Question: I am minority owner of a US company. I have not worked for this company in the past but would like to start under a TN visa. Will my ownership stake in this business cause problems? I am not the sole owner and not the sole employee, although there are only a few employees total.

Reply: The TN regulations specifically prohibit an applicant’s self-employment in the U.S. An individual is considered self-employed under NAFTA “if he or she will be rendering services to a corporation or entity of which the professional is the sole or controlling shareholder or owner.” 8 C.F.R. § 214.6 (b).

This rule prohibits an application for a TN where the applicant is the sole proprietor of the sponsoring company. Inspector’s Field Manual § 15.5 (f) (1) (D). It also prohibits an application for a TN even where the sponsoring company is legally distinct from the applicant (i.e. a corporation), but is still “substantially controlled” by the applicant. Id.

U.S. immigration considers the following factors to determine whether an applicant ''substantially controls'' the sponsoring company:

1. Did the applicant establish the sponsoring company?

2. Does the applicant, as a matter of fact, have sole or primary control of the sponsoring company (regardless of the applicant's actual percentage of share ownership)?

3. Is the applicant the sole or primary owner of the business?

4. Is the applicant the sole or primary recipient of income of the business?

 Inspector’s Field Manual § 15.5 (f) (1) (E).

If you answer “No” to these questions, then you may make an argument for a TN. You should have documentation to show how these factors do not apply to your case, e.g. articles of incorporation indicating that you did not establish the company; affidavits or statements from majority shareholders, directors, or executives, attesting that you do not exert primary control of the company; documentation of your minority shareholder status; or documentation of income.

If you answer “Yes” to these questions, then you should consider as an alternative the E-2 visa category that permits company ownership.