Dear Sophie: Can I start a company or a side hustle on a TN visa?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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Dear Sophie:

I’m a Canadian citizen working under a TN visa as a software engineer in the U.S. I want to start my own company or at least earn money through a side hustle.

Is this possible on my TN, or is the only way I can do that via a green card? If so, is it possible to get permanent residence since the TN is for non-immigrant intent?

— Clever Canadian

Dear Clever,

There are many things that the modern U.S. immigration system was not designed for, including (but not limited to): the internet, e-filing and blockchain, working remotely, working from home, the modern gig economy, startups, flexible work arrangements and contractor work.

You may know that our current system of laws was generally created by the Immigration and Nationality Act in 1952, back when everything was much simpler. The legal history at play here includes judges making decisions about tailors from China sailing to San Francisco to take measurements for suits that would be sewn months later when they returned home.

I’ll get straight to the point: You cannot do any work under your TN for anyone other than the employer that sponsored you for the TN. So, my educational message is this: No side hustles or founding of startups while on your TN.

Two TN visas at the same time?

Yes, it’s possible. Under immigration law, you can have two TN visas at the same time — one from your current employer and one from another employer; say, your startup. However, this is very difficult to achieve and comes with two very important caveats:

• Get legal advice on whether your employment agreement with your current employer prevents you from creating your own startup on the side or retaining your intellectual property.
• Work with both a corporate attorney and an immigration attorney if you proceed with setting up a startup and having your startup sponsor you for a TN visa. You cannot sponsor yourself for a TN or any other work visa. You need a company sponsor and a supervisor, and employer-employee relationship (you might know the drill from H-1B-land).

What about a green card?

A green card will give you the freedom to create your own startup and work all the side hustles you want. However, you generally can’t get a green card while on a TN visa, and here’s why:

The TN visa is a non-immigrant visa, which means it requires the intent to depart the United States or non-immigrant intent. You are required to intend to live and work in the United States only temporarily and eventually plan to return to Canada at the conclusion of your services.

You must demonstrate non-immigrant intent to the State Department at your visa interview if you are a Mexican citizen and to U.S. Customs and Border Protection if you are Canadian or Mexican and entering the U.S. Applying for a green card is clear evidence of immigrant intent. Starting this process before or while on a TN could risk not only your green card process but even your TN.

Three work visas are recognized as dual-intent visas, which means you can have both non-immigrant and immigrant intent, and can therefore apply for a green card before or during your stay. The H-1B specialty occupation visa and the L-1 multinational transfer visa are dual intent and even the O-1 extraordinary ability visa allows parallel green card processes.

Here are a few pathways to a green card:

• If you qualify, ask your current employer to sponsor you for an H-1B or an O-1A visa — or find an employer that is willing to do so — before you apply for a green card or your employer sponsors you for one. The EB-1A extraordinary ability and EB-2 NIW (National Interest Waiver) green cards are the only ones that don’t require an employer sponsor. That means you can submit a green card petition on your own behalf.
• Return to Canada, create your startup and work at your startup full time for at least one year. Then your startup can sponsor you for an L-1A visa for intracompany transferee managers and executives, and you can move to the U.S. to open an office for your startup here. The L-1A offers a direct path to the EB-1C green card for multinational managers and executives.

Keep in mind that the green card process takes a year and a half or longer depending on what type of green card you apply for and the country you were born in.

If you were born in India or China, you will likely be subject to the backlogs of the Visa Bulletin. There can be long waits for EB-2, EB-2 NIW and EB-3 green cards because of the annual numerical and per country caps on green cards. EB-1 green cards are available to individuals born in all countries, according to the latest Visa Bulletin for September 2022. However, backlogs remain for India and China in the EB-2 and EB-3 categories.

Talk to an immigration attorney to get a view of the additional options available to you based on your circumstances, qualifications and goals.

Where there’s a will, there’s a way!

— Sophie

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