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

193 points by proberts ↗ HN
I’ll be here for the next 2.5 hours and then again at around noon until the end of the day. 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.

291 comments

[ 3.5 ms ] story [ 289 ms ] thread
greencardq11
How soon after (maybe 6 months) receiving a EB3 greencard can I leave the sponsoring employer without raising suspicions? (Been working there for 4yrs+) Can anyone take the greencard from me leaving too early?
proberts
There's a lot of misinformation about this but there's really no waiting period and really hasn't been since AC21.
greencardq11
Ah nice. Is there anything else I have to do? I want to be self-employed ASAP I don't have to stay in exactly same profession, right?
proberts
You would need to continue to work in the same field, although this is very broadly defined and generally just not an issue, and although you can port your green card application to your own company, USCIS will want to make sure that this company is real and doing business.
greencardq11
Are you sure this is the case AFTER I received the actual greencard? I thought I wouldn't even have to work technically (which of course I plan to do) I understand this is the case while i485 is pending.
sg47
Not after receiving your green card. After applying for 485.
manishsharan
I am a Canadian Citizen orignally from India. I have a MBA from Cornell. I have heard that the H1-B visa cap is not applicable for my case. Is this true ?
proberts
It is; it's just that there are 2 buckets, one for this a master's degree or higher from a US school and another for everyone else. What this means in practical terms is that you will have a much higher chance of getting selected in the lottery than someone without a master's degree or higher from a US school. Also, as I'm sure you know, you might qualify for a TN, which is not subject to a lottery.
lyrrad
I have a master's degree or higher from a US school. When I applied for an H1-B a few years ago, my employer's immigration lawyers decided not to submit applications under the master's cap, since my degree was unrelated to my position.

Are there potential issues if the master's degree is unrelated to the position? I have a related undergraduate degree.

proberts
Yes, there are potential issues but they could be overcome.
eb5gc
I'm on the Eb5 conditional green card and submitted by evidence for the job creation and adjustment of status and received my fingerprinting notice date in dec. Does that mean my conversion to a permanent GC is a mere formality?
proberts
Not necessarily. You job creation evidence needs to be reviewed as well as your immigration history/compliance.
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gotem
What are some of the greatest legal risks/vulnerabilities for startups and how can they be mitigated? Or unexpected risks.
proberts
When you say legal risks/vulnerabilities, are you referring to immigration ones (because these are the only ones I am able to comment on)? And are you referring to startups founded by foreign nationals only?
gotem
I was just discussing in general, but if you can only comment on immigration-related ones I’d be curious to hear what some common issues are that startups run into when hiring immigrants.
proberts
They're really no different from other companies hiring foreign nationals. Sometimes, however, with startups, USCIS wants to make sure that it's a real business and will ask for evidence of this in the form of client contracts or letters of interest, funding, products or product development, etc.
zinekeller
I have currently no questions, but thank you for taking some time for those who have questions about this important topic!
fasinfranco
what is something that is currently broken, or very difficult to achieve, that you believe should be easier?
proberts
Do you mean immigration-wise?
fasinfranco
working with startups.
proberts
It would be wonderful if the Biden Administration revives the International Entrepreneur Rule because we really don't have an immigration option specific to startups and this would make it much easier for the founders of moderately funded startups to work in the US and build up their company.
[dead] roamerz
I think you can count on Biden, if he is elected president, to do everything in his power to completely get rid of borders and twitter and fb to ban even talking about them.
towndrunk
I've been in tech for 28 years and I'm thinking of going to law school next fall. My focus would be law and technology. Comments/thoughts? Thank you!
proberts
Fantastic field with tons of opportunities.
[dead] briane80
Are you proud of your work? Driving wages down for everyone?
kondu
I sure am proud of his work, helping thousands of people get better jobs and live betters lives.
[dead] briane80
Fine you go ahead and be proud of employers using the immigration system to make more money for themsevles and shareholders at the expense of employees (regardless of their nationality).
[dead] throwawayandh1b
At the expensive of hurting thousands of Americans. also all the Indians downvoting me, you know it's true.
simonebrunozzi
What are the best ways, right now, to be able to work and reside in the US, for a talented, experienced, somewhat wealthy IT professional? E2, O1, H2B, else?
proberts
Without knowing any of the details, generally the best options are the E-2 and the O-1 (assuming that you are not from a country with its own visa).
hozsgeek
What are chances for H1-B if one take online masters from US universities ?
Andre84
online masters doesnt grantt visa for H1B you will need a sponsor
hozsgeek
yes but it's a master's, does that affect the decision making process is my question.
Andre84
exactly. Havng a proof of skills [ e.g. as Univesity degree] will add chances over similar applicants that do not have one
proberts
An online master's degree is fine but note that the H-1B is not available to those with degrees from for-profit institutions.
ffggvv
how expensive is it for startups to hire immigrants or sponsor an h1b? wouldn’t it be cheaper/easier to hire americans until the company is larger?
proberts
All in for an H-1B, anywhere between $5k and $10k depending on the legal fees and whether premium processing is used. So a company would avoid these costs if hiring US workers.
mkinom
What is the best route currently for someone on the H-1b visa to startup in the US? Is raising VC funding a necessity?
proberts
That will depend on a number of factors, including country of citizenship and the amount and origin of any funding. There are visas specific to certain countries and these are always the ones to look at first because they are often the easiest to obtain. Other potential visas include the E-1, E-2, and O-1. And sometimes it just makes sense to remain employed by the founder's current H-1B employer and file a concurrent part-time H-1B through the startup, which at least allows the founder to work openly and with valid work authorization for his or her company.
arkj
I am from India and we would like to start our operations in US. Are there any other visa options for founders other than H1-B?
gogopuppygogo
EB5 program exists if you are well capitalized.
proberts
That's right but the EB5 process is really slow right now. The other options are the O-1 extraordinary ability visa and the L-1 intracompany transferee visa (if you have existing operations in India).
proberts
Depending on a variety of factors including whether there are spouses involved who would like to work and whether multiple founders and/or employees will need work authorization, the options are the O-1 and the L-1. (The E-1 and E-2 are unavailable to Indian citizens.) There's also hope that the Biden Administration will revive Obama's International Entrepreneur Rule (or IER). This likely would be the best option for many founders but we'll have to see.
neha_t
If you have an existing company in India, and have been working in it in an executive or managerial position for over an year then look at L1A followed by EB1c. Thats the route I took.
wonderwonder
How did you get into immigration law and then how did you become to work for a company like YC?
proberts
To be clear, I don't work for YC. I always was interested in US immigration and like just about everyone in the US (with the exception of Native Americans), my ancestors immigrated here. And the federal judge I worked for after law school was a strong supporter of the rights of those seeking asylum in the US. And then I was extremely fortunate to work for wonderful immigration lawyers early on in my career which solidified my interest.
h1bthrowaway9
How soon after an approved H1B can one start the green card process in current situation, especially with drastic increase in the wage requirements?
zamalek
I know that Microsoft and Amazon start you on the process almost as soon as you land on American soil, but proberts will know more.
cliverani
Can you point us towards any resources for general immigration hiring frameworks for early stage startups? Given the current shift towards remote work, I'm interested in learning more about different approaches.
proberts
I'm not aware but if you ask specific questions, I might be able to help.
tomcat27
Can people working on H1B visa open a company to run a side business such as a mobile application that doesn’t need employees.
proberts
It's possible but complicated because self-employment isn't permitted under the H-1B.
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its-hawk
Hi Peter, I'm a Canadian student. I recently received a summer internship offer starting in May 2020, however I would like to enter the U.S. in January.

(1) Could entering the U.S. while the J1 application is being processed (in January) cause issues (e.g. due to an updated I-94 for instance)? (2) Could I get the J1 visa to start in January so I don’t need to return to the border come May 2020?

Thanks

Edit: grammar & organization

proberts
I would need to know a lot more to be able to answer these questions. Please email me separately.
its-hawk
Will do. Thanks for taking the time!
irateswami
What's your take on the widespread abuse of H1B visas by large tech firms? How could the H1B program be adjusted to protect both the visa holder and the American worker?
[dead] briane80
Careful now, if you mention protecting the American worker you might get flagged and woke scolded by dang.
proberts
We don't represent large tech firms; our focus is on mid-size companies and startups and honestly I don't see abuse with these companies. What specfic abuses are you referring to?
gmanis
Hi Peter,

Thank you for doing this.

Can someone who has unused H1-B from long time ago, use it if they have a job offer from a US tech company and is presently outside the US?

proberts
Yes, it's possible to use unused H-1B time from a while ago to get sponsored for an H-1B now (and avoid the cap). But there's a limit; if it was too long ago, it might not work.
gmanis
Thank you. It's almost 10 years I think.
proberts
Since the H-1B was approved or since you were last in the US in H-1B status?
gcsmith45
I'm working under H1B. My PERM has been approved and I'm waiting to apply for i140. I'm getting married in few months (my to-be spouse is outside US and doesn't have a visa) and I want both of us to get the green card together. Is it OK to start the i140 process without getting married and add my wife's name when filing for i485 (after wedding in few months?)?
proberts
Yes. But she would need to be in the US in H-4 status for her to be able to file an I-485 application with you.
notafraudster
Peter -- what's your take on the various COVID-related presidential proclamations vis-a-vis the incoming presidential administration? Is Biden likely to unwind these immediately, or not?

Second, is there anything in the whisper network about how forthcoming US embassies have been with National Interest Exceptions for the above. There is basically no information available online about what categories of people can get these exemptions and which foreign embassies are most forthcoming.

I'm a noncitizen living in the US, traveling to Europe in January and as of right now don't have a concrete way to re-enter the country, since no foreign embassy will discuss the NIE until I'm present in their respective country, but that means I need to fly with an open ticket and worst case scenario will have to return to Canada or Mexico for 14 days before re-entering the US.

proberts
My sense is that the travel bans and bans on the issuance of H-1B and L-1 visas will go away soon after Biden takes office (although they might be replaced by quarantine requirements in the US). Regarding the NIEs, I agree, the process is very frustrating because the information is hard to come by and varies from Consulate to Consulate but based on my experience, NIEs to the ban on travel have been freely granted if one is returning to the same company and position in the US.
tawer3244r4
Are there any immigration law implications for H1B holderes interested in being a co-founder and/or investor and/or advisory role in a startup
proberts
The issue is whether these activities rise to the level of employment, that is, providing a service in exchange for some type of compensation or benefit or really anything of value. The main issues arise when the investor or advisor owns a piece of the company invested in or advised. The specifics very much matter, however, so send me an email if you would like to discuss.