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

257 points by proberts ↗ HN
I’ll be here for the next 2 hours and then again at around 1 pm 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!

Previous threads are here: https://news.ycombinator.com/submitted?id=proberts. Email is in my profile and you are welcome to get in touch!

340 comments

[ 2.4 ms ] story [ 331 ms ] thread
gbatra17
what nationalities do you have the hardest time getting visas for? what is your success rate with getting H1B vs O1 visas? How long does the process take for an O1?
proberts
I really don't see any variation among nationalities. It's really less a question of nationality and more a question of the location of the Consulate - certain Consulates, particularly those in the Philippines and India and now London more and more, have a relatively high denial rate. Our success rate is still high but, like all immigration lawyers, to get there we're having to battle more and more, particularly in the H-1B context, on oftentimes ridiculous issues. With premium processing, an O-1 will be reviewed within 2 weeks; without, anywhere from 2 to 5 months.
technics256
How have the changes by the Trump administration made it more difficult, if at all, for tech companies to hire and get visas for foreigners?

What are the biggest takeaways founders should know?

Thank you.

davidw
Along those lines, is there a tipping point where things get bad enough that you start simply working in another country or countries to sidestep some of those issues? Are we anywhere near it? Doesn't seem like it right now - but what might be some of the triggers for it?
lawrenceyan
Consistent escalation of tariffs and/or other changes in economic policy is a very strong indicator for detrimental future political action.
proberts
There just seems to be a concerted effort to look for reasons to deny applications rather than adjudicate them on the merits so it's just getting tougher and taking longer to get applications approved and this has to have a chilling effect.
rafikicoln
Hi Peter, thank you so much. My company is currently sponsoring me for an EB3. I have two questions.

1) We just submitted the application to get the prevailing wage from the Labor Dept. From your experience, how much time is there left in the process given the current administration? I am of a nationality that does not have a backlog for EB3

2) When can I switch jobs without having to start all over again?

Thanks a lot for doing this, Peter.

proberts
1) It's taking 4 months or so to get a PW determination from the DOL and then another 4 months or so to get a PERM approval (assuming no audit) from the DOL; and thereafter, it's a wide range, anywhere from 6 to 12 months to get the actual green card - but note that the processing times change all the time. 2) Although there are exceptions and nuances, a green card applicant is "portable" after the I-140 has been approved and the I-485 has been pending for 6 months.
docker_up
Has Trump's crackdown on H1Bs made it harder for H1B holders to transfer jobs, or made H1B candidates less desirable? I've heard anecdotes of USCIS cracking down on companies with > 15% H1B workers.
proberts
I can't answer the second question but I would assume that it follows from the first - and the answer is yes, absolutely; USCIS is giving no deference to prior approvals and, it seems to me, looking to find reasons to deny H-1B petitions rather than adjudicate them on the merits.
godelmachine
Hi Peter, Thanks a lot for this initiative :)

I am a 28 yr old Software Engineer working in India (Citizenship - India, unmarried). Have around 3 years of experience in IT. My father is a GC holder & he has filed a family based petition for me. My priority date is Nov 7, 2017. Actually, my father was going to wait till he was a naturalized US citizen & then file for my petition, but Trump's activities (cutting off legal immigration by > 50% - RAISE Act) alarmed him and he got in touch with his attorney over my case the very next day.

So, my question here is - 1) Should I go for Masters from USA? Will it help me in getting GC early? If yes, how early? (I am really keen on completing my Masters from USA, since I would like to be exposed to US way of education - mostly in Artifical Intelligence)

2) Will Trump do something that may deter the petition my father has filed for me? What are the chances, in your opinion?

3) I am going to initiate Canada PR process next year. Would Canada PR brighten my US immigration chances in any way imaginable?

4) I fared quite dismally (7 yrs for a 4 yr course) in my bachelor of engineering course, but final year marks are good and gradually got a job and am doing well now. Would Bachelor of Engineer academic grades hamper my US GCpetition in any way imaginable?

I really appreciate you answering so many questions here. Would be much obliged if you answer mine too.

Sincerely,

proberts
1) An advanced degree would help your chances of getting an H-1B and GC eventually under current law. 2) I really don't know. I never thought he'd get elected. 3) No. 4) No.
faizshah
Hi Peter,

This might be a pretty basic question, are there currently any legal options for retaining an employee who you learn is undocumented?

proberts
There are some very narrow exceptions but generally the answer is no, unfortunately.
vemkiran
Hi Peter,

Thank you for doing this.

While on H1b, 1. Can someone start/run a business? 2. How about a revenue-generating personal web/mobile side project while maintaining status with a full-time job?

proberts
There are exceptions and nuances but the short answer is no to both, not without separate work authorizations for these activities.
bialpio
To me it seems that the answer to this question is contradicting your answer to "Can a F1,J1 or H1B visa holder register a company outside USA (home country)?" - am I missing something? Or are we assuming that just "registering a company" doesn't imply earning money? :)
proberts
Where the work is performed and where the beneficiary of the work is located can affect the answer.
iabacu
My wife received a job offer from a start-up, however her i-765 application (c09 category) has been pending for over 8 months with no action.

We filed a service request back in April based on the case outside of processing time. NBC responded saying we'll receive an action notice within 60 days. It's been over 80 days now and no status change.

We filed an expedite request, then faxed the job offer. They are asking to wait until next week. We have contacted one of CA's senator office in parallel, but not response yet.

How likely do you think this will finally go through? And is there anything else we can do? Her job start date is 3 weeks from now.

proberts
You should contact your local Congressional office and ask for that office to make an inquiry - this is done all the time and oftentimes yields helpful information and results.
keiferski
If a founder is a dual-citizen of the US and a EU country, and anticipates having a HQ and/or major sales in both regions, where would you recommend incorporating initially?
proberts
That's really less of an immigration question and more a corporate and tax question. But if the company is incorporated abroad, it positions itself to transfer employees to the US over time.
lewsire
Can a F1,J1 or H1B visa holder register a company outside USA (home country) ? assuming it doesn't void any contract between said person and his/her employer or sponsor.
proberts
From an immigration standpoint, there's no issue but I suspect that there are corporate and tax factors that should be considered as well.
orsenthil
Hi Peter, How can non-US founders obtain visas to run startups in the US? What are the requirements?
proberts
The answer will depend on a host of factors including the founder's country of citizenship, the strength of the founder's background, the amount and source of investments in the company, etc. but most founders get E, L, and O visas.
godelmachine
Hi Peter,

Would you kindly reply to my question?

proberts
Sorry about that. It's impossible to say unfortunately because clearly the application went off the rails given how long it has been pending. I would press the Senator's office since this is the best chance of getting the application unstuck and approved.
throwaway9867
I really want to move to the US, it's one of the only things I'm sure I want to do with my life at the moment.

But, I have no idea what the best/viable routes to take are.

If I was prepared to do (pretty much) anything, What do you think would be the easiest way to immigrate to the US?

proberts
My answer will depend in part on where you are from and your background but the short answer is work for a large global company and then after one year seek to transfer to the U.S. on an L-1 visa.
orsenthil
Hi Peter, Should a person who is in H1B wants to create a startup in US, what kind of VISA issues that he/she might run into?
chrisseaton
Why do some people capitalise ‘visa’? What are you under the impression it stands for?
orsenthil
chrisseaton, I don't get your question. Imagine a person while working for company has motivation to start a company. The option is move back to country of origin or to a different country or stay in US. My question was about staying in US and starting the company.
chrisseaton
I was asking why you wrote ‘visa’ in capital letters. It’s just a normal word. It’s not an abbreviation.
ben509
The all caps Visa logo on credit cards is probably where it comes from. But, yeah, travel "visa" is a common noun.
proberts
Generally, an H-1B through the startup won't work so you have to look at other visa options and oftentimes, under current law, this is limited to an O-1 or E-2 if the founder is a citizen of a country that gives rise to an E-2.
garyfirestorm
What would you recommend to an H1B holder in terms of next steps? Applying for green card through employment(EB2) would take really long (Indian nationality). Does pursuing PhD improve the chances any better (EB1?)
IDTheft
The shorter and an easier route is to get transferred as a manager. If you are from India, join an Indian company which has a US office or US HQed company based in India (or any other country, maybe Canada), get promoted to manager and transfer to US on EB1C. There are certain restrictions, you have to be outside US for atleast a year and some other restrictions. But, this is the shortest route. Do not be like me and wait in the queue for 15 years. Use the shortest legal means possible.
proberts
That's all correct although an advanced degree also might help you qualify under the EB1A category (assuming that you publish, etc.).
godelmachine
Have you already finished your MS? If yes, may I ask from which university and when?
throwaway82946
Is it best to apply for TN status at the border or through petition?

Can a Bachelor’s of Computer Science holder get TN status with a Software Engineer title easily?

proberts
Generally yes and the border/CBP is better.
adamnemecek
I just wanted to say that you guys should look into the green card lottery. The odds are slim (2%) but hey, fortune might be in your favor. Not all countries are eligible tho.
proberts
Excellent point and something I sometimes forget to mention. We have a lot of clients who've obtained a green card this way.
harshgupta
As an F1 visa holder, can I host a commercial app on internet if it includes not actively working on it?
proberts
So no income, no monetary benefit? Yes.
Townley
In your opinion, are there other countries that have a significantly better process for handling skilled immigration applications. And, if so, what lessons from them would you like to see brought over to the US?
proberts
I really don't know the systems and procedures in other countries although I've heard anecdotally that Canada is welcoming talented founders and professionals with open arms.
red_professor
Canada. Transparent, point-based system and a conditional PR for a limited period which can be extended and eventually lead to citizenship.
neil_s
Pretty much every other country. In the UK for example, if you want to work, you just need to get a job offer. To keep numbers under control, they simply put a wage minimum that's high enough. Not fair for positions like nurses and teachers that are valuable to society, but generally ensure skilled migration. If you want to start a startup, a UK university can endorse your startup idea for a 2 year visa, and then raising a small amount of funding gets you 3 more years.

After 5 years of residence in the UK (except time as a student), you get PR, and citizenship soon after.

ganeshkrishnan
> Not fair for positions like nurses and teachers

In Australia and even in Canada teachers earn as much as IT professionals

lloydde
Not true of average wage in British Columbia, Canada. IT pays much better than teaching.
sumedh
> In Australia and even in Canada teachers earn as much as IT professionals

That is not true in Australia, IT wages are higher.

sumedh
Australia has points based immigration which looks at your age, education, work ex etc. If you have the points you get the resident visa even if you are outside Australia, you dont even need a job offer.
jpmoral
Not exactly, having enough points means you may get invited to apply for a visa. Points don't guarantee receiving an invitation or being granted a visa.
sumedh
You missed the bigger point of countries having a significantly better process for handling skilled immigration applications.
jpmoral
No, I didn't. I just didn't want anyone to get the wrong impression that everyone with enough points gets in.
sumedh
There will always be exceptions but more or less everyone with enough points gets in unless you have some official data which says otherwise.
godelmachine
Hi Peter,

Thanks for doing this.

What are the chances of RAISE act sailing through Congress?

proberts
I think unlikely but less unlikely than some of the other immigration proposals.
practicium
Hi Peter, and thanks!

My question relates to the ability of reactivating "old" H1Bs after several time periods abroad.

(French national here)

I got my first H1B in October 2008 and left my job (and the US) in November 2009 (that's ~1 year and 1 month)

Then I got it "reactivated" and came back to work in the US in November 2013.

Transferred the H1B visa to another company in May 2013 (so that's ~6 months) and left the US again in June 2015 (that's another ~2 years and 1 month)

All in all, I have used around 3 years and 8 months of the "same" H1B in total.

At this point in 2018, would it be theoretically possible to come back to work in the US under the "same" H1B visa without going through the whole process of quotas/lottery etc. ?

All the best

proberts
We've dealt with this issue several times and the outcome will depend on how USCIS applies its rules/policies but it is possible that you will not be subject to the lottery and could get another H-1B for the balance of your 6 years.
a_bevin
Hi Peter, thank you very much for doing this.

In 2018, what is the best visa avenue for an Indian student on an F1 visa to approach VC-funded entrepreneurship? I would like to take my business to market. I am starting to get traction and I have VC funding lined up, could this be used as a justification for an O1 or EB1 visa?

Thank you.

proberts
Yes, it could and the O-1 is oftentimes the path taken by international founders (where the E-1 or E-2 is not an option). And given the toughening EB1A standard, it's generally advisable to get the O-1 first.
deegles
If you were put in charge of all immigration policy, what would you implement first?
proberts
Get rid of the travel ban and pass the DREAM Act. And limit the workday of immigration attorneys to 4 hours.
codegeek
To get an L1-A or even L1-B visa, does company size matter or is taken into consideration ? We are setting up a subsidiary company of our US company in a foreign country and the team size is 5 right now. Is that too small to consider issuing an L1-A/B for one of the team members whom we may need in the US after some time.
proberts
Yes, the size of the company matters but even more important than size is the specifics regarding the potential transferee's job duties - for example, how many employees is he or she managing now and how many will he or she be managing in the U.S. or how advanced, specialized, or proprietary is the knowledge possessed by the potential transferee and required for the performance of his or her job now and in the U.S.? Note that as a general rule, new/small company Ls are tough to get approved and almost always involve a battle with USCIS.
spocklivelong
Hi Peter, thanks for doing this! My wife is on H4 EAD which expires next year. What are the chances that it will be revoked, and if so, what are some options for her?
proberts
I think that there's a good chance unfortunately. The options will depend on her educational background and experience and country of citizenship but at a minimum she should go into the H-1B lottery.