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Independent contractor to a company in USA ??? what type of work visa?

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  • Mar 5th, 2019 11:07 pm
[OP]
Newbie
Feb 4, 2018
10 posts
2 upvotes

Independent contractor to a company in USA ??? what type of work visa?

I’ve been a long time RFD lurker and I’m looking for some guidance as I suspect others have considered doing this or are doing this...

I live in Canada and am thinking of retiring from my current full time job and post retirement doing some part time technical consulting to a USA company as a independent contractor (not direct employee). They hire people this way that already live in USA, but I’d be the first one that actually lives in Canada. Some of this technical consulting (specialized skill) would require me to physically travel to the USA (not just via phone/email) to work with/help solve problems for their customers (1 or 2 times a month for 2 days each time).

My internet research suggests not eligible for a TN of H1B work visa as I would not be a direct employee of the company. I recently talked to an immigration/work permit lawyer and got an answer that the only way to do this would be via an E1 or E2 work permit and these require substantial investment in USA (actually have to set up a company in USA). Sounds strange and complex and then would have to have accountant, etc. I’m open to talking to another work visa lawyer if someone knows one (PM me).

The company also has a Canadian division which I could have the independent contractor relationship with(easier for tax purposes?), but I would still have to cross into the USA to work with the company's USA customers. The immigration/work permit lawyer then said that I could do this option via a “work package” containing letter from them, copy of contract, copy of my degree, letter explaining the relationship and carry it with me each time I cross into the USA. Also, they said via this route I could not incorporate myself, it has to be me contracting directly to the Canadian division, not via a “company.”

Obviously I’m not the first to want to do this so I’m reaching out to others on how they do it. The USA company wants me to contract to them yesterday, but to date have not figured out how to do this work permit wise so it is issue free crossing into the USA. The easiest way would be to be a direct employee of the USA company, but they don’t hire people into this type of role directly, they hire them as independent contractors. No problem when they're already live in USA as no need for a work visa...but I live in Canada and plan to remain living in Canada so the complication is I think I need a work visa, but don't know what kind.

Thanks in advance for any insight someone can provide.
7 replies
Deal Guru
User avatar
Mar 23, 2008
12331 posts
8748 upvotes
Edmonton
Plenty of companies up here in Canada do work for US companies without incorporating down in the US, and without having to get a visa for every one of their employees that go down there. So I think you need to change your approach from "What kind of visa or work permit do I need?" to "How does my company do business with a US company?". I suspect you will need to set up something like the Canadian division was going to do for you... Set up a "work package", but for your own corporation. You're simply an employee of that corporation (rather than being an employee of the Canadian division).

You might want to check in the Entrepreneur/Small Business forum as well for advice.

C
Deal Fanatic
Jul 4, 2004
6315 posts
2421 upvotes
Ottawa
FWIW, when I worked as a contractor in the US, my TN was in the employer (i.e. US name of the company I was doing the work) even though it was a contract. The letter clearly stated that it was a contract and it wasn't an issue with immigration.
Deal Expert
Oct 6, 2005
16613 posts
2318 upvotes
dealtime13 wrote: My internet research suggests not eligible for a TN of H1B work visa as I would not be a direct employee of the company. I recently talked to an immigration/work permit lawyer and got an answer that the only way to do this would be via an E1 or E2 work permit and these require substantial investment in USA (actually have to set up a company in USA). Sounds strange and complex and then would have to have accountant, etc. I’m open to talking to another work visa lawyer if someone knows one (PM me).

The company also has a Canadian division which I could have the independent contractor relationship with(easier for tax purposes?), but I would still have to cross into the USA to work with the company's USA customers.
Couple options, you can qualify on a TN Visa as a Management Consultant, Computer Systems Analyst. or similar title, although the requirements for it are stringent (due to abuse over the years). You may want to get clarification from a lawyer on what to say and what not to say to US Customs and what documentation you need.

You can work for the Canadian division, but when you travel to the US, you have to be very clear you're only there to attend meetings and not to do any real work. Business travellers are allowed to:
  1. To engage in a business meeting.
  2. To attend a conference.
  3. To negotiate a contract.
  4. To take orders for goods manufactured abroad on behalf of a Canadian (or foreign company).
I don't think you're technically allowed to "consult" because that would be real work.

You can work for the Canadian division and then transfer to the US division in a year or so (inter-company transferee) - this might be the best long term option and the company will handle the paper work for you.
CNeufeld wrote: Plenty of companies up here in Canada do work for US companies without incorporating down in the US, and without having to get a visa for every one of their employees that go down there.
They do the work in Canada. While in the US, the worker is only attending a meeting, doing a sales presentation, negotiating a contract, and not doing actual work. It's illegal to perform real work in the US without a TN or similar work visa.

Some information on business travel to the US here. Globe and Mail has a good article too.
[OP]
Newbie
Feb 4, 2018
10 posts
2 upvotes
CNeufeld, michelb and coolspot. Thank you for your comments.

I read back a good way in the Entrepreneur/Small Business forum posts and didn’t see any posts that were applicable. That reading did bring up to me the potential issue of taxes and probably having to file USA taxes. Filing USA taxes would be a further complication (given I only plan to do this part time at 30-50 hours/month) and expense of an accountant ( $1K/yr to do and file USA taxes?).

My visits to the USA would be short duration at 1-3 days so assume that would fall under being business meetings rather than “work in the USA”.

michleb, how long ago were you a contractor in the USA and under a TN work visa? Everything I’ve researched and the immigration lawyer I recently consulted indicated that you cannot get a TN under a contract (had to be hired as an employee) or as an independent contractor.

In terms of being a TN visa “management consultant”, I don’t know if I’d fit under that classification....rather than management or computer systems analyst type stuff, I’d be doing plastics processing type stuff...I don’t know if that would be able to fall under the TN definition of a “management consultant” I’ll check with the next lawyer I plan to seek clarification from. The first one said TN or H1B weren’t options as contract/independent contractor rather than employee.
Deal Fanatic
Jul 4, 2004
6315 posts
2421 upvotes
Ottawa
I worked for 5 years for my US employer. The first year I believe I was an employee for the placement agency and I can't remember if my TN was in the placement agencies' name or the actual employers. I had to do a US tax return that year. Every other year, I worked directly for the US company as a contractor (1099) through my Canadian corporation and did not do US income tax returns (I filed a "closer ties to Canada" form every year and it was never an issue). For all those years, the TN was in the name of the US company I was working for. Having said that, this was in the late 90s to early 2000s and it certainly could have changed since then.
Newbie
Feb 28, 2013
22 posts
5 upvotes
Have you come up with any new information since you originally posted? I find myself in a very similar situation.

I also spoke briefly with an immigration lawyer, and was also advised that a TN Management Visa might be the right path if applicable.
Newbie
May 14, 2019
1 posts
I'm in very similar situation. Canadian with contracting for US company. I'm fine if staying in Canada, but even going to the US to visit bank I got hassled. I did have a "work package" of sorts with me, but even with that, if you catch an agent having a bad day... Needless to say having a TN would be preferred.

I actually have a US LLC for ease of US banking & contract, but since it is single member owned I can't request a TN or H1-B for myself.

I've been investigating "Employer of Record" options when I found this thread.

Of interest herein; the Management Consultant - usavisanow.com says the person should be an Independent Contractor with a consulting agreement with the US company. I could not however find any distinction on the gov sites between the profession and any other. Namely, not requiring to be an employee. Any official links would be appreciated, plus any other professions (Computer Systems Analyst on usavisanow just seems same as regular - I'm an engineering software developer, so could probably make a case under various scenarios).

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