TN visa as Engineer as Contractor, paid via LLC??

[ith123 0]

I'm Canadian and was wondering if it is possible to have the following set up:

-Large University wants to hire me as an engineer for a project (actually that I've been working on for some time) but can't make me an employee for a number of reasons (=bureaucracy - if I'm an employee vs contractor they have to technically double their budgeting because they need to allocate overhead vs just pay the amount they have).

-I have a personal LLC that I own all of.

-I am having an issue (again bureaucracy) where it is difficult for them to hire me as an independent contractor, SO:

--->Can Big University hire me as an engineer for 3 years (or less?) via the LLC (for liability and bureaucratic reasons) under the TN visa??

-i.e. the letter would say, "we are contracting to this individual for an engineering project through his personal LLC "X LLC" for $x and would like a TN for 3 years?

I know there are issues with being self employed but I've heard that it's not self-employment (1099 vs W2) that is the issue but rather self-sponsorship which is not allowed.

Thanks so much for the help!

[Harsh_77 718]

I dont think CO would buy this - how difficult is to create a LLC?

its not very difficult nor it needs much of investment to create a LLC, specially with 1 employee (yourself) and sponsoring self thru that LLC.

If it was that simple anyone who is looking for TN would create a LLC and sponsor themself.

If I am not wrong then Univ or any other employeer who is filing for TN for you will have to hire you on their payroll.

Edited February 24, 2011 by Harsh_77

[Boiler 45,753]

The LLC is the employer, the Uni is the customer.

[ith123 0]

It needs to be a consulting arrangement (vs W2 employee) for a number of reasons. I have read that it is OK to be a 1099 contractor (vs W2) employee under the TN visa - is this accurate??

If this is true, then would it be ok to use a personal LLC as the entity that gets paid (very common for any kind of contract work for liability reasons) instead of a 1099 to the individual. The letter would still be explicitly from the University to me, just the LLC is in the middle to protect liability.

Thanks!

[Boiler 45,753]

http://immigrate2us.net/forum/content.php

Letter of Employment in the U.S. Additionally, the applicant’s employer in the U.S. must provide an employment letter that includes the following:

The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.

The applicant must present evidence of professional employment to satisfy the Consular Officer of your plans to be employed in prearranged business activities for a U.S. employer(s) or entity(ies) at a professional level. Part-time employment is permitted. Self-employment is not permitted. An employment letter or contract providing a detailed description of the business activities may be provided from the U.S. or foreign employer, and should state the following:

Activity in which the applicant shall be engaged and purpose of entry;

Anticipated length of stay;

Educational qualifications or appropriate credentials demonstrating professional status;

Evidence of compliance with DHS regulations, and/or state laws; and

Arrangements for pay.

Although not required, proof of licensure to practice a given profession in the U.S. may be offered along with a job offer letter, or other documentation in support of a TN visa application.

[ith123 0]

Thanks for that - so that would indicate that a 1099 contract vs w2 would also not be permitted since that would be considered self-employment? Why do I keep hearing from lawyers that it's ok to be a 1099 situation? I need to get them to point to the law that makes them confident of this?

http://immigrate2us.net/forum/content.php

Letter of Employment in the U.S. Additionally, the applicant’s employer in the U.S. must provide an employment letter that includes the following:

The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.

The applicant must present evidence of professional employment to satisfy the Consular Officer of your plans to be employed in prearranged business activities for a U.S. employer(s) or entity(ies) at a professional level. Part-time employment is permitted. Self-employment is not permitted. An employment letter or contract providing a detailed description of the business activities may be provided from the U.S. or foreign employer, and should state the following:

Activity in which the applicant shall be engaged and purpose of entry;

Anticipated length of stay;

Educational qualifications or appropriate credentials demonstrating professional status;

Evidence of compliance with DHS regulations, and/or state laws; and

Arrangements for pay.

Although not required, proof of licensure to practice a given profession in the U.S. may be offered along with a job offer letter, or other documentation in support of a TN visa application.

[Dakine10 5,452]

Thanks for that - so that would indicate that a 1099 contract vs w2 would also not be permitted since that would be considered self-employment? Why do I keep hearing from lawyers that it's ok to be a 1099 situation? I need to get them to point to the law that makes them confident of this?

At one time, you could do it this way. As long as the Tn was sponsored by the university, and the payment was from the university to you, USCIS would consider you to be working for them even though it was a 1099 contract. The 1099 is a IRS designation, not a USCIS one.

The self employment restriction would prevent you from incorporating in the US and sponsoring your own Tn.

I haven't followed changes to the Tn closely and it's several years since I had one, but it's possible that your lawyers are correct.

[Harsh_77 718]

The LLC is the employer, the Uni is the customer.

Thats exactly what I was saying Boiler -

Op was asking if he can create a LLC in US and contract can be between Univ and LLC and he would be the sole employee of the LLC.

I dont think that would fly with consulate.

[Boiler 45,753]

Thats exactly what I was saying Boiler -

Op was asking if he can create a LLC in US and contract can be between Univ and LLC and he would be the sole employee of the LLC.

I dont think that would fly with consulate.

Not the consulate, the POE.

[Harsh_77 718]

Not the consulate, the POE.

Whichever not POE or Consulate, I am not sure how Canadian get TN stamped at POE or Consulate - but either of them the plan would not work for OP