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I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA

238 points by proberts ↗ HN
It's been a year since we did our last immigration AMA (https://news.ycombinator.com/item?id=11972135) and we thought it might be time to do another. I'll be here for a few hours to answer your questions about U.S. immigration.

As usual, there are countless possible topics and I'll be guided by whatever you're concerned with. Please remember that I can't provide legal advice on specific cases for obvious liability reasons because I won’t have access to all the facts. With all that's happened in the last year, it might make sense to discuss the changes, real and perceived, in immigration policy and practice now and in the future, such as, for example, an increase in site visits and a more restrictive approach to admissions and visa issuance. Please stick to a factual discussion in your questions and comments and I'll try to do the same in my answers! One thing I noticed, looking at some recent threads on HN, are some common misconceptions about the standards for extraordinary ability, in both the nonimmigrant (O-1) and green card context, so hopefully we can clear some of that up as well.

335 comments

[ 3.3 ms ] story [ 373 ms ] thread
deathtrader666
Are people of Indian origin eligible for the the EB-5 Visa?

Can two co-founders petition for each other's O-1 application?

proberts
Yes, the EB-5 green card option is available to nationals of all countries.
Nimsical
I'm on an O-1 Visa at the moment and thinking about going for a green card. What's the best path way to do this?
proberts
As you probably know, although the criteria are nearly identical, the standards are different, with the evidentiary standard higher for the EB1A green card category. So I would have an attorney evaluate the O-1 petition to see if it's strong enough to support an EB1A. Almost always, if the trajectory of your business or work is up, it's better to wait to build up a stronger EB1A case.
chollida1
Canadian here.

Most of my friends with Visa's tend to live in a constant state of fear when crossing the border into the US that a border office will just rip the visa out of their passport and deny them entry into the US.

Even the ones with high priced immigration attorney's.

Is there something the average Canadian can do to make crossing the border into the US less of a crap shoot, especially when doing so with a family?

mabbo
I was just at a wedding on the weekend and was chatting with a friend who had that happen two weeks ago. He spent 4 days in a US Border patrol jail near San Diego, sleeping beside MS-13 members.

He was forced to buy a last-minute-priced plane ticket back to Canada. His car is currently somewhere in an impound lot in San Diego. His possessions are in his apartment in the bay area. Until he resolves his H1B issues, he can't re-enter the country.

Edit: Makes for a hell of a story though. "How's it going?" "Oh, just got out of jail down in Mexico" "... what?"

toomuchtodo
Does he need help getting his car and stuff back to Canada to prevent incurring excessive costs/penalties?
mabbo
He's got enough friends in the bay area to have himself covered in that regard. Right now I believe his biggest problem is renting an apartment in Canada to establish as his official primary residence so that he can enter the US as a visitor to go get his stuff.

Pretty shitty deal all around though.

pmiller2
Wouldn't establishing himself as a visitor undermine his status as a guest worker? Or is that already off the table?
bflesch
Did he overstay? I don't understand how people can run into trouble with H1B visas.
[dead] f4rker
This is the real question.
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mabbo
Something to do with changing jobs, then having the new job fall through a month later. He thought he had 60 days to get a new job (which is pretty easy for developers these days). The border guards had not heard of such a rule.
enra
Perhaps obvious in hindsight but in that situation I definitely would not leave the country and especially try to re-enter the country unless my paperwork was in perfect order (lawyer prepared it for you). One mistake like that can ruin your visa situation forever.
geoka9
Since he's Canadian, it's probably a TN visa, not H1B?
desdiv
Nothing in the post suggests the person is a Canadian citizen. Going by all the clues, it sounds like they are a Canadian permanent resident.
Mikeb85
Not OP, but my sister and brother-in-law (both born in Canada) have constant issues re-entering the US, despite both having up to date visas and never having changed jobs.

Mostly because of dumb-ass border agents. They've never been denied entry, but it's always a 5 hour long ordeal.

mabbo
When I was first at Amazon in Seattle (later moved back to Toronto) it became known that if you had a TN visa, you didn't cross at a specific Vancouver-area crossing. There was just one guy there who had decided he didn't like the TN visa program, and tore up every single one he saw.
illumin8
That's horrible. I hope the worker was reported and sent to prison.
Mikeb85
Happens more often than you think. It's not something that comes from the lawmaking side, but seems border agencies just have shitty cultures, uneducated officers and too much authority since they're part of the national security apparatus.
int_19h
The "shitty culture" part to a large extent comes from "too much authority" part. Combined with one more, namely "lack of accountability". In many cases, CBP and ICE officers can make decisions that are essentially arbitrary, and that either cannot be disputed or appealed at all, or the process is so convoluted, esp. if you're outside the country, that it might as well not be there.
robotresearcher
> sent to prison.

It's too risky to have a man like that out on the streets. He could tear up visas any time.

avh02
Abuse of power and being unreasonable are not good traits in any branch of law enforcement (which is where I assume this officer would end up if not at the border).
robotresearcher
Sure. I just think that 'lock him up' is not the solution to non-violent crime. The US has higher incarceration rates than any other developed country. It's expensive and wasteful of labour.
illumin8
There need to be strong penalties for abuse of law enforcement power. He has the power to destroy lives and families, apparently without any accountability. The way you hold people accountable for their actions is by threat of legal action against them.
[dead] illumin8
There need to be strong penalties for abuse of law enforcement power. He has the power to destroy lives and families, apparently without any accountability. The way you hold people accountable for their actions is by threat of legal action against them.
mabbo
In this particular case, Canadian citizen since birth, H1B visa.
proberts
Their concerns are well-founded. It's hard to advise without knowing the particular facts but now, more than ever, it's advisable, if one has any concerns about admission, to consult with an attorney beforehand, even if just for a few minutes, because most problems at the border can be avoided with some planning.
gourou
Are startups more likely to obtain H1-B visas than bigger companies?
proberts
There's no difference in selection in the lottery (it's truly random) and in terms of approval, it's probably slightly easier to get an H-1B through a larger/established company since USCIS is less likely to raise certain questions, such as the availability of work and the absence of non-qualifying duties.
nopinsight
What are the major differences between the standards and the amount of time it takes to get O-1 vs EB-2 with NIW?

Would it make more sense to target O-1 or EB-2 with NIW for a non-PhD founder with US Masters degree who does not have published research papers but have created innovative products with buzzes in the news?

proberts
I would need to see the specifics to evaluate the chances but essentially where one or two publications might be sufficient for O-1, more are needed for EB1A. But to be clear, a PhD is absolutely not required for an EB1A or NIW green card. It's more what a PhD typically signifies, publications, presentations, and original work.
[dead] proberts
I would need to see the specifics to evaluate the chances but essentially where one or two publications might be sufficient for O-1, more are needed for EB1A. But to be clear, a PhD is absolutely not required for an EB1A or NIW green card. It's more what a PhD typically signifies, publications, presentations, and original work.
projectramo
Can you outline the big changes that have happened over the past year?

Has the H-1B cap lowered? If it still gets booked up within a week, what options do people have?

It sounds like the cap is pushing people to other categories like the O-1 and the EB-1 (if they can afford it).

proberts
There really haven't been any changes to the H-1B program other than an increase in site visits to ensure that the employee and company exist and that the employee is doing what he or she is supposed to be doing. The cap still exists and is still getting filled up within a week so individuals must look at other options, such as the O-1 or green card, unless they are from a country with its own visa classification, such as Australia, Canada, and Mexico (and Chile and Singapore to a lesser degree).
funkaster
Hi Peter, could you please elaborate on the "lesser degree" for Chile & Singapore? I'm Chilean and currently under h1b1 and AFAIR it was a relatively painless process: from our side it took about one-two weeks and it was open window with its own cap. Has this changed recently?
proberts
Probably a bad choice words. I simply used that term because the H-1B1 is a subset of the H-1B. But you're right, it tends to be a very quick and easy process. The only challenge can be in the renewal context since an applicant must be able to demonstrate his or her intent to return home.
d33wp41n
Hi Peter! I had a question about H1-B visas. I was approved for a H1-B in the April, 2014 lottery and received my I-797 approval notice. But I never activated it since I changed jobs to work for an international organization under the G-4 visa in September, 2014. I'm now looking to go back onto the H1-B visa with a new employer. Would I need to go back and ask my new employer to apply for my H1-B in the lottery again? Or would it be possible for my new employer to transfer my previously approved H1-B petition?

Also, if it is possible to transfer the old visa, is there any time limit on its validity before I'd need to go back and apply via the lottery again?

Thanks!

proberts
As a general rule, USCIS's position is that you would need to go into the lottery again.
hakcermani
Thanks Peter. Would it be even worth applying for a transfer, and take a chance ?
proberts
That's really a personal decision but there's high risk that you'll have a problem.
on_and_off
Could you elaborate on these misconceptions about the standards for extraordinary ability for O-1 ?

I almost tried to get a O-1 but I was admitted in the H1B lottery.

The criteria are indeed very opaque and you can read very conflicting accounts on HN and elsewhere.

proberts
In short, while the standards are very high, almost always they are not as high as people believe so it's almost always worthwhile to have an experienced attorney evaluate your background.
kobeya
Pretty much anyone with a Ph.D, core contributor to a major open source project, inventor of record on multiple patents, speaker at conferences, OR otherwise able to demonstrate that s/he is an expert in their field can get admitted on an O-1 visa, if they have good legal representation.
leventov
Could you elaborate on "core contributor to a major open source project"? Do you know examples of that?

I'm a relatively core contributor of druid.io project, struggling to get a touristic visa (2 failed attempts).

kobeya
Well for example I know someone that was able to get an O-1 visa on the basis of being the expert on a piece of technology because he had for years been a major contributor to a business critical open source project. It's not enough to just point to github though, as your lawyer will tell you, you need prominent business people to vouch for your credentials. They are used to doing this though, if your company has the right connections.
cingram
Any ideas as to when the premium for skipping the H1B loterry will be reinstated?
proberts
It should be soon, hopefully by the beginning of the new fiscal year.
hjoi8783
I'm a US citizen, married to an French citizen, living in France. We are thinking of moving back to the US. If I have an immediate job offer there, is it possible to expedite the Green Card process for my spouse?
proberts
The short answer is no unfortunately although there may be options to get him here in the short-term.
Natsu
I assume they'd have to do a K-2 as I'm in a not-too-different situation myself. In that vein, any common pitfalls to watch out for with K-2 visas for a spouse? Especially if they were previously denied a tourist visa without even getting a chance to talk to anyone and no explanation whatsoever.
[dead] proberts
The short answer is no unfortunately although there may be options to get him here in the short-term.
deviarte
Hi Roberts, thank you so much for taking the time for an AMA.

Dutch Citizen, exploring possibilities of moving to the US. Employed as executive at a US based company.

My research shows me that L1-A might be the most viable option for me, are they still very hard to get?

Most other options takes years to get a green card (except EB-*)

proberts
The L-1A for managers and executives and the corresponding multinational manager or executive green card category are still very good options (and appear to be good options for you) although the processing of multinational manager or executive green card applications has slowed down considerable over the past 1-2 years.
deviarte
Thank you! Would you say that i should take into account a 1 year processing time?
proberts
For the green card yes but an L-1 can be very fast.
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on_and_off
Are there been changes in the H1B process since last year ?

I was lucky enough to pass the lottery step .. but since then .. nothing. Apparently this is supposed to be normal but it is a bit infuriating that the process is that long and opaque.

Are there any classic potential hurdles in the H1B process for a well paid legitimate engineering job ? Or is it just a waiting game until the american government finally examines the dossier ?

proberts
Are you saying that the petition was selected in the lottery but you haven't heard yet whether it has been approved? If so, USCIS is now starting to review and approve cap-subject petitions so you should hear soon.
on_and_off
Thanks for the reply !

Yeah that's what I mean. I guess I just need to wait a little bit more ^^

proberts
I think so but I'd follow up with the company if you haven't heard by the end of July.
tucaz
Last year I was selected in the lottery and was not approved until late August when the company decided to pay for the premium processing since the attorney's estimates were that it would be adjudicated in January/17.

I had a friend selected in the same lottery, but with no premium processed and his approval came indeed in January/17.

This year it seems that there is no premium processing so everybody is in the same boat and the wait COULD be long.

Another friend that applied this year has been selected in the lottery and is waiting for the adjudication of the process.

chikathreesix
Hi Peter, I am planning to apply for E-2 visa but 2 concerns. 1. I've heard from an attorney that no one shouldn't have more than 50% of its share. What do you think? 2. We have raised with SAFE. Do you see any concern? Thank you!
proberts
I;m not sure that I understand. E-2s are in fact relatively easy to obtain because the requirements are pretty clear and it's really just a matter of checking the boxes. In short, regardless of the number of owners, the company needs to be at least 50% owned by citizens of your country and there needs to be a substantial investment into the company by citizens of your country. SAFEs concern future ownership so they are not immediately relevant from an ownership standpoint but they can of course impact future ownership and continued E-2 qualification.
Spooky23
Are there any pitfalls in the current political environment for a US citizen entitled to Irish citizenship via foreign birth registration taking advantage of that to work in Europe?

More worried about trouble associated with traveling or otherwise using the EU passport than tax or employment issues.

proberts
I don't see any downside to dual citizenship and when you travel to third countries, you can travel on either passport (that's up to you) - but when you travel to the US, you must use your US passport and your Irish passport when you travel to Ireland.
roserafini
TN Visa or H1B?
proberts
I'm not sure that I understand the question.
uiri
I'll piggy back on this, as a Canadian.

What are the pros and cons of each for the employer?

What are the pros and cons of each for the Canadian employee?

In practice, how many times can a TN be renewed?

proberts
Again, these are tough to answer in the abstract without knowing anything about the company, the offered jobs, or the individuals because sometimes a TN makes the most sense and sometimes some other visa status makes the most sense. Theoretically, as long as a Canadian can show strong ties to Canada and a credible intent to return home, a TN can be renewed multiple times.
zachperret
This isn't strictly an immigration-focused question, but I'd love to hear about any best practices for equity grants for full-time international employees and employees that might start internationally while waiting for visa approval.
proberts
I'll need to defer to your HN colleagues.
sthada02
Im on an H1B and hoping to get my employer to sponsor me for a green card when my 6 year H1B term is up (2020). Are there benefits having already worked for this employer, or will the green card application be the exact same as if filing for a foreign national who wasn't already working at the company?
proberts
It's generally helpful to be currently employed by the sponsoring company but the amount of time with that company has little bearing on the success.
tucaz
As a follow-up to this question, Peter, is there a need to wait for the H1B VISA to be over or could the employer start the GC process right away?
pm90
They can definitely start it right away. There is no need to wait.
proberts
In fact, it's better to start the GC process at least 1-2 years before the 6-year max-out date to account for any delays or problems in the process.
maerF0x0
Also A general followup. What is the recommended path to GC for a current holder of an H1B? Full 6 years first, or try and find I-140 immediately? another path?
pm90
Definitely start it right away. In fact, my recruiter friends mentioned that some companies are unwilling to hire H1B workers who have no GC sponsorship started and less than 2 years left in total.
maerF0x0
So I would need to find a company willing to do that for me? It seems like where I'm at now is not willing to work on GCs.
desdiv
Do L-1A/L-1B visa have minimum stay requirements?

As in, if someone is granted a L-1A/L-1B visa, but their job requires them to be physically present in the US 30% of the time and 70% elsewhere, could their visa be revoked?

proberts
The short answer is no. As long as the job is U.S. based, extensive travel outside should have no bearing on the continued validity of his L-1 visa.
Vepe
I'm a photography artist and have recently become also a tech start-up entrepreneur. We're now looking into moving into the US within the next year or so and I'm looking into the visa options. What would be the visa to apply as an start-up entrepeneur? I have also considered applying for the O-1 visa as an artist. Can I work as an artist if I have received my visa on the basis of the start-up and vice versa can I work in a tech start-up with an artist visa O-1? I am from the EU.
proberts
You might have multiple options such as an E-2 and an O-1 or even EB1A green card. Regarding your job flexibility, this will depend on the facts, how your job duties are defined, because you are broadly limited to doing what is represented in the O-1 petition.
Vepe
Hi Peter and thank you very much! How strictly is the job duty limitation enforced and does it allow occasional exceptions that would be outside the job duty definition? Is having a wide job duty definition a hindrance for getting a visa?
proberts
Again, this is hard to answer in the abstract but for example, I see no issue with someone, who is an artist, getting an O-1 as an entrepreneur but as part of his or her job duties, doing artwork - but the artwork needs to be for the US company in your capacity as an employee of that company.
dirkdk
O1s are easy for artists, I know about somebody that worked on music software that got one in 2 months. Business related O1s are much harder
throwawayl1visa
Hi Peter, I'm working with a L1B visa in US right now and will get an H1B approved soon. My employer filed H1B for me and will hold it for a couple of years without activating it until my L1B visa expires. The company is doing this so that I cannot change job. If I get an offer from a startup or Google will they be able to activate my H1B somehow?
proberts
That doesn't sound right but it's likely that USCIS will consider you as subject to the lottery again because you never activated the H-1B.
throwawayl1visa
Thank you Peter. If I go through the lottery again I may have 35% chance to get a new H1B and use it after Oct. 2018. Many companies wanted to hire me could not wait till then. I'm considering to get legal help to activate the H1B I'm going to get very soon.
bl4ck74ck
Hi Peter,

I am a student who just finished his Masters (F-1) and I am applying for jobs. However, I have not yet received my work authorization from USCIS. Is it legal for me to accept a job offer and receive any relocation/sign up bonus before that happens?

proberts
As a general rule, there's no issue with accepting a job offer or even receiving a signing bonus but you can't work until you receive your EAD.
vs2370
Thanks Peter for doing this. I have a question regarding the EB1A category. I recently received my I140 under EB2 category. I was wondering if I can apply for another I140 under EB1A category. My question is if I get rejected under EB1A do I keep my existing priority date (EB2) ? Also what are the chances of getting approval on EB2 to EB1? Thanks
proberts
Yes, you can file another (EB1A) I-140 petition and it's denial would have no bearing on your already-approved EB2 I-140 petition and priority date. Regarding your chances of success, it's impossible to say without knowing your background.
dheelus
Peter, what advice do you have for Indian nationals on EB2/EB3 GC status given the incredibly long wait times for the priority date to become current?

Is there a good (and legal) way to upgrade to EB1 or similar category (that has shorter wait periods)?

For example, does it make sense to leave the US, work as a manager overseas and return to the US on a L1-A thereby qualifying for a EB1.

Or perhaps work towards publishing papers, applying for patents, etc. to thereby qualify for a NIW?

proberts
That's very hard to answer in the abstract but those are the two options that many Indian and Chinese nationals look at - and oftentimes, the EB1A is a real option for bright and talented individuals. Again, the EB1A standard, while high, isn't as high as most people think.
vram22
Is the EB1A similar to O-1?
nnd
EB1 has stricter requirements than an O-1
arikr
If a HN reader wanted to dedicate a few years of their life to making USCIS more friendly to immigrants - particularly to making the border agents focused on user experience and making people feel welcome even if they have issues with their Visa or similar things - how would one go about this?

I suppose the question is - who is the person who decides all of this stuff and has the authority to update the staff?

proberts
In fairness to CBP, not all is aboveboard and rosy at the border but at the end of the day, it's individual officers and their supervisors who make decisions regarding admissibility although they are guided of course by the overall directive from DHS and the administration.
gaurav_garg_
Hi peter,

Thanks for your AMA, I have one question. I am currently software professional in IT company in Germany. I have few plans for opening startup. After getting funding from US investor how much time it take to get O-1 VISA. What is major requirement for getting O-1 visa.

What if my startup fail. Can i continue to work in any other company like startup/MNC ?

Thanks in advance :)

proberts
It's impossible to assess chances in the abstract but from the time of filing an O-1 petition with USCIS until the issuance of the O-1 visa by a Consulate can be as little as 4 weeks (assuming no issues with the petition). The preparation time is hard to say but typically (depending on the facts of course) it is can be as little as 4 weeks and as much as 12 weeks.