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

249 points by proberts ↗ HN
I’ll be here for the next 2 hours and then again at around noon for another 2 hours. As usual, there are countless possible topics and I'll be guided by whatever you're concerned with. Please remember that I can't provide legal advice on specific cases for obvious liability reasons because I won’t have access to all the facts. Please stick to a factual discussion in your questions and comments and I'll try to do the same in my answers!

316 comments

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jonhmchan
I'm curious what you think about remote work and whether it's overall a net positive for companies that are struggling to find talent in their own country.

There seem to be some obvious benefits: no need to worry about getting people visas, expanding your talent pool to beyond your geographic region, and so on. There's also legal tradeoffs: dealing with complicated laws with taxes, benefits, and so on.

In your experience, is opting for remote a net benefit? Or perhaps more fittingly, in what situations do you think it's appropriate for a company to consider building a remote workforce, wholly or partially?

proberts
I'm not aware of the costs of remote employment, which will vary from country to country, so it's hard to say but as immigration policies get more restrictive, I suspect that more companies will go this route. That being said, we still get a lot of requests from companies to bring their remote employees and contractors to the U.S. so that they're working as part of the main team even though the cost of employing them is probably higher.
perseusprime11
What is your opinion on Trump's new H1-B policy? Will this hurt innovation as a result of lack of access to talented engineers?
tchaffee
Not a lawyer and I am also interested in the answer. As a developer though I often wonder if there is a lack of talented engineers. It seems like companies want engineers for a big discount. The US immigration system, since it ties you to one employer, seems to be almost indentured servitude. If you get fired you lose your Visa. I am not anti-immigration. But I would like to see immigrant salaries the same as or very close to local worker salaries - that would be a true indication that you cannot find talent elsewhere. And I would like to see immigrants able to move from employer to employer. Good question, and I hope you don't mind me hopping on this with my $0.02.
princekolt
I think talented foreigner employees will always have higher salaries (on average) because 1. it is a true pain in the ass to move countries, and 2. in some countries that's actually a requirement (like the Netherlands, for example).
tchaffee
Not in the US. My experience is that immigrants, for example from India, are grossly underpaid. This would be for the software engineering area, and I've seen this over a two decade span.
0xcafecafe
Not disagreeing with what you say but there are people on both sides of the coin. For instance, myself and my peers (Indian graduates from a top 5 school in US) are extremely well compensated by our respective companies (well beyond the highest wage level defined by DOL). But due to the antiquated immigration system, everyone gets pooled into one bucket which results in decade+ long wait for a green card. I agree with you that the salary requirements need to be fixed and revised. Also, the allocation of the green cards can be done in descending order of the compensation of the employee instead of the country of birth/filing date system.
sbaus387
I believe this is handled by the concept of the prevailing wage. I'm not suggesting it is well handled but in theory, you do have to earn at the level or higher dictated by the prevailing wage for your position.

If I'm not mistaken, there is an effort to push either this number higher or some other general salary requirement to around $100k/yr. I'm sorry I don't have precise information here.

Having prevailing wages of ~40k in areas where some people are paid >70k is probably a reason why some companies can hire below 'market' prices.

proberts
There is no question that USCIS is more inclined to approve H-1B petitions where the offered wage is above the so-called Level 1 wage, which is the lowest acceptable wage in the DOL wage database.
tchaffee
Not sure what USCIS stands for but I think DOL is Department of Labor.

I did a search here: http://www.flcdatacenter.com/OesQuickResults.aspx?code=15-11...

Which is the Level 1 wage of a computer programmer in Silicon Valley. $55,203... my jaw drops.

Clearly companies in the US are using immigrants for cheap labor. This hurts US workers, and the immigrants are being taken advantage of too. Although to someone from a developing country, that salary might look like a dream.

I'm still pro-immigrant, but we've got to get the base salaries in line with average salaries of local talent.

jnnnthnn
Have you observed any change in practices with respect both visa application processes and admission at the border processes since the Trump administration came into office (e.g. longer delays, higher rate of refusals, extra scrutiny, etc)? I'm thinking about "field practices" rather than material changes to existing regulations. Thanks!
proberts
Not really other than applications for admission in TN status seem to have become more difficult and irrational.
copperx
As someone on a TN, can you expound a bit on that?
andrew-d
Yeah, as someone also on a TN, I'd love to hear more. I'd also love to know what the renewal process has been like for people that have been in the USA for a while (I've been here for 4 years and am looking to renew next October).
proberts
CBP (and USCIS) is just getting tougher on TNs, sometimes applying standards/requirements that don't exist, and really gives no deference anymore to the issuance of a previous TN when the TN is being "renewed."
uiri
Is this strictly for founders/owners or for ordinary employees too?

Does the category (e.g. Engineer vs Computer Systems Analyst) matter?

hpagey
Is the AC21 and the 6 year H1B extension going to be revoked? If so, that would mean that without elimination of per country cap, over subscribed categories cannot get a Green Card?
proberts
I hope not and I doubt it. From my perspective, that would be a disaster. Companies would lose talented employees from oversubscribed countries.
guptat59
I live outside us and when I apply for jobs in us interviewers back out (indirectly) once they come to know that I may not be able to join on a specified date due to the lottery based h1b. What are my other options? I do not have enough experience for an L1
proberts
That's a problem with our immigration system. Oftentimes, there are no solutions for talented individuals. Sometimes the O-1 visa is an option. While the standard is no doubt high, talented professionals oftentimes meet it.
jaredhansen
What do you think of https://www.bridge.us (SaaS platform for immigration)? I haven't used them yet but I'm a fan of the team and the concept. We have sponsored a number of J and H visas for various people at Breezy, and I'm curious to hear your thoughts on the value of this platform and/or any competitors. Thanks in advance!
proberts
I haven't used this platform so I can't comment on it unfortunately although I think that there's a place for immigration-related automation. The challenge I think is making sure that those using such platforms are aware of all their options and all the issues because just because something works doesn't mean it was the best option.
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forrestblount
Thanks for bringing us up, Jared! One thing I'd emphasize is that our approach is to use technology to empower lawyers to offer better advice and service, not to replace them. There's a lot in immigration that can be automated, but the difference between a good and a great lawyer is meaningful in many scenarios.
phantom_oracle
In your opinion, what is the outlook for foreigners wanting to participate in YC?

This question is in relation to 2 types of foreigners:

1) Regular foreigners (eg. from Western Europe, etc.)

2) Marginalized foreigners (eg. Muslims, Russians, etc.)

To further expand on what I mean by "outlook": Are foreigners welcome in the US in this political climate? Can foreigners expect extra/excessive bureaucracy (especially type 2) foreigners) from authorities? Does YC play a role in assisting type 2) foreigners who may experience 'issues'?

proberts
All I can say is that despite all the craziness and hostility surrounding immigration, the procedures haven't really changed that much, regardless of the country of origin, and we're still able to get visas for highly talented individuals.
Jayakumark
Whether the plan for revoking EAD for H4 Spouse of an H1 I-140 holder can be blocked by court ? Also will there be any economic implications on 100,000 plus going out of workforce ?
proberts
I can't answer the latter question but I think there will be a major battle that will cross party lines if the administrations attempts to do away with this benefit.
forgot-my-pw
If you have to choose a different country to move to, which do you pick and why?
proberts
Unfortunately, I'm not deeply familiar with the immigration landscape of other countries.
bankim
How does a non-immigrant who is currently on H1B visa in the US go about starting and working for their own company?
proberts
There are several options which will depend on your background and country of citizenship, among others, such as the E-1, E-2, H-1B, O-1, and visas specific to certain countries of citizenship but many of these require the establishment of an employer/employee relationship, which can be a stumbling block. That is why, if possible, the E-1 and E-2 (and O-1) are oftentimes the best options for founders/entrepreneurs.
bankim
Indian so E-1, E-2 is out. Thanks for the response.
[dead] t3soro
You go back home and do it, obviously.
sbaus387
having worked 5 months on an H1-B and quitting. Is it necessary to go through the lottery again if I find employment once more? If not, how long before having to go through the lottery again?
hpagey
Was your previous H1B counted against quota, if yes, you don't need to go through lottery again.
sbaus387
It was counted. How long until it counts again? If I got the H1-B in 2016 and apply in 2019, it's still not counted?
tchaffee
I am assuming you work on US immigration law? Lots of us here live in other countries so it would be good to clear that up in your description if possible.
proberts
Yes, that's right, my area of expertise is limited to U.S. immigration law. Thanks for the comment. I'll make that change.
chollida1
Bit off topic but, Canada is about to legalize marijuana.

Do you see US border patrol trying to "sniff out" Canadians trying to enter the US with specific marijuana related questions?

Are there an specific questions that Canadians who smoke weed and cross into the US for work, should or shouldn't answer?

I'm not worried about blatantly stupid things like trying to bring in weed to the US, but more concerned about the estimated 50% of Canadian adults who say that they have tried, or will try once it legal but who also have to go to the US at some point in their life time.

Asking for a friend....

proberts
I haven't seen an increase in questions related to this but I wouldn't be surprised if there is. Unfortunately, my only advice is to answer honestly to whatever is asked. Most people encounter immigration problems not for what they have done but for lying about it.
personjerry
I’m a Canadian who wants to start a startup, incorporate in Delaware, and work on it in California.

Are there visa options that allow me to do this?

proberts
If you can get some Canadian money invested into the company, whether from you or other Canadians, then the E-2 could be a great option.
[dead] fuckh1bvisa
Don't you think you should quit being a piece of shit and focus on bringing jobs to the countless people who live in the US? I understand the startup mindset is to go with cheap labor but often times there are people on our own soil who lose the ability to access many of these opportunities because of this
cvaidya1986
Thank you so much for doing this!

As someone on H1 and I 140 approved and in the long wait for green card, is it ok to release a free iOS app under one’s own name and if it takes off, show that as evidence for extraordinary accomplishment?

Does membership of exclusive well known invite only Silicon Valley network for tech founders count as membership of reputed organization?

What if the app is for a non profit, should it be released under the non profits name?

Is it legal to be a minority owner of a company and not draw salary from it?

Is your firm available for direct hire for one person or you only help YC and startups?

proberts
These are all excellent questions and yes we help individuals as well as companies and accelerators. My answers to your questions, in order, are as follows: possibly but this can't be considered work, that is, receiving a financial benefit for performing a service or providing a product; possibly; the analysis is the same as your first question; yes, if you provide no service to the company.
o1visa
I have been working in the US with an O-1 visa for 8 months, but I want to switch jobs now. I got an offer from two different companies and both said the visa would not be an issue, but I'm not sure what the process is. Do I need to apply for the visa again? What happens if the new visa is rejected? When should I tell my current employer that I want to quit? Thanks!
proberts
Yes, your new employer would need to file a new O-1 petition with USCIS and if it were me, even though subsequent O-1 petitions are usually approved, I wouldn't give notice until the petition is approved. Note however that the O-1 visa in your passport remains valid even if you change employers as long as there is an underlying approved petition through the new employer.
0-o
Hi Peter,

Thanks for the AMA!

For a Dutch citizen, is it possible for me to work in tech for a YC startup? How difficult is it to get an H1 and what is the best route to go about this?

proberts
Yes, as a general rule, it's possible and the likely options would be the H-1B, O-1, or E-2. The problem with the H-1B route is that H-1B petitions are placed in an annual lottery with a 30% chance or so of being selected.
methyl
Is lack of college degree an obstacle for getting a work visa? I’ve been working professionaly in web development area for 10 years but didn’t graduate.
proberts
Not necessarily because in the H-1B context, an individual can have the equivalent of a bachelor's degree based on professional experience and in the O-1 context, education in and of itself is largely irrelevant.
mattm
I recently discovered that there is a direct path to Green card from a TN visa although it does involve a little more restrictions.

In your experience, what are the pros and cons of pursuing this path compared to transferring to an H1-B first?

proberts
There's really not much difference between the two other than that for someone in TN status unlike someone in H-1B status (1) the intent to apply for a green card should occur after his or her most recent entry to the U.S. and (2) once a green card application is filed, he or she won't be able to travel internationally until he or she receives a temporary travel document called an advance parole.
throwawayeng1
Hi Peter,

Thanks for doing this.

I'm on an H-1B visa and my employment with my current employer ends on the 31st of December. I'm interviewing with other companies and am close to offer from one, but most of my interviews are scheduled for after the holidays. I was wondering if I could:

1. accept the outstanding offer, get my visa transferred, but then accept another offer should I get a better one? 2. How long can I be unemployed for, and still be considered as "maintaining status?" 3. Is it possible to have multiple companies apply for an H-1B transfer at around the same time?

Thanks.

proberts
There is now a 60-day grace period after the end of H-1B employment so you would be considered in valid status and "portable" to a new company until the end of February, meaning that as long as the new employer files the H-1B petition before the end of February, you can remain in the U.S. while the petition is pending and even commence employment upon the receipt of the petition. And yes, different companies can file H-1B petitions at the same time but this might cause USCIS to question - if it is made aware of this - the bona fides of the various job offers.
ofcrpls
If the applicant does not have a filed H-1B petition within the 60 day grace period, can they continue to the stay within the US if their spouse is on a valid immigration status? Can the H-4 change of status be applied after this time while staying within the country?
proberts
The change to H-4 status must be filed during the 60-day grace period.
seshagiric
Hi Peter,

Related to greencard - is it possible to change jobs after receiving just I-140? if so what is the process/ documentation one needs to have.

And big thanks for doing this. We really appreciate your advice.

proberts
If the I-140 was not a self-petition, you will need to start the green card process all over again with your new employer. The only benefit that you will keep is the priority date from your first green card application.
rishimukherjee
I work for a US-based startup from India. The company was started in January 2016 and I joined in June 2016. The company applied for my H1B and I got into the lottery and I gave my interview in September 2017. The CEO of the company I work for is same as the CEO of the previous company I worked for. He left and started a new company and I joined him. It's now 3 months since I gave the interview. USCIS gave me the 221g form. Do you think I have a chance of getting the visa or have you experienced a similar case? Thanks!
proberts
But you will still be coming to the U.S. to work for the sponsoring H-1B company? If so, then you should be fine even though your employment in India has changed.
rishimukherjee
Yes. I will be working for the sponsoring company. The USCIS has not got back to me after the h1b interview(3.5 months ago). Is the scrutiny on startup employees more than multinational companies? I am the first employee of my employer to sponsor an h1b.
proberts
That's odd. You might want your employer to reach out to a Congressman's office to follow up with the Consulate. Were you given any reason at the time of your interview?
rishimukherjee
Yes. We did that. The reply from USCIS had nothing other than the standard reply. They didn't tell me anything in the interview. Just took all my papers.
proberts
That makes no sense. I would have the Congressman's office reach out again. What's your area of expertise?
rishimukherjee
We have e-mailed another Congressman from our state. They launched a Congressional Inquiry. Hopefully, something positive will come out. My area of expertise is software development.
princekolt
Is it okay to enter the US on a B1/B2 visa in order to work on a personal project (that's funded by myself only) for a couple of months, and look for partners/investors?

Thanks for the AMA!

proberts
Unfortunately, as a general rule, no.
nnd
No, technically you can’t even check your email.
jogjayr
I thought the B1/B2 was a business/tourist visa. You can't check email if you enter on a business visa? Business does seem to be the purpose of GP's trip.
proberts
The issue is who is the primary beneficiary of your activities in the U.S. so if you are in the U.S. on behalf of a foreign employer and remain an employee of this company while in the U.S., you can check your email and perform other activities that benefit your foreign employer.
shafyy
If you are setting up a business for operations, meeting potential partners, attending events or doing market research, you should be fine. As long as you are not employed by your own company. That's the whole point of the B1 visa. Am I right, Peter? :P
shafyy
To the person who downvoted this. Why?
bdamm
You're replying as if you are Peter, but you are not. And to make matters worse, I'm pretty sure you are wrong. This is not the point of a B1 visa. A B1 visa is about temporarily doing business in the US such as negotiating contracts, not using the visa to set up a business.
proberts
There's an exception of sorts: if a B-1 visitor is coming to the U.S.to set up a business in anticipation of applying for an E-1 or E-2 visa, then this is permissible.
shafyy
No I'm not. I'm replying as myself who is actually on a B1 visa setting up a business to get in order to get an E-2 later on. That is perfectly legal.

FYI, you can set up a US business without setting foot in the country.

sudhirj
Is there an immigration path for people who incorporate in the US (LegalZoom Delaware LLC / Stripe Atlas C Corp) and do reasonably well, pay taxes, etc? If yes, what would be the route and what would be a reasonable bar?
proberts
Oftentimes founders/entrepreneurs qualify for green cards through the extraordinary ability or national interest waiver route.
michaeloblak
Did anyone go this path? With success, or not.

Is there any other path for an immigrant with a company incorporated in the US - paying taxes, books are right, etc.