TN visa on a contingency contract

Hi guys,

Great forum. I have a quick question.

I am a dual Canadian/Australian citizen, currently living in Australia. I am an American educated lawyer licensed to practice in California. (yes, I have a complicated life).

There is a potential employer who would like to have me come work for him in California, however this would be on a contingency fee basis (e.g. once cases are won/settled, a cut would be received for the work). I would not receive any ownership interest at all in the firm, so while it is a form of profit sharing it doesn't seem to me that it could be considered "self employment".

Would an employment agreement on this basis be considered an "employment contract" sufficient for a TN status? I considered trying to do this under the E-3 visa for Australian professionals, but found that the needed Labor Condition Agreement required a set salary, and contingency fee agreements were not allowed.

Perhaps my Canadian citizenship would allow me to do this under a TN status entry?

Thanks in advance for any insights you may have.

You would be able to get a TN on this basis, HOWEVER, the border would likely insist that you maintian foreign residential ties (which is not normally required on TN). You would be visiting the legal firm as your client.

Btw, self-employmwent is not forbidden under TN. Self-sponsorship is. As long as you have a TN for each client that you work for (in this case the client would be the law firm -- they would sponsor your TN), then you can be paid as contractor.

I would think, though, that therre would have to be some concrete remuneration spelled out in the TN letter for this to pass, since TN also has protections against wage erosion.

Since you would be working for as law firm, why not have them work this out. We're amateurs.

Thanks for your help. Unfortunately neither myself nor the firm I would be working with practice in the area of visa/immigration law, so have no expertise in this area!

Under the contingency arrangement - which is, incidentally, how all the other (Americans) staff at the firm are paid - I would be paid upon successful settlement of cases. Most likely I would be earning in excess of 100k/year, but there is a theoretical chance, of course, that I might earn nothing.

My research (it won't let me post the link) seems to indicate that wage erosion issues aren't a problem, the real problem is possibly convincing the officer that I have the means to support myself, as my wage would potentially be less than the poverty level (Google indicates that this was $10,830 last year).

Is the only way to satisfy this requirement to have my employer pay me 125% of $10,830, plus a contingency fee arrangment, or would the officer be unlikely to raise this issue? I would prefer to operate on a entirely contingent arrangement if at all possible.

Also, is there any way to get pre-approval for a TN visa? Given I would be coming from Australia, not from Canada, would the border officers at the major US airports be familiar with the visa? I would not really like to get all that way and find my application to be unsuccessful...

Thanks so much for your help. I now know why I didn't go into immigration law!!

lawyers are not typically paid $14K a year, so, yes, you would face a wage issue even under that arrangement.

Lawyers are a pretty tight bunch, find one who can help you.