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Consulting for a US company from Canada

Consulting for a US company from Canada

Old Jan 5th 2011, 10:26 pm
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Default Consulting for a US company from Canada

Hi

I'm a UK Citizen with Canadian permanent residency and based in Canada. I've been offered a job by a US company and they are going to apply for a H1B visa which could take a few months (apparently there is a limit on the number of applications that can be accelerated?).

The company I will be working for is a US company and has no Canadian branches.

They are keen for me to start asap and thus we are looking for temporary alternatives while the H1B is being processed, one possible option is I work as a contractor/consultant etc. for them. During this initial temporary period I would be based in Canada but would require a few visits to the US, maybe a week to begin with then some days here and there occassionally.

I saw this previous thread, where the op is in the same situation as myself.

http://britishexpats.com/forum/showthread.php?t=574137

However there's several things unclear to me left unanswered in that thread:


- The application form for B1 visa says you must show you are in full time employment. But how can a contractor show this? Especially as with a B1 visa you are not allowed to receive payment from the US company, thus if I say I'm employed by the US company isn't it going against the B1 visa?

- The last posting says he's using the visa waiver scheme. However if you read the details of the visa waiver it says to qualify you must have a return flight to a country which doesn't include Canada. And anyway, what if you drive into the US rather than fly.

If I can't get a B1 visa because I can't show I'm permanently employed, and a B2 visa is for tourist reasons, and if I got one of those but then popped across the border several times for short trips would they get suspicious. What are my best options for getting into the US a few times before the H1B visa is granted (touch wood)?

Last edited by niuniu; Jan 5th 2011 at 11:03 pm.
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Old Jan 5th 2011, 11:50 pm
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Default Re: Consulting for a US company from Canada

If you are working in Canada and need to attend the occasional meeting in the US then the VWP would be the way to go.

The H1 is the temporary quick alternate.
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Old Jan 5th 2011, 11:56 pm
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Default Re: Consulting for a US company from Canada

Thanks

Is the VWP something you apply for?

I was under the impression it was just something that meant people from certain countries i.e. the UK could visit.
i.e. there is no document etc. associated with the VWP that you can apply for?

When I enter the US what is the best thing to say as the reason for the visit?



(incidentally I already have an ESTA).
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Old Jan 6th 2011, 12:17 am
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Default Re: Consulting for a US company from Canada

So you are eligible to use the VWP.

The truth, attending a business meeting if that is what you are doing.
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Old Jan 6th 2011, 12:27 am
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Default Re: Consulting for a US company from Canada

Originally Posted by Boiler View Post
So you are eligible to use the VWP.

The truth, attending a business meeting if that is what you are doing.
Why do you do this? The guy wants to go start work in advance of getting the H-1B and you're talking about going to meetings? He never said anything about meetings. He hasn't said anything to indicate what might be the correct visa choice and you recommend the VWP?
This is how people get confused and in trouble.
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Old Jan 6th 2011, 12:49 am
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Default Re: Consulting for a US company from Canada

Originally Posted by meauxna View Post
Why do you do this? The guy wants to go start work in advance of getting the H-1B and you're talking about going to meetings? He never said anything about meetings. He hasn't said anything to indicate what might be the correct visa choice and you recommend the VWP?
This is how people get confused and in trouble.
That is not going to happen, the scenario I dealt with was listed in my first post, something I know many Canadians I have met who work remotely for US companies do.
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Old Jan 6th 2011, 12:59 am
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Default Re: Consulting for a US company from Canada

In the thread I posted an important distinction is made between a business visit and a work visit.
If I am working for the company while based in Canada, the other thread seems to imply a visit for a business meeting is or can be construed to mean working.
If I turn up at the boarder and say I'm attending a business meeting, and they notice from their computer I've done the same thing several times in the previous several weeks, and some of these meeting might have spanned a couple of days, and they ask am I getting paid for attending these meetings, then what?

P.S.
I'm not Canadian. May or may not be relevant, but seems to me Canadian citizens have more leeway in entering the US then others.

Last edited by niuniu; Jan 6th 2011 at 1:01 am.
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Old Jan 6th 2011, 1:01 am
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Default Re: Consulting for a US company from Canada

I don't see meetings being used in the OP post but he states the company wants him to start ASAP one option being
Originally Posted by niuniu View Post
Hi



They are keen for me to start asap and thus we are looking for temporary alternatives while the H1B is being processed, one possible option is I work as a contractor/consultant etc. for them. During this initial temporary period I would be based in Canada but would require a few visits to the US, maybe a week to begin with then some days here and there occassionally.



To me this indicates working not attending meetings and I wouldn't have thought that wouldn't meet vwp requirements
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Old Jan 6th 2011, 1:18 am
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Default Re: Consulting for a US company from Canada

What are you going to do in the US?
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Old Jan 6th 2011, 1:22 am
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Default Re: Consulting for a US company from Canada

The work is computer software development.

The initial visit of a week would be to meet everybody, find out what the work involves in detail, read their documentation, have presentations made to me, find out how they do things, what their processes are, how they want me to proceed etc.

I expect after that there may need to be some face to face communication, discuss progress, ideas, etc. in the form of "meetings". But tangible producables i.e. documents, diagrams, computer source code and programs etc. can all be created at my home in Canada.

What is the boundary between a business meeting and work? From the other post it implies a business meeting is to set up subsequent work. If that subsequent work involves having meetings to discuss progress etc. is that considered different from a business meeting? Does "business" meeting have some specific definition which is different from a "work" or "technical" meeting?

Basically what I want to determine is if there is an important difference and what the ramifications are and what my best option is until the H1B is granted. Indeed is there anything during this initial period, such as cross boarder trips, that could in fact jepardize the processing of the H1B?

Thanks

Last edited by niuniu; Jan 6th 2011 at 1:24 am.
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Old Jan 6th 2011, 1:36 am
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Default Re: Consulting for a US company from Canada

Originally Posted by niuniu View Post
The work is computer software development.

The initial visit of a week would be to meet everybody, find out what the work involves in detail, read their documentation, have presentations made to me, find out how they do things, what their processes are, how they want me to proceed etc.

I expect after that there may need to be some face to face communication, discuss progress, ideas, etc. in the form of "meetings". But tangible producables i.e. documents, diagrams, computer source code and programs etc. can all be created at my home in Canada.

What is the boundary between a business meeting and work? From the other post it implies a business meeting is to set up subsequent work. If that subsequent work involves having meetings to discuss progress etc. is that considered different from a business meeting? Does "business" meeting have some specific definition which is different from a "work" or "technical" meeting?

Basically what I want to determine is if there is an important difference and what the ramifications are and what my best option is until the H1B is granted. Indeed is there anything during this initial period, such as cross boarder trips, that could in fact jepardize the processing of the H1B?

Thanks
Have a consultation with a US-based immigration attorney with experience in work visas. Use a different attorney than the one the US company is using to do your H1B.

Rene
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Old Jan 6th 2011, 2:16 am
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Default Re: Consulting for a US company from Canada

I get the impression that he's the company wants you to put the cart before the horse. Getting some work in while bothering with that pesky H1B application process is not OK. Coming down to discuss requirements and specs is okay if the actual work isn't done in the US. You have the burden of proof to demonstrate that is what you intend to do.

You should be aware that the first time you cross the line between meeting and working, you will become ineligible to use the VWP again. Also, you could be barred from coming to the US for life if you misrepresent the nature of his "business" activities while seeking entry at the border. If you get caught sneaking in for a lil worky worky when you needs a work visa, then the H1B, and any other type of trip to the US could be out the window.

Last edited by crg; Jan 6th 2011 at 2:20 am.
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Old Jan 6th 2011, 2:06 pm
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Default Re: Consulting for a US company from Canada

I'll just add here that it is you, and not the company, who will bear the brunt of the wrath if/when you get yourself into trouble with US immigration.

Ian
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Old Jan 6th 2011, 2:14 pm
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Default Re: Consulting for a US company from Canada

Originally Posted by niuniu View Post
P.S.
I'm not Canadian. May or may not be relevant, but seems to me Canadian citizens have more leeway in entering the US then others.
They do NOT have more leeway. They are allowed more time in the US on one visit, i.e. instead of the 90 days under the VWP, they are allowed up to 6 months. BTW there is no VWP from Canada.

However, you are not Canadian.

Last edited by Rete; Jan 6th 2011 at 2:17 pm.
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Old Jan 6th 2011, 2:43 pm
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Default Re: Consulting for a US company from Canada

I would be wary in this situation , my OH is UK citizen with Canadian PR who has to travel to the US "branch" for meetings.

They will ask questions at the border to determine if you are "working" for the US company. The main thing he has going for him , is he is paid in CAD by the Canadian company.

I remember him saying that the questions they ask are kind of designed to catch you out , along the lines of

" so you're here to work on ......"

to which he replied " No , I'm here to check the Americans are working on....."

which seemed to be the right answer
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