I am a Canadian working in US with TN visa. In May 1996, my company started the sponsorship (immigration through employment) process. From what I gather this process may take awhile. Meanwhile my TN expires next June. If labor certification is completed by then, can I still apply for TN or should I pursue other avenues? Please tell me what are my options?

The presumption of immigrant intent under INA §214(b) applies to the TN category whenever the TN worker applies for admission or readmission to the United States. The fact that you have a pending or approved labor certification will be considered strong evidence of immigrant intent. If the labor certification or immigrant petition comes to the attention of the inspecting INS officer, you will have a very difficult time overcoming this presumption. In practice, INS officers at ports of entry are lifting I-94s from TN workers where they become aware of such facts.

The current Operations Instructions ("OIs") still relate to the now superseded Canada-U.S. Free Trade Agreement ("CFTA"). According to the Immigration Service, these OIs are not applicable to the North American Free Trade Agreement ("NAFTA").

The proposed OIs which relate to NAFTA suggest that the existence of an approved labor certification or a filed petition for permanent residence does not itself constitute grounds to deny a TN extension, although it could be an issue at the time of application for admission. While the proposed OIs suggest that applications for extensions of stay at the Northern Service Center should not be affected by an approved labor certification or pending petition for permanent residence, these proposed OIs are not currently in force. For this reason, it would be unwise to rely heavily upon them.

Assuming that you are eligible for H-1B status, the safest option would be to change your status from TN to H-1B once your labor certification has been approved. The presumption of immigrant intent under INA §214(b) does not apply to the H-1B category. Please review my article on the H-1B category for more information.

If you are not planning on traveling outside the United States after your labor certification has been approved and you do not intent to adjust status to permanent residence (you will choose consular processing instead of adjustment of status), you might be able to continue using the TN category. However, you must be aware that there will be some uncertainty involved.

I am a Canadian and wish to live in the US but my work is essentially contractual and performed from my home. I understand that although US corporations can contract Canadians without any sort of visa (provided the Canadian contractor resides in Canada), they cannot contract this person to work if he/she decided to reside in the US (unless of course the proper visas are obtained). What I am wondering, is whether a Canadian could legally live in the US, but work contractually for Canadian corporations? Can a Canadian reside in the US while not working, but living off of royalties from an american source?

It sounds like you want to reside in the United States, not just enter the country temporarily. You can only legally reside in the United States if you are a lawful permanent resident (a green card holder). This is true whether or not you intend to work while you are there.

Any employer can hire an individual in another country to provide services as long as they are not entering the United States to perform it. This is because immigration law only applies to persons who seek to physically enter the country. Therefore, a U.S. corporation could hire you to perform work as long as you remained in Canada. However, if you seek to enter the United States (either as an immigrant or nonimmigrant), you will need an appropriate visa or status whether or not you intend to work there. As a Canadian citizen, you are not required to get a visa stamp in your passport. However, you must still be entering under one of the permitted visa classifications.

It appears as though you would be entering as a visitor (either B-1 or B-2 status). All visitors (B-1 and B-2) must be entering temporarily and must maintain a residence abroad that they have no intention of abandoning. I suspect that you would be entering under B-2 status (visitor for pleasure) as your entry would not have any relevance to business, a requirement for B-1. You are not required to enter the United States in order to carry out your proposed activities; you seek entry for personal reasons only.

B-2 visitors are prohibited from engaging in employment. Your proposed activities would probably be considered employment in the United States. Although it is arguable that you are not assuming a job that would otherwise be filled by a U.S. worker, the INS would likely take the position that you are employed in the United States. It is doubtful that you would be permitted entry as a visitor for this purpose.

On the other hand, if you were temporarily staying (but not residing) in the United States as a visitor (and otherwise complying with the requirements for visitors), collecting royalties from a U.S. source would not violate your visitor status. This would be roughly the same as collecting dividends from a U.S. stock that you owned while you were on vacation.