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I’m Peter Roberts, immigration attorney who does work for YC and startups. AMA
165 points by proberts on Dec 7, 2018 | hide | past | favorite | 283 comments
I’ll be here for the next 2 hours and then again at around eleven for another 2 hours. As usual, there are countless possible topics and I'll be guided by whatever you're concerned with. Please remember that I can't provide legal advice on specific cases for obvious liability reasons because I won’t have access to all the facts. Please stick to a factual discussion in your questions and comments and I'll try to do the same in my answers!

Previous threads we've done: https://news.ycombinator.com/submitted?id=proberts

Hi Peter,

I am a Canadian citizen in the US on a TN temporary non-immigrant visa. I live with a girlfriend, who is quite interested in marksmanship.

As I understand it, non-immigrant resident non-citizens are essentially barred from owning firearms. This is fine; I don't feel the need to own any. But my concern is about my girlfriend. I have heard it said from some firearms enthusiast friends of mine that, because me and my girlfriend live together, if she owns a firearm and keeps it in our house, this could be considered placing one "in my possession", which would be illegal.

First question: is this true? Does the fact that I am a non-immigrant non-citizen mean that firearms cannot be kept in my house, even if I am not the one who owns them

Second question: If this is true, are there any ways in which my girlfriend could own a firearm without myself being in violation of the law?

If it matters, we're in Texas, although I understand the relevant law to be federal.

Wow. That's an interesting question and something that I've never looked into. Email me as a reminder and I'll look into.

Note that there's a big distinction between somebody not authorized to buy handguns himself vs. people excluded from any possession thereof (felons, domestic violence conviction, etc.)

Also, handguns have far more restrictions than long guns (rifles/shotguns).

I'd recommend a gun safe for a number of reasons besides this, but if you don't have access to the safe it might be a solution to the possession problem.

Not a Laywyer, just a Texan.

Strange that some constitutional protections apply to non-citizens whilst the second amendment does not.

If you think that's weird, some of the articles in the Bill of Rights currently are held to preserve those freedoms against state governments, and others do not.

In fact, the fourth amendment, "Unreasonable search and seizure", only officially was applied to states in 1961, the second amendment in 2010, and the eighth amendment about excessive fines is still in the Supreme Court with a decision expected next year.

It's not about citizen vs noncitizen, it's about the fact that I'm on a non-immigrant visa specifically.

People holding, eg., H1Bs would not be subject to this constraint as far as I know

H1-B holders are subject to these constraints.

H1B is non-immigrant.

Get a hunting licence. Then you fall under an exemption for legal noncitizens,it seems: https://www.quora.com/Can-a-foreigner-buy-a-gun-in-the-Unite...

I saw this, and I figured this was probably my best bet, but I was hoping to have an actual lawyer confirm. In any case, looks like I can get a lifetime hunting license from the state of Texas for about $1000 (+ whatever I have to do to actually get the license), and I'm pretty sure this solves my problem. Glad to hear someone else confirm this, at least

Quora is a horrible source to rely on for this.

Not sure about Texas, but as a Canadian in California on H1b I was able to buy a gun after completing a hunter education course and getting a hunting license. A fellow Canadian on TN did the same.

CA laws for long guns (rifles/shotguns) are much less intrusive than for handguns.

I am going to sign off now. As always, it's been a pleasure and a learning experience so thank you. I am sorry if I missed any questions but I will log back on tomorrow morning and answer those questions as well as any new questions.

I was born abroad (Mexico) to American parents. In the 90s I was able to get a passport - but it's now expired. When I went to get a social security card they wouldn't give me one, and they wouldn't take my expired passport. I ordered a new birth certificate, but it has several spelling errors, so I'm unable to get a new passport without leaving the country and having my birth certificate corrected.

How can I get a social security card without leaving the country to get my birth certificate corrected? Is there anything the State Department can give me to prove to Social Security that I'm a citizen?


What did your parents use to get your passport in the first place? Did they get a Report of Birth Abroad at the embassy? If so you can use that. There's also a process to apply for a citizenship certificate from USCIS, but you will probably want a lawyer for that.

They were able to use their birth certificates and my old, handwritten foreign birth certificate at the time.

They didn't report the birth to the state department since it was just over the border. There's thousands of people from S Texas with similar problems I've read.

[edit] Also, the USCIS N600 requires a birth certificate as well, so that's why I didn't consider it.

Thanks again for your help.

That's right, there are alternative avenues to getting a certificate of citizenship or passport (although they require a good bit of information and documentation).

Hello Peter,

Thank you for keep on doing this on periodic basis.

Two questions:

1. Any likely / impending changes (more demanding requirements, etc.) in law affecting the process from H1B to GC under current administration?

2. Any likely / impending changes (tighter restrictions, etc.) in the law affecting the process from GC to citizenship under current administration?

Thank you.

I would say no to both and even less likely with the new Congress.

Thank you.

Are there any benefits for a US citizen to locate a startup in either Puerto Rico or USVI for bringing in non-US talent? That is to say, beyond the climate and possibly relaxed tax positions are there benefits?

No (although I'd still go anyway!)

Hi Peter! Thanks for taking the time to answer immigration questions!

Back in June, there were reports that CIS had formed a task force in order to identify people who lied on their citizenship applications and to denaturalize them. How often does this happen? Have you dealt with any denaturalization cases? Asking for a friend, of course. :-)

Right. This was and is really scary and seems to harken back to the days of Senator McCarthy. I haven't seen or heard this happening yet, however.

I'm in the U.S. on a EB-1 green card. I spend a lot of time abroad. I don't have much of a desire to get U.S. citizenship, but I do want to preserve my ability to live and work in the U.S. any time in the future without having to go through the pain of applying from scratch.

Few questions:

1. What are the risks in terms of losing the green card — should I be careful about counting the days abroad to ensure I stay under 6 months cumulative? What are my options for living abroad for a while with frequent trips to the U.S.?

2. What are the downsides of getting citizenship if I choose to apply for it? In particular, how does my tax situation get affected when I work abroad as a citizen vs. resident.

3. If I'm abroad and have a reentry permit, for quick trips to the U.S. (not moving back), can I come back as a resident or would I enter as a "visa-waiver" tourist? Does Global Entry still work?

1. Even if you're spending a lot of time outside, as long as the gaps are less than 6 months and your primary home is the U.S., there's really no risk of losing your green card. 2. You will not consult an accountant but as a general rule, you are taxed the same whether you're living here or abroad and whether you're a permanent resident or citizen. 3. You would be entering the U.S. as a permanent resident each time.

Hi Peter,

I am a software engineer from India. I was on a H1B for roughly 1.5 years working for a startup. Due to various reasons, I quit my job ~2 months ago (my last paycheck dated Oct 15th). My i94 doesn’t expire until January 2020. My questions for you:

- Could I technically stay in the US till my i94 expires without a job? (As I’m not accruing unlawful presence)

- Could there be complications if I find a new job in the next few months and file for a H1B (say through consular processing) if I’ve been out of status for more than the allocated 2 months.

- Would you suggest I file a change of status to B2 right away to maintain status?

More broadly: I’m burnt out and need a little breather before jumping back into the job market. Realistically, I hope to find a new job by Feb/March and file for a new H1B.


You are out of status now and 60 days has elapsed since your employment ended so you can't change or extend your status in the U.S. That being said, being out of status rather than being an overstay - that is, staying past your I-94 expiration date - is much better and if it is relatively brief (and doesn't include unauthorized employment) shouldn't impact a subsequent H-1B visa application.

Thanks Peter!

If a new company files for a H1B application in the next few months for me, will I be able to start working for them right away or will I need to wait many months for processing (since premium processing is not available anymore)?

Since you're outside the grace period, you would need to wait until the petition is approved before you can start working.

Finally on an EB-1 (yay!) but haven't left the country in years because of my anxiety crossing borders. I've heard stories of green card holders getting turned around at the border for admitting to smoking weed etc - have you heard whispers of anything like this recently? I get the difference between federal law & state law; is this the kind of thing that USCIS would have access to dispensary records for, or are they just trying to get people to incriminate themselves? I'm planning on traveling over the holidays and I'm still convinced that I won't be allowed back in.

Also, are there precautions we should take with cell phones & border security these days?

Not a lawyer, Never heard of that, sounds borderline ridiculous. Most likely it happened, but you're most likely to die on the plane back. It's all in your head. Go and have fun.

Canadians have been denied entry to the USA for admitting to smoking weed.

Which is amazing.

You can do something perfectly legal in a given country, but then get denied entry to the USA because it's illegal there.

It's like driving your car at 150mp/h on the Autobahn in Germany, but then being denied entry to the USA because driving at that speed on public roads is illegal in the USA.


Has anyone had their ESTA (US Visa Waiver) revoked under 24 hours before their flight? It happened to a few people here (one had even visited the US on the same ESTA a few months before). Of course caused massive cost and disruption which the company had to absorb.

The H1B transfer premium processing is currently temporarily suspended (till Feb). This means anyone wanting to change employers, will have to risk joining on H1 transfer receipt alone. Are there any ways / advice to reduce the risk of switching employers.

Unfortunately, there isn't and this seemingly innocuous change has had a profound impact on the hiring of those currently in H-1B status.

Just wanted to say that my company has used Peter's firm three times with great results. Peter is the best, listen to his advice!

+1. Peter's firm organized my E3 with minimal effort on my side. They walked me through the process with much support and resolved any obstacles with unusual speed and clarity.

Hi Peter, I'm a F1 student who joined for a Masters program in a US University in 2015. A year into my Masters, my advisor offered me a PhD which I took up. So, I converted my degree from Masters to PhD in 2017. However, I still picked up my Masters degree in May 2017.

My PhD advisor quit his job this week. I'm not left with too many options. I was considering going back to the industry.

I learnt that I cannot apply for OPT based on my Masters degree, since that window to apply for OPT has expired.

Can I quit PhD and look for a job that'll sponsor my H1B? Will I have to leave the country, if so?


I would not quit the program until you have obtained a job offer and been granted another visa classification, such as an O-1, cap-exempt H-1B, or cap-subject H-1B. You need to check with your international student office but I believe that if you just quit the program, you will be out of status without any grace period. And that's correct about your master's degree OPT - it's gone.

If do find a job, can my employers apply for H1B while I'm still enrolled in PhD?



Hi Peter, thanks for your time. This year it seems there is a significant delay in H1B processing and their effective dates. As an example, I was selected in the lottery but have not heard anything from USCIS since May. Is there anything I (or people in similar situations) can do? Have you heard anything in regards to when applications should expect approval?

In addition, I have heard that USCIS has been rejecting H1B transfers immediately without issuing RFEs. Have you come across these cases? What would you recommend people who are transferring H1Bs do?

Regarding your first question, unfortunately, that's not unusual and nothing can be done other than wait. Regarding your second question, there's definitely risk associated with changing jobs before the petition is approved in the current environment but still, as a general rule, strong H-1B petitions are getting approved.

Thanks, Peter!

Hi Peter,

I‘m a contractor to an US company who leads both teams and projects. My company wants me to move to US and they are trying to convince me to apply to an H1B. From my understanding this visa is a pretty unsafe if you‘re already in your 40‘s and want to settle yourself. I‘ve seen a category called EB1-3 which grants GC for both partners and children under 21. But the requirement says I should be an employee in an official leadership position (Manager or Director) Is this a hard requirement or can I still build up a case to immigrate via EB1-3?

It's a hard requirement - you need to be an employee - not a contractor - for at least one year in a managerial or executive capacity. But if you are and will be in the U.S. as well, then it's a pretty straightforward process, though a slow one now, 18 months or so if you're applying while abroad.

Look at L1A visa - still need to be an employee for a year but I easier for your company then a EB1.

Hello, Peter.

I am on H-1B and have had it for just over 3 years. I also have an I-140 for the green card application.

If I leave my job and go back to my country for a few months, - can I start work again on the same H-1B (no need to go to lottery) in a few months, provided I can find an employer willing to sponsor my visa? - How long can it take before I actually come back to USA and start working on the re-sponsored visa? I am asking due to concerns about the slow process of visa transfers lately.

Hi Peter,

Thanks for doing this!

I am on a US Green Card, living outside US for about 2 years 3 months, with a re-entry permit and N-470 approved. However, I have been making quarterly trips to the US except for one long stretch of 10 months. Thereby I have totaled perhaps 3-4 months of time spent in the US in this duration.

I am interested in preserving by green card as well as ability to file US citizenship. What would be a good option for the same?

1. Renewal of re-entry permit? 2. Moving back to the US, and then shortly filing for citizenship?

I have heard that to file for citizenship, I need to be present in the US for 2.5 years cumulative in the last five years, and also be there in the last 90 days.

So it seems from this that if I chose option '1' to stay out for two more years before moving back, it will be a few years before I can file for citizenship to complete 2.5 years cumulative spent in the US in the last five years.

If I move back before the expiry of re-entry permit in mid-March 2019, then as I understand, I can file for US citizenship after 90 days of moving back and then perhaps receive it within say 6-9 months of the latter. During this period, including the 90 days, can I make short international trips?

Given the current situation, do you think a reentry permit renewal may even get approved?


Your analysis is completely correct on all points and to answer your question, you should have no problem getting another 2 year reentry permit (if you choose to go that route).

Can you help me with the filing, etc., or recommend someone who could? As a start, I would just need a more detailed calculation of the timeline, looking at my travel dates, etc. I could do the latter myself also if I have enough information. Thanks.

In case the request for extension of reentry permit gets denied, by when would I know. I presume at that point, I would be able to relocate to the US and then proceed with US citizenship filing.

Also, once moved back to the US, during this period, including the first 90 days, can I make short international trips? (I'm asking this again for clarification since I'll definitely need business trips outside the US.)

Honestly I'm not sure that it's worth the money to use an attorney because both the reentry permit and naturalization applications are easy. If you still want help, email me and I'll refer you to some good immigration attorneys in your area.

OK. I'll reach out by email.

I am currently based out of India. I used to live in the bay area when in the US.

If during the first 90 days of moving back before filing for naturalization, and after too, I could make international trips, that may be the best route for me.


Yes, you could make trips.

Thanks a lot Peter!

I have a graduate-level Diploma of IT and a Bachelor of Commerce, and have studied both of these degrees in Sydney, Australia. My question is: would I be able to attain a E3 visa to work as a software developer (which is what I am working currently as in Sydney) in the US, since my Bachelor may or may not be the specific qualification for 'specialty occupation' of software developer?

Hi Peter,

Here is the background: Let's say someone is working as a software engineer under H1-B but also under the GC EB-2 process. A while back the I-140 Immigrant Petition was filed and approved, in parallel the I-485 Adjustment of Status (AOS) application was filed but remains pending. In the meantime USCIS has taken fingerprints and issued a combined EAD/AP card which serves as valid work authorization and travel authorization for a year. A I-797C notice stated that the case/petition was transferred to the National Benefits Center. No notice for an interview was received yet.

Here are my questions:

1) This process, with getting the perm through the employer etc. is already taken almost 2years. Now that there is the EAD card with I-512 Advance Parole is it possible to leave the country without the risk of getting the case denied at re-entry?

2) Let's say there are job offers from Apple, Google and Facebook. When can the employer switch jobs without jeopardizing the GC process (which has the I-485 still pending and no GC interview notice yet)?

3) How long after the GC was received does the employer have to stay within the current company that sponsored the GC? E.g. for marriage based GCs there is a period of 2 years, when getting a divorce within that period you would also loose the GC. Is there something similar with employment based GCs or how soon can the job be switched?

4) What is the most lasting route for a GC, Employment Based or Marriage? Asking because as seen in 3) the GC can through marriage within 2 years still be revoked. That said, if a marriage is dissolved within 2 years you would loose your GC, if your company is dissolved within 2 years you would not loose your GC making it the more robust path?

Thanks for responding to those hypothetical questions!

1. Is this person still working for the sponsoring green card employer? 2. As long as the I-140 has been approved and the I-485 has been pending for 6 months, there should be no issue switching as long as the switch is to a job in the same or similar occupation. 3. See above. 4. That's really impossible to say. The marriage-based is the more certain if a valid marriage.

Thanks for answering all this!

To 1) Yes the person is still working for the sponsoring green card employer.

May I add 5) green card application still pending when getting married to a US citizen, then a few months after wedding getting response for application that it was denied. Can the person still apply for a green card through marriage even if they are married for a while without having applied right after?

1. Then really no risk traveling on the advance parole. 2. Yes.

Can you please ELI5:

How does the visa program work?

So - say youre an engineer in another country and you want a work visa in the US - does one seek a job first or a visa first? Based on that - what is a bullet list of steps (checklist) for the process to be expedient/smooth/successful?

(I am one who will never require this - but I want to understand the process and what people go through to get the H1Bs etc...)

I want to commend you for trying to learn more about the immigration process. More often than not, I find that Americans tend to not know hoops and travails that internationals have to jump through to work in the US, or even just to keep working in the US. Too often, I've heard "H1-B is for cheap foreign labor - just apply for an EB-1/2 or something."

Yep, all of the Americans I've dealt with have been shocked to find out how difficult it is to immigrate. In fairness, I had no idea either before I tried.

Yes, that's right, a job offer and support for a visa by the employer are required before the visa can be applied for. A checklist will depend on the individual's qualifications, country of citizenship, and the job offer so it's hard to give a general checklist.

Hi Peter, I completed my OPT and just received an H1b. I have applied for the i-140(premium processing). I am from an undersubscribed country and all my priority dates are current. I'm thinking about changing my employer and wanted to know the optimum time in the process I should do that while minimally affecting my GC process.


Was this a self-sponsored I-140 petition or company-sponsored?

It is company sponsored EB3 category.

Have you filed your I-485 application?

No, my company's lawyer advised for premium processing the I-140 first and then filing the I-485 depending on that outcome. Thank you for doing this again.

Then you should wait until the I-140 has been approved and the I-485 has been pending 6 months before leaving.

I appreciate your prompt response and help.

Why having to wait? You can file 140 and 485 concurrently

The i485 depends on i140 being approved and requires more lawyer fees and prep. If you concurrently file and i140 gets denied, the employers have to swallow the cost. By having me pay for premium processing for i140, they minimize their cost without significantly affecting waiting time.

Hey Peter,

Missed dropping a message during regular hours. Anyway, hope you read this.

So I'm currently on an EB2-H1B visa, got it approved in August 2017. I've few questions :

1) If my current employer files for i140 and it gets approved, can I safely switch employers right after?

2) As a follow up to that question, in the future, If I want to leave the US for few years (cos of frustrating EB2 backlog) and work for a different company in Europe/Canada - will I lose my priority date or position in the queue? If not, can I come back in the future provided an employer is willing to file my H1B?

3) My GF's currently in India and we are planning to get married next year - she's a graphic design graduate, what are the odds of her getting to work on H4-EAD (or H4-EAD still being around) provided I can get my i140 approved?

Thanks for taking time, Peter!

Hi Peter! Thanks for doing this. I am a Canadian citizen and a freelancer with a Canadian federal corp with annual revenue of ~$300k CAD (no employees, just me right now). I am currently turning the freelancing business to a product-based company.

I am originally from a non-north-american country. My brother and sister immigrated to the US long ago after they went there to study and got their American citizenships around 10 years ago. They then sponsored our parents to the US and now my parents are also US citizens. In parallel, I came to Canada to study and settled here (got rejected by US embassy to study initially because they thought I would settle in the US too).

Now I want to move the US to be with family and to grow my business there. What are my options? Thanks again!

Depending on how quickly, an E-1 or E-2 visa through a company that you found in the U.S., a TN through a third-party company, or a green card through your parents.

Hi Peter, thanks for doing this regularly. Really appreciate since this topic/situation changes more frequently now a days.

Sorry for using anonymous account. I am working for a client for past 5 years on a EVC (employer-vendor-client) model. I've been employed by same employer/agency since 2008 (h1b) and they filed my GC with priority date of April 2011. Since I'm Indian born, I've given up hopes on getting a Green card in my lifetime but I still wouldn't want to loose my position in the queue.

Question: Would you recommend going full-time with the client (as they have shown lot of interest in converting me)? If I join full time with client, transfer h1b, can they take over my green card as well? will I loose my position in the queue?

You won't lose your priority date (place in line) if you change employers but the new employer would need to start the green card process from scratch. You might want to explore the EB1A category because even though the standard is high, it's sometimes within reach.

Hello Peter, I'm a non-resident and non-citizen selling consultancy and development services to U.S. companies (as a contractor, filing a W8-BEN). I hold a B1/B2 visa (only used for conferences and training so far).

Are there any potential immigration issues if I do U.S. based work for a couple of months on my B1/B2 visa? Could I do that more than once in a year or would that be a red flag for immigration services?

I don't want to move to the U.S. but I do want to be able to work onsite during crunch times, pushes to production or similar events, without risking my visa.

I also want to allay fears of potential customers that I don't qualify as an employee, but that's not an immigration question I guess :)

Thank you for taking your time for answering!

Unfortunately, that's not allowed on the B-1 visa.

Thank you. Thought so, and it's a huge bummer.

Meetings, etc. are still fair right?


A bill (H.R. 392) removing per-country caps on employment based green cards is now attached to DHS Appropriations Act for 2019 (H.R. 6776). If passed, how would it impact Rest of the World EB-1, EB-2, and EB-3 GC applicants? It seems like it would prevent ROW applicants from getting green cards for a very long time. What are the odds of H.R. 6776 being passed with H.R. 392 amendment attached to it? Source: https://www.natlawreview.com/article/us-may-eliminate-countr...

It would have a profound impact on the issuance of green cards to ROW applicants but I still that it's unlikely to pass.

Thanks a lot for doing this Peter!

As a J-2 visa holder, who has been issued an EAD, I will need at some point get a company to sponsor me via H1B. Questions: a) If I get the H1B visa, my J-2 visa status is abolished? b) If the company then fires me, am I able to switch to J-2 visa again? Will I need to re-apply for the EAD? c) Can H1B and EAD somehow co-exist?

In my understanding, it will be best to keep the J-2 visa for as long as possible, in order to have the flexibility of not being tied to one company. On the other hand, it might take couple of tries to get the H1b, so this tells me to apply relatively early on? Is that the only trade-off?

I am not a lawyer, this is not legal advice. Is there any two-year home residency requirement on the J-1 holder's visa (check DS-2019)? That may affect your ability to switch to H-1B (or any other visa).

There is, but it does not apply to me.

Why is that?

By default J-2 visa holders have to leave the country? Short answer - my spouse and I do not fulfill the main conditions they specify for having to leave the country after the visa expires.

Ok, my understanding was that (again, I’m not lawyer, this is not legal advice!), if there is a two-year home residency requirement on the J-1 holder’s visa, then both J-1 and J-2 holders cannot switch to another visa before you have either (a) resided for two years in the country of residence, or (b) were granted a Section 212(e) waiver approved by USCIS. But perhaps that’s different for some J-1 categories.

That might very well be true, but in our case, the two-year home residency does not apply to me nor to my spouse.

Hi Peter,

My co-founder and I are on an F-1 visa currently using OPT and about to request the OPT STEM extension. We've talked with a lawyer and she insists that we should add a US Citizen to the Board of Director to establish employer-employee relationships. She says that otherwise, this could get us in trouble if we ever get audited or petition another type visa.

Our questions are: 1. What are your thoughts on this? Is there an alternative? 2. What document would be necessary to add/revise (other than the agreement for the individual to join the board)?

I would speak with your school - because the school is really the decision-maker on this - and ask your school what needs to be in place for you as cofounders to get a STEM extension.

Hi Peter, I'm Canadian and had some questions about the E-2 visa :)

Can I work a random job in the U.S. while holding an E-2 visa?

What if I want to segue into a green card? Or another kind of visa? Will the attestation of leaving the U.S. conflict with that?

Can E-2 visas be extended indefinitely with ease? (much like TNs)

If I have a startup I just started, how many people can I safely bring over with the E-2 employee visa assuming I'm the only investor putting money down?

How can I learn more about getting in touch with you and hiring you as my attorney?

The E-2 is a great visa and is good for 5 years initially and theoretically can be renewed indefinitely as long as the company is operating and generating some U.S. jobs. There's no legal limit on the number of E-2 employees a company can have but the company also needs to employ U.S. workers (although there's no requirement of a certain ratio).

Hi Peter,

I have completed 4 years on my H1b and I am in my 5th year and I got it extended for 3 more years. My GC was also processed and my priority date is around August 2017. I wanted to know, if I wanted to change the current company and move to a new company, would my H1 and/or GC in the future be in any danger? Like can I not leave the company for 8- 10 years if I want the GC process to be completed and considering the current political administrative environement?

If you leave the company, you would keep your priority date - your place in line - but you would need to start the green card process from scratch and your ability to continue working in H-1B status would depend on your current employer not cancelling the approved I-140 petition (which most employers don't do).

Hi Peter,

I have an family member with GC who visits the US for short periods of time every 6 months to maintain it. They currently have no intention of moving to the US. Recently, they seem to be getting more scrutiny at the airport due to the US not being their permanent residence.

Is it possible for their GC to be revoked for this reason? If it is, then is there any way they can continue on with their lifestyle and still maintain their GC (by investing/buying a house/etc.)>

Hi Peter, I recently received an RFE on my O1. They need to see if i judged any event. Although i am an advisor on other startup boards and have been an organizer at social meetups in my industry, what else can I be showing that will add my case.. Also if we are in Tech start founder, what can be an alternative to showing publications. We have press coverage, articles, clients signed testimonials etc. What else do you suggest?

Appreciate your advice here!

Hi Peter,

I used up 6 years of my h1b on Dec 2nd 2018 and it has already been renewed again for the next 3 years until October 2021. Let’s say I leave the US for 2 years and come back before October 2021 to a US employer willing to renew my H1B. Will I retain my current H1B or do I need to go through the lottery system again? I also have an approved I 140 with priority date of March 2017. I have received conflicting feedback so far and it’s not very clear

You've received conflicting feedback because the answer isn't clear unfortunately. The concern is this: that if 6 years have elapsed since you were initially granted H-1B status and you are outside the U.S. for at least one year, USCIS will consider you subject to the lottery if you are sponsored again for H-1B classification. That being said, recently we had a couple of cases where these facts applied and USCIS still approved the new H-1B petitions without requiring the employers to go through the lottery.

I appreciate the quick response Peter, thanks !

Sure. It really is a confusing issue.

If I were to leave tech and go to law school with an interest in getting involved and helping with the legal issues immigrants are currently facing at the border and elsewhere is there something that would be useful to know?

Some particular law school that has a better focus or things you wish you had known when starting out? I figured out how to navigate the tech interview/application process, but don't know a lot of lawyers to understand the legal one.


Although I have no experience in immigration law, as a former lawyer and software engineer (and the CEO and co-founder of a legal tech startup), I'd caution against moving into law (or at least taking a long hard look and talking to people who have made the transition).

I left a PhD program in CS to go to law school based on ideals around having a positive impact through the legal system. Ultimately, the law is a slow, difficult, and painful system to work through and with. The work is mostly tedious (relative to software development) and most of the time you're not really having a significant or positive impact. It's generally not very rewarding.

I'd be happy to chat if you're interested in hearing more about my take. (itai [at] judicata [.com])

I'm not plugging this school but Northeastern University School of Law is a progressive coop law school so you could gain a lot of experience in public interest law while pursuing your degree, including working with asylees.

Thanks for doing this Peter! Really appreciate you spending time like this.

I'm an Indian running a company of my own in India. I used to work in the US for Microsoft & Amazon on an H-1B visa though this was 4 years back. I'm looking to move back to the US. What options do I have? Is it possible to set up a company in the US and come over on an L1 visa even as CEO of the company? I doubt O-1 would work for me and an EB-5 seems too steep.

Yes an L-1 is possible but L-1s are tough to get for small companies these days and I wouldn't dismiss the O-1: given your employment history and status as a founder, you might qualify.

What is the process for getting rid of American Citizenship? Expatriating, specifically for tax purposes. (should be useful to anyone that expects a windfall)

The typical process is though a US Embassy but if it's determined to be for tax reasons, there potentially are negative tax and immigration consequences. While this touches on immigration, speak with an accountant before going down this path.

You could explore puerto rico. It requires some foresight and planning, but it has major tax benefits if done right.

Hi Peter,

I'm an engineer on OPT working for a seed-stage startup in the Bay Area, what are the typical legal fees associated with filing a H1B application in the Bay Area?


I'm not really sure but there seems to be a wide range. Email me offline and I can give the ranges that I've heard.

Will do, thank you!

The processing of successful H1B visas seems to be taking much longer this year than in previous years. Could you shed some light on to why this is?

The reporting in the news describing an increase in requests for evidence (RFE), which if you are being generous would seem to reflect scrutiny of each application has increased. The same news articles and forum discussions unfortunately describe USCIS applying different interpretations and standards compared to previous administrations. The most bizarre situations I’ve read had h1b granted for only months with with an end date prior to when it was approval. The scrutiny that might be legitimate is confirming the amount of coursework that is applicable.

Instead of staffing for the expedited processing, they have removed it for periods of time.

By encumbering and slowing down the process the outcomes unfortunately do have some small success in achieving the administration’s stated goal of decreasing foreign workers.

Yes, unbelievably slow. Anecdotally, at least 25% of the cap-subject H-1B petitions that we filed last year are still pending. The why is tough. Many people think that it's the result of general hostility by the current administration toward the H-1B program. But there's no question that the rate of requests for evidence and denials are much higher than ever before that many of these are without legal basis.

You mean, that were submitted this year, April 2018?

That's right.

In 2014 I won a scholarship partially funded by the US govt for a Master's in Computer Science in a US university. The scholarship was merit based and highly competitive. A similar situation was the case for my Bachelors. Can these scholarships fulfill the EB-1 criteria of "Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence"?

Generally academic awards and scholarships don't meet that criterion. That being said, this is great background data and can help support an EB1A application.

Thanks for the question, I have another if you don't mind. During my studies, I worked on my own startup, presented it in front of a panel at a hackathon, then was chosen to present it in the associated conference the day after. I even won a small monetary prize from one of the conference sponsors. The conference in question was TADHack Global 2016 in Chicago.


Would this fill the criteria of being notable enough, or do the EB1 panels require more substantial achievements?

It might help for an O-1 but really wouldn't help for an EB1A green card.

Dear Peter, I'm on F-1 who didn't get picked in H1-B lottery twice, and am in the last 13 months of my STEM OPT.

Next year i.e 2019 April is my last shot at H1-B.

I work for an amazing start up that allows me to work remotely.

I'm hoping that my H1-B petition gets picked up in 2019 but in the event that that doesn't happend, as a back up what are my options if I want to continue to work for the same company and stay in the USA?

Thank you

They're very limited unfortunately but if it's a great startup and you've played an important role for the company, then an O-1 might be an option. Also, and I'm not recommending this in any way, there are academic programs, as I'm sure you've heard, that give full-time CPT to those pursuing an advanced degree.

Hey Peter,

Thanks for doing this AMA. My question is regarding EB1A. I work in large tech firm in US, have masters degree in CS, with couple of IEEE publications and some US approved patents. Original work with total citation count ~40. I am in critical engineering role in my company in their flagship product (can get recommendations as well if needed). What are my chances for EB1? Thanks again!

Hi Peter,

I'm on a cap-exempt H1b visa working in cyber-security field. Within past year I had to let go of 3 job offers due to visa transfer not being possible to for-profit companies (and all offers were made after April, so lottery based H1b application wasn't a path I could take this year).

What would you recommend someone in my position should do if they want to switch job to a for-profit organization?

Note that you can work part-time in H-1B status for a for-profit company while on a cap-exempt H-1B. But beyond this, without knowing your qualifications, I would look at the O-1 .

Thanks for the prompt response!

To shed some more light on qualifications, I've BS+MS in ECE with ~3 years of experience in the security field. I'm a member of a well recognized standards committee defining security standards. I've given conference talks, and published articles in industry trade journals.

Does that make my odds of getting O1 visa (or EB1 green card) higher in any way?

Yes, definitely, it sounds like an O-1 would be a strong option.

What would your advice be to a current TN/H1B holder who may wish to apply to YC in the future, but is concerned regarding the restrictions of their current status restriction around "work" outside of their current employer.

To clarify, it seems that any sort of MVP, attempting to show traction, etc could be considered "employment", and thus a violation of current status.

Admittedly, it's a tough balance but there are ways to do this without crossing the line. I can talk offline with you about this but the main line not to cross is compensation.

I don't quite understand what is meant by "not to cross is compensation"

Don’t pay yourself and it’s easier to say you are not employed.

For new entrepreneurs that would like to consider hiring fresh non-US grad students out of school, what are the typical costs and process to “get them through the door”. I realize this is broad, but trying to understand at what startup stage does this start to make sense to do. (Ie is it so expensive/time consuming that a seed startup shouldn’t even bother?)

Assuming that they don't fall within exceptional visas for those from certain countries (such as Australian, Canadian, Chilean, Mexican, and Singaporean citizens), the typical options are the H-1B (via the annual cap/lottery) and the O-1. Although initially, F-1 students get 1 year of OPT (optional practical training) and 2 additional years of OPT if they are a STEM graduate and the employer is an "e-verify" company. And really any company can act as a sponsor, even a startup. The focus is on the offered job and the individual's background (less on the company) and if they're both strong, then I think that it's worth pursuing an H-1B. An O-1 - which is a much higher standard - requires a much closer analysis.

Who is best to work on this? Is there a firm that you'd recommend that specializes in this? We had a great person for a hard to fill position (blockchain skills needed) from a country that should be easy (Australia) but for various reasons this took us over 3 months to complete. Surely, we could do better than this for countries with exceptions such as Australia? Or is that the typical experience?

I'm not here to plug our skills because there are lot of really good immigration firms out there but the E-3 visa for Australians is generally super quick and easy to get and I'm not sure why it took 3 months. The turnaround really just depends on visa application appointment availability, which can be just weeks.

I am a PhD student (on F1-visa), who's more or less been offered a decent Post-doctoral fellowship in UK immediately after gradschool. What are the implications of this if I want to return to the US for either an industry or academic position? I know that I'd be giving up the OPT option if I accept the fellowship.

I was a Brit doing PhD in USA and did exactly this (except I was on J1 for grad school), and then returned to USA for an industry position on H1B and subsequently green card and it was all fine (latter stages with help of Peter and his colleagues as it happens).

And without that kind of background, I suspect that you also would have a strong O-1 if the timing of the H-1B doesn't work.

Thanks, that's helpful to know! Do you believe an O-1 would be equally easy to obtain whether I go into academics or industry? How reluctant are companies when it comes to interviewing someone who isn't presently in the US?

I meant with - not without - that kind of background.

My girlfriend is a doctor in her last year of her medical fellowship on a J-1 visa. She's looking for a job in a medically under-served area but not having a lot of luck. Is there any other way for her not to have to go back to India for two years (it sounds like even marriage to me, a US citizen, won't help her)?

An O-1 would be an option since the 2-year home residency requirement doesn't apply (but it would require her to leave and apply for an O-1 visa after the O-1 petition was approved by USCIS).

Thank you!

Currently on I-140 + H1-B - would leaving the country and working elsewhere affect my priority date? Given the time it takes to get my greencard here I'd like to explore opportunities in Europe but don't want to lose the chance to be here since getting back on H1B/I-140 would be really difficult.

No, this would not impact your priority date. Even if you move abroad, you would keep it.

Can such an employee come back to the US and transfer their H1B to another company or are there restrictions?

Yes, he or she would not need to get an H-1B through the I-140 employer.

Will the individual be cap subject if they stay more than 1 year abroad ?

I'm a Canadian citizen. How can I learn more about getting in touch with you and hiring you as my attorney?

I'll post my email address at the end and when you email me I'll also give you the names of other attorneys so you can get more than one opinion.

Is it possible to work on an online side project that generates profit, whilst working on E3/H1B visa?

Hi Peter! How suited do you think the TN visa is for joining early stage startups? I feel like being in that space can involve switching companies more often than usual because of the failure risk. Is it risky to apply for a TN visa each time? Say you change jobs at most once a year.

Unless you have an ownership interest in the startup or are a founder, I don't see any risk with getting a TN through a startup and even changing TN companies every year.

What about if you are a founder with a minority stake? Would you recommend some other form of visa?

Less of an issue but CBP and USCIS will oftentimes deny TN petitions where the applicant has any ownership interest even though this is legally indefensible.

Hi Peter. Thanks for doing this. I am working in USA on H1 visa. Can I open a startup in India and continue working here for my employer while I work in nights on building my company. And, can I also register another office/company here and get developers here for my startup?

There's no question that you can create an entity in India and my view is that as long as the work you do nights for the company in India is only for and on behalf of that company and is less than the amount of time that you are working pursuant to your H-1B visa, then it's fine. More complicated and I would argue not appropriate is the creation of a company here and the hiring of developers here to work for your company in India.

Hello Peter,

Does B1/B2 visa allow doing sales and seek investments? Planning for 4-5 months stay.

Have a delaware registered C-corp.

Yes to investments with limitations and no to sales unless after sales support in connection with a product made and sold by a foreign company.

Hi Peter. I have a uwaterloo math degree (pure math & stats double major). 3 years of exp as an eng.

I heard about recent increased scrutiny for Tn and H1b for software engineering + math degree (comp systems analyst job designation).

Will I have a higher chance of RFE / Denial if I go down this path?

No, you should still have a very strong TN application, whether through the math or engineering occupation. I wouldn't worry. And it's the University of Waterloo! You're fine!

Hi Peter,

My company based in Taiwan is about to send me (a Canadian) to the US to help set up new branch and lead business development. Some senior management in the company think I should get the L1-b VISA. But according to my research, L1-a seems more suitable. What's you opinion?


Any predictions on the India EB2/3 backlog? Is it really going to take 5 years to clear 2009?

On a similar note, any chance of an immigration reform in medium term like 3-5 years that would help reduce the backlog for Indians on EB2/EB3? If not, any alternatives apart from EB5, EB1 that you could suggest?

I don't see the awful India EB2/3 backlog getting better without political intervention but I don't see this as a high priority at present.

Hi Peter thanks you for doing this. On an H1B here. I have a job offer where the company's lawyers have confirmed that it would be safe to start once they send the H1B transfer and receive the FedEx receipt that it got to the USCIS. What are your thoughts?

Legally, that's correct and if it's a strong H-1B petition, then it probably makes sense since the alternative is probably to lose the job offer because of the delayed processing. But confirm with the lawyers that they think that it's a strong H-1B petition.

Thank you!

How difficult it is for a foreign worker to be employed by an H1-B visa?

What if the candidate loses the lottery process? Would they have to apply next year? Would they be cap exempt next time?

Do companies have guaranteed quotas from USCIS for foreign workers?

And by the way, thanks for doing this.

It's a pure lottery and the chances depend on the number of petitions that year but historically for those without a master's degree or higher from a U.S. school, the chances of getting selected were around 30%. There are no per company quotas,

Hi Peter! Thanks for doing the AMA. Do you know what is the current processing time for prevailing wage (PERM)? I believe my lawyers applied on August, no response yet from the DOL. (Their website doesn't display updated response times)

I'm currently working in the US as a software engineer under H-1B. Can I start a company in my home country (Canada) while living in America?

If so, can I develop/work for that company, while simultaneously working for my H-1B sponsoring company?

Hi Peter, thanks for doing this! I’m a Canadian with lots of marketing experience in tech, at a senior leadership level. Is there any hope for someone in this capacity to move to the US? Are H1B and L1 really the only options? Thanks!

I'm not a lawyer but I'm a Canadian who worked in the US on TN and H1 visas.

For Canadians, you should seriously consider a TN visa. There are no limits to the number of them, and you don't even apply for them, you just 'qualify'. You can't even get the paperwork done ahead of time, you just do it at the airport on the way down.

Essentially so long as you are doing a specific kind of work, and your employer is not paying you below industry average, you get a letter from them, you show your degree (you need a real copy of it) - you get a stamp that's good for a year - you can do this up to 6 years I think.

Again, I'm not a lawyer but that was my experience you should look into TN visas as they are very low cost and you don't need really need any expertise or legal consultation. No waiting either. If you meet the requirements you should be good to go.

There is actually a way to apply to the TN ahead of time now, it’s a pretty recent change (well, 2012): https://www.uscis.gov/archive/archive-news/new-filing-option...

The L-1 requires you to work for a company related to your current employer and the H-1B is subject to the lottery. Depending on the job, a TN might work although your senior level is problema

tic. What's your education?

BA in social sciences. My understanding is that the Management Consultant category is really the only TN one that non-technical, non-financial senior leaders can apply under, but it’s quite restricted to project based work and subject to lots of extra scrutiny. Correct?

If so, bummer... I know lots of talented people in similar situations and we’ll either stay in Canada or go to UK/Europe.

Yes and no. If the U.S. consulting position is supernumerary or is for a consulting company (like Deloitte) then it can go on for a long while and is in fact not that hard to get.

What is the best visa option for international students to start a business in the U.S?

Depending on whether the E-1/E-2 visa is an option, the E-1/E-2 visa and the O-1 effectively allow for founders to sponsor themselves through their own company.

Hi Peter, I am on h1b and working for an employer. I am joining as a co-founder to a startup. Can I get compensation or profit for my work there? I am expecting to resume role of CTO. Can there be any legal implications?

In what status are you joining the startup?

I am on H1b visa (my I-140 has been approved since last 6 years by my present employer.) I have notified my current employer and there is no conflict of interest. Do I need any approval from USCIS to work on the new startup?

So, to be clear, has an H-1B petition been filed for you by your startup?

No. Nothing has been filed by the startup.

As a cofounder, an H-1B will be problematic so if you go that route, you should continue to explore other options while that petition is pending such as an O-1 because the H-1B petition could get denied - or just look at the O-1 now.

Oh. So can I hold O-1 And H1B together? can I work parallel to both (my employer and startup)? I want to utilize this new venture to go on EB-1A (Extraordinary ability). Is it possible?

Nice question. Hope Peter answers.

Hi Peter,

I'm an Australian with a venture backed startup (delaware c-corp). We already have employees in Australia but I'm looking to set up a team stateside.

Should founder like me look at the e3 visa, or one of the internal company transfer visas?

I would still definitely look at the E-3 even though you're a founder as well as the L-1 and possibly even the E-2 if there is or will be Australian money invested into the U.S. company. Being a founder doesn't in and of itself disqualify you from the E-3.

There's a bill from a Kansas republican senator that is trying to remove the country specific quotas for EB2s which will probably benefit the Indian and Chinese people. What chance it might have of passing the senate?

It's really hard to say because even in this world of divided/tribal politics, immigration crosses party lines. While I don't think that it is impossible, I still think that this isn't likely to pass.

This might be orthogonal to your position, but I'll ask it anyways.

As an American citizen, what's the best way to protect my career so my job isn't sent overseas or pushed to an H1B (or equivalent) at starter IT salaries?

Not Peter Roberts, but the best protection for you here is to push your legislator to get rid of the H1B rule restricting the free movement of jobs. H1b's can't freely change jobs and therefore stay stuck at low salary levels. This is why, by and large, employers hire H1B's.

Once we get rid of that restriction, an H1B will match your salary level: an actual free market where you will probably win.

Excellent answer. Current rules create the equivalence of indentured servitude, driving down wages for all and holding employees hostage.

Not OP. I guess the best way to protect any job is to make yourself irreplaceable. Maybe a junior position could be filled by a foreigner at less cost for the company, but if you're filling a more important position, for which there will be less competition, it will be less likely that you'll be replaced.

Become competent at something not many others are. Find a niche and become an expert at it.

Would you mind to share is it becoming easier or harder for startups to hire foreign engineers on H1B visa in the past few years? And roughly how many percent of YC companies support new H1B applications?

Yes, it's gotten much hard during the past 2 years although still strong applications generally get approved although it's still sometimes a battle even with strong applications.

Can you give us an update on the International Entrepreneur Rule?

It's still dead in the water although I wouldn't be surprised if the democrats take it up after dealing with other pressing immigration issues like the dreamers.

How do you think the new USMCA will affect the existing NAFTA folks coming from Canada into the US on the TN visa? This seems like a pretty big unknown today. Any thoughts?

Oddly enough, I don't think there will be any significant change to the TN category.

I'm on a NAFTA TN, it's about to expire. now we have usmca do I need to do anything, also have the job categories changed drastically? Thanks for doing this.

Strangely, it seems that there will be no major changes to the TN under the new agreement.

Since you find it strange, what reforms would you have expected?

Given the open hostility to NAFTA by the current administration, I thought that the categories would have been reduced and made more onerous and restrictive.

I have my DACA expiring next year in late 2019. Since it has been cancelled and can't be renewed, do I pretty much have no option but to leave the U.S. next year?

It can be renewed. There's information about this on the USCIS web site.

To follow up on their question, as a DACA applicant thinking of creating my own company. Is this safe to do? Should I consider incorporating in another country instead?

Yes, that is safe to do.

Wow, I had a completely different understanding of everything. Thank you for replying!

It absolutely can be renewed!

For international students who went to US for undergrad, what is the fastest path to become a naturalized citizen without getting married to an American?

I am not an attorney but very familiar with the process. Being an undergrad puts you in an EB3 category. And you need to find a job within that category and an employer willing to file a green card for you. Depending on your country of birth, the entire process from day one to the day you receive a green card can take up to 2 years. More for people from certain countries of birth e.g. India/China.

That's a long conversation but the EB1 and EB2 green card categories allow for self-sponsorship although the standards are pretty high and generally require a track record of accomplishment. Alternatively, company sponsorship through the PERM process (in the EB2 or EB3 category) can be pretty quick (12-18 months) depending on the individual's country of nationality.

If I moved to the US from the UK on an L1-B visa, how long does it typically take to be granted a green card? Can the process be started immediately?

There's no waiting period and the timing will depend on the green card path and category but likely a 12-18 month process.

Hi Peter, I am an Indian citizen on H1B since 2007 with I-140 approved and waiting for GC with priority date of June, 2011. My H1 expired early this year and my company has filed for extension and responded to the RFE received. It has been more than 4 months since the RFE response has been sent with no outcome on extension yet.

Do you know as how long I will have to wait to know of my extension status? Will I be able to hold my GC priority date, if my extension is rejected ? If yes, what are ways for me to come back to US and avail my priority date and get GC?


Anecdotally, I have seen more than a few people get the O-1 visa recently. Has the bar changed for this visa? Who should consider applying for it?

It's definitely higher than it used to be but not by much. It's still within reach of a lot of people and almost always worth exploring.

As a British company looking to enter the US, is there a preferred mechanism for seconding UK employees to a (currently non-existent) US entity?

The typical options to look at are the L-1 intracompany transferee visa and the E-2 investor visa with, I would argue, the E-2 being easier but requiring a substantial UK investment and here limited to UK citizens.

I am on H1b visa and would like to take a break of few months. Is there a way to do that without going out of the country or losing my visa?

Yes, as long as the reason for the break comes from you and not the company and this break is supported by the company, you can remain in H-1B status while on a leave of absence, whether paid or unpaid.

Is there any point with bothering with US immigation if you're not impressed by the western europe <-> US income difference?

What visa did people like, Collison brothers (Irish), who dropped out of college and started Stripe have in the begin years?

I don't know what they got but many talented entrepreneurs without degrees get O-1 extraordinary ability visas and if they're from certain countries E-2 investor visas.

Hi Peter,

on H1B, can I do any business at all? For example, can I earn from adsense on my personal hobby website? Can I own rental properties?


Right now, besides China and India, are there any countries that are in queue or about to to get a Green Card?

There are significant backlogs for people from the Philippines, Mexico, and Vietnam as well (depending on the green card category).

How relevant it is to have a Masters of Science degree from USA, for one who wants to immigrate to US ASAP?

I'm a bootstrapped startup founder considering hiring an international student on an OPT (obtained after recent graduation from graduate program in US). Probably more of an employment law question but nevertheless - can I hire this person under an OPT for an unpaid internship. P.S. I would like to pay him but can afford to do so only on defferred terms e.g. upon funding etc.

During his first year of OPT, his work can be without pay but during his second and third years of STEM OPT (assuming he's eligible), his work must be paid.

I’m Canadian. I want to own a Delaware C Corp and move to the US. An attorney recommended to me the L1 visa. I think this will be a good option for me once I’m in the position to qualify. However, with regards to the DE Corp, it seems like I cannot be employed by the company. Is my only option then to issue myself dividends? How would an E1 visa change that?

Thank you for your time!

I'm not sure that I understand the question but the L-1 for Canadians is still a very good option and can be obtained even for brand new companies/offices. Once you are in L-1 status, you can be paid by the U.S. company or even just continue to be paid by your Canadian company.

How can a new company qualify? I "freelance" through a Delaware-corp I registered a couple of years ago. I am a Mexican citizen, not sure if that changes anything.

Self-sponsorship is prohibited in the TN category (as well as other categories) so this isn't possible unless you have co-founders and co-owners and are treated as an employee.

I was referring to the L1 category which you mentioned above.

Sorry, yes an L-1 could work although all work would need to floe through the US company and you would need to add jobs over time.

If Trump pulls out of NAFTA before Congress passes the new USMCA what happens to existing TN1 holders? Will those work authorizations still be valid until their expiry?

"The three countries are expected to implement the labor mobility provisions of the USMCA consistent with existing practices under NAFTA. Until the new agreement takes effect, the NAFTA mobility provisions are expected to remain in place without interruption. Each country maintains the authority to interpret the provisions of the USMCA, and country-specific policies and application procedures cannot be ruled out."


That's right. My understanding is that those currently in TN status would be unaffected.

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