TN Visa required/appropriate in my case?

Enkala

New Member
I am a Canadian citizen living in India. I have a degree in electrical engineering and worked on a TN-1 visa for 8 years (2006 to 2014) as a W-2 employee for a staffing company (company X) which put me on assignments at a large engineering company (company Y).
Recently, company Y contacted me to do some project work.
Since company X is the approved vendor, the purchase order will be processed through company X which will bill company Y. I, as an individual professional, will bill company X for my work and company X will deposit money into my bank account in India. I have made an agreement with company X to work as an independent contractor. I have also provided W-8BEN. Is this arrangement OK? Or should I incorporate a company in India?
Most of the work can be performed remotely from India, but there will be a need for me to visit company Y for about 2 weeks for project kick off, get familiar with equipment in the engineering lab, setup laptop with VPN access etc. For the 2 week visit -
1. Do I need to get a TN visa through company X? 2. Will the visit be considered a business trip?
3. What type of documentation will I need from company X to show the immigration officer at the international airport in USA?

I appreciate anyone that can provide answers to my questions. Many thanks in advance!
 
Company X tells me that as an independent contractor, I am not considered their employee. They don't think TN visa letter makes sense in this case and unsure what a TN letter would even state. Any guidance here will be appreciated.
 
If you are an independent contractor, then you can get the TN letter (which would simply explain your relationship, and identify Y as the client/project) form either Company X, or company Y (which would identify itself as your client).
 
I was reading the US State Department website.

It states Self-employment not permitted for TN visa. Is being an independent contractor not the same as self-employment?

I have also read elsewhere
As long as the employer can establish control, you can work as an independent contractor.

What is establishing control and how is company X supposed to do this in the TN letter that they are

Thanks again for your replies. I cannot wrap my head around this.
 
Self-employment is not self-sponsorship. You can work directly for a client as a contractor. This is well-established.
 
I was reading the US State Department website.

It states Self-employment not permitted for TN visa. Is being an independent contractor not the same as self-employment?

I have also read elsewhere
As long as the employer can establish control, you can work as an independent contractor.

What is establishing control and how is company X supposed to do this in the TN letter that they are

Thanks again for your replies. I cannot wrap my head around this.


What they mean is, you cannot register a company in US and try to get a TN under your own company.
But, you can be self employed under other company (than yours).
eg: you can be an independent Contractor under Accenture, Delloite, etc, for TN purposes.
 
I think I am beginning to understand. Basically, I cannot sponsor myself for a TN. I am clearly not doing this.
I was reading old TN letters issued to me by company X. The letters state -
This letter supports the use of TN status by [My Name], who [Company X name] wishes to employ as a Senior Test Engineer, providing engineering services to our client [Company Y name]. The contract is currently not expected to exceed 12 months. Work will be performed at the Phoenix, Arizona location and is expected to be a minimum of 40 hours per week for the duration of this assignment. The compensation for the position is US$XX per hour. [My name] will be under the supervision of [name of some person], VP, North American Services, [Company X name]. This assignment has a start date of May 8, 2014.

In my present case, would it make sense to use the word "contract" Instead of "employ"?

How about the job title? Should it be something else? It has to have the word Engineer, I guess.

Duration in my present case will be 2 weeks or so. But the letter can say not exceeding 3 months. Correct?
 
I forgot about the Supervision part. Is that how company X can establish control? But does that contradict what an independent contractor means?
 
Don't over think this. A contractor is a contractor, if paid by 1099; no need for "independence". YUse the word "engage"

Don't forget an end date.
 
To make sure I understand correctly -
For the earnings from work performed in the US, company X will issue a 1099.
For the earnings from work performed in India, no 1099 will be issued.
Correct?
 
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