I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA
We did an immigration AMA a few months ago and thought it might be time to do another. I'll be here for a couple hours to answer your questions about U.S. immigration. There are countless potential topics, but here's one I thought we could highlight today which is particularly important given the backlogs and delays in the green card process.
Two ways of getting a green card--the extraordinary ability and national interest waiver routes--are often very good options, and often overlooked because of a misunderstanding about the standards. Clearing up some of the misconceptions could be helpful to those of you in this community who might benefit from these routes to a green card. So if you're interested, ask me particularly about that, but I'll be happy to answer about U.S. immigration in general. As before, I can’t comment or provide legal advice on specific cases for obvious liability reasons because I won’t have access to all the facts.
EDIT: Thank you for participating in this AMA. It was very interesting and enjoyable for me. I hope that it was helpful. I need to sign off now but I’ll be checking in again later today.
383 comments
[ 5.1 ms ] story [ 307 ms ] threadYou can then construct your EB-1A by fleshing out the categories with even more high-quality evidence (media articles, awards, salary, etc.), and perhaps adding a few more categories.
Unless the O-1 package was very strong, I wouldn't just resubmit it as an EB-1A. I'd take the time to amplify and strengthen it.
Where does that money go? Fees associated with the application or general attorney fees?
Is it possible to complete this process without an attorney? $5-15K is peanuts for a larger organization but it's a decent chunk of coin for a small business.
Thank you.
Regarding side projects for money, I'll copy my answer I gave elsewhere[0]:
You will get deported and effectively be permanently banned if you receive income from any other source besides your H-1B / L-1 / other-visa sponsoring company/employer. Income from all other sources are prohibited while you are on a visa. With a green card or U.S. citizenship, you have the freedom to sell apps, have income-generating side projects, etc.
Companies are required to report any income you earn while you are in the US. If you make money selling apps, Google/Apple is required to tell the U.S. government about the money you make on the App Store income (primarily for tax purposes).[1] The tax people (the IRS, Income Revenue Service) share income data with the immigration agency. The immigration agency checks to make sure you only got money from the company your visa allows you to work for. If the immigration agency finds out you have income from other sources (app store), they will deport you, and you will effectively be banned. See: http://www.murthy.com/2014/01/28/home-based-businesses-inadv...
If you look at the link above, you'll see a lot of people have inadvertently screwed over by having non-authorized income. An extreme example from the link above are multi-level marketing companies. For example, you recommend your friend that he/she buys some product. Your friend buys it, and for the referral, the company gives you a tiny amount of money (e.g. $5) You could get deported and banned because of this. Because it is considered income, and all income not from your job associated with your visa is completely prohibited.
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Now you might be wondering if you can set up your company and receive income from the App Store in another country, and have it deposited to your foreign bank account. You might be thinking that if you do that, your income likely won't be reported to the US government, and you won't get caught and get deported.
The problem with that is that by having un-reported income in another country (from the App Store) you are breaking two sets of laws: (1) tax laws, (2) immigration laws.
Firstly, if you live in the U.S., you have to pay taxes (~35%) on your total worldwide income -- income that you make in every country. Even on the interest you receive in a bank account in a foreign country. If you do not report your non-U.S. income, you break tax law. The punishment for breaking tax laws is severe. In addition to being deported and banned, they can take money out of your bank account, seize your property (your house, your car, etc) to pay for the unpaid taxes + the severe fines for hiding and not paying taxes.
Secondly, U.S. immigration law generally prohibits H-1B, L-1 and other visa holders from doing any kind of productive work outside their H-1B/other-visa job. Even repairing your own house by yourself, if it involves a lot of work, is illegal for a visa holder. You have to hire a U.S. worker to repair your house. Foreign income for remote work is prohibited. Working on your own app and making money selling it is prohibited.
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[1] I don't know if you are in the U.S. -- so just to clarify: everyone in the U.S. who has permission to work (citizens, LPRs, H-1B/L-1/etc visa holders) is issued a Social Security Number ("SSN"). This number is used to report any income you earn to the government. You have to provide this number to receive income from any company in the US. If you try to set up a U.S. Google App Store account, they will ask for your SSN. Your SSN is used to report your income to the government, and as a general universal personal identification number.
[0] rrecuero ↗ To give other point of view. During my previous startup I was on an F-1 visa, then we got funding and I got an H1B from my startup. You can sponsor yourself through your own company, you just need to prove the relation and provide enough documentation about the investments, incorporation... tokensimian ↗ As a US citizen an HN community member, this super sucks. winter_blue ↗ Any income (above 0) that is a result of working in the United States is illegal, unless it is for the company sponsoring the visa. Even a mere $100 of income from the App Store will be considered unauthorized, and could lead to deportation and potentially make them "inadmissible to the United States" (i.e. permanently banned). Please see: http://www.murthy.com/2014/01/28/home-based-businesses-inadv...
What is the likelihood that someone is deported within a 5-10 year period for having an app on the iOS/Android stores, provided that app isn't like a huge company? (eg. < $50k annual revenue)
I ask specifically because its silly for the US to have those restrictions. We (I) want people like this to join our economy!
How can I help?
1st: I’d love to stay in the US as a “digital nomad” for some months. I’d have to work on my own projects and maybe on some client ones while doing this (all of them outside the US). Which kind of VISA would I need?
2nd: Are there any chances to get a work permit if you don’t own a University degree? (Eg. starting my own company in the US?)
Thank you!
Anyways, the most striking part about this is that it seems a lot of the judges who handle these cases simply don't care. Because these people are often deported and then come back a week later, not a lot seems to be done. Some of the criminals won't be charged, and it seems a lot of people on the in the system will just turn a blind eye. I'm not sure if it's apathy, or if the system is so inundated that they're just unable to keep up, but have you experienced anything like this?
Interestingly, the O-1 and EB-11 categories don't consider US labor issues at all, the way that other categories do. For example, the number of US jobs you create isn't relevant, except as evidence of your success. Neither is the question of whether you're in a shortage occupation, or whether an American is available to fill the position.
1. Continue seeking media coverage, the more prestigious the better.
2. Document the specific impacts your product has in making the world a better place. How has it made a dent in the universe? Factual evidence of specific, industry-wide impacts can really skyrocket your chances of success.
These impacts are hard for many applicants to explain and document, so if you can do it, it will really make your petition stand out.
3. Enter some competitions and win some awards (including, but not limited to, funding, admission to prestigious accelerators, etc.).
4. Judge some competitions or submissions: Hackathons, pitch competitions, applications for funding, peer review, anything in your industry.
5. Write and publish some articles, either on technical topics in your industry (better), or general-interest media articles and blog posts (good).
6. If you're making money, think about how to frame your compensation as higher than the norm in your industry. You have to prove, not only that you have high compensation, but that others similarly placed have lower compensation. There are a number of ways to present this, so it's good to start thinking about how to show a "pyramid."
HTH.
A successful petition tells the adjudicator the STORY of your rise to success. It's basically a narrated guide to the high-quality evidence you've provided in at least 3, preferably 4 or 5, categories: contributions, awards, media coverage, judging, authorship, etc.
The adjudication is subjective, but there's definitely a formula you can follow to maximize your chances of approval.
Basically if you have something like a Nobel price or a Turing award, you don't need anything else to get the O1 (and probably the green card). If you're like most people and don't have this kind of award, you still have a shot but you need to gather as much evidence as possible. From what my attorney told me at the time, weight matters.
That includes, for science:
- publications
- recommendation letters (preferably a blend from business, research and politicians)
- awards (even things like "the best paper" of a small conference with only 30 papers from local researchers)
- interviews
- be a member of an association only open to certain persons (for example with a Ph.D. you qualify for IEEE membership, and they will deliver a good-looking membership certificate)
So having a Ph.D is not enough, but if are a decently successful researcher and have a good network for the recommendation letters (or your future employer), you can get it without being of Turing award level.
The "extraordinary ability" is applicable also for athletics or business, but I don't know much about those.
Unless something has changed very recently, you do not have to have a Ph.D. to be an IEEE member.
Source: long-time IEEE member without a Ph.D.
Preface: The "membership in associations that require outstanding achievement" category is, interestingly, one of the hardest to satisfy. Adjudicators are trained to focus on minute details of the organization's criteria for membership, and the extent to which they're governed by "recognized experts" in the field.
This has resulted in some incredible nit-picking by USCIS about how "outstanding" you have to be, to qualify for membership, and who chooses you.
In general, organizations that require only a degree (even an advanced degree), or the payment of dues, don't meet the criterion.
However, the IEEE is an interesting case study, because it has multiple levels of membership. http://www.ieee.org/membership_services/membership/qualifica...
The highest tier, "Fellow," "recognizes unusual distinction in the profession and is conferred only by invitation of the Board of Directors upon a person with an extraordinary record of accomplishments in any of IEEE’s designated fields of interest."
THAT is exactly what USCIS is looking for, and it definitely meets the criterion.
The second tier, "Senior Member," "is the highest for which application may be made and requires experience reflecting professional maturity." This level requires that "the candidate shall have been in professional practice for at least ten years and shall have shown significant performance over a period of at least five of those years, such performance including one or more of the following: [list of major professional accomplishments]."
I'd argue that this "Senior Member" tier is also an "exclusive membership," because of all the ways it requires "outstanding achievement" of its members at this level.
All the other levels of IEEE membership are non-exclusive, and I wouldn't bother including them, as they would weaken your case.
Listening to him talk about it really did feel like he was cheating the system.
I know of several people who went the O1 route and basically the process was this:
- A job offer with a "high" salary (basically it seemed anything over 100k would do the trick)
- Judged a hackathon
- "News" coverage of the hackathon
Then a big check to the immigration attorney who wrap it up in a bunch of legalese and send it off to the immigration officials who don't have enough knowledge or insight to question any of it.
From my point of view the goal is to essentially beat the immigration officials over the head with information until they just pull out their stamp and move on to then next application.
Not to say it is a loophole (though the folks I know that did go through it sure have the smug attitude that they beat the system), I think the Evidentiary Criteria is purposefully broad to leave it open for interpretation.
Adjudicators see these cases all day long. They aren't fooled, and they won't approve them.
You can really make your adjudicator's day - and secure a quick approval - with an organized, nicely presented, high-quality evidence package, that's tied together with a compelling narrative.
I'd focus on showing how your work is new and cool, how it makes an impact on the world, and what acclaim you've gotten (media coverage, awards) for doing it.
HTH
I see it as independent from the studies level, but I see both of them as important points. So I'll include this competition (and others), my degree in Spain+Japan and the community I founded at my University ( http://makersupv.com/ ).
The NASA award is definitely strong enough to build a case around, if you file in the next year or two, so that the evidence is not stale.
The Makers UPV website is very cool. With proper documentation it could be counted as an "original contribution of major significance." It would be good to start collecting specific examples of its impact on the field, how it's helped people, and what it has created, that was not there before.
In general, other student-level accomplishments aren't considered O-1 caliber. Phi Beta Kappa, academic awards, student papers, etc. are considered by USCIS to be at a preparatory or entry level. They are best omitted, as they will weaken your case and make you look small.
Instead, I would focus on your substantive accomplishments - things that you have made, and how they have helped people, or made an impact on the world.
Also consider seeking some media coverage for your stuff in tech publications or general-interest media.
Write some papers, or do some podcasts or videos, that showcase your work and show its practical applications.
BY FAR the biggest O-1 challenge faced by makers, engineers, and developers, is explaining what you did, and why it's cool, in language that a 7-year-old can grasp and understand right away.
When your O-1 application hits the adjudicator's desk, you will have 5 to 15 minutes to make your case. He doesn't have a clue about JS or Angular. It's very difficult to explain why your work is new and different and cutting-edge, when you have such a limited window to explain it. Yet that - plus your evidence - is THE key to O-1 success.
My best advice: Practice on your grandma. Or your artist friend. Or your GF. Explain it, and explain it, and explain it again. Just bore the crap out of them, until they finally say, OH, I get it! That's so cool!
TL;DR, but hope you can use this in the future. Best of luck.
https://www.washingtonpost.com/news/fact-checker/wp/2016/03/...
H1B abuse typically involves posting an absurdly specific or unappealing set of requirements in a job ad tailored to the person you're trying to get a visa for. If any qualified US person actually does apply, they are rejected for whatever spurious reason. The employer can then claim "no suitable candidate can be found" and get a visa for their immigrant.
I'm not sure how this can be prevented.
The President can't do much, including defining or eliminating visa categories; most of what Presidential candidates campaign on are legislative priorities which would need to be passed by Congress.
Congress absolutely could eliminate the H-1B.
Now, some would like to argue that this would "free up" half a million jobs for U.S. citizens, but keep in mind that the H-1B is for skilled labor that an employer couldn't find a citizen for. There are H-1B abusers, like Wipro, Qualcomm, etc., but they only accounted for about 3-4% of the applications in 2015, and are (thankfully) being dealt with on an increasingly frequent basis.
Trust me, there are a lot of abuses of the H1B program from "main stream" tech companies.
The Disney debacle cost Infosys $69 million, and they're included in that 3-4% number I quoted if that's what you're thinking of.
- http://cis.org/PayScale-H1BWages
- The fallacy of a labor shortage is apparent when you look at it in terms of any other market. I don't say there is a Porsche shortage if I can't afford one.
- 80% of H1-Bs come in at the lower 2 of 4 pay levels. In fact, there is so much variability in the salaries that you essentially have a very good case for hiring a software developer in SF for 60k or 140k and it's up to the employer to choose with little accountability. In fact, employers can provide their own wage survey data to support the wage on the application.
- H-1B is for the best and brightest, so why are they typically low man on the totem pole making an "average" wage working on low impact projects?
- The quality of foreign students, the bulk of H1B visa holders, has been studied and called in to question, http://www.epi.org/publication/bp356-foreign-students-best-b...
- Entry level CS graduate wages have fallen 3.7% between 2014 and 2015
- "main stream" tech companies have recruiting processes that essentially give excusivity to foreign students. (Masters degree+ requirement, 6 month internships, OPT extension, etc)
My feeling is we have plenty of unemployed and underemployed university educated people within our borders and I wish there was more of an effort from our government and industry to utilize those folks and only reach for the H1B when we really can't find the talent domestically.
- CIS is a anti-immigration think tank founded to provide numbers for the republican party. The study you link to is cherry picking data regarding location and prevailing wage.
- There is also no way to prove if there is or is not a labor shortage. I think we can agree that this is something that can definitely be improved on.
- Wages are long-tail distribution, so you're going to see lower tiers having higher enrollment. UCSIS reviews immigrants based on their experience and education levels, and will typically reject if the employer is under hiring.
- You may be confusing the H1B with the O (Outstanding) visa. H1B is for talented labor only, it doesn't mean manager-level , so I'm not sure why that's your assumption.
- Again, if you're assuming that you're filling the skilled labor shortage, that doesn't guarantee that you're hiring higher-quality skilled labor than the already-employed supply. The socioeconomic environment of skilled labor immigrants may be different enough to warrant such a gap, but that doesn't negate their current skills. We should definitely continue to question and evaluate the quality though.
- And how exactly is a 3.7% drop in CS wages attributable to the H1B program? H1B immigration caps (supply) haven't changed for years. H1B visa != outsourcing.
- You'll need to prove this claim with more than just "trust me" too.
This may come across as harsh, but your feelings don't really matter on the issue because they are likely biased. The U.S. is currently at a record low of unemployment, and the H1B caps haven't increased in years, meaning that the H1B visa holders are not likely causing whatever it is you're feeling.
However I _have_ seen H1B postings so specific that one might wonder if the only missing information was the first and last name of the "chosen one" along with his birthdate, his second son's middle name and a traced outline of the birthmark on the back of his left shoulder.
In all instances the candidate had been chosen _before_ the job was posted publicly in the US. In some cases the chosen one was a relative of the person choosing, in others a crony of the one choosing.
The only reason for the US job posting was to bring in the requisite number of unsuspecting US citizen applicants who were then _always_ rejected.
So, using your number, if we banned all H-1Bs today, we would effectively be opening approximately half a million jobs for talented US citizen workers and selling half a million one-way tickets on boats or planes to other countries.
What exactly do you mean by these "H1B job postings"?
Job postings do not advertise visa sponsorship. A large portion of the H1B applicants were already working their job for some months before applying, under the OPT program. Also, a quarter of all H1B visas are only given to applicants with verified advanced education degrees (Masters, PhD, etc.).
Can you please describe briefly about the process to establish a company here while on H1-B. From incorporation to founder's visa status. Whether there has to be a American co-founder or if it helps to have one. If funding helps in getting a visa etc.
The description about the 2 visa's for GC is clear, i just wanted to know about initiating the process.
Thanks in Advance!
My first question is how much time it takes to get green card through employment for someone who's not from India or China.
My second question is, does it make any difference to complete my MS before starting the process, or it doesn't change the approval chance and/or delay at all? (MS is from a middle eastern uni, not US)
-- Here is a bit background about me: applied H1-B 3 times, didn't get selected. Now the company that applied for H-1B for me is preparing to apply for GC for me next month. I have a BS in CS and 3 years of experience, and almost done with a MS degree outside the US, just need to complete my thesis.
Thanks a lot again!
It is a little less straightforward then the Computer Systems Analyst category but it can be done.
If you do get this visa though, be very careful what you say to the border guards. You need to ensure that when speaking about your work, you always frame it as "work in support of scientific research/innovation".
My company currently employs a brilliant, in my opinion, Argentine scientist. We'd love to bring him to the US periodically, but he can't get a visa as he owns no property in Argentina, isn't married, etc. Short of meeting in a more neutral country do we have any options?
https://news.ycombinator.com/item?id=10719080
- Is it allowed for an F-1 visa student to start a company?
- If yes, can that company make money? Under what conditions?
Thank you!
What options does a person without a bachelor's degree (or similar) have to immigrate?
Have you heard about SimpleCitizen? (https://simplecitizen.com/)
My wife and I were recently married and are currently considering this for getting her green card.
Any thoughts?
Have you had experience with DACA + 245(i)? We're hoping that doesn't complicate things much.
Is it a good choice for canadians?
What is the best way to find a qualifying and legitimate investment?
Thanks!