HN Explorer

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

251 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 2.5 hours and then again at around noon for another 2.5 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 meaning and impact of the State Department's latest (October) Visa Bulletin. 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!

272 comments

[ 3.6 ms ] story [ 284 ms ] thread
cvhashim
A bit of a basic question but, if an individual working in the US on an H1B Visa decides to marry a US Citizen, how will it affect their job status? Will they have to quit their job, go back to their country of origin and return to the US on a Marriage/Fiance visa once that process is approved?
sushshshsh
Hi, my wife and I are going through this right now, and so far she has submitted her paperwork and continues to work on H1B until receiving an approval from USCIS. I'm American and she is Chinese. Good luck!
nodpekar
I did this. I was on H1B and wife is American. For starters, you don't have to leave the country for anything. You and your wife will apply for Green card and Change of status. But this is after marriage.
beagle3
You actually can't leave the country after filing for the GC, unless you get a special travel waiver (or your GC request will be considered abandoned).

Anyone in this situation is strongly encouraged to consult an immigration lawyer and spend the time to give them all the information you have, and listen to all the caveats they list. Yes, it will cost you a kilobuck, but potentially save you a lot more kilobucks, a lot of time and a lot of anxiety.

pratheekrebala
Do you have any thoughts on how the October bulletin might affect folks on cap-exempt visas? (non-profits, academia etc)
vladmk
How does the US compare when it comes to other countries when it comes to recruiting top tier foreign talent? Would love your opinion here on what we would need to do to improve
yawnxyz
Hi! My co-founder and I are thinking about incorporating a startup in the US. I'm American but my co-founder is Canadian. We've looked at options under NAFTA / TN visa and others, but that doesn't seem to apply to startup founders. We're also flexible on structure, and leaning on an LLC taxed as S-Corp to make it easy for us for filing. We are a research-based startup and are planning to apply for NSF SBIRs (so we need to be 51% US-owned) and not necessarily raise money at the start. Do you have any thoughts on our case? Or do we need to go the H1-B route for her as a co-founder?

Thank you in advance!

dreamer777
I have DACA. What can and can't I do when starting a business in the U.S?

What's the best path to citizenship?

[deleted]
(comment deleted)
morpheuskafka
[Not OP, NAL] - If you have an EAD, you can legally start your own business or work for any other business. So you can work as sole proprietor or work for a corp or LLC that you own.

The path to citizenship would depend on how much money you have to invest (if you have or can get a lot), what your county/ies of citizenship are, and how long you have been here between turning 18 and getting DACA status, among other things. OP can probably provide a better explanation.

sidyapa
Hi Peter! If YC accepts a company from a south asian country like India and the founders decide to relocate their company to the US, what does the visa/immigration process look like for them?
proberts
For those participating in accelerators and incubators in the U.S., the B-1 visa is the default option but this visa doesn't allow the founder to be compensated, only reimbursed for his or her reasonable business and living expenses.
vowelless
What is special about the October Visa bulletin?
johmathe
We just hired someone with an h1b that was approved in premium processing in June. How likely is he to be able to come in January? He currently lives in Ukraine and will need to do his embassy appointment there.

Thank you for doing these Peter!

uzakov
Hi Peter!

What is your advice on finding a good attorney in general (not just immigration one)?

Thanks!

proberts
Go through an experienced attorney you trust. It's pretty easy for attorneys to find good attorneys even if outside their area of expertise.
uzakov
In my case there is no "experienced attorney I trust", are there any tips you can share?
say_it_as_it_is
Considering an entire industry exists to help corporations and individuals avoid paying taxes using "legal innovations", how difficult will it be for this niche industry to create a new legal entity that circumvents the H1B changes in the U.S? These entities probably already exist but just aren't widely understood. Are the H1B changes really just going to hurt the little guys?
[deleted]
(comment deleted)
idrios
I'm sure you saw the article recently about the H1B visa program requiring significantly higher pay for visa holders. How do you think this will affect current visa holders? Obviously it varies case by case but I'm hoping you'll have insight into this that I don't have.

https://www.wsj.com/articles/trump-administration-announces-...

proberts
The higher prevailing wages don't impact the present wages of those currently in H-1B status; they will only apply to extensions and new filings.
ra7
It looks like prevailing wage data isn't available in flcdatacenter.com. Any idea if that's intentional or is it expected to be available sometime later?

Thanks!

[deleted]
(comment deleted)
everest_77
Just got informed of this change/regulation. My first extension after first 3 years of H1B is coming up next July.

Do we currently know any ballpark numbers for the wages for the regulation?

bluntfang
Is it possible to immigrate to a NAFTA country (Canada/Mexico) as a US citizen without changing your employment status with your US based company?
Natsu
Can using the EIP cards count against someone with respect to the "public charge" rule or otherwise impact an I-751 filing in any way?

Also, are there any other surprise rule changes that someone should know about other than the new thing where every field on an immigration form has to be filled out?

See also: https://www.nolo.com/legal-update/uscis-means-it-when-they-s...

beowulf86
This isn't an immigration issue per se but we (early stage startup) were thinking of hiring an employee who will remain in their home country (Colombia) and work remotely until COVID concerns are far in the rearview. Do you know of any companies that we can use as a proxy or intermediary so we don't have to go through all the legal hoops ourselves? After some super quick research we found lano.io but would love some more recs if you (or anyone else) have some.
morpheuskafka
If you are not going to be doing business in Colombia or otherwise have a presence there, you probably don't really need to worry about their laws. You just need to address non-resident taxation here in the US. I would suggest talking to a tax attorney or professional to double check, but normally, compensation for personal services physically performed in the foreign country is not considered US-source income. Same as if you hired him to go take some product photos in Columbia or do door to door sales or anything else. If that is the case in your scenario, this would be really easy and you would have virtually no paperwork or witholding requirements.

So, it may be a lot cheaper to have an initial checkup with a tax specialist and then skip the ongoing expense of having a "proxy" company.

kiliantics
Hello, thanks for doing this! I just got my H1B approval after being on OPT for the last couple years. Apart from obvious covid restrictions, am I otherwise still limited for travel because of the recent executive orders? Do you know when it will be possible to leave and re-enter the US?

Also, now that remote work is common, I am curious if the H1B has requirements for time spent in the US, the way the green card does. I can't seem to find definitive answers about any residency requirements online. Are there any for H1B?

ianhawes
What is your take on the advent of Boundless, SimpleCitizen, etc as tools for corporate immigration?
jifii3
No question, just wanted to thank you for doing these.

You've answered a question I had in the past and it helped a lot. Rock on.

motohagiography
For founders and key technical talent outside the U.S. who did not finish their undergraduate degrees, are they in-effect disqualified from H1B and must go the route of an O visa?

Given technical people aren't celebrities or sports figures, beyond conference proceedings, what were the kinds of evidence these kind of applicants presented in support of an O - or another type of visa?

proberts
(1) No because their education and experience can be evaluated to be considered the equivalent of a bachelor's degree for H-1B purposes. (2) Publications, journal/conference paper review work or competition (hackathons for example) judging, original and significant contributions, and memberships (requiring outstanding achievements of members).
csomar
So if you don't have a degree but have a few publications (peer reviewed?) can they replace the degree for H1B and other visas?
dicomdan
No, education and experience.
gnorton
I am this person. Before the recent changes announced within the last few weeks, the general way this worked was 3 years of work experience == 1 year of degree. I had my work experience (including being a founder) independently evaluated by a recognized professor who attested to that fact and it qualified me for a H1-B.

That said, the total sum of my industry experience at the time exceeded 12 years.

philipkiely
If you were to write US immigration policy (or, to narrow scope, US immigration policy for high skill workers) from first principles, what would it look like in broad strokes?
yangikan
I got a birth affidavit from my parents because my parent's name was abbreviated in the birth certificate. This affidavit does not have parent's date of birth. Is that going to be an issue?
Areading314
If somebody has renounced their us citizenship many years ago for the purpose of finding work abroad, is there any path for them to get it back?
morpheuskafka
[Not OP; NAL] - As long as the primary purpose for renouncing your citizenship was not to avoid taxation, there is no direct consequence for immigration purposes. You can visit as a nonimmigrant according to the same visa requirements and procedures as someone else from your own country.

If you want to become a citizen again, you will first have to find a way to get an immigrant visa or come on a dual-intent route like H1-B. Then live here for five years and apply to naturalize same as anyone else. The good news is even if you moved to a country like China or India with extra wait times for visas, it won't affect you since you were not born there.

There are a few statues that disqualify renouncees from certain benefits such as owning a gun, IDK if you can ever get those back.

Trias11
For how long the one can keep green card without applying for US citizenship?
tonyztan
Lawful permanent residency does not expire. Green cards (which are used as proof of LPR status) expire, but you can keep renewing the card without applying for citizenship.

https://www.uscis.gov/green-card/after-we-grant-your-green-c...

https://www.alllaw.com/articles/nolo/us-immigration/failed-r...

However, if you do not apply for citizenship once you are eligible, you lose certain legal protections against employment discrimination:

https://www.justice.gov/crt/8-usc-1324b-unfair-immigration-r...

ublaze
Hi Peter,

Does the prevailing wage rule apply only to base salary or to total compensation?

Do you think the new rules will be sued and blocked?

[deleted]
(comment deleted)