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

216 points by proberts ↗ HN
It's 6 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 5 hours. As usual, there are countless possible topics and I'll be guided by whatever you're concerned with but as much as possible I’d like to focus on the impact of the pandemic on U.S. immigration. 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 am going to take a break for about 30 minutes. Thanks.

Edit 2: Really good clear questions. It’s 3 pm EST and I need to jump off for a couple of hours to deal with a client issue but I’ll return this afternoon/evening.

Edit 3: I'm signing off now. Thank you again everyone. It's been a pleasure responding to your questions. Stay healthy and safe.

324 comments

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brd529
I've heard that premium processing has been suspended for H1Bs. If someone on an H1B loses their job right now, what does that mean for their ability to find a new job?
proberts
There's no doubt it complicates the change of employer process. That person would have a 60-day grace period after the end of his or her employment during which he or she would be considered in valid H-1B status. The challenge is this: although an H-1B worker can change jobs based on the filing of a new H-1B petition alone, most workers and most companies don't want to make a change unless and until the petition is approved and right now, without premium processing, we just have no idea how long this will take. Note however that once premium processing is brought back, a pending petition can be "upgraded" to premium.
tschellenbach
When do you expect USCIS to reopen?
proberts
So, to be clear, USCIS service centers are still open and processing applications and petitions, only the local offices have shut down. USCIS's announcement says April 7th unless changed but almost certainly this will be changed and will in the end depend on the facts on the ground but I think it could easily not be until May or even June before they reopen.
maccm
How do you foresee the current COVID-19 situation will affect Green Card applications?
proberts
It's really hard to say. At a minimum, the freeze in in-person interviews and then backlogs in scheduling could delay the process significantly but because of the massive number of layoffs, high unemployment, and overall economic devastation and uncertainty, almost certainly there will be a lot fewer green card applications so some of the delays and backlogs might be reduced or go away.
[dead] gadders
Given the large number of people losing their jobs in the US right now, do you think the US should be importing foreign labor?
Glavnokoman
> do you think the US should be importing foreign labor?

Somehow that's kind of a question where most people do not think. They believe (even when they believe they think). So I think this is an ill-posed question. And obviously it went against the common believe here.

damnyou
Seems like it'll be good for the foreign workers. Solidarity with workers worldwide.
throw4w4
Hi Peter, some US consulates around the world are currently shut down indefinitely. My appointment for an L1 visa interview had been cancelled today, as a matter of fact.

Do you have any estiamte when consulate should reopen? Do you see any chance consulates would conduct online interviews at any point, in countries where there are restrictions in place?

proberts
I don't think online interviews will be an option and when US Consulates will reopen is really anyone's guess since it will depend on conditions on the ground in that country (as well as corresponding travel restrictions). My personal feeling is that they won't reopen before May, possibly June or even later.
MikeTheRocker
I'm a Canadian applying for a green card under EB-3. My priority date of January 2020 was current, but in March it retrogressed to January 2017. How likely do you think it is I will become current again in October?
proberts
That's really tough to say because that date depends on actual filings as well as projections but my personal feeling is that that number will move pretty rapidly in the coming months although I don't think it will be current in October.
MikeTheRocker
The reason I asked October is because historically that's when things become current again due to the new fiscal year starting
MikeTheRocker
As a follow up, suppose I don't become current for many years and my TN Visa expires. Would I be able to keep renewing EAD/AP every year in order to keep working in the US until my I-485 is processed?
proberts
Yes. And October usually does see a big change, I just don't see it becoming current by then.
gwbas1c
I'm honestly curious about what happens if someone is supposed to leave the US in the next month or so? (For example, if someone's visa is expiring.)

What is someone is in quarantine? What if someone has genuine travel challenges due to the COVID-19 pandemic?

proberts
Depending on their status, there are options to stay in the U.S. beyond the expiration of their authorized period of stay, whether by filing something with USCIS before their status expires (such as a change to or extension of visitor status) or by requesting "satisfactory departure" with CBP. There is also a chance that USCIS will relax or even waive expiration dates for a period of time but that hasn't happened yet.
european321
What sensible options there are to immigrate or be able to work 5+ years?

I know of green card (lottery and marriage), L1-visa, H1B-visa, and OPT, are there any other sensible options?

proberts
Self-petitioning green card options (EB1A and NIW) but these are tough/high standards. Also, there are country-specific visas ((TN, E-3, and H-1B1) and depending on your country of citizenship, the E-2 investor visa.
cuchoi
Hi Peter, thanks for doing this! What are the implications of working remotely and outside of the US with a H1B1 (similar to H1B)?
proberts
There are no immigration issues with working outside and within the U.S., as long as your home is within the MSA/normal commuting distance of the work site noted on the LCA, there are no issues. The challenge arises if your home is outside the MSA. Currently, this requires the filing of an amended H-1B petition but it's possible that USCIS will relax this rule.
ping_pong
What effect will country-wide layoffs and subsequent mass unemployment have on H1B and Green Cards? Will they be basically frozen until the economy recovers?
proberts
H-1B petitions are still being processed since there's no labor market test associated with these but PERM-based green card applications could be put on hold because a labor market test is central to this process and layoffs by the sponsoring employer can result in the end of this process.
123_throwaway__
Hi Peter, thanks for doing this!

I just got H1B lottery. The company is promising that they would apply for the green card as soon as I'm in US. My question is: is that possible for them to do that, generally and given the current scenario?

proberts
Legally, yes, but if the company was going to go the PERM application route, that process could be derailed by layoffs by the company and/or overall unemployment.
zelltech
Hi Pete - which countries do you think have the most positive immigration processes/criteria, and why?
proberts
Again, unfortunately, my expertise and knowledge are limited to US immigration.
onetimeusename
A friend of mine just lost the H1B visa lottery. She is considering trying to stay to get a master's. Is that a good option right now?

Can someone with an H1B visa change their status to try to claim asylum?

proberts
There is an option of getting full-time CPT/work authorization through a master's degree program and many F-1 students pursue this if and when they are not selected in the lottery. Whether to do this is a personal decision because there is substantial cost (tuition) associated with this. Moving from H-1B to asylum is generally very difficult unless there has been a change in conditions in the worker's home country.
hluska
Good morning Peter. I don’t have a question, instead I have a fact and some good wishes.

Your AMAs have taught me (a Canadian founder) one heck of a lot over the time you’ve been doing them. Thanks for taking the time to do them, especially now when much of what we called life has been shut down.

Best of health, stay safe and thanks for being so giving!

proberts
Thanks for your kind words. Stay safe and healthy as well.
alibaba_x
As a Canadian, what’s the best way to advertise to potential employers my eligibility for the TN visa, and emphasize how much less hassle it is than H1-B visa sponsorship?
proberts
Somehow as soon as possible in the application/recruitment process, let the potential employer know that although "sponsorship" is required, the process can be quick, cheap, and easy.
mgh2
How "easy" you mean? Can the worker do it by themselves? What is the cost compared if we go with a lawyer?
jellybeanz
For sure sell yourself with a TN Visa, there's NO sponsorship required, just disclose the fee payment. I'm a Mexican who did the whole process by myself, no lawyers from the company required, and even though it's easier for Canadians since you just go to the border with the requirements and pay a super small fee, you get right in and can start working the next day after you come into the states. Assuming your profession is in the TN NAFTA list, you can get to work within a week with a TN Visa.
StevesyZissou
Hi Peter,

Really appreciate you doing this!

For a non-American who gets a bachelors degree in the U.S., what are the best paths for starting your own company in the U.S. if you don't want to raise venture capital?

proberts
If an E-2 is available, then probably the E-2 or O-1 - after you have taken advantage of OPT to build up your company. If you have other founders/owners that diffuse the ownership and control, then there could be other options such as the H-1B or a country-specific visa.
manicksurya
I was a co-founder back in 2012 in India and we were running a e-commerce store. I am currently in h1-b working for big US company. Just wondering if I can use my past experience to move to eb1 instead of eb2 which I am currently petitioned in.
proberts
Yes, absolutely, a history of achievement over time is a key factor in the EB1A context.
tharminhtet
Hi Peter, Thank you for doing this AMA. I am a student on F1 visa in STEM field, graduating in 2 months. I will be on OPT afterwards. What are some practical immigration paths for recent graduate founders?graduating? Please note that I don't qualify for EB.
proberts
First and foremost, take advantage of OPT/STEP OPT. This is a great benefit for students in general and founders in particular. This buys you a lot of time to build up your company so that you might qualify for an O-1 or green card.
Endlessly
Based on public statements by YC partners, appears possible the YC S20 batch will be 100% remote; as it relates to YC interaction with the batch.

As it relates to US immigration matters — what, if any, impact might this have on the S20 batch that prior non-remote batches were not subject to?

proberts
I don't think that will have any immigration implications because the key facts won't be impacted: acceptance into and participation in YC; the relationships established as a result of participation in YC; funding; and press coverage post-demo day.
razin
Thanks for doing this, Peter. I'm currently based in Bangladesh but planning to incorporate my B2B startup as a Delaware C-Corp in order to be able to process recurring payments from international customers. I had two questions:

1) What are your thoughts on services such as Stripe Atlas, Clerky and others? Which one would you recommend (if any)?

2) After I complete incorporation, what are my options for moving to the United States at some point in the future, preferably later this year?

proberts
1) I can't comment personally but many of our clients use Clerky and Stripe and seem happy with them. I'm still of the mindset that it's still good to engage/establish a relationship with a corporate attorney. 2) The default options are the L-1, O-1, and E-1/E-2 visas.
jesus_morales
Hi Peter thanks for doing this. I'm currently working under a TN Visa which expires on May, but my I94 expires on 2021. My question is, If I want to change employer (it will normally take me 1 week because I travel to Mexico and do the process in the US embassy there). If it is possible to still get a TN Visa from US and without premium processing how long does it takes? Thanks
proberts
It is possible but without premium processing, it's impossible to say how long that process will take. It could be weeks or months. But note that when premium processing returns, a pending petition could be "upgraded" to premium.
pd0wm
Do you have any guess on when premium processing would be brought back?
proberts
It's really hard to say but I don't think until the summer or even fall although USCIS could bring it back piecemeal, maybe starting with I-140 petitions and certain visa classifications.
hartator
Would accepting disaster relief checks or getting the covid-19 loans forgiven can get us being a “public charge” and block us from getting immigration benefits?
proberts
At present, it doesn't appear that these would qualify as impermissible "public benefits" from an immigration perspective. The same also applies to unemployment insurance benefits.
rjennings
Thank you Peter for doing this.

Does founding a startup (in Delaware with Stripe Atlas for example) make the immigration process any easier?

What would be the appropriate immigration path for a founder of a US company living outside the US (and not a US citizen)?

proberts
Responses in order: I'm not sure I understand your question. There must be a US company acting as the O-1 petitioner/employer (except under very limited circumstances) and many of our clients use Stripe and Clerky among others to set up their company. This will depend on the founder's country of citizenship and qualifications but the default options (not including the country-specific options) are the E-1/E-2, L-1, and O-1 visas.
ttam
What's the best way to clear up your immigration record?

e.g. when you overstay less than 6 months, you get "blacklisted" - it becomes hard(er) for you to get a new travel visa, but more importantly, even if you do get it, every time you try to go to the US you get taken to the backroom

proberts
One option - depending on all the facts - is to submit a "complaint" under the DHS TRIP program. This oftentimes works to resolve that entry issue.
tw600040
I had a DUI like 10 years ago and I still get taken to secondary screening every time I enter. Will submitting a complaint help my case too?