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

304 points by proberts ↗ HN
Time for another AMA. 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 immigration-related topics and I'll try to respond to whatever questions you ask but as much as possible I'd like to focus on issues related to the pandemic and the corresponding travel and visa bans and suspensions, office closures, etc. 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!

481 comments

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avthar
For international students in the USA who are looking to found a company, what's the path look like immigration wise?

I know you can go down the H1-B, O-1 or Green Card route, but what do you commonly advise?

proberts
Do you mean while a student or after you graduate?
avthar
How about both cases.

As a student you're on CPT and OPT. And after you graduate, OPT.

Is there a huge difference?

proberts
You can't work for your own company while on CPT and you can while on your first year of OPT and with some additional restrictions/requirements you also can work for your own company while on STEM OPT.
Nydhal
Can you please tell us more about the STEM OPT restrictions/requirements? I am exactly in that position right now!
praveen9920
Are there any changes done for US immigration laws during COVID? How would it impact existing and future YC startups
proberts
All the changes really are limited to entry into/travel to the U.S. so if one is outside the U.S. or inside the U.S. and hoping to travel outside, the various travel bans and restrictions, etc. could impact one's ability to travel/return to the U.S. Those same bans and restrictions generally don't apply if one is in the U.S. And even with the bans and restrictions, many visas aren't subject, including the B-1/B-2, E-1, E-2, E-3, H-1B1, O-1, and TN.
WrtCdEvrydy
Do you want to partner with someone in the tech industry to deliver some sort of technology product?

Every time I talk to a lawyer, they always have some part of the system that's failing them completely and working with them has always been enlightening in a depressing way.

ra7
Is it risky to change jobs on H1B with an I-140 approved right now? Both in terms of H1B transfer and especially a new PERM filing since a lot of Americans are out of jobs right now. Have you noticed or do you anticipate PERM filings being difficult?

Thanks for doing this, Peter!

proberts
To date, because of the pandemic and job loss, I haven't seen any change in H-1B or PERM processing (and in fact I would argue both have improved in recent months) but it's possible - even likely - that PERM processing will be impacted because of the job loss.
ra7
If I changed jobs and transfer went through, I’m still able to get an H1B extension with an already approved I-140 even if the new PERM filing is impacted, yes?

Thanks again!

justaguyhere
If someone on H1b wants to create a business, a non profit, or just wants to freelance - what are the options available to them?
proberts
There's no option to freelance while on an H-1B visa and the options to work for another entity concurrently - that is, to get paid by another entity - are very limited and self-employment is generally prohibited. That being said, preliminary steps to create a business or to volunteer for a non-profit are allowed.
neosat
Thanks! Can you please provide any further links (or keywords to search for) regarding the 'preliminary steps' that are allowed?
kgycombinator
Thank you! I was going to ask the same question.

Also, once the business set up..what if it generated profit as h1bs are not allowed to get paid by other entities..

proberts
Really complicated and nuanced stuff unfortunately. What's clear is that one can incorporate, get office space, build a product, and even get funding and that one can't get paid cash for work done. Everything else in between is nuanced, such as generating revenues if not taking a draw or cut. I'd be happy to talk this through with you and anyone else but my general approach is that once the business is real (not a great definition, I know) and not just a hobby or side project, one needs to get work authorization.
masalachai
Thanks for doing this, Peter.

My I-140 is approved and my wife has an EAD. Are there any restrictions that would prevent her from opening an LLC and getting paid for her freelance work through it?

dkochmex
Hey Peter,

Thank you so much for doing this!

Im a German citizen living in Mexico. Since I have been to Iran I no longer qualify for ESTA and had to apply for a visa at the embassy here in Mexico City to visit the USA. My visa has been in processing for 2y now and I have not received any response other than "still in processing, we will be in touch". What do you recommend? Is there anything I can do to accelerate this? Or withdraw the application and apply from Germany?

Thanks a lot!!

brummm
Never heard about not being eligible for ESTA after having travelled to Iran. WTF? What kind of weird rule is that?
dlgeek
From https://travel.state.gov/content/travel/en/us-visas/tourism-...:

"Under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, travelers in the following categories must obtain a visa prior to traveling to the United States as they are no longer eligible to travel under the Visa Waiver Program (VWP):

Nationals of VWP countries who have traveled to or been present in Democratic People's Republic of Korea, Iran, Iraq, Libya, Somalia, Sudan, Syria, or Yemen on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country). Nationals of VWP countries who are also nationals of Democratic People's Republic of Korea, Iran, Iraq, Sudan, or Syria."

C1sc0cat
And you did not use the two passports trick - common if you are Woking in the middle east ?
dkochmex
2 passports only help for situations in which they really only check entry/exit stamps in your passport. In this case, when applying for ESTA, you explicitly have to declare that you haven't been to the above-mentioned countries and therefore qualify. If you tick the wrong box, its quite possible that they i) either reject your ESTA application ii) or reject entry to the country on arrival and in both cases that significantly dampens your chances of ever getting an ESTA/Visa again.
smnrchrds
I wouldn't be surprised if that is considered a crime punishable by imprisonment. Would claims made in ESTA application fall under this: https://www.law.cornell.edu/uscode/text/18/1546
pbhjpbhj
How would that work? Surely, if they knew you'd lied they'd refuse your visa so you couldn't travel to USA. If they didn't know they would, possibly, give a visa; how would they later find out you'd lied if they didn't know in the first instance? Do they go and re-check visa applications? Do they lie and give visas to people just so they can lock them up for falsely acquiring a visa??

Didn't the current First Lady falsely immigrate, lying about work or something, so it can't be that much of an issue to lie in your paperwork or she would have gone to prison??

smnrchrds
Like almost all crimes, they wouldn't care to prosecute most people. Tax avoidance is a crime. What percentage of people who lie on their tax returns get prosecuted anyway?

But if you are one of the unlucky few whom they decide to prosecute, you will have a bad time. Read the articles about Sirous Asgari. I don't have any good articles which tells the whole saga, but use this as the starting point and search more on the internet: https://www.theguardian.com/world/2020/apr/28/iran-scientist...

Recap of the saga:

An Iranian university professor (who had previously studied in the US and has ties to the US) requested a US visa. It was granted. Hew was arrested as soon as he entered the US. He was charged with wire fraud, visa fraud, and stealing trade secrets. After a lengthy trial, 2 years later, he was cleared of any charges and acquitted. But then ICE took him into custody because they had revoked his visa and he was in the US without a valid visa (please note that he had no choice in this, as he was forbidden from leaving the US while the trial was proceeding and he was taken into custody again immediately after the trial concluded. Real catch-22). Then he spent a couple of months in ICE custody and his frequent requests to be sent back to Iran was denied. He got infected with COVID-19 during this time. And finally in June, he was deported to Iran.

And this is the case of someone who was innocent. Imagine what would have happened if he were actually guilty. They gave him a visa so they could arrest him and charge him with visa fraud (among other things). Even when he was acquitted, he spent more time in jail because they retroactively revoked his visa. And most important of all, none of this even made front page. This is not one of those WTF cases that are so rare you might as well ignore them. Following the news on this over the years, the tone was always "yeah, nothing special about this case."

Natsu
Just a small nit, but tax evasion is a crime. Tax avoidance is normal and expected.
smnrchrds
Oops. Yeah, you are right. That's what I had in mind.
refurb
That's kind of a modus operandi for law enforcement in general. If they can't get you on a major crime, they are more than willing to vigorously enforce minor crimes to the fullest extent of the law.
proberts
I've seen such delays. Unfortunately, there's very little that can be done but as a first/next step, I would ask a Congressional office for assistance/to inquire with the Consulate.
rwmj
My ESTA was revoked (unilaterally and with no reason ever given). I waited on a B1/B2 in Administrative Processing for basically 12 months - all of 2019.

It's a frustrating process because there is literally no information available when the application enters this state, although my suspicion is that this is because nothing is being done.

Anyway it might have been longer but eventually the company's legal team collected statements from all the people this had happened to and they were submitted to one of the US Senators in the state where the company is based. My visa was issued shortly afterwards.

Not sure what message you can take from this except perhaps that the whole system is crazy (arguably even corrupt?)

(To head off the first question: No I don't have any criminal record, and there is no reason anyone has come up with as to why the ESTA was revoked.)

dom96
What are the rights of someone on an L1 VISA in the US with regards to starting up a business?
ramadis
My country (Argentina) has a lottery(esque?) approach to giving work visas for the US, so basically: even with company support, work visas are subject to probability (~30% chance of getting it for a given year). Do you have experience, or do you know, how companies handle hires from countries with this methodology?

Thanks for doing this AMA!

conanbatt
It's not argentina that has a lottery, it's the US. Thats the H1B process.

That is also suspended for this year.

proberts
The next H-1B lottery will take place in March 2021. The proclamation suspended the issuance of new H-1B visas; the lottery hasn't been affected and those in the U.S. seeking to change their status to H-1B or extend their H-1B status haven't been affected.
armSixtyFour
I'm a Canadian residing in the United States and have been on a TN for a few years and was selected in the H1B lottery this year.

Would the visa ban prevent me from re-entering after October when I receive the H1B? Would it also prevent me from switching jobs before January when it expires?

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ameen
Is Trump’s plan to bring merit-based immigration going to affect country-based quotas?
digianarchist
The RAISE act doesn’t touch country quotas for employment based Green Cards.

In fact on my reading it implements a cap for spouses and children for family based immigration.

ameen
Thank you. My question was in response to this development: https://www.youtube.com/watch?v=pk7iQtad2Qo

Didn't know it referred to the RAISE act.

digianarchist
Nobody knows what this is but it’s likely RAISE plus some amendment for DACA.

It has to go through Congress though so take it with a pinch of salt.

CraftThatBlock
I'm a Canadian with no degree, is it possible at all to work inside the US for me? What about working for a US company remotely from here?
proberts
US immigration has no say over working remotely for a US company so that's fine. Also, depending on your qualifications and field, there are visa classifications that don't require a degree, such as an E-1, E-2, L-1, O-1, and certain TN occupations.
namank
Has the current political climate affected Canada to US TNs or are they still being issued as before? Any particular port of entry that you'd favor/avoid?
proberts
We're starting to see greater scrutiny and more irrational decision-making (such as concluding that a degree in computer science isn't an appropriate degree for software engineers) but for the most part, TN applications are being processed as before (by USCIS and CBP). Regarding ports to favor/avoid, the answer really depends on the nature and quality of the TN application.
LeoHaggins
How could a potential trump re-election could impact the current working visas L1/H1B/O1 processings?
entityresq
I'm a PhD from Bio background who became a data-scientist in a health-care related (but not biology research) company. I have been reasonably successful in this job, but because of the change in fields I lost my H1B to a failed RFE the one time I passed the lottery. Now I'm thinking of doing an O1 application, but my assumption has been that all my expertise must now be demonstrated in this new field of health-care data analytics and not from my PhD times, and I'm working on it.

My question is, has the difficulty of getting O-1 visas gone up significantly in the past year or so?

proberts
Not really. It's gone up a bit - or more sideways I should say with USCIS raising different issues - but really we haven't seen much of a change in the approval rate.
bjornsing
Hi Peter!

I’m a highly skilled engineer and reasonably accomplished entrepreneur (founder of a VC-backed startup that is still alive but hasn’t taken off, and I no longer work there). I’m a natural born citizen of Sweden and I live there.

I’d like to emigrate to the US, with citizenship as the goal. I can spend a bit of money on it, but I’m not wealthy. What’s my best bet? What would you say is the probability of success?

Thanks in advance,

Björn

proberts
The answer really depends on your background/accomplishments and whether you would be working for your own company or for another company. Oftentimes, for entrepreneurs, the best and easiest option is the E-2 investor visa, which is available to Swedish citizens.
bjornsing
Thanks For the E-2 suggestion!

Since my goal is US citizenship and I’m in-between projects right now I’m open both to working for my own company or for another company.

I have a master’s degree in engineering physics. I’ve had senior leadership roles in two VC-backed startups (one of which I founded and was CEO of). I’ve been covered in the press, by regional newspapers and national tech media. I’ve spoken at a number of tech/telecom conferences. I’m the inventor on a handful of patents.

Does that help narrow down other paths?

proberts
We should talk. It sounds like you'll have a good argument for a green card which then leads to citizenship. The question is which path to take in the short-term and the strength of your background likely would allow you to get an O-1 through your own company or another.
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beervirus
Does YC pay your standard billable rate, or do they send you enough business to warrant a discount?
dencodev
Laughed at this - sounds like something a YC exec would post under an alternative account even though I'm sure it isn't
beervirus
Lol no, I'm an attorney myself. Just idle curiosity.
klaudius
Question about E-2 visa (investor visa)... If I create a US company from abroad and start making money, can that revenue in US bank account be counted as investment? Or should I transfer the money back home and then reinvest in US business?
proberts
No, that would not count as an investment for E-2 purposes. The money needs to be controlled/owned by a citizen of that country or a company owned by citizens of that country and then invested into the U.S. company to be counted.
[dead] the_h1b1
What was your process of creating a US company from abroad?

What was your process of making money while you were abroad?

dvfurlong
As a European entrepreneur with some success and some international recognition what would you recommend is the best strategy to get a US work visa and move there. For instance starting a new company in the US or a new branch or something like the O1 visa? I have British, Irish, Polish nationalities and perhaps one of the them has good odds on a visa lottery?

Thanks!

proberts
The answer really depends on your background/accomplishments but (based on the limited information provided) it appears that the O-1 and E-2 visas might be good options as well as the L-1.
vowelless
Question about E2 treaty countries.

If one is an E2 treaty country citizen, and starts a company in the treaty country, how difficult would it be to create an American presence?

Could you go a bit more into E2 and how it could be used by start ups (if at all)?

And also, could you go a bit into what an E2 treaty county citizen can do to live/work in the US?

proberts
The E-2 is a great and really the best option for entrepreneurs if you have home-country money to invest in the U.S. company and an E-2 can be used for new U.S. companies with no employees - yet. If for example your citizenship is French, then requirements for an E-2 are as follows: the U.S. company needs to be at least 50% owned by French-owned companies or French citizens (who also are not U.S. citizens or green card holders), a substantial amount of money from French-owned companies or French citizens needs to be invested in the U.S. company, a substantial amount of money needs to be spent by the U.S. company in the U.S. on business expenses, and the U.S. company needs to have a strong/clear business plan that shows likely job growth (the hiring of U.S. workers or green card holders) over time.
throwaway3neu94
How to satisfy the PERM physical notice posting requirement when all offices are closed due to CoViD (keycard access is revoked, all employees WFH)? Is it enough to post it in an empty office and/or electronically on the intranet? What if the office never reopens, or not anytime soon?
tequila_shot
I think along with the physical office, you also have to post it in journals/job boards etc., I think it should not be impacted, but will wait for proberts to respond.
proberts
The requirement to post a notice of filing either physically or electronically hasn't gone away because of the pandemic although the DOL has relaxed the requirement. One solution is to post electronically if a physical posting isn't an option.
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thatguy21991
Hi Peter, I’m currently on h1b and my visa stamp on passport is from my ex employer and is expired. Is it too risky to travel abroad? Will I still be able to get a new visa stamp due to the visa ban?

Thank you!

proberts
It appears that you are subject to the ban on the issuance of H-1B visas so you could be stuck outside for a while if you leave.
tinbad
(Current green card holder) I was scheduled to have my citizenship interview in early April that got de-scheduled. On USCIS website it still says I’m scheduled to complete the citizenship process in August, which seems unlikely. Do you have any insight as to whats a realistic timeline to receive my citizenship?
x87678r
I had a friend in NY who did the citizenship interview last week. I think they're back to processing OK.
proberts
That's right, USCIS is starting to schedule in-person appointments again and it's first scheduling those whose appointments were cancelled.
proberts
I can see that I am getting a lot of questions about options to move to the U.S. The answer is going to be very fact-specific - tied to your background/achievements. If you would like me to assess your options, please email me your CV.