stamp calling Emploryer A, when coming back I won't lie that I'm still working for Employer A. When do I let DHS know that I'm not working for Employer A anymore, or when and where do I need to surrend Employer A I-94? and then get a new stamp for the current employer that would be Employer B. In other words I don't want to get back to the US and not let be in due to my stamp says that I work for Employer A and even that I have an I-94 for them or maybe surrended it when left the country, I don't work for them anymore but I also have an I-94 for Employer B and this I-94 does not match to the stamp. That's my confusion (My nickname should be confused rather than botero).


Disregard a little bit question 6 for this one. If Employer B client decide not to wait 2 months avg processing time for I-129 approval nor pay the Premium processing, because I would work 2 months in a temp to hire for their client. Then I have the option to keep Employer A. OK. But Employer A in the basis that I'm working part time as needed (on 1099), they don't know if I will be called for at least a few hours for the next two months or more due to it depends on their work load. Question 7. Would that be considered not working anymore for Employer A (The TN visa for employer A exprires on 08/2011)? Question 8. Should I then file to change status to H4 using I-539? If in the time process of getting the approval of I-539 that would take about 4 months, as far as I know, I get an offer for a job, then I would file an I-129, Question 9. How do I cancel I-539 or is it cancelled automatically when filing the I-129?

Thanks in advance.

 

[nelsona]

Your stamp is a TN stamp, not a particualr TN stamp. So, as long as you travel with valid I-94 and non-expired TN Visa, regardless of sponsor, you are fine.

The other situation you describe is "benching". You are out of status when you are benched.

I'll leave this thread now, because on the one hand you say you are working for Employer A and have a job offer from B, and on the other hand you now say you are benched at Employer A, and may have to wait for job offer from B.

Not quite truthful.

Adios.

 

[Botero]

Sorry Nelsona but I never lied here, in the initial statement I mentioned that I worked a few hours this month for employer A and worked part time but not mentioned that was during five months after getting the TN and yes I have been benched since one week ago according to your definition. And I got the offer from Employer B to work for their client this week, and Employer B is trying to know if its client wants to wait for the whole new process. If I wouldn't have the offer from Employer B I wouldn't go to the US Consulate to ask for a second TN, as one time you suggested to do, either go to the consulate for a second tn or file an I-129, obviously according to that it was faster for me to go abroad to get the second TN (as I did a previously to change my status or changing employers) than waiting 2 months or 15 working days on Premium Processing. But now I knew the hard way that the process changed since September last year and then my petiotoner needs to file an I-129.

I think you misunderstand it due to my initial statement on the first paragraph was forgotten.

Thanks for your help. We all here are looking for help and advice or to help the others. If you disagree please keep your rude comments to yourself and if you like to help do it in good faith. Nobody here wants to offend the others.