Canadian consultant (not employee) and working in the US (visa?)

August 14, 2015 7:19 AM

I am a Canadian citizen and web developer / eLearning specialist who has been working remotely (in Canada) for several American clients. Some of my clients are interested in having me come down for short periods to work with them. I am not an employee of any American company, and from what I can see, I cannot be sponsored for a TN visa or an H1-B visa. Is there any way at all that a Canadian consultant can legally work in the US for short periods of time without being an employee?

Potential activities would include attending meetings, running small training seminars for my clients only (not for the general public), and some small scale development on site.

"I" am my company: I'm incorporated in Ontario.

This previous question looks promising, as it says that my company can apply for a TN, but does this still apply in 2015? The TN Visa site says that the first step is a job offer from an American employer, which I obviously don't have.

In addition, I have some concerns that I don't fit neatly into any TN job category. I'd hate to apply, then get turned away at the airport.

posted by maudlin to Work & Money (10 answers total)

Best answer: Since this is important to your livelihood, I think you'd be well served by making an appointment to talk with a lawyer. Depending on circumstances you might be able to enter on a B-1 visa. Visitors entering on a B-1 visa can attend meetings and consult with associates (but can not draw any salary from a United States entity). However, It is permissible for B-1 visa holders to conduct business activities on behalf of a foreign employer (as long as their salary comes from their foreign employer). So presumably if the company you own is set up to pay you a salary, you can continue to receive it while consulting with your colleagues in the U.S. However, if you enter on a B-1 visa you can't perform services that would constitute local employment. Under a B-1 visa running training seminars and small scale development are probably not permitted, although if they're largely incidental to your meetings maybe if you're circumspect and careful how you describe them you'll be OK (really I think you should talk to a lawyer).
posted by RichardP at 7:52 AM on August 14, 2015 [1 favorite]

Talk to a lawyer before you apply for anything, apparently applying for one category and receiving & entering on another can get you detained & deported. Lisa Scott: Kicked out of the US - 33 hours of hell
posted by TheAdamist at 8:31 AM on August 14, 2015 [1 favorite]

Best answer: I've traveled to the US as a B-1 many times. RichardP is correct, you can't do this for work to be paid for by an American client, IME. The class is mostly for people going to business meetings, conferences and the like where sales are not involved.

I'd want to discuss options with a lawyer, but unless you are self-finding these trips, I think it's unlikely that you would be allowed in on those terms. Who is paying for your work while you are in the US is one of the questions you may very likely be asked at Customs. The decision to issue a B-1 or a B-2 ("holiday") visa is at the discretion of the interviewing officer.
posted by bonehead at 9:58 AM on August 14, 2015

Response by poster: Thanks for all the feedback. I think I could maybe make a B-1 work if:

1) The American client paid my incorporated company directly for services (LIMITED e.g. meeting and discussing a project) rendered in the States and associated travel / accommodation costs for sending the employee (me)
2) My Canadian business paid me, the employee, my usual salary on a monthly basis, not explicitly tied to services rendered as part of the project
3) If I had to front travel / accommodation costs personally (I have no corporate credit card), I would expense my business as I usually do to get back the associated amounts the business billed to the American client

BUT this is definitely lawyer territory, to be sure. I will consult before I go any further.
posted by maudlin at 10:10 AM on August 14, 2015

Response by poster: (Yeah, I should really get a corporate credit card).
posted by maudlin at 10:17 AM on August 14, 2015

Best answer: I work adjacent to this field but I am not your visa professional. In general, I think that most of the advice I see on the green to get a lawyer for nonimmigrant visa issues is overblown. More useful, probably, would be to consult with your local U.S. consulate - this will actually carry some weight if you ever do have problems, whereas the opinion of a private attorney will not.

In every other way I agree with RichardP's answer. Everything that is and is not permitted on a visa is governed by the FAM, which you can read yourself here, in language that is technical and dense but not particularly difficult to understand. I don't have a clear answer to your question based on what you've written, but I can mention three parts of this document that may be relevant for you:

I've seen this exact situation in a country that doesn't have a visa waiver program with the U.S., and was referred to the same language you can see at the bottom of page 5: "It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. Most of the following examples of proper B-1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States." If your work is clearly incidental to work that is principally performed in Canada, you're fine, if the work taking place in the U.S. is the more substantive part of the project, then you're almost certainly not.

The second section applies depending on how your consulting company is incorporated abroad. It's on page 18, and I was going to go into more detail but I see on preview that you're already aware that if your remuneration is coming from a "foreign firm" you may be allowed to do temporary skilled labor without an H visa.

The third point is on page 22, where consular officers are instructed to send an advisory opinion in any case where it's not clear whether the work falls under the B1 category. I am not a lawyer and I am not an expert on how these things go in visa-waiver countries; however, I want to emphasize that a lawyer may very well tell you one thing and the CBP officer at the border may tell you another, and the CBP officer is the one who will win. I've seen a lot of people waste money on attorneys who were not competent or knowledgeable and I can assure you that their opinions made no difference to the outcome of the case. If you can find an attorney for less than $160 USD then maybe you'll save some money, but otherwise my advice would be to call your local consulate, ask whether you can make a visa appointment despite the fact that you are eligible for visa waiver, make the appointment and explain the situation and, if they believe the case is not clearcut, they can send an advisory opinion. This is the only way I know of to get a definitive answer that will carry any weight with the US immigration system.
posted by exutima at 10:28 AM on August 14, 2015 [3 favorites]

Response by poster: Wow -- thanks! That's very helpful. I have checked locally and it's a four week wait with my local consulate, which is not great for new clients asking me to meet them within a week or so.

I believe I need a new B-1 for each discrete business trip for a single client yet, right? Or can I get a B-1 and use it for repeated trips for a single client within the single year that it's valid? Ideally, could I get a B-1 and use it for multiple trips for multiple clients throughout the one year period?
posted by maudlin at 11:02 AM on August 14, 2015

Best answer: In Canada, the default for a B1 or a B1-B2 visa is for it to be valid for ten years with unlimited entries and exits (though it's possible but uncommon for this to be limited for various reasons), so yes, you can get it and use it for repeated trips for a single or multiple clients. It's not a visa category that's tied to any particular employer, so if it's approved, as long as the type of work you're doing is the same as you describe in your interview (ie incidental to the main project, getting paid by a foreign firm, etc) then you aren't limited by who the work is for.
posted by exutima at 11:13 AM on August 14, 2015

Best answer: One more thing - if you're in Toronto, I see that the website says that it's a four week wait, but that language probably hasn't been updated since Obama issued his executive order instructing consulates to maintain a wait time under 21 days back in 2012. You can find out how long the wait is in any city here - this is not up-to-the-minute info, but I believe it's updated weekly-ish and is almost certainly more accurate than the website. It says Toronto has a wait time of 9 calendar days for an interview, which doesn't get you there next week but is better than a month.

Okay, I'm done - will stop pushing my agenda now.
posted by exutima at 12:57 PM on August 14, 2015

Consult with an immigration attorney, but if you think you will be performing work then a B-1 is likely not a good choice for you, however there is a TN category called Management Consultant which does not require you to be - and in fact is not meant for you to be - an employee of the business that you will be consulting for. You would need a letter from them inviting you here to present at the border (with lots of requirements I won't go into, etc.) and then a management consulting agreement - which you would probably have anyway - but again, specific details required, etc. If you'll be onsite for a while helping them out, then the fees you would generate from that seem to me - NYIA - like work performed in the United States.

Again, not your immigration lawyer, but the Management Consultant category sounds like it could be a good fit for you and is worth looking into.
posted by good lorneing at 10:43 AM on August 15, 2015