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

213 points by proberts ↗ HN
It's 9 months since the last thread, so time for another. Previous threads we've done: https://news.ycombinator.com/submitted?id=proberts.

I'll be here for the next 2.5 hours and then again at around 11:30 am for another 2.5 hours. As usual, there are countless possible immigration-related 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!

Edit: I will be signing off now but checking in throughout the weekend for questions and comments I might have missed as well as new questions and comments. As always, it's been a pleasure and great learning experience for me. Thank you.

252 comments

[ 2.6 ms ] story [ 214 ms ] thread
preinheimer
Let's say I'm living in Canada and am employed by the Canadian subsidiary of an american startup, and I fly down for a week to have some meetings meet up with co-workers for some face time.

Saying I'm heading down "for meetings, no productive work" seems to be a fast route for a B-1 visa from the customs agent I meet at the airport.

If I actually want to do "productive work" while i'm down there, what's the best way to do that, ideally without needing to pay US taxes on earnings?

proberts
I can't comment on the tax aspect but even if just for a day, you would need work authorization and the TN still is pretty easy for Canadians to get.
throwaway107238
What do you think the chances are that HR 1044/S 386 will pass this year?
proberts
Very low given how difficult it is to make major changes in US immigration law at any time and particularly during a presidential season.
neivin
What do you think of the "country of origin" segregation vs. citizenship.

I was born in India and raised in Canada. I'm never going to get permanent residency in the US based on employment.

Is the best bet just to get married to an American?

proberts
Yes, that is fastest way since there are no quotas but I'd also recommend looking at the EB1 category because even though it is significantly backed up for Indian nationals, it's still a lot faster than the EB2 and EB3 categories and oftentimes within reach of talented professionals.
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gnulinux
Wouldn't one need a PhD or a similar degree for EB1?
pain_perdu
Just wanted to vouch: Peter has helped me successfully obtain 3 complex visas over the years and has been equally successful getting visas for numerous friends.

Cannot recommend highly enough.

His advice has always proven solid as well.

JSeymourATL
Just curious -

With respect to your work and the types of cases you handle.

What are your biggest challenges? Where do you struggle the most?

proberts
Just the irrationality and pre-determined nature of some of the decision-making. The process can feel like a shell game at times. That being said, I think that we understand now what USCIS wants now and are able to provide this and still get approvals even if we have to battle frequent and rough requests for evidence along the way.
gist
If it were simple nobody would need you to unravel it.
NTDF9
Do you see a lot of companies starting up operations in other countries to house their international employees, given the uncertainty in US?

Would you recommend funded startups to have such backup offsite locations?

proberts
Yes, I see some of that but surprisingly I really haven't seen any let up in our practice with companies seeking to establish operations in the U.S. Some companies bifurcate their operations, with development work being done in their home country and marketing and sales and client support work being done in the U.S.
preinheimer
I've heard that being successful in an O-1 visa application can be very location dependent. So you can be better off applying somewhere far away, rather than a convenient office.

Is this something your office sees much of?

proberts
I really don't see that. All the service centers have their issues and quirks but we're still able to get approvals with all of them and taking largely the same approach with all of them.
gtbcb
Hi Peter - Thanks for taking the time to answer some questions! I've got some UK related questions... I hope they are factual discussion-related enough :-)

In order to sponsor people in the UK, a company must designate an Authorising Officer (AO) (https://www.gov.uk/uk-visa-sponsorship-employers/sponsorship...). I'm under the impression that this person is mostly a figurehead that signs off on things because the UK needs someone at the company to hold responsible, but that an immigration law firm handles pretty much everything immigration related as Key Contact and Level 1 User. What are your thoughts on how much it matters who the AO is? Eg must they be a manager?

Secondly, there's ambiguity about whether the AO has to be a UK citizen. After reading a good bit online and speaking with an immigration law firm, I don't think this is the case. Do you know?

Next, there are transparency concerns about designating someone as an AO. From what I understand, they would be able to see salaries of other people in the UK and some company financials (but nothing major that's not already shared with the UK and available on websites). Do you know what concerning info is shared with an AO?

Lastly, I know Brexit in theory complicates getting things setup to sponsor people in the UK, but should that prevent a company from working through the process over the past 12 months and for the upcoming 12 months? I doubt things are at a screeching hault at the UK "Home Office".

Any thoughts are appreciated, thanks!

proberts
Unfortunately, I don't know UK immigration law. If you need a referral, email me separately.
matthewheath
The AO does not have to be a UK citizen, no. If such a requirement were in place, it would be made clear. They do need to be based in the UK, though, as well as meet all other criteria outlined by UKVI.

The AO should be the most senior person involved in all recruitment of migrant workers. In this case, it is usually a manager, yes.

Where are the transparency concerns coming from? What information would you NOT want an AO to access?

It’s impossible to say whether Brexit would impact this. In theory, no, but if the UK leaves without a deal, EU migration would be affected. Non-EU migration would remain the same.

Let me know if you have any other questions.

johnc1
Hi Peter, thanks for doing this AMA!

Do you have any insights on whether getting an L1-A got more difficult with the current administration, and if/how the kind of documents/evidence needed for it changed recently?

I'm asking because I just got my L1-A renewal rejected (after having it successfully renewed 2 years ago), on the grounds of insufficient proof of my position being managerial. My I-94 expired and I don't have another visa, so I had to leave the US – and it's awful for my startup! Timing couldn't be worse.

I'm applying for a new L1-A, so any insights on my question above, or any advice on how to maximize my chance of getting it as quickly as possible, would be super welcome!

proberts
Non-blanket L-1s are just really tough and probably the "best" example of irrational and unfair decision-making by USCIS. In short, extensive documentation of the structure/organization of the U.S. and foreign companies and of the employees managed and to be managed needs to be provided along with DETAILED descriptions of current and future managerial job duties. But L-1s are just tough and were tough even under the prior administration.
johnc1
Thanks a lot for advice! How does L1-As compare with L1-Bs or O-1s on terms of being tough? Those two are my other options I'm considering.
proberts
An L-1A - if you can show management of people now and in the U.S. - is much easier than an L-1B - unless the L-1B involves advanced scientific research and development.
Blackstone4
I had an L1-B extension request inside the US and they came back with a request for more information. Honestly it looked like they were about to refuse my visa extension. I told the immigration lawyers that I'd be back in London over Christmas and they changed their tune. Applying through London, albeit with an L1 company blanket doc, took all of 30 minutes starting with review of the application and finishing with an interview where the person interviewing me obviously knew very little about my industry.

There appear to be wide discrepancies within the system that can be arbitraged.

proberts
The issue is really only with L-1 petitions filed with USCIS not with blanket L-1 visa applications filed with Consulates.
cryptozeus
We are planning to hire someone on h1b with priority date for green card as 12/22/2009. Do you think this person should be able to get green card with next 2-3 years ? Thanks for taking the question.
proberts
Yes (although it's truly impossible to say) I think that it's likely.
neom
I asked you this once before (and thank you kindly for the reply) - has there been any recent tightening around TN that you've noticed? Has anything changed in the process in the past few months as the new frameworks still isn't adopted?
proberts
Actually, in my experience, the TN process seems to have settled down again and we really haven't had many issues in a while.
betocmn
Is there any country you think is doing a better job than the US in terms of skilled migration policy?

edit: typo

proberts
That's a great question. I really don't know but I'd be interested to hear back from others. I know that early on in the current administration, Canada seemed to go out of its way to attract talent and investments.
betocmn
I've been tracking the Australian and Canadian systems for the last ~10 years, and it seems they keep learning from each other and making adjusts accordingly.

Both countries use a points-based immigration system[0], so there's much more flexibility in adjusting for specific skill shortages or regional areas.

[0]: https://en.wikipedia.org/wiki/Points-based_immigration_syste...

mattm
I'm Canadian and my friend got PR within 3 months because of the points system (Masters, fluent English ability etc.)

In comparison when I sponsored my wife for PR in Canada it took about 13 months.

I'm now going through the Green card process in the US employer sponsored and it looks like it will take 2 years.

mikekchar
It's funny you say that. I'm Canadian and my wife is Japanese. She wanted to live in an English speaking country to help with learning English. It was much, much easier for me to get an Ancestry Entry Permit in the UK (my gradfather was English) and sponsor my wife (immediately, with the right to work and with NHS health coverage almost immediately) than to sponsor my wife to Canada. Absolutely crazy. I've heard it's slowly getting easier, but it's really shockingly bad. When I got my spousal visa to Japan, I applied and received it (for free!) 1 week later.
aledalgrande
Canada has a new program since last year which can get a tech worker in in a matter of weeks: https://www.canada.ca/en/employment-social-development/campa...

In general, imagine the opposite of US: you have a system where you can apply online for your permanent residence, without the need of a lawyer (I didn't use one), the time to finalize is 6 months to 1 year and during all the process you have a good idea of how long every step is going to take. And a score system where the more skilled you are the faster you get in.

All documentation is put online by the government in very clear writing.

sampo
> Is there any country you think is doing a better job than the US in terms of skilled migration policy?

The EU Blue Card (university degree, job offer with at least ~55k€ salary) is usually processed within a month, sometime in a couple of weeks.

collyw
Curious what you think (though given your profession I expect a somewhat biased response) - is there really a skills shortage in the US or do you think companies are trying to get cheaper workers?
proberts
In my experience, I really do see a shortage of skilled workers and incredible competition for these workers.
proberts
Those are all good points and I'm not an expert in hiring. I just know that our clients - which is a narrow view of course - are simply looking to hire the best person for the job, regardless of immigration issues, and sometimes the best or just available person is a foreign national.
rshnotsecure
The skills we’re missing could be easily trained for. People would happily do the training for free even if it lasted months (say through online portals that were self paced) just for a chance at getting a job / a guaranteed in-person interview at least.

There is a skills shortage again yes, but it is remarkably easy to remediate a significant portion of it, particularly in an industry with such profits.

I think though also Peter Thiel is right in his criticisms of colleges. They have dropped the ball significantly, especially compared to India’a colleges, which almost overnight rapidly shifted to an IT/Healthcare focus in the 1980’s.

dugluak
Not sure if you can answer this. My priority date is Feb 2011 for EB3 India. The current date of filing for 485 is April 2010. How long might it take to become Feb 2011.
proberts
I wish I could answer. When the new numbers come out for the new fiscal year, we should have a better idea since there's usually a big jump.
smitshah0014
I'm currently on the H1B visa but would love to start my own company at some point and given that I'm an Indian national, I'm probably never getting a GC through the EB2/EB3 category. What are some of the visa options for someone like me who wants to start a business?
proberts
The approach is going to be very fact-specific so it's hard to say in general (and probably requires a phone call) but the options that many entrepreneurs/founders pursue are a concurrent part-time H-1B through their own company or an O-1 through their own company, although both of these come with their own issues and challenges.
myth_buster
@proberts could you share some resources on visa/immigration (and related gotchas) that would be helpful for folks on H1B planning to start their own startup.
timyo
Canadian citizen, working and living full time in USA on TN visa - is it permitted to concurrently do remote freelance for companies in my country of citizenship (Canada) while living in US?
proberts
US immigration law has still not come to terms with remote/digital employment so there is some gray here but the short answer is no.
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yvesmh
Hi Peter, thank you so much for doing this.

I'm a Mexican currently going through the Green Card process, In the part where Form I-140 has been approved and form I-485 will be filled in October according to the company I work for lawyers.

Over the past 3 years, there have been layoffs in my department around October (start of Fiscal Year), last year the company let go key people that otherwise nobody ever suspected they would be laid off. I'm concerned this year I may get laid off, if that were to happen, how would my green card process be affected, considering I'm still holding a valid H-1B visa?

proberts
Is this a company-sponsored green card application? If it is, then protections won't kick in until you have filed your I-485 application.
yvesmh
It is company sponsored, thanks for your reply!
godelmachine
May I ask what happens if its a family sponsored application?
Rakeshkumar00
I am a PHD in Microbiology and currenlty working in biotech startup on H4 EAD. Can my company apply for my GC in EB1-B category while I am on H4 EAD?
Myrmornis
Hi Peter, I'm a UK citizen who has held a E26 Green Card for 1yr 9 months. My partner (US citizen, we are not married) and I both have remote jobs and we are switching between working 2 or 3 months remotely in Europe then 2 or 3 back working remotely from locations in the USA. Do I need to worry about this pattern of movements?

So approximately 50:50 split between US and Europe, but not more than 3 months at a time outside US, usually more like 2. We do not own property anywhere, nor do we currently have permanent rented property. She has family in the US, I have family in the UK.

proberts
You should be able to do this and keep your green card but you definitely should consult with an attorney.
rococode
I'm at a very early stage startup and am preparing to make my first hire in the next couple months. To me, it would be ideal if I could consider people who aren't US citizens or permanent residents. But, given how often I see small-mid sized startups saying, "sorry but we can only hire US citizens/green card holders", it seems there are a variety of reasons (that I don't fully understand) that this may not be feasible.

Could you share some thoughts on what particular challenges there are in hiring people who do need visas, and if it's possible or reasonable for a very early startup with limited time and resources to overcome those challenges?

proberts
It's absolutely possible from an immigration standpoint (really no different from a large company) so I would definitely not shy away from hiring foreign nationals at all. However, depending on the visa type, there could be wage requirements and sometimes those can be a challenge for new companies.
throwaway5612a
Friend who is a Singapore national is trying to figure out if he can do an online bachelors at Capella University in the US, specifically the Bachelor of Science in Information Technology have it be used to get an H1B or H1B1.

The sticking point is that he plans to complete it in a year- (he knows how to program and its a self paced program) will it satisfy USCIS requirements which say a foreign national must complete 4 years of post secondary study- is it specifically the years that matter or is it fine that its a 4 year degree done more quickly?

proberts
It's the course credits that matter. He should make sure that the school is an accredited institution of higher education of course but I'd also have him run this degree program by an education evaluation service.
throwaway5612a
Thanks so much for the reply!

Just a brief followup- whats the reason for the education eval service? For context the school is US based, accredited, online and for-profit.

leesec
I'm not sure the issues people have with this school but there is also a fully accredited online/self paced school at Western Governors University, just so you know.
proberts
Just to make sure that the degree is truly considered a valid U.S. bachelor's degree.
godelmachine
Just enquire if the course is recognized by World Education Services
rshnotsecure
Capella University has a very low reputation / is for profit. My understanding is it is no better than ITT or University of Phoenix, which have a very bad and infamous reputation in the United States.
anon1872
Hi Peter,

I aim to apply for YC. I'm German. I have some questions regarding visas:

1) What kind of visa would I need for the three month program time? And how early in advance do I have to apply for it (i.e. do I have to apply before I know if I get accepted at all)?

2) What kind of visa would I need if I wanted to stay after the program (or if I don't get accepted, to start the company in the US)? From what I read an O-1 visa might be the best option, is that correct (I submitted my PhD thesis and have relevant publications, but won't get the official degree until mid next year)? How long in advance do I have to apply? Do I have to found the company first?

3) How much (approximately) will that cost?

Thanks!

proberts
Regarding 1), there is no one visa that applies to all but information will be provided about this during the process. Regarding 2), an O-1 is often the visa of choice for founders and most of those with PhDs (or near completion of their PhD) can make a good case for O-1. An E-2 also can be a good option. Regarding 3), please email me and I can give you the range that attorneys charge for O-1s.
ra7
Peter, I'm currently on H1B and my I-140 was just approved this week. When can I technically change jobs and keep my priority date?

Is it true that my current company can withdraw the I-140 petition within 6 months of approval and have you seen cases where it has happened?

proberts
The priority date is yours now and your current employer can do nothing to take it away.