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I am Peter Roberts, an immigration lawyer who does work for YC and startups. AMA

313 points by proberts ↗ HN
I am excited and honored to provide (hopefully) helpful advice and information to the community. It can be tough to respond to very fact-specific questions, because relevant information often isn't included, so the best questions are general ones or those with all the pertinent facts. And of course nothing I say should be construed as legal advice. I will be available for the next 2 hours. Thanks!

Edit (1:10 PM PST) This has been an amazing experience for me. Thank you all for participating and for asking such pointed and interesting questions. I look forward to doing this again soon, possibly focusing on one or more specific topics. I need to sign off now, unfortunately, but best wishes to everyone for a happy and healthy new year.

333 comments

[ 3.1 ms ] story [ 97.6 ms ] thread
shekispeaks
How can people on H1B Visa be founders. What is the best way for them to say spend 6 months figuring out what the product is without actually having an actual company?
jeevand
Can founders of a startup who have majority ownership & with appropriate board having the power to fire them sponsor green card through their startup? Founders are currently on H1b with approved I-140. Thank you
proberts
Excellent question. The answer is yes but substantial ownership is problematic in the PERM green card context, where it is not an issue - and in fact is often helpful - in the national interest waiver (NIW) and extraordinary ability (EB1A) green card contexts. Substantial ownership in the PERM context almost always will trigger an audit and substantial delays.
semerda
I was in the exact position. H1B founder needed to move to a GC. My 6 year H1B renew runway was ending. Peter did all the legal/immigration work for me. Applied for the GC via extraordinary ability (EB1A) context. I must say this was the smoothest immigration experience ever. And I have gone through 2 x E3s & 3 x H1Bs using other lawyers. I wish I knew about Peter earlier. Highly recommend everyone here to work with Peter!!
ojbyrne
I am curious about the approach YC takes for foreign founders who are accepted into YC. How do they come to the US for the initial incubation period? What happens after demo day?
atirip
+1 Additionally: i understand EU citizens can be in the US visa free for 3 months. What that exactly means? 3 months per year or 3 months per one visit? If the latter then how often? Lets assume one gets accepted and decides to utilize that visa free offer - what should be said at the border if one is asked.
mritun
IANL, but here is what I know:

1. One can't work on the visa under visa-waiver program.

2. One should not work under the VW, if you get caught, you'll forever forfeit the benefits of VW.

3. 90 days is you maximum permissible stay length per visit to US (leaving US to visit nearby places doesn't count). Note that your ACTUAL permitted stay length is what the CBP notes in your passport at port of entry. You must leave by that date.

gdilla
Work is defined as getting a salary though. If you're accepted into YC, they are not 1099'ing you or putting you on a payroll. It's like a stipend (effectively), and legally just an investment in your firm.
tricolon
My understanding of USCIS's definition of "work" is "doing something for which one would generally expect to be remunerated". You can't do a job and take no salary. You can't work on your own pre-revenue startup.
lobster_johnson
A 1099 isn't needed for immigrations to be convinced that you are working. If you are receiving any kind of remuneration while doing some kind of work, that counts as working (in violation of the visa waiver program).
KAdot
Can I sell my own software as a H1B worker? E.g. my own apps in App Store?
proberts
Another excellent question. Any compensation for services rendered - for productive work - must be specifically work authorized, so as a general rule selling a product created by you - whether it's an application or a widget - requires work authorization.
goodcall
How about a H1b holder participates in a hackathon with cash prizes and wins. Can he claim the money ?
tejaswiy
With the new laws re: H4 EAD, can I use my spouse's EAD to sell apps instead?
arunaugustine
What if it's an app that I purchased from websites like flippa.com? If the app has continuing revenue, will it be treated as an investment rather than productive work?
miciah
Hello,

Is it possible to do YC, if the founders are initially registered as 'tourists'?

proberts
Initial admission as a B-2/WT tourist allows the individual also to engage in B-1/WB business visitor activities, such as participating in a program like YC, but the facts here do matter, such as what was represented by the person when he or she initially was admitted.
alantrrs
Hi Peter, thanks for taking the time for this AMA. I have a ton of questions, but here's a summary:

1. Can I incorporate a company and look for funding under a B1/B2 Visa? 2. Once incorporated and funded, what type of Visa could I get for myself to work for my own company? 3. Would my two-year home-country presence requirement "212(e)" affect getting those visas? 4. If I'm unable to get any other Visa, could I be living in the US with a B1/B2 Visa working for the company I founded but without receiving a salary? How long could I stay? How about a TN or TD Visa?

disbelief
If someone is on a visa tied to a specific job at a specific company, what is the legality of working on personal side projects (that may turn a profit)?
proberts
This is an incredibly complicated and important question and will very much depend on the facts - that is, the stage and nature of the project - because of course it's fine to think creative ideas and even execute them but the line can be crossed when this evolves into a business or a commercial enterprise. That line can be fuzzy, however.
yranadive
What are the top 3 things required to make a strong case to get EB1 for startup founders on H4 EAD?
proberts
That's a tough question because USCIS really looks at the totality of the evidence but (not surprisingly) awards, press, and original contributions/patents are important (although not necessarily required).
newuser2016
Hello,

USCIS recently approved my EB1 visa I-140 petition. Since I'm abroad my process will go thru the NVC and then consular processing. What kind of questions should I be prepared for at the consular interview? And about how much time should I have to wait for my green card?

Thanks!!

SeoxyS
Congratulations, that's a tough one to get!
klipt
If you qualify for EB1 you almost surely would qualify for O1. If you want to start working ASAP, you could probably get an O1 visa in a few weeks, enter the US and work on that, and then file to adjust status to green card based on your approved EB1 I-140.
disbelief
How would you rate a senior engineer's odds at qualifying for an O-1 visa? Can they get by on career/work history alone or does it require a level of public notoriety?
martin_
I may be able to share some insight here. At 23 years old, I have gone through the O-1 process twice in the past 3.5 years, I have a couple of references in news publications like TechCrunch but that's about it in terms of public notoriety. Your prior achievements, recommendation letters and peer review are important. TLDR: Don't be intimidated by the absurd name of the visa. My e-mail is in my profile if you want some specifics
SeoxyS
3-time O-1 recipient here. Denied for EB-1 once + on appeal.

The O-1, I feel, is pretty dependent on our personal situation, and which side of the bed the reviewer woke up on when they look at your application. But, it can be done. Good luck!

n00b101
Why 3-time? How long is O-1 valid before it expires?
kenneth
3 years term per approval. But you have to apply again every time you change jobs. I started with one company, then was founder of a startup, re-applied there, and moved it to another company.

Re-applying is easier once you've been approved once.

n00b101
I see. How does EB-1 relate to this?
SeoxyS
EB-1 is basically a green card version of the O-1 (i.e. an immigrant visa, not tied to your ongoing employment). Once you have an EB-1 you can freely change jobs, start companies, do consulting part time, etc. The requirements are essentially the same as the O-1, but evaluated much more strictly.
ameen
What's the reapplication process like? Do you need to have done something exceptional from the time of the previous one's expiry to warrant an extension?
SeoxyS
I've never done an extension, just a transfer. It was pretty routine; you just file the application again just like the first time. Not much of a difference; other than the previous approval making your chances of getting approved once more significantly higher.

The first time, I had to get a new visa stamp (which required going back to my home country to get it from the U.S. embassy); the second time I kept the same visa stamp and a little piece of paper in my passport showing the transfer. It's mostly useful as a reference of the case number when I get asked about my employer (which is different than the one shown on the visa stamp) when I travel back to the US from a trip abroad.

proberts
This is tough to answer because it's not so much tied to your title or even level within a company but your accomplishments.
n00b101
Do you mean it depends on one's accomplishments within a company? What would be good examples of eligible corporate accomplishments from an O-1 or EB1 application perspective? And would getting accepted into YC be an eligible accomplishment for these?
klean92
From what i understand, to get on O visa, you are better off being one of the top 3 specialists worldwide in an obscure combination of OS language platform running on an old mainframe, instead of being in the top 1% of all Javascript/PHP developers.

A good immigration lawyer would help you figure your strategy here.

mahyarm
How does one with a H1B, TN, H1B1, or E3 visa move from their current US employer and start their own company legally while living in the USA?
falsedan
Set up an LLC & extend yourself a job offer. Make sure you have the capital to pay yourself according to your visa's restrictions, follow the appropriate procedure for visa transfer, & don't outright own the LLC.

Alternatively, petition to change visa to H-1B & get your employer to start the greencard application.

mahyarm
By not owning the LLC, does that mean owning %95 or %4? I often seen %5 requirements in ownership of companies making something invalid.
falsedan
Don't own it outright, i.e. < 50% ownership.
yansuck
May I ask why can't a person on F1/H1B own a LLC 100%?
falsedan
Owning the company that is extending you the job offer you need for the visa is grounds for cancelling your visa—it's not guaranteed but if DHS find out in the future (like if you petition/apply for greencard) they'll bounce you.

Basically, do it if you're comfortable (maybe) being asked to leave the country on short notice.

sn0v
Hi Peter, thanks for doing this.

How would you recommend an H1B holder go about transitioning to founding/working for their own startup?

proberts
There are lots of visa options dependent on a variety of factors such as country of citizenship, amount and source of funding, ownership structure. But often there is a solution.
shekispeaks
Can I drive for lyft part time on an H1B?
proberts
H-1B employment can be part-time but it needs to be professional in nature - that is, specialized and requiring a bachelor's degree in a specific field of study.
tejaswiy
I'm guessing the question was that the OP was already employed on an H1B visa with a company, and wants to drive for Lyft.
sul4bh
How does H1B and remote work? Say, can I work in Nashville remotely from home for a company in San Francisco and have a valid case for getting H1B?
billconan
What are the options for an h1b who wants to start up?

we can't lose our jobs to maintain the h1b status. will yc care that we are not working on the idea fulltime by the time of applying to yc? (will certainly quit the job if accepted to yc.)

what are the common attitudes of companies, like google, microsoft, apple, facebook, toward employee moonlighting?

blizkreeg
this. I'm in the process of co-founding a startup. My co-founder is on an H-1B and it's probably the thing that comes up the most in "how are we going to make this work?". What are the capital/other requirements necessary to transfer/file for their H-1B by the startup?
crudbug
I would also like to see a discussion on this topic.

Folks with H1B, who wants to start

1. What is required, if the current company allows Moonlighting ?

2. If the second job is not allowed ?

[deleted]
(comment deleted)
adrianbg
http://unshackled.co/

You can transfer your H1b to them and work on your thing.

ameyamk
How are the requirements for salary are taken care of? H1b employee must be paid market rate salary (not in stocks but actual cash)
winter_blue
There's investment. From the website: "Unshackled takes 5% common stock + invests up to $160,000 as a convertible note to help catalyze progress."
adrianbg
Yeah. Their investment comes in the form of a salary.

I don't know the details for H1b's specifically but I can tell you that they haven't had trouble meeting visa requirements for people in the program.

winter_blue
With regard to maintaining legal status:

If you get a part-time job H1B petition approved, you can use it to maintain your status.

With an H1B visa you just need one job (at all times) to maintain legal status. Part-time H1B petitions allows the employer to specify a range of hours, like 10-20.

If you find an employer willing to hire you for 10-20 hours, and file the H1B petition (which costs including attorney fees, around $3k to $4k), then that should free up enough time to do something on the side.

With regard to working on a startup:

In order to legally work for your YC or non-YC startup, you will need another (concurrent) H1B petition approved. This is actually rather hard. Key points:

1) You must own less than 50% of your startup. Someone (usually the board) must be able to fire you. If there is no one that can fire, your startup H1B petition will most likely be rejected.

2) You'll need investment that is sufficiently high that you can give yourself the "prevailing wage" for the region your startup's office will be in.

Use this tool to find out what the prevailing wage for your region is: http://www.flcdatacenter.com/OesWizardStart.aspx

For example, in order to be legally employed on an H1B in the "San Jose-Sunnyvale-Santa Clara, CA" MSA (Metropolitan Statistical Area), you must be getting paid at least $98,342 per year or $47.28 per hour. You'll need to get investment that's high enough to cover that. YC wouldn't cut it. My estimate is that you'd need stable yearly investment (or revenue) in the range of $500k to a million.

bonobo3000
>For example, in order to be legally employed on an H1B in the "San Jose-Sunnyvale-Santa Clara, CA" MSA (Metropolitan Statistical Area), you must be getting paid at least $98,342 per year or $47.28 per hour.

Wow, i had no idea the prevailing wage was that high. Does this mean literally everyone on an H1B in the bay area is making at least $100k/year?! I should have negotiated harder...

vadym909
No- you find a job title that has a lower prevailing wage- for example programmer analyst vs application developer or something else. Companies like Infosys and TCS pay $70K/year
winter_blue
Regardless of what H1B visa holders are making, if you are a developer and are making less than $120k in the Bay Area, your employer is seriously ripping you off. If you're a good developer, and can prove that by your work, and communicate that across in an interview, you can quite easily make $150,000 or more in the Bay Area.

The U.S. Bureau of Labor Statistics collects data on how much people make in each area of the country, for various O⁕NET job titles/classifications. You can find out how much your peers make using this tool: http://data.bls.gov/oes/

I've uploaded a screenshot of how much software developers in the Bay Area earn: http://imgur.com/R8E1qdZ --it reveals that 90% of developers earn over ~$91k, 75% earn over ~$111k, 50% earn over ~$137k, and 25% over ~$166k, in the San Jose area.

The minimum wage for an H1B employee is based on O⁕NET job classification. If the person is classified under "Software Developers, Applications", they must be paid at least $98,342 in the San Jose area. My title at my company is "Software Engineer" and they classified me under "Software Developers, Applications" while applying for a visa for me.

Unfortunately, the O*NET job title classification system also has other redundant ones like "Computer Programmers" and "Web Developers". The prevailing wages for those are far lower. For example, in the San Jose area, the minimum wage for H1B "Computer Programmers" is ~$51k, and for "Web Developers" it's ~$66k. I can see how unethical companies would exploit that. To be honest, I'm puzzled where the Department of Labor got these prevailing wage numbers from. It almost seems like an error.

gemmakbarlow
What process would you recommend for a startup looking to relocate software developers immediately from the UK to the US?

The H1B process officially kicks off in April, so am interested to hear about types of contractual agreements that might allow employment from now for the next twelve months whilst processing is underway.

pboutros
We hear a lot about the limited # of H1B visas available, about how it functions as a lottery, etc... What are common issues with the H1B application process that don't receive as much public attention?
proberts
Many petitions get rejected - without recourse - because they're not submitted/prepared properly and it's much easier to deal with the lottery and resolve issues with premium processing.
aandrieiev
Does this mean that premium processing circumvents the lottery whatsoever?
porsupah
No. Premium processing only affects the speed of processing - the lottery odds remain unchanged.
iktl
Hi Peter – as H1B / E3 visa holders are only allowed to work for the company sponsoring them, are these holders able to provide contract work (separate to their regular work) to clients either in or out of the US provided the work is conducted and billed via a registered business entity in their home (or another non-US) country?
proberts
The short answer is no - although there can be exceptions when the only beneficiary of this work is outside the US.
iktl
Thanks for the reply, I (and others, I'm sure) appreciate you taking the time to answer these questions!
disbelief
Just to clarify: in this case it may be okay if you're doing work for a client outside of the US and they are billed by a business entity that is also outside the US? So the deal-breaker is doing work for US companies?
semerda
Might not be that easy esp if your o/s entity still has you as a shareholder/owner. And if that country has a taxation treaty with USA like Australia does. Then you need to reveal all your foreign activity.
[dead] HackerDoMal
Vou hackear o celular e o canal pq ele hackeou o meu então ele ta fudido vai se fuder ele Flw meu Hackers lindo
cagenut
This isn't really an immigration question so much as an avoiding-having-to-immigrate question:

What are the challenges in having co-founders in other countries and being able to grant them meaningful chunks of equity. Say example someone with 10% in Hungary and another with 10% in the Netherlands.

proberts
Sorry. Outside my area of expertise.
RjCharm
We're shortly going to be opening an office in a European country and employing several local employees. Once the organization is established, what would the process be for inter-organizational transfers of employees between countries? For example, if someone were to relocate from primarily working in Europe to primarily working in the USA?
proberts
There often are lots of options depending on the nationality of the company and transferring employees, the amount and source of any investment, etc. but the options typically are the E-1, E-2, and L-1 visas.
erispoe
What is the best way to transition from a J1 visa (visiting researcher) to a visa allowing to work one's startup?
ic10503
I am moving from a big company to startup and I have initiated my h1b visa transfer. I want to take a break between the two jobs. Is it OK to go outside US after leaving the current company and come back to start working for the startup ? Will carrying the approved h1b petition for the startup be enough to re-enter US ?
[dead] ic10503
I am moving from a big company to startup and I have initiated my h1b visa transfer. I want to take a break between the two jobs. Is it OK to go outside US after leaving the current company and come back to start working for the startup ? Will carrying the approved h1b petition for the startup be enough to re-enter US ?
graeme
What are the odds of getting an O1 visa in a very small niche. I'm legitimately one of the top experts in the field of LSAT preparation. I've published several books, run a popular website, moderate a major forum, and have written guest articles for most major sites about the LSAT.

However, it's a small field, and not one that attracts much press coverage. How does this balance out?

I run my own business. All online, mostly US customers, soon will be a Canadian corporation.

SeoxyS
I'm not proberts, or an attorney, but, as an O-1 recipient: The requirement is being at the "top of one's field" and proved through publications etc. I'd say you have a better shot as a big fish in a small pond (expert of small niche) than you would as a small fish in a big pond.