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

165 points by proberts ↗ HN
I’ll be here for the next 2 hours and then again at around eleven 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 we've done: https://news.ycombinator.com/submitted?id=proberts

288 comments

[ 2.5 ms ] story [ 240 ms ] thread
bendavis381
Can you give us an update on the International Entrepreneur Rule?
proberts
It's still dead in the water although I wouldn't be surprised if the democrats take it up after dealing with other pressing immigration issues like the dreamers.
bli940505
Can you give a summary of what has changed in the realm immigration after Trump took office and your personal advice for moving forward with immigration as a F-1 student?
proberts
Really, the main change has been with the H-1B program. It's just much harder - and not because the law has changed - to get an H-1B now and not to get one without going through the gauntlet of a request for evidence. But again, still, strong H-1B petitions usually get approved.
aerophilic
For new entrepreneurs that would like to consider hiring fresh non-US grad students out of school, what are the typical costs and process to “get them through the door”. I realize this is broad, but trying to understand at what startup stage does this start to make sense to do. (Ie is it so expensive/time consuming that a seed startup shouldn’t even bother?)
proberts
Assuming that they don't fall within exceptional visas for those from certain countries (such as Australian, Canadian, Chilean, Mexican, and Singaporean citizens), the typical options are the H-1B (via the annual cap/lottery) and the O-1. Although initially, F-1 students get 1 year of OPT (optional practical training) and 2 additional years of OPT if they are a STEM graduate and the employer is an "e-verify" company. And really any company can act as a sponsor, even a startup. The focus is on the offered job and the individual's background (less on the company) and if they're both strong, then I think that it's worth pursuing an H-1B. An O-1 - which is a much higher standard - requires a much closer analysis.
nowarninglabel
Who is best to work on this? Is there a firm that you'd recommend that specializes in this? We had a great person for a hard to fill position (blockchain skills needed) from a country that should be easy (Australia) but for various reasons this took us over 3 months to complete. Surely, we could do better than this for countries with exceptions such as Australia? Or is that the typical experience?
proberts
I'm not here to plug our skills because there are lot of really good immigration firms out there but the E-3 visa for Australians is generally super quick and easy to get and I'm not sure why it took 3 months. The turnaround really just depends on visa application appointment availability, which can be just weeks.
echevil
Would you mind to share is it becoming easier or harder for startups to hire foreign engineers on H1B visa in the past few years? And roughly how many percent of YC companies support new H1B applications?
proberts
Yes, it's gotten much hard during the past 2 years although still strong applications generally get approved although it's still sometimes a battle even with strong applications.
aditya
Any predictions on the India EB2/3 backlog? Is it really going to take 5 years to clear 2009?
bankim
On a similar note, any chance of an immigration reform in medium term like 3-5 years that would help reduce the backlog for Indians on EB2/EB3? If not, any alternatives apart from EB5, EB1 that you could suggest?
proberts
I don't see the awful India EB2/3 backlog getting better without political intervention but I don't see this as a high priority at present.
drunkenmeister
How difficult it is for a foreign worker to be employed by an H1-B visa?

What if the candidate loses the lottery process? Would they have to apply next year? Would they be cap exempt next time?

Do companies have guaranteed quotas from USCIS for foreign workers?

And by the way, thanks for doing this.

proberts
It's a pure lottery and the chances depend on the number of petitions that year but historically for those without a master's degree or higher from a U.S. school, the chances of getting selected were around 30%. There are no per company quotas,
nafizh
There's a bill from a Kansas republican senator that is trying to remove the country specific quotas for EB2s which will probably benefit the Indian and Chinese people. What chance it might have of passing the senate?
proberts
It's really hard to say because even in this world of divided/tribal politics, immigration crosses party lines. While I don't think that it is impossible, I still think that this isn't likely to pass.
crankylinuxuser
This might be orthogonal to your position, but I'll ask it anyways.

As an American citizen, what's the best way to protect my career so my job isn't sent overseas or pushed to an H1B (or equivalent) at starter IT salaries?

pj_mukh
Not Peter Roberts, but the best protection for you here is to push your legislator to get rid of the H1B rule restricting the free movement of jobs. H1b's can't freely change jobs and therefore stay stuck at low salary levels. This is why, by and large, employers hire H1B's.

Once we get rid of that restriction, an H1B will match your salary level: an actual free market where you will probably win.

Deinos
Excellent answer. Current rules create the equivalence of indentured servitude, driving down wages for all and holding employees hostage.
fabiospampinato
Not OP. I guess the best way to protect any job is to make yourself irreplaceable. Maybe a junior position could be filled by a foreigner at less cost for the company, but if you're filling a more important position, for which there will be less competition, it will be less likely that you'll be replaced.
damnyou
Become competent at something not many others are. Find a niche and become an expert at it.
Balero
The processing of successful H1B visas seems to be taking much longer this year than in previous years. Could you shed some light on to why this is?
proberts
Yes, unbelievably slow. Anecdotally, at least 25% of the cap-subject H-1B petitions that we filed last year are still pending. The why is tough. Many people think that it's the result of general hostility by the current administration toward the H-1B program. But there's no question that the rate of requests for evidence and denials are much higher than ever before that many of these are without legal basis.
mfsuo
You mean, that were submitted this year, April 2018?
lloydde
The reporting in the news describing an increase in requests for evidence (RFE), which if you are being generous would seem to reflect scrutiny of each application has increased. The same news articles and forum discussions unfortunately describe USCIS applying different interpretations and standards compared to previous administrations. The most bizarre situations I’ve read had h1b granted for only months with with an end date prior to when it was approval. The scrutiny that might be legitimate is confirming the amount of coursework that is applicable.

Instead of staffing for the expedited processing, they have removed it for periods of time.

By encumbering and slowing down the process the outcomes unfortunately do have some small success in achieving the administration’s stated goal of decreasing foreign workers.

jammygit
How hard in general is it for recent Canadian grads to get permission to work in the US?
proberts
It really depends on the offered job/occupation and the grad's background. But still, with the TN, if the job/occupation falls within one of the NAFTA occupations and the grad's education is in a related field, pretty easy.
azundo
If Trump pulls out of NAFTA before Congress passes the new USMCA what happens to existing TN1 holders? Will those work authorizations still be valid until their expiry?
digianarchist
"The three countries are expected to implement the labor mobility provisions of the USMCA consistent with existing practices under NAFTA. Until the new agreement takes effect, the NAFTA mobility provisions are expected to remain in place without interruption. Each country maintains the authority to interpret the provisions of the USMCA, and country-specific policies and application procedures cannot be ruled out."

https://legalservicesincorporated.com/new-usmca-and-its-impa...

proberts
That's right. My understanding is that those currently in TN status would be unaffected.
bakepath
What is the best visa option for international students to start a business in the U.S?
proberts
Depending on whether the E-1/E-2 visa is an option, the E-1/E-2 visa and the O-1 effectively allow for founders to sponsor themselves through their own company.
bakepath
What visa did people like, Collison brothers (Irish), who dropped out of college and started Stripe have in the begin years?
proberts
I don't know what they got but many talented entrepreneurs without degrees get O-1 extraordinary ability visas and if they're from certain countries E-2 investor visas.
gist
Question for the admins (dang and sctb). This seems like an attorney trolling for work a few times per year.

https://news.ycombinator.com/submitted?id=proberts

Note other AMA's which are typically different:

https://hn.algolia.com/?query=%22AMA%20%22&sort=byPopularity...

Is this allowed because the poster 'does work for YC' meaning if another attorney did the same thing on a regular basis it would get flagged?

[deleted]
(comment deleted)
sctb
No, no! Peter has been kind enough to lend his time (again and again) to the Hacker News community at our request. We appreciate you looking out for good behavior around here and I can tell you that this is extra-good.
AnimalMuppet
This is very good. Someone who really knows taking a chunk of time to give authoritative answers to questions on a topic that a bunch of people really need answers to? This is HN at its best.
gist
Thank you. I don't understand the down voting for simply asking a question in an appropriate manner. It's one of the things that I dislike about the community.
ranjitcool1
Can H1b start a LLC and hire managers to manage it?
proberts
The question is whether that qualifies as "employment," regardless of whether the H-1B is compensated. I think that a strict reading is yes but there are grey lines which need to be explored.
bakepath
For international students who went to US for undergrad, what is the fastest path to become a naturalized citizen without getting married to an American?
proberts
That's a long conversation but the EB1 and EB2 green card categories allow for self-sponsorship although the standards are pretty high and generally require a track record of accomplishment. Alternatively, company sponsorship through the PERM process (in the EB2 or EB3 category) can be pretty quick (12-18 months) depending on the individual's country of nationality.
CodeSheikh
I am not an attorney but very familiar with the process. Being an undergrad puts you in an EB3 category. And you need to find a job within that category and an employer willing to file a green card for you. Depending on your country of birth, the entire process from day one to the day you receive a green card can take up to 2 years. More for people from certain countries of birth e.g. India/China.
datpuz
My girlfriend is a doctor in her last year of her medical fellowship on a J-1 visa. She's looking for a job in a medically under-served area but not having a lot of luck. Is there any other way for her not to have to go back to India for two years (it sounds like even marriage to me, a US citizen, won't help her)?
proberts
An O-1 would be an option since the 2-year home residency requirement doesn't apply (but it would require her to leave and apply for an O-1 visa after the O-1 petition was approved by USCIS).
seem_2211
Hey Peter, are you seeing anything new with regard to EB3 Greencards vs previous years?
proberts
Actually, I haven't seen much change with the EB3 (or EB2) PERM process. I would argue that the biggest change is with the EB1A green card category, which has become a good bit harder to get.
pain_perdu
Just wanted to say that my company has used Peter's firm three times with great results. Peter is the best, listen to his advice!
e1g
+1. Peter's firm organized my E3 with minimal effort on my side. They walked me through the process with much support and resolved any obstacles with unusual speed and clarity.
rwmj
Has anyone had their ESTA (US Visa Waiver) revoked under 24 hours before their flight? It happened to a few people here (one had even visited the US on the same ESTA a few months before). Of course caused massive cost and disruption which the company had to absorb.
lwansbrough
I’m Canadian. I want to own a Delaware C Corp and move to the US. An attorney recommended to me the L1 visa. I think this will be a good option for me once I’m in the position to qualify. However, with regards to the DE Corp, it seems like I cannot be employed by the company. Is my only option then to issue myself dividends? How would an E1 visa change that?

Thank you for your time!

proberts
I'm not sure that I understand the question but the L-1 for Canadians is still a very good option and can be obtained even for brand new companies/offices. Once you are in L-1 status, you can be paid by the U.S. company or even just continue to be paid by your Canadian company.
EduardoBautista
How can a new company qualify? I "freelance" through a Delaware-corp I registered a couple of years ago. I am a Mexican citizen, not sure if that changes anything.
proberts
Self-sponsorship is prohibited in the TN category (as well as other categories) so this isn't possible unless you have co-founders and co-owners and are treated as an employee.
EduardoBautista
I was referring to the L1 category which you mentioned above.
proberts
Sorry, yes an L-1 could work although all work would need to floe through the US company and you would need to add jobs over time.
nrmitchi
What would your advice be to a current TN/H1B holder who may wish to apply to YC in the future, but is concerned regarding the restrictions of their current status restriction around "work" outside of their current employer.

To clarify, it seems that any sort of MVP, attempting to show traction, etc could be considered "employment", and thus a violation of current status.

proberts
Admittedly, it's a tough balance but there are ways to do this without crossing the line. I can talk offline with you about this but the main line not to cross is compensation.
godelmachine
I don't quite understand what is meant by "not to cross is compensation"
lancewiggs
Don’t pay yourself and it’s easier to say you are not employed.
WestCoastJustin
How do you think the new USMCA will affect the existing NAFTA folks coming from Canada into the US on the TN visa? This seems like a pretty big unknown today. Any thoughts?
proberts
Oddly enough, I don't think there will be any significant change to the TN category.
bakepath
Right now, besides China and India, are there any countries that are in queue or about to to get a Green Card?
proberts
There are significant backlogs for people from the Philippines, Mexico, and Vietnam as well (depending on the green card category).
nikhilalmeida
The H1B transfer premium processing is currently temporarily suspended (till Feb). This means anyone wanting to change employers, will have to risk joining on H1 transfer receipt alone. Are there any ways / advice to reduce the risk of switching employers.
proberts
Unfortunately, there isn't and this seemingly innocuous change has had a profound impact on the hiring of those currently in H-1B status.