Hacker News new | past | comments | ask | show | jobs | submit login
I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA
172 points by proberts on Oct 13, 2022 | hide | past | favorite | 238 comments
I'll be here for the next 2-3 hours and then after a break of about 1 hour for another 2-3 hours. As usual, there are many 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.




My wife has a order of withholding of removal. We are living on the island of Saipan in the Northern Marianas Islands (a territory of the United States). We would like to return to the mainland and eventually get her green card. How do we petition to get her parole office changed, and how do we transition from Withholding of Removal into a green card by marriage? We have been told we have to reopen and then close the withholding case but his does one do that?


wow, this is clearly the most complex question in today's thread.


Hi Peter, thanks for doing these AMAs! I’m a Canadian currently working in the US on a TN visa. I am interested in starting my own SaaS startup.

I’m currently exploring my options to raise a pre-seed round as a solo founder. Will I be able to stay in the Bay Area to start a company as a solo founder with some pre-seed and angel investors?

If not, will it be possible with an American co-founder? If not that, what is the best way for a Canadian technical founder to continue to stay in the Bay Area to startup?


There are options for you. The TN is complicated for founders (although possible under certain circumstances particularly if there are cofounders). But there are other options for you - that is, for a founder/owner, such as the O-1 and the E-2 investor visa.


Hi Peter!

I'm considering work for a US company on an O1 visa, but I hope to spend the majority of the time in my home country and make monthly trips to the US. I have no desire to acquire permanent residency.

I'm happy to be tax-resident while employed and have a mailing/residential address in the US, and I know it's a bit of a pain crossing the border under a visa, but is there a minimum "days in country" requirement to maintain O1 status, either contiguous or per annum? Or any other reason I wouldn't be able to use an O1 in this way?


No minimum number of days requirement so the O-1 should be fine. We have lots of O-1 clients in a similar situation.


Thank you!


Hey, I got my H1-B a long time ago (more than 6 years). I only used it for like 6 months. I still have my I-94. If I tried to get a job in the states again, would I have to be counted against the cap once more or could I just use my unused time? I read this previously but I'm not sure if it's up to date: https://redbus2us.com/apply-h1b-after-6-years-to-recapture-u....

If I could, how long would I have to use that unused time? Also, if I changed nationality, would I lose it?


The law isn't clear on this. The only way to really know is through the filing of a cap-exempt petition. When exactly were you last in the U.S. in H-1B status? Changing your citizenship wouldn't impact the analysis or outcome.


April of 2017


Also, thanks for doing this, I think this is the second time I've seen you do it and all the questions and answers are very interesting.


Regarding the O-1 visa class as a consideration to migrate to the States:

1) What is the threshold for extraordinary? How is extraordinary established?

2) Is there a quota on the number of visas issued per year? Related, is there a quota on the number of visas per country of birth?


I'm not Peter, but I guess I can answer this:

1) For O1 it's checking the boxes - one paper or one award is the same as 10 papers or 10 awards. Even for non-technical people where papers aren't really a thing, an article about a company was written in a high-profile website and that persons name was mentioned. He got an O1. I also know a strong competitive programmer (but no other achievements of value) who got it - presumably his masters thesis from 3-rd tier uni in Eastern Europe was used as "published research". So if you can work on checking the boxes - getting a patent / a published paper / an article about you in a reputable venue, you can get an O1. You just need 3 out of 9 or 10. So threshold is achievable if you work on it.

2) No.


A few years ago I hired a machinist on an O visa. He didn't even have a high school degree but years of specialization and experience. The package the lawyer assembled was pretty large to get over those kinds of hurdles.

We hired a bunch of machinists. This guy was worth his weight in gold and nobody ever asked "why did you bother to bring in someone from another country?"


There is an company that got an Ukrainian wood carver on an O-1 visa. Pretty amazing wood carvings. I think the US should encourage more with unique skills likes this to migrate.

https://www.youtube.com/watch?v=bG5VOXR86w0


How come everyone isn't on an O1 instead of trying things like H1B?

Getting a paper published seems a relatively low bar - first year PhD students manage it just fine, someone working in industry should be ok doing it.


Some reasons would be:

* It takes work to get those 3 boxes unless you already have them - so a typical contractor from Infosys or EPAM won't have them. For H1B you just apply. * H1B is cheaper (fixed fees vs 5-10k to prep O1 application) * H1B is actually in many ways a better visa! It's 3 years with 3 years extension, O1s are shorter, so for 6 years you'd have to do more than one renewal. H1B allows you to switch companies rather easily, for O1 you'd have to apply again.

So for some people the strategy is do H1B and if that fails (lottery), do O1 instead.


Thank you for your answer. Are the rules and thresholds identical for the EB-1 visa as well?


Well said!


Sorry! I meant well said!


You can edit for about an hour or so (look for "edit" above your post)


I've fixed it now :)


1) It's less about whether the individual is extraordinary and more about whether he or she can check - through evidence - at least 3 of the O-1 boxes. 2) There are no O-1 quotas.


Hi Peter, I've got an EB-1A (August 2018 approved in September 2018) and NIW (November 2018 approved in January 2020) petitions approved, and yet I haven't gotten my adjustment of status issued. The adjustment of status was filed with the NIW in Nov. 2018. I didn't file an adjustment of status for the EB-1A because the priority date wasn't current. Is there anything I can do to get anything issued? I've followed up regularly until I was told to stop calling...


You need to link up your approved EB1A I-140 petition with your pending I-485 application by requesting that this approved petition be "interfiled" with your pending I-485 application. At the same time, I would recommend that you ask your local U.S. representative to make an inquiry with USCIS (something that is done all the time) and that you also submit a "service request" through the USCIS website regarding your pending I-485 application.


Hi Peter,

What is the easiest path for a founder who wants to eventually move to the US?

Here in the UK a particular amount of investment from within the UK can guarantee visas quite easily (TOTAL / THRESHOLD = No. Of Founder Visas).

Is there a similar path available in the US or is there an easier one perhaps?


If you already have a company in the UK with employees and you would open a related company in the U.S., then the L-1 cculd be an option (although not necessarily top of the list). The other options are the O-1, IEP, and E-2.


No question coming to mind, sorry!

Just wanted to note I thoroughly enjoyed reading through this post more than just an upvote's worth, thank you for doing it :)


That's very nice of you to say. Thank you.


What options does an Indian engineer stuck in the green card backlog have? Do they perpetually continue renewing their H1-B? Does this mean that they are somewhat limited in terms of being able to switch jobs?


It depends on where you are in the green card process. If you are somehow in the last stage, with a pending I-485 application, you do have job flexibility (known as portability). Short of that, the only way to get out of this awful loop is to pursue a self-sponsored EB1A green card, but the standard is high as you probably know.


I am moving to either London or Canada. Applying for express entry next year. If I can get my Canadian residency by 2024, then I'll move to Canada. Otherwise, apply for a transfer to the London office.

Sometime, in the future, if I can have $800K to spare, then will go for EB-5. Although, this may take about a decade.


> I am moving to either London or Canada.

rather than London, ON, Canada ? :) I hear it's a lovely town.


Yup that's the idea, somehow most folks seem ok with it and don't voice their opinions to politicians.


Because a) folks that are the most impacted by this cannot vote and b) IIRC there are even limits imposed on political activity by visa holders, they get slightly relaxed when you get a green card (but do check it out, IANAL and may be misremembering).


> IIRC there are even limits imposed on political activity by visa holders, they get slightly relaxed when you get a green card

Any specifics on this?


https://www.fec.gov/updates/foreign-nationals/

Looks like green cards may already lift the limitations, my bad.


Well people who are okay will obviously not voice opinion. Those who are not okay have to raise their voice.


Hi Peter. I have an O-1 for my current startup that expires in 11 months, I'd like to start a new company with a new founder. Looking at the EB-1a vs EB-2 NIW wait times the wait times are in years for the two parts! Do you think it's worth applying for another O-1 instead with the new company? Is it generally easier to get the O-1 second time around? Thanks!


Definitely the O-1 and it's way easier - really easy in fact - to get the second O-1.


Thank you, super helpful


Hi Peter, Thanks for doing this. I have a startup incorporated in US. One of my founders is in NY, and we have some interns working for us from US. I am based out of Europe. What would be an ideal way for me to approach to immigration to US in this case? Would I have to apply under H1B to come and work there or is there other options.


Hello Peter, just wanted to bring this to your attention.


For you to be able to work for your company in the U.S. or just visit? For the former, without knowing the details about you or your company, I would look at the O-1, E-2, and IEP - and the L-1 if you have a company outside that is related to the U.S. company and employs you and has employed you for at least one year. For the latter, B-1 business visitor status via ESTA or a B-1 visa.


As a French founder, am I authorized to do a business trip in the US (meet local customers, pitch product features, invite prospects at a restaurant) with a simple ESTA?


Yes but you need to be careful because the line between business development/marketing and work - at least as perceived by CBP officers - can get blurred. I am assuming that the only company here is your company in France, and not in the U.S.


at least as perceived by CBP officers

How do they judge the thing, by the content of your phone or computer?


If they are really concerned or suspicious, they will sometimes ask to see your phone or computer. But their analysis is what in fact the individual will be doing in the U.S. - that is, will he or she be doing productive work - and who is the primary beneficiary of the individual's activities.


What if I refuses to unlock laptop or phone, can I go home (outside the U.S)?


I've heard from lawyers that a spouse can setup a business and employ their spouse with a pending I485 under AC21 in order to satisfy employment should an RFE or interview be requested.

This sounds risky to me. Do you have any knowledge/experience of this?


Thank you for this!

I work for a US startup, but based in the UK (hired via an intermediary like Deel/Remote.com). At this point in time, are there any avenues to joining my colleagues in the US other than waiting for the H1B application window next year?


Assuming that you are a citizen of a country that doesn't have its own visa, then the only options are the O-1 and E-2 (but the E-2 is only an option if the U.S. company is owned by citizens of the same country as you and there's been a substantial investment into the company by citizens of that country).


Thanks for doing this! Can a person on H1b work remotely in the US for their own company outside the US? They'd pay taxes on any international income. Also what if they didn't work but own the company and receive income?


U.S. immigration law doesn't apply to those outside the U.S. so there's no immigration issue with working for your own company while outside the U.S.


I think the question is - someone outside the US has a business, moves to the US on an H1B, and wants to continue working for their outside-the-US business.


Sorry I meant working inside the US for company registered outside the US


(You misread)


US immigration law hasn't caught up with remote employment but the short answer is no and this makes sense since this would allow anyone in the U.S. to circumvent U.S. immigration law simply by setting up an entity outside the U.S. and then getting paid by this entity.


My (non-proberts) understanding is that H-1B is for US employers to bring in specific individuals because their skills are hard to find in the US. If I've understood you correctly, your scenario isn't relevant to that.


What's the best way for a U.S. citizen to lobby for more open immigration law?


Fixing immigration law would make it harder for politicians to use migrants for negotiation.

For example: DACA's existence helps both democrats and republicans. Helping or attacking DACA is profitable politically. Fixing DACA for good is not.


> Fixing DACA for good is not

That was the same argument made about abortion but Republicans "fixed" it.


Over the past decade it's become really hard to hire someone on an H1 because they all seem to be snapped up in October. This was especially bad when I was on the board of a private foreign-language school because teachers look for new jobs in March-June, but I'm also looking for certain kinds of technical folks.

Fortunately, for most jobs I can start hiring them as remote workers. But that made me wonder: after they've worked remotely for some time could they then be brought in as an inter-company transfer? Or would H1 still be better for us and for them?


Not an attorney and only have passing knowledge, but I'm sure people will correct me if I'm wrong. An inter-company transfer visa (L-1) will only work if your company is operating both in the US and in the foreign country, i.e. it has a subsidiary there. The workers need to work for that subsidiary in a normal labor capacity - think full time employee vs independent contractor. After 1 year passes, they can apply for an L-1. If they just work remotely, based on the arrangement that you have, it might not work.


That's right, an L-1 broadly requires one year of full-time employment (as an employee, not an independent contractor) abroad with an entity related to the U.S. in a managerial/executive capacity or specialized knowledge capacity. Both entities must be real and operating and the entity abroad must have employees other than the transferring employee and it must continue to operate during the L-1 employee's employment in the U.S. But L-1s are tough to get approved unless the employee is managing employees now and will manage employees in the U.S. or the employee's position is highly technical/specialized and ideally involves the application of proprietary knowledge.


Thanks! Has the H-1 situation improved since the days when Indian consulting companies "flooded the zone"?


From an outcome standpoint, things have settled down and, in my experience, nearly all approvable H-1B petitions get approved. The issue is with the high number of lottery submissions so the odds of getting selected in the H-1B lottery have been really low the past few years.


Hi Peter,

I am a Canadian citizen. My B.Sc. and M.Sc. are in mechanical engineering, but I have been working in the software industry as Software Developer and Data Scientist. Would I be eligible to get a TN to work in the software industry in the US? If yes, could you please refer me to resources to learn more about eligibility restrictions, e.g. details about what if any limitations I need to keep in mind when I apply to jobs in the US (e.g. if Data Scientist jobs are OK, but Software Architect jobs are not OK, etc.)?

Thank you!


The short answer is yes but the application would need to be done the right way and you would need to find a U.S. employer willing to take this "risk" (although I really don't see any risk).


Thank you so much! I would greatly appreciate it if you could refer me to any resources regarding this, just so I can use them to convince potential future employers to give me a shot.


What’s the best way for a U.S. startup to have a contract worker (developer) that is from, works and lives in Mexico and also offering them some type of equity or stock options?

How do we structure things to minimize and efficiently handle any taxation they incur?

Any difference in other countries, say South Africa or Poland?


Those are non-immigration questions because U.S. immigration doesn't apply to people employed outside the U.S. so any compensation structure would be fine from a U.S. immigration perspective. I can't comment on the tax considerations/issues.


Thank you very much for the reply. I forgot to add:

What considerations should we take (if any) if we intend to support them coming to the states and becoming employees after turning profitable or a successful funding round.


There's a visa specific to Mexican (and Canadian) citizens so there often are easy immigration options/solutions for Mexican citizens.


Is Google currently breaking the law in regards to immigration in your opinion?

The story is that Google posts very general, vague job descriptions then puts them through a rigorous interview process, and only once qualified by a hiring committee, are they potentially matched with a team who then is allowed to extend the offer.

However, a couple months ago Google paused hiring for a backlog of 'qualified' candidates that had passed the hiring committee (so, 'qualified' according to the job descriptions) but not yet found a team. Wouldn't this be breaking the PERM law if they offer any candidates a job needing sponsor when there are hundreds of permanent residents that have already been 'qualified' in their pipeline available for immediate hire?


I'm not familiar with this and would need to look at the facts first-hand before commenting.


As somebody considering using a PEO -

How do PEOs impact both founder + employee immigration processes? (I'm assuming that having a different employer of record might have some consequences.) Would you advise startups to avoid a PEO if they intend to sponsor visas in the future for employees?


There's really no issue with PEOs. You just need to be careful to provide the correct information - such as FEIN - when filing applications with USCIS or the DOL. Because, for immigration purposes, the founder's company can still be treated as the employing entity.


Hi Peter, this is awesome. Thanks!

Say a US employer has about 1000 employees who are all residing in the US (so payroll is only set up to handle US taxes and so forth) because it was all commuters until the pandemic. Now there are many remote employees, and that won't change (i.e., no "return to office" unwinding of remote arrangements) so some are starting to move across the country. No problem.

When a remote employee says they're starting the process of moving to Canada and obtaining Canadian citizenship and prefers to keep their current job, how much effort goes into achieving that on the employer's side? Is it typical to convert their role from employee to contractor as a way to minimize the headache until there are many such employees?


You could also consider an EOR like remote.com or deel to hire them as employees abroad without needing to register your own business there and deal with benefits payroll taxes etc.

There is risk in misclassifying employees as contractors in many countries.


A very interesting question but outside my limited area of expertise.


1. Do you have some estimate about the time it takes to go from a TN Visa (Mexican Citizen) to obtain a green card?

2. If, for some reason (layoffs, company dissapears, etc.) the whole green card process is not finished, then it means that i will not be able to get a new TN visa correct?


1) It depends on the green card path and has nothing to with being in TN status but the default employer-sponsored green card path (PERM/labor certification) is taking 2-3 years right now. 2) It's not a definite no but your demonstration of intent to get a green card could compromise your ability to get a TN, particularly in the short-term.


As an illegal immigrant (3yo) navigating this immigration system my whole life, I salute you and your answers. My only option as a DACA recipient right now seems to be advanced-parole -> possibly employer sponsorship. Wish me luck yall


Good luck! Sometimes employer sponsorship for a nonimmigrant work visa or even a green card is an option for DACA recipients.


Do you just try to get founders on work visas, or do you go for green cards as well? I know EB2-NIW is a popular path for folks in academia, do you have comments on how easy/difficult each path is?


We do both as most immigration attorneys do and for those in academia, the NIW green card path is often within easy reach.


Canadian working in health care IT here, along with a clinical license (kinda a hybrid role).

As I understand it, a US non-profit hospital could relatively easily hire me under h1b (no caps for non-profits), or via TN1 through the clinical license if the position requires that.

But to get that clinical license usually requires internship hours/tests in the licensing state.

How does that work for TN? Would they hire as a physiotherapist student or intern and TN would be granted to move and work with that? And I guess I would want to get fully licensed by time of TN renewal?


I'm on an F1 visa doing a PhD program that is designed for professionals. If I get a chance to pursue an H1B visa, can I switch and still continue doing my program? Thank you for your time!


The H1B is specifically a work visa. You need an employer to sponsor you in order to get into the lottery, but it places no restrictions on education you might attain while you have it.

Basically, yes you can continue doing your program, but your sponsoring employer might not be happy with you.


Yes but your schooling can't be your primary activity; your H-1B employment must be.


Peter,

Thank you for taking time to do this.

For founders with spouses (either through marriage or common-law), where both spouses are from Mexico or Canada, what is the best visa for the founder and what visa should the spouse apply for (if he/she desires to work)? For the spouse, how do visa considerations change if the spouse has:

1. A liberal arts-oriented university degree

2. A STEM-oriented university degree

3. A law degree

4. A medical degree

5. An accounting degree

6. College diploma

7. No tertiary accreditation

Additionally are there any considerations if the spouse has a bachelors, masters or PhD/professional degree?

For children in such a scenario, what visa considerations would they have?


A spouse's ability to work is often the most important factor when looking at work visa options for a founder. The visa classifications that give spouses (and only married spouses can get dependent visas under U.S. immigration law; common-law spouses can't) unrestricted work authorization are the E-1 and E-2 visas, the E-3 visa, and the L-1 visa. Fortunately, Mexican and Canadian citizens have their own visa classification, the TN, so this is another option for spouses although this would require direct sponsorship by a U.S. employer.


Thanks for the AMA Peter.

Two questions on L1-B visas:

1. Is it possible to meet the employee requirements (1 year within the last 3 years) if you worked for the sponsoring company via a ltd company (i.e. not a direct employee relationship)? I work remotely and hence have worked through a limited company. However, the ltd company has only ever had revenue from the sponsoring company and I am the only employee so it was purely set up like that for administrative reasons.

2. What is the easiest/quickest route for an L1-B visa holder to get a green card?

Huge thanks


1) No, unfortunately. 2) Green card options aren't tied to or dependent on in any way the individual's nonimmigrant status so your possible options are the same whether you are in L-1B, H-1B, O-1, etc. It's just coincidental - not causal - that those in a certain nonimmigrant status go down a certain green card path. That being said, most of those in L-1B status go the PERM/labor certification route or the NIW route.


Thanks so much for the response, Peter


Hi! Thanks for doing this!

I've been wondering for a while whether it's possible/practical to create a solo company (maybe Delaware LLC) in the US just to be able to offer and invoice my services as a software developer to US companies that look for US candidates.

I assume (please correct me if you think I'm wrong) that sometimes this requirement is because of taxes and bureaucracy, and my be could be overcome by hiring a US company services (owned and operated by a non US citizen/resident).

Thanks again for giving your time for this!

Cheers!


You don't need to incorporate in the US to do business with US companies on a freelance basis. I have worked as a Canadian freelancer working for US companies for nearly a decade. I did eventually incorporate but that actually makes it more complicated because many large corps are used to dealing with international freelancers and just need to send you withholding exemption docs to fill out. They usually only have the individual freelancer docs at the ready -- not the incorporated entity docs. That said, hiring an employee and hiring a freelancer are different for a lot of reasons and there are good reasons why a company might not hire international folks. Including because certain industry's regulations keep them from hiring in certain places or because the work requires you be on a certain time zone. I would also say that... you shouldn't always believe what a company says when they say they're only hiring in the US. I have gotten interviews and offers for jobs that were listed like that. Here's what I do: I find a job that I find interesting and then go to the company's LinkedIn page. I look at their People tab and check to see if they currently have any employees in my country. If they do, they might have an international hiring strategy but could prefer US staffers because there's less paperwork and they don't need to go through an agency in that country to hire you. Then, I apply with my address clearly listed. It's more work for me because there are many jobs that won't even consider Canadians. However, there are some that will for the right candidate. And in the last year, I received a number of offers and interviews from companies willing to hire me remotely from Canada but who had originally advertised US only. Many companies, especially small startups, are moving towards international hiring strategies.


Not proberts, but I take your question to be "I live outside of the USA, and want to work remotely for US companies. Can/should I incorporate to make this easier?":

1. As a non-US citizen, you can establish a company in the USA today for ~$500 with Clerky/Stripe Atlas/AngleList Stack/Gust. You'll need to file additional forms due to foreign ownership, but otherwise, incorporation is a smooth process.

2 I hire international developers who bill me from their international companies all the time. There is no meaningful difference between them and US-based invoices, and there is no advantage with taxes or bureaucracy.


If you wouldn't be creating jobs in the U.S. through this company, then the only option would be an O-1 but the standard for an O-1 is high - although not as high as the O-1 criteria would suggest.


How has remote work changed the immigration industry? Do you see any evidence that more founders are choosing to work outside the USA, and if so - does that impact their fundraising?


US immigration law hasn't caught up with remote employment so we're still waiting to see how it will play out. From my narrow perspective, it's less about founders choosing to work outside and more about founders hiring people from all over the world to work for their U.S. company.


Can a non-US-citizen solo founder with a US startup sponsor themselves to do work in the US? As an Australian citizen could the company I founded fill the LCA form for an E-3?


Not proberts, but I followed that path. It's possible, but your odds of success are proportional to how legitimate the US business is. "Legitimacy" is easily verified by having substantial revenue, investments, co-founders, and other employees. If the business has no meaningful trade, the odds of success are minimal. That is, just registering a company in the US will do little to support your case.


I can vouch for https://usimmigration.com.au/ for this sort of work.


Without going into the specifics, there are many Australian founders in the U.S. on the E-3 visa but this is problematic/challenging for solo founders.


What’s the best pathway for an Australian on an E3 visa to transition to a greencard? Do I have to go to a different visa type first? I’ve had 8 E3s so far.


IANAL but I have personal experience with this having gone through it myself.

It is totally possible (or, at least, it was -7 years ago and I V don’t believe the roles have significantly changed in this regard) to go directly from an E3 to a GC. That’s what I did.

It requires a little extra planning however just to make sure you don’t go out of status while your I485 petition is pending.


Does having articipated in the green card diversity lottery make it significantly more likely that I will be rejected if I apply for a B1 or B2 visa?


Hi Peter, I will be starting a postdoctoral position on a J1 visa in a few months. My wife will get the J2 visa which will allow her to travel to the US. Can she apply for the EAD while in the us temporarily and return to Europe to continue working for her company while waiting for the validation of her EAD? Do you know the waiting time for EAD at the moment? Thank you for your help.


The answer to your first question is yes. There's a lot of variation in the processing time. We're seeing anywhere from 3 to 9 months for J-2 EADs.


1. I’ve seen a lot of people who immigrated on H1B, were working with an employer and eventually started their own company. I am assuming they were already working on it on the side. What’s the best way to go about this without breaking any law? 2. Can you start a company on the name of a family member who’s a green card holder and voluntarily work for this company?


1.) Yor activities need to be limited and you can't be compensated in any way but unfortunately this requires a conversation with an immigration attorney to understand clearly what can and can't be done so that no lines are crossed and there are no negative long-term repercussions. 2.) No for several reasons, some legal and some advisory.


Hi Peter, thanks for doing this.

I have a small team of founders. We've been developing an MVP of a product in the area of health and technology. We consider ourselves pre/early seed.

We are currently located in EU. And, we have incorporated our business in Canada. We intend to launch in North America.

Would be this be a case that YC is interested to support in terms of immigration and business development?

Thanks in advance.


I can't comment on how YC would view such an application.


And, we have incorporated our business in Canada.

Curious about why? And how


Because the team has made a collective decision to move to Canada. We also wanted to launch the product first in Canada.


My startup will bring products from overseas and I will ask travelers to bring my some products. My question is I heard international visitors or tourists can’t be engaged in commercial activities while visiting. What I’m trying to do is making them act as carriers and I pay them for the services. I am trying to find a solution around it. Thanks Mo


Yes, that's problematic both from a legal standpoint and from a practical standpoint - they will be questioned aggressively if the admitting CBP officer sees that they are carrying a product. But this still could work because the concerns and restrictions are less when a product is manufactured abroad. They can't be coming to the U.S. to make sales but they could be coming to the U.S. to deliver products made from abroad and already purchased.


I work at a large corp

I want to take part in Iceland's long term remote worker visa to visit for 6 months

HR thinks this may be a tax liability, but the duration is explicitly less than long enough to be considered a tax resident

Is there an issue with the large corp having an office in Iceland or is HR being overly cautious?

(extra detail I don't think should matter: I'm Canadian, company is American)


The way most digital nomads (including myself) approach this is to not be an employee, but rather a contractor. I'm an Australian and run an Estonian company (it's far from the only option, but they make it very easy). I invoice my customers for long term contract work.

Assuming your large corp / HR are friendly, they might even be willing to switch to a contractor relation (depending on the juristiction this might not be allowed, e.g. Germany is very tough on contractors as employees).

This prevents the biggest problem of large corporates. Being in the country with employees might make you a 'permanent establishment' and therefore liable for local tax law.

Worth looking into Estonia's e-residency program and suppliers like xolo.io (The leap product, not the Go product).


The gentleman is a US immigration attorney, not an international tax expert and corporate therapist.


Beyond the contractor solution you could go for a Place of Employment (POE) solution like remote.com or Deel. The POE would employ you and ensure the tax and employment liabilities are taken care of.


I'm on an H1-B, living in the Bay Area, and working for a company with an office in the Bay Area.

My team is remote, and I'm planning on moving to the Tahoe area, still in California, does my employer need to file an H1-B amendment? If yes, what could happen if I move and file an AR-11 change of address before the H1-B amendment is approved?


What are the risks of NIW EB2 application for the following person type (and what letters should focus on): founding engineer at a well-funded and reasonably successful startup, decent achievements in programming competitions plus a cited paper and a patent to check the box, but definitely not a well-known leader of any field?


What does the company do? What's your educational background?


IANAL, not legal advice, etc.

The NIW specifically waives the PERM, but everything else is basically the same. There's 2 parts:

- Advanced degree (ie masters or PhD) or exceptional ability, more specifically 3 of the following 6:

> An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

> Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;

> A license to practice the profession or certification for a particular profession or occupation;

> Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);

> Evidence of membership in professional associations; and

> Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

For you patent + salary + winning competitions is probably good enough.

- Waiver is in the "national interest" of the US, which has 3 prongs:

> The person’s proposed endeavor has both substantial merit and national importance;

This may be the hardest portion for you. To quote the manual:

> In determining national importance, the officer’s analysis should focus on what the beneficiary will be doing rather than the specific occupational classification ... if the evidence of record demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance

Depending on what you and your startup does, this may either be very hard or very easy. You have to show that you'll be working on something that "may rise to the level of national importance", which hopefully your startup is doing.

> The person is well positioned to advance the proposed endeavor; and

You're already working as an engineer, presumably doing the thing you said you'll do in prong 1. A freebie.

> On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

This also has 3 factors:

> The impracticality of a labor certification application;

> The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and

> The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

Usually STEM people get through on the 2nd or 3rd part, especially if the factors in prongs 1 and 2 are good enough.

If I were you, I would focus your letters on the national importance of what you're doing and on the 3rd prong of how you'll be beneficial to the country. This is where lawyers are really helpful in drafting the letters, but you may choose to do that on your own. Read https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-... the entire chapter very carefully beforehand though.


Hi,

If a startup is incorporated in one of the states from overseas, can founders be eligible for work-visas (I remember reading that an investment of more than USD500K may allow eligibility for some visas (F1?) but don't know if this is the case for startups, and besides, there were some requirements in terms of jobs creation if I remember well).

Thanks.


As a general rule, the U.S. immigration options for founders are the same as the U.S. immigration options for non-founders. The question is what nonimmigrant/temporary work visa would a founder qualify for and this would depend on a variety of factors. The work visas that we typically look at for founders are the O-1, L-1, E-1 and E-2, and H-1B unless the founder is a citizen of a country with its own visa (Australia, Canada, Chile, Mexico, and Singapore).


Hi Peter, Do you have any statistics on success rate of Entrepreneur Parole? I am currently in USA on H1B visa and planning to leave my current job to join my startup full time. I got commitments of around $500K from a pre-seed VC and a few angels. I am exploring if Entrepreneur Parole or O1 is the right option for me.


IEP applications are getting approved but only if the investors are willing to share detailed information and documentation about the ownership and operation of their VC firm and their previous investments and understandably many are reluctant to since this information is typically highly confidential/personal.


I see! That'll be a challenge if I ask some top tier VC to share all the details of their recent fundings. How long does it take to get IEP approved? Do I need to re-enter into USA after it's approved?


We're seeing 4-6 months for an IEP application to get reviewed and once approved (unless Canadian), the applicant would need to leave the U.S. (unless already outside) and apply for a parole at a U.S. Consulate.


Thanks for the response. I am considering applying O1 now.


How is the situation for Canadian citizens these days? Is it easier for us to come in as management or engineering?


Engineering.


Hi Peter thanks for this.

I'm European and I live and work in the USA (L-1B visa, no green card).

If my company sponsors a green card application, how long is the process? If they don't, what's the easiest option for me to move and work here permanently (including the right to change company, which I don't have now)?


UK-based software engineer here, proactively looking for work in the US.

Is the simplest way to achieve this to contact US-based recruitment agencies and look for companies who are willing to sponsor a work visa?

Is there a better way to go about this?

I'm also open to remote work, I'm guessing this would still entail having a US work visa.


I'm not involved in the hiring aspect so I don't really know but I think the answer to your question is yes. Another strategy is to work for a company abroad (that also has operations in the U.S.) and then after one year of employment, seek a transfer to the U.S. through the L-1 process. With large multinational companies, this L-1 transfer process is easy.


Hi Peter, thank you for doing this! I was wondering what the best approach is for a Canadian with a 3 year bachelor's degree in computer science to work in the USA. I hear it's a TN visa, but do they differentiate between a 4 year and 3 year bachelor's degree? Thanks!


Hi Peter,

How long should I expect to adjust status from O-1A to EB-1A? Further, how long should I expect to wait for Advance Parole? Would it be quicker to do consular processing in my home or a third country? If so how long would that take? I live in California, and I am a British Citizen.


1) Assuming no issues with your EB1A I-140 petition, it could be under a year with premium processing. 2) Expect around 6 months although we're seeing anywhere from 3 months to 9 months right now. 3) Immigrant visa processing would be much slower based on the current processing times and backlogs.


I'm on H1b. Can I found a startup?

Also, what options do I have to grow a project while I work full-time?

The fact I can't earn income from alternative work is a huge demotivator from starting anything for me. I won't know if I want to work full-time on a startup I found unless I see MRR first.


The answer is complex and nuanced unfortunately. You absolutely cannot get compensated by another source unless that compensation/work has been authorized by USCIS. One option is to obtain a concurrent part-time H-1B through your company. This has its own challenges because of the newness of the company and the founder's ownership in and control of the startup. There are however many things that a founder can do in connection with his or her own startup while in H-1B status with another company without crossing the line.


Hi Peter, thanks for the AMA.

Are there any benefits to converting from a green card to citizenship, in the context of employment? Access to some government jobs is the only thing I can think of.

Can green cards be extended every time they are about to expire until someone retires, or is there a limit?


You can't lose your citizenship even if you decide to live abroad or get convicted of certain crimes and you can lose your green card; you can vote in federal elections as a citizen; you can sponsor your parents and siblings for green cards. It's really a personal decision, I think. And there's no limit on how many times a green card can be renewed.


An green card holder is a permanent resident. I think they will keep renewing you unless for example you didn't file taxes or committed a serious crime or things like that.

https://www.stilt.com/blog/2020/05/green-card-renewal-denied...

Also green card holder cannot live outside the US too long or they may revoke it. You can pre-apply for a reentry permit to get a longer window.

https://www.stilt.com/blog/2020/07/can-i-stay-more-than-6-mo...

Citizenship removes all those restrictions. Also you can petition for your parents to immigrate immediately.


Hi proberts! Thanks for doing this.

I'm a Canadian on a TN visa at a startup in the US. Would it be possible to continue to work for this company on this status but stay in Canada?

Is there a minimum amount of time I need to spend in the US or can I just fly in for occasional onsite meetings?


Not a or the lawyer but I'm pretty sure the answer is yes because I was in that status. I lived in Canada and I held a TN so I'd be able to occasionally travel and work in the US when needed.


Thanks for the reply, I suspected that was the case. Was your payroll done in the US or Canada?


Canada. I'm not sure that matters for TN purposes but most companies would want to do that to make sure they comply with Canadian employment laws (unless you're a contractor I guess?).


The H1B situation in the US has been described as very "luck" based to me, and some have called it "a mess". Is that still the case? How much does it actually depend on luck, or other factors such as country of origin, occupation, etc.?


It's luck in the sense that for your first H-1B, you must go through a lottery (a completely random selection process). The actual adjudication and approval of an H-1B petition, if the individual is selected in the lottery, for individuals with good educational backgrounds, is actually pretty easy. It's getting picked in the lottery that's the hard part.


If you are not from India/China its all good otherwise its a 100yr wait currently.So yeah country based discrimination baked into US immigration law sucks.


The OP asked about H1B and I think you are talking about green card.

Btw 100 years for a green card? I don't think Chinese citizens have such a long wait although Indians have to wait a long time.


> So yeah country based discrimination baked into US immigration law sucks.

While it sucks for an individual from a high-emigration country, if one of the goals of immigration policy is greater diversity, than country-based discrimination is a fair solution.


Hi Peter. I'm in the US working with an EAD obtained through a pending asylum application. I'm interested in making the transition to a work-sponsored greencard. I have not been able to determine if this is possible.

Do you have any insights into this process?


It is but it will depend on a number of factors including what status you were in when you entered the U.S., when you applied for asylum, and where you are in the asylum process.


I actually entered the US as an F1 student. My parents then came here and applied for asylum. Since I was underaged, I was included in their asylum application. we've been waiting for six years now. In essence, just waiting, and renewing EADs every two years as expected.

Thank you for the sharing knowledge!


Without knowing all the facts, it sounds like you could go the employer-sponsored green card route.


Hello! Thank you for doing this. My question:As a green card holder, do I have to be in the US at least 6 months of the year OR I cannot spend more than 6 months outside of the US (5 months outside, 1 in US, 5 months outside, would be authorized ).

Thank you very much


The 5 months out / 1 mo in / 5 mo out again would be frowned upon by the admitting officer. They still have to let you in, but you risk being referred to an immigration judge depending on how the officer is feeling that day.

As per the handbook (https://www.uscis.gov/policy-manual/volume-12-part-d-chapter...):

> An officer must review extended or frequent absences from the United States to determine whether an applicant has met the burden of establishing that he or she has maintained LPR status. This applies regardless of length of time or if the applicant was permitted to return to the United States as an LPR at the port of entry after the absence.

So even if you risk it it'll still reflect poorly during naturalisation.


Putting aside the impact of time outside on the ability to naturalize, from a maintenance of green card standpoint, you can spend more than 6 months outside and keep your green card. The easiest way to do this is to get a reentry permit.


Thank you both for your answers!


Hi Peter! For H1B visa holders, is there any way to start a company and remain in charge (whether as CEO or not)? From what I find online you can only be employed as a H1B holder, but if I start a company I would want to have full control of it.


Full control isn't an option but one can be a CEO and even own a substantial portion of a company in H-1B status. This is one of the reasons that founders get O-1s and not H-1Bs.


I hear so many complaints about immigration. People who should have built great technology in the U.S. left because the system sucked.

What are some things someone like me, an engineer, can do to encourage the government to change the immigration process?


Somehow convince them that immigration is great for the economy (and I feel for our overall culture and society as well) through the creation of companies and jobs and the application of advanced knowledge and skills.


build a union that wields real political power. not op but i've thought about this a lot as an immigrant


Hi Peter, thanks a lot for doing this. I have a h1b from 2012, i worked in the us for an year using it and returned to my home country. Is it of any use to me now, can i be cap exempt or its validity has expired and I will need a new one?

Regards


The $64,000 question. It could go either way. But unfortunately I think the weight of the law supports the need to go through the lottery again where there has been a gap of at least 6 years.


As a young cobol developer for a bank in sweden, how could I live and work in the US?


There primary paths would be via the H-1B or the L-1. Both require employer sponsorship and the former requires selection in an annual lottery (with a low chance of getting selected unfortunately) and the latter requires employment for at least one year by an entity related to the employing U.S. entity. Another option is to get a graduate degree in the U.S. and after you graduate, you would get 3 years of work authorization if in a STEM field (and 1 year if it isn't).


Cool, thanks! They did mention that they have a branch in New York, so L-1 will be my path.


How are the odds for bringing your remote employees to US using the L1 visa? They've worked for us for more than 5 years in management role. Also the startup got acquired sometime ago, does that impact the L1 application?


If these employees manage other employees now and will manage other employees in the U.S., then the odds are high actually. Conversely, if these employees aren't managing any employees and won't be managing any employees in the U.S., then, unless their work is highly complex and technical, the odds are low. Does the acquiring company also own the company abroad?


yup - some documentation/legal work remains but they should be able own the company abroad as a subsidiary soon.

how would you suggest we should pursue this once all the paperwork is done? hire an immigration lawyer? any recommendations? we are non-YC.


Hi Peter, do you help with EB1A eligibility determinations and petitions ? My US company has a foreign subsidiary where our CTO leads a team of 15 people.I want to bring them in the US ideally on L1A. Is it worth exploring ?


We do and the L-1 is definitely worth considering. I'm also happy to refer you to other immigration attorneys in your area.


Thanks. Will reach out directly.


Is it possible to apply for O1 visa to create a US startup? What are the odds?


Yes. The odds depend almost entirely on the strength of the individual's background or more specifically whether he or she meets enough of the O-1 criteria. But the O-1 if oftentimes is in reach of founders because - I would argue - the O-1 criteria favor founders over non-founders.


I have read that even though there are no hard rules, after getting an employment based Greencard, one should stay at the company for another 6 months to avoid problems during naturalization. Is this true?


Not true at all.


Hi Peter,

Thanks for doing these AMAs!

If a Canadian living in US is on a TN status and is on disability for a serious illness when employment is terminated, what options are there to stay in the USA for the duration of the disability?


How soon can an employer start the visa sponsorship process for someone who is currently at a U.S. university and graduating in May? For example, can an H-1B be filed prior to graduation?


What's your estimate for current processing times of NIW EB2 applications and what are the chances of that getting premium processing for applications in the coming months?


There's so much variation right now but we are seeing - even without premium processing - much faster adjudication of I-140 NIW petitions, shorting the process by 6+ months. My feeling is that before the end of 2023 premium processing will be available for all I-140 NIW petitions, not just those that have been pending for a while.


Ohhh, I asked a question last time on what technologists can do to help out and I'll ask it again.

What can technologists do to help out the legal field, specifically in immigration land?


Do you mean to improve/automate the immigration process?


Yeah, I had a lawyer buddy a long time ago tell me sometimes there's not a lot of improvement of technology coming down to the legal field because the overlap on "tech nerd" and "legal scholar" is kinda not there.

Is there something missing in the legal field that makes you think "this is 2022, this should be easier"?


Thank you again for the great questions and comments. I will be back again in a couple of hours and respond to any unanswered questions and comments.


Great questions and comments. Thank you. I will be taking a break now until around 11 am PST/2 pm EST and then returning for several more hours.


How high is the bar to qualify for a O-1B visa (yes, I do mean O-1B), specifically the "evidence demonstrating your extraordinary ability"?


From what I understand, in the realm of Nobel Prize, Oscar/Academy, etc. winner. Especially in a way that would greatly benefit the US.

It's an extremely tough category.

https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-...


The O-1B standard is different from and much easier to meet than the O-1A standard and it is often within reach of talented artists, designers, etc. One of the reasons for this is that unlike the O-1A, letters from critics, experts, etc. check one of the O-1B boxes/criteria whereas in the O-1A context such letters are simply evidence in support of one of the O-1A boxes/criteria.


Thank you so much for doing these!

Does EOR (Employer of Record) count for L1 visa? I guess either through the EOR, or through the employer that's using the EOR?


Are there any special visas for Irish citizens currently?

I saw that they may get preferential visas similar to Australians but couldn’t find much detail


There was talk about allowing Irish citizens to use unused E-3 visas back when Paul Ryan was Speaker but it never came to fruition.

https://www.politico.com/story/2018/12/14/paul-ryan-congress...


Irish citizens, like Australian and NZ citizens, get a special J-1 which allows them to work and travel in the U.S. for one year after graduating from a school in their home country. But that's it.


Is there any way to "reactivate" expired green card? It expired 8 years ago as due family reasons I needed to live abroad.


Depending on the exact circumstances you might be able to try the SB-1 route, otherwise no, you are essentially starting over.


It's unlikely but the SB1 route would be the way to find out.


Hey Peter - Wanted to understand what is the quickest way to get the Permanent Residency in Australia? Many Thanks, Anannya


Definitely this: https://immi.homeaffairs.gov.au/visas/working-in-australia/v...


Thank you for doing this. My question is almost anti-specific - can you give a helicopter view of immigration processes - what is an H1B. Is that the only route in? what's the advantages and disadvantages?

(It might help to say I am envisaging a similar AMA for a (different) partner who might explain pre-money valuations or best way to use SAFE or ways to find investors. I think I am interested in the general best practise if that makes sense?)


What tools and/or services do you recommend to startups looking to access the global market for employees?


Would this be to employ these individuals in the U.S. or remotely?


Let's say US unless you have strong opinions on the later as well.


Deel, Remote, Pilot


Those tools and from a purely U.S. immigration standpoint, take a hard look at people from countries with their own U.S. work visas since these are often easy to obtain.


Are these all of the countries with their own US work visas?

  H-1B1: Chile and Singapore
  TN: Canada and Mexico
  E3: Australia


That's right.


What's your opinion about the philosophy behind the phrase "no human is illegal"?


Let's avoid the general flamewars here please.


EB1 NIW, AOS filed last week. How long should I expect to wait for the actual green card?


EB1A and NIW?


Thanks for the follow-up, just checked, its an EB-2


We're seeing really fast adjudications of NIW petitions right now (in 3-6 months) so (unless you are from a backlogged country like India or China) you could get your green card in less than one year. But historically, close to 18+ months.


How has economic uncertainty this year changed immigration for work in the tech sector?


I haven't seen any changes yet, such as the tightening of requirements for temporary work visas or green cards or greater support for job-creating visas and green cards, such as the E-1, E-2, and IEP or the EB5.


Peter, what are some common mistakes you see early founders making?


I'm not a businessperson so I'm not really in a position to comment but from my limited perspective (and I'm as guilty as anyone) is not putting in place strong non-revenue generating processes and infrastructure early on, such as human resources and operations.


Sorry, I meant from a lawyer's perspective. Thanks.


Hi, my family long time thinked about coming to united states from south america, my son already did many years ago but I think he in prison now, can you help get me and family to united states and give greencard? Thanks


You should contact me separately because this will require a long conversation and detailed fact finding.


Hi Peter, is there a way to apply to O-1 visa while on TN?


Definitely. Nonimmigrant visa options aren't limited in any way by the applicant's underlying status so you could move from a TN to an O-1 - assuming of course you meet the O-1 requirements.


Might be helpful to link to previous AMA's as an attempt to cut down on repeat questions.


I've added a link to the top text.


Favorite cocktail?


Very funny. I like good tequila with a lime. Although for the record, I don't drink much.


Nice choice. Mescals are a good area to branch into too.


[flagged]


I'm struggling to follow what immigration has to do with discrimination against US-born individuals. Is the connection because, without the broader pool of applicants available through visa programs, companies would be forced to hire an increased amount of US-born people who wouldn't otherwise have been hired, some of whom would have been potentially not hired due to discrimination? If anything, my discrimination meter would go in the other direction, that when a company explicitly doesn't sponsor any visas, they would be discriminating against non-US-born individuals.


It is probably more precise to just stick with the term "US-legal" instead of thinking about birth. That's a better term I should have used.

The mechanism is if there's one perfect candidate of the right age, race and caste but the person isn't US-legal, then companies will be forced to consider people of the wrong age, race or caste. Maybe not right away, but when the supply of the perfect age/race/caste US-legal people run out.

In my experience, the visas usually accentuate the distorted racial makeup of tech companies because they all go to overrepresented countries.


That's an interesting take; I haven't ever heard that argument used a defense of the Jones Act https://en.wikipedia.org/wiki/Merchant_Marine_Act_of_1920 , which is the classic example of protectionist/anti-foreigner-employment legislation.


Certainly it cuts both ways. But I think in the case of H1b visas, the people are all coming from a few areas of the world that are already overrepresented in Silicon Valley. It's largely a question of what does the country owe to the people who helped build it and fund it with the taxes they paid. Should the country be able to toss them aside for low-priced import labor? Certainly protectionist measures can be misused to create overprotected classes, but in this area I think the ageism especially in the US is really a problem.


(I'll answer that, since we originally wrote that title, not Peter.)

It's a fair point but AMA hasn't meant AMA for a long time, if it ever did.

I'm pretty sure that people would bring in about the same number of generic complaints / tangents as they usually do, regardless of whether AMA is in the title, so it seems like a red herring.




Join us for AI Startup School this June 16-17 in San Francisco!

Guidelines | FAQ | Lists | API | Security | Legal | Apply to YC | Contact

Search: