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

276 points by proberts ↗ HN
I’ll be here for the next 3 hours and then again at around 12 pm for another 3 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 recently reinstated International Entrepreneur Parole Program (or IEPP). 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.

249 comments

[ 3.0 ms ] story [ 215 ms ] thread
obblekk
We’re a 5 person startup with a small amount of angel funding. One of our engineering interns is from China and we really want to convert her to full time.

What’s a good resource to learn about what that even requires, costs, and feasibility at our size?

Thanks for volunteering your time!

proberts
To be clear, do you want her employed full time in China or the U.S.? If the latter, this was complicated before the pandemic and has become even more complicated with the ban on travel from China and other countries. But, depending on the intern's background, the standard options are the H-1B, L-1, and the O-1 as well as the J-1 but the J-1 is for trainees and interns and is generally limited to 12 or 18 months. The USCIS and State Department websites actually provide pretty good - albeit general - descriptions of the work visa options.
WrtCdEvrydy
I saw your AMA in Reddit years ago, what can the software engineering divisions do to help you?

I had a friend who realized that the lawyers didn't really have tooling that was perfectly sized.

proberts
Lawyers - myself included - are notoriously bad at using technology and just changing the way that they do things so there's no question that there's opportunity here.
WrtCdEvrydy
Well, for obvious reasons, the average developer is notoriously bad at knowing the law.
adorearun
I am in H1B visa.Can I invest in a company as Board of Directors and use that to apply for GC?
proberts
I'm not sure that I understand the question. Do you mean investing in a company and serving on the board of that company?
throwawaytax31
Hi Peter, this might not be directly from your ballpark, but perhaps you have thoughts on this.

I wonder what is your recent experience on SaaS businesses and tax liability? With recent changes across the globe, SaaS companies are responsible for emitting sales taxes in the country of the customer.

Do early-stage startups try to handle this on their own (using specialized accountants) and services like TaxJar, or do you see a movement to use Merchant of Record providers, who handle all taxation on the SaaS' behalf (like paddle.com)?

What are the potential liabilities for neglecting these issues for too long?

proberts
Unfortunately this is outside my area although they appear to be important issues.
plaidfuji
Thanks for your time. Do you see any political movement one way or the other for opening up H1B quotas or otherwise making that process more likely to succeed in the next couple of years?
proberts
That's a great question. I don't know if the political numbers are there but this is definitely something that is being pushed.
digianarchist
How much on average does it cost, in legal fees, to process a TN visa and an EB-2 Green Card application?

I've had two US employers now and both have promised to bring me down and then backed off because of costs (I'll be covering relocation).

ipaddr
$160.00 filling fee. $2500 for employer to speed up process.
diab0lic
The lawyer involved costs a lot more, and is likely what GP post is asking about.
proberts
Legal fees for both vary greatly but I've seen anywhere from $1500 to $5000 for a TN application/petition with $2000-$2500 the most common and $2500 to $10000 for an NIW petition with $5000-$7500 the most common.
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exhibitapp
If you are Canadian you don't really need a lawyer for a TN application. Just prepare your own supporting documents (including offer letter) and go to your nearest US land border. It's relatively straightforward, just be polite with the border agent, and if your application is valid you should have no problems.

I've represented myself twice and it was a smooth process.

digianarchist
I did offer to do that but they insist on using Fragomen.
gmanis
Hi Peter,

Thank you for doing this. I asked this question earlier but missed seeing your reply so I’ll state it again.

Can someone who has some unused time on H1B from long time ago, use it if they have a job offer from a US tech company and is presently outside the US?

It’s been 11 years since last present in US and the visa was approved a year earlier I believe.

Thank you.

proberts
The guidance isn't crystal clear on this but the concern is that this person would be subject to the lottery again since more than 6 years have elapsed since he or she was last in H-1B status. That being said, we've had H-1B petitions approved where the gap was greater than 6 years.
gmanis
Thank you for your reply.

I was definitely wishing to avoid the lottery but I guess it’s on case to case basis.

parentheses
Specific to the program, USCIS states on their site [0]:

> their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion

Can you unpack this and explain what this means and how one can establish that this is the case?

[0] https://www.uscis.gov/humanitarian/humanitarian-parole/inter...

proberts
The question is whether this is presumed where the founder meets the basic requirements, that is, 10% ownership, active business operations, and $250k in investments from qualified US investors. We just don't know yet whether much more will need to be shown if these basic requirements. We'll et a much better sense of this in the coming months. That being said, I think, assuming the above requirements are met, that applications will be approved where the investments are from top tier investors or a top accelerator is somehow involved.
stackbutterflow
Hi Peter,

What's the straightest path to the US for a tech worker?

proberts
It depends on the strength of the worker's background, his or her country of citizenship, etc., but, assuming that the worker is not from a country with its own work visa (Australia, Canada, Chile, Mexico, and Singapore), then an L-1 intracompany transferee visa is often the fastest but where this doesn't apply, then the O-1 (which also isn't subject to an annual lottery), the E-1 and E-2 (which also isn't subject to an annual lottery), and the H-1B.
paulgb
Thanks for doing this.

How common is it for application processing to be outside of the published processing times? I have been waiting on an I-131 since January so that I can finally leave the country to see family while my (marital) green card is processing, but I’ve seen no movement and I’m wondering if I should be worried (it’s outside of the National Benefits Center’s posted 3-5 months). I submitted a case inquiry but have not heard back yet.

proberts
Very common unfortunately and right now I-131 applications based on marriage-based green card applications typically are taking at least 8 months.
paulgb
Thanks. Is there any way to expedite this? My wife and I have planned an in-person wedding ceremony in Canada for our families based on the posted waiting times so it would be very unfortunate if I couldn’t go. (We legally got married in a virtual ceremony last June)

If it helps, I initially applied in October and it was rejected due to a USCIS error. It looks like one of the ways to expedite is if USCIS made an error that caused a delay?

proberts
That's right, sometimes where clear USCIS error is involved, USCIS will expedite the processing of an I-131.
paulgb
That's good to know. Is it something I should get a lawyer for, or is it fairly straightforward to submit one?
proberts
I don't think you need a lawyer for this. Just make sure to be clear about what happened.
fridif
My wife and I applied for her green card in September of last year and so far she has only completed finger printing. Insane
parentheses
(Separate question so another comment)

Peter, thanks for doing this!

What are your thoughts about what computing can do to positively affect the practice and integration of law into individuals and companies?

I know the legal space has always been a tough nut for software to crack. What is your opinion on why this is?

These are very general questions and I appreciate anything you can do to help me understand this space better.

For context, I’ve built software that helped to construct sections of disclaimers/disclosures from business logic. A very primitive approach and one that doesn’t really go deep, but I felt it had potential.

proberts
Lawyers - myself included - are generally technically challenged and averse to change. Whatever the technology is, for lawyers to adopt it, I think it must be incredibly easy to install and use and must show positive results clearly and immediately.
crorella
Hello Peter, thank you for offering this space. Is it possible to get a work permit in the US as a self employed? What are the steps? Are there limitations?

Thank you

proberts
The O-1 visa sort of allows for this in certain circumstances and the E-1 and E-2 as well as the IEPP definitely do - at least to the extent that a founder would get paid by his or her own company.
nhnhhnl
I Have a B2 visa, could I visit the US for a few months, get a job and apply for a different type of visa? And if so, how? Would be in the tech industry ofc.
proberts
Yes, it's possible to change status from B-2 to a work status but your intent at the time of entry must be for pleasure and not for work. The sponsoring company would file a work petition for you with USCIS. But of course you must should determine whether you would even qualify for a work visa.
chsreekar
I have a masters admit for Fall 2021 and am applying for an F1 visa. However there are very few interview slots being opened in India right now and the consulates are rejecting emergency appointments without any reason. Is there anything we can do to secure an interview?
proberts
This is a real problem right now and not just in India but in most countries around the world. You could ask a Congressional office in the area where the school is located to make an inquiry or you could even ask the school to make an inquiry. I've had clients report to me that their schools have done this. What would you be studying?
chsreekar
Masters in Intelligent Systems Engineering at Indiana University
proberts
Again, this is just a tough issue because there are so many people in the same position but given the field possibly argue that this field is critical to technical infrastructure development in the US and the US economy as a whole.
Sr_developer
As a developer from a run-of-the-mill Latin-Country (No special job agreements a la Mexico/Chile) what would be my best chance to get a visa-sponsored job? Work as a local in my country and bid my time for a L1 opportunity? Anything else without resorting to the H1B grind-mill?
proberts
The L-1 is an option or an E-1 or E-2 if you are from a country with a treaty of commerce and trade with the US. And if you want to work for your own company, the IEPP and possibly the O-1 would be options.
victorhn
I am from Mexico and am currently employed on a TN visa, if my company intends to start working remotely, is it valid to keep working under this visa if i won't be physically living on the USA (i would live in Mexico, but maybe travel to US some days per year to US) or should i switch to another schema (like working as a contractor)?

Also, what about working for some months on USA and other months on Mexico? Does the visa allow this scenario or are there chances the custom agent get more inquisitive about these frequent trips?

proberts
The TN is irrelevant if you are living in Mexico. You can work for a US company without a TN visa or any type of work authorization if you are living in Mexico. Once you enter the US, however, you would need work authorization and your TN would remain valid for the limited intermittent employment that you describe. You might have some explaining to do when you travel to the US because of your absences but legally what you describe is fine.
sh8055
Hi Peter,

what restrictions common tech worker visa types (H1B, L1B) place on employee location in the US? Specifically, do they allow remote work (office location in state A, visa worker working remotely in state B)?

proberts
Yes, remote employment is allowed for all visas but it generally needs to be disclosed as part of the application and changes from office to remote employment can trigger the need to file new or amended applications.
smithsonian112
I have a Computer Science PhD and am an EU national. I would like to work in the US but am worried about being tied to a specific employer on a visa, but I don’t understand if this is just something I would have to accept. Is there a resource you can recommend that would clearly explain the options available to me? Additionally I don’t understand whether I would be subject to a lottery or whether with a PhD it is almost a sure thing to be able to get a work visa. Thank you so much.
proberts
You likely would qualify for an O-1 which is not subject to a lottery. You would be subject to a lottery for an H-1B unless the H-1B would be to work for a non-profit entity engaged in basic research or another cap exempt entity. There are visas that allow for self employment or at least employment with a company created by the foreign national (O-1 sort of, E-1 and E-2, and IEPP) but oftentimes the path to "free agency" is through the green card process - which under certain circumstances can be applied for without company sponsorship - and with a PhD you likely would be able to apply for a green card on your own.
lwansbrough
I’ve heard that an option for Canadian workers pursuing US citizenship is to apply for a TN visa, then apply for consular processing from Canada while under TN visa status. Does this seem like a good option?

I’ve worked remotely for a small company for a number of years and am a core team member. I suspect I fit one of the definitions for an L1 visa except that the US company doesn’t have a presence in Canada other than my home office. Would this qualify? Or does there need to be a legitimate Canadian subsidiary to even be considered?

I suppose my last option would be H1-B but that seems like the least favourable.

proberts
Unfortunately there needs to be a legitimate operating entity in Canada with office space, employees, etc.
rlabrecque
Hey there, I'm a Canadian living in the US on an L1 right now, it was a good fit for me. What my company did was set up a Canadian Entity (subsidy) and started paying me through that for a year before I made the trip. It worked out well.
dahx4Eev
Are there any requirements for the Canadian Entity?
philipkiely
Hi Peter,

Taking a look at the IEPP webpage, I saw some vagueness that is common when looking at entrepreneurship visa programs in the US and elsewhere, for example:

"The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;"

In this context, what is "significant investment?" 100K? 1M? 10M?

In this context, what is a "qualified investor?" Any accredited investor? Do VCs apply to some government entity to become qualified investors in this program?

I am not personally affected by these definitions ... I am a US citizen ... but many friends of mine are foreign nationals in the US on various visas so I try to maintain a decent working knowledge of immigration options and vague language like this makes developing this understanding more difficult.

proberts
These terms are actually defined in the regulations.
philipkiely
Ok cool, for others reading I found it:

Substantial Investment is $250K of funding or $100K of grants (Just YC funding would not be enough to qualify on funding)

The qualified investor must be a US person or entity who regularly makes this type of investment, has invested $600K in the past 5 years, and their investments have created 5 qualified jobs in the US. So it looks like most VCs and some larger angels would qualify.

Edit: source: https://www.uscis.gov/sites/default/files/document/forms/i-9...

proberts
Thanks for providing! I would recommend that everyone interested in the IEPP read the form instructions on the USCIS web site. The form is 941. While they do not answer every question, they do provide a lot of good and clear information about the requirements.
srtanzim
Hey Peter,

I am the Co-founder and CEO of an early stage start-up incorporated in Delaware. I am originally from Bangladesh and have just closed our pre-seed round of $300k from an investor in the United States.

Which of the following options would be the best for me?

1. International Entrepreneur Parole: Raised >$250k so should be eligible.

2. O1: By my understanding, I meet the following criteria:

Award- $300k USD pre-seed investment from a top investor in the United States.

Memberships- OnDeck (beondeck.com)

Critical Employment- Co-founder and CEO

Judging- Judged start-ups for investment competition in St. Louis ($50k cheques).

High Remuneration- Own 60% Equity in my start-up

3. E2: Being from a treaty country can I apply for this or would I need to invest my own money into my start-up?

proberts
The IEP seems like the best option and a good one. The E-2 would require investments by you and/or other Bangladesh citizens into the US company and then expenditures by the US company. Based on the information provided, I would put the O-1 odds at less than 50%.
riyakhanna1983
Thanks, Peter! Would you know the processing time for IEP application? Could it be expedited?
proberts
The processing time is completely unknown right so we'll have to wait and see and premium processing isn't available - although where the circumstances are very, very compelling, it's possible to request expedited review (with such requests rarely granted).
wesammikhail
Hi Peter,

Thanks for doing this.

As far as I know, the IEP structure has no clear path to permanent residency like some of the other options. Is that your understanding as well or am I missing something here?

proberts
It's a common misconception that a nonimmigrant status somehow leads to a green card or limits the green card options in any way. There is no connection between the two. So someone in IEP "status" could pursue a green card but because IEP is not considered an admission, he or she would have to go the immigrant visa route through a US Consulate abroad rather than the adjustment of status route through USCIS.
iamcreasy
What does IEP stand for?
pjam
International Entrepreneur Parole
iamcreasy
Thank you. Did not know about this!
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srtanzim
Hey Peter,

D you happen to know how long the processing time for IEPP might be?

proberts
That's the big unknown. No doubt USCIS will be flooded with applications in the coming months and hopefully sufficient resources have been or will be allocated to their processing. But this just a wait and see right now.
Wenne
Hi Peter, For IEPP program, should be file by the employer? Does international indepedent consulting apply for the startup?
proberts
The application is filed by the entrepreneur/founder. And there's no restriction on the type of business but USCIS must believe that the business is going to employ US workers over time and isn't just for the employment of the entrepreneur/founder.
zamalek
Thank you so much for sharing your time with immigrants - hopefully there are more clear skies going forward for us.

I'm currently looking at expediting my EAD (spousal) by means of a job offer. I've done a good amount of research, but would love to know if you've seen anything improve the odds of EAD expedite.

Have a great weekend!

proberts
It really depends on what you would be doing since most people need the O-1 to work so that alone can't be the basis to expedite. I've seen expedite requests for teachers and government workers get approved as well as those involved in vaccine development and COVID treatment. But the vast majority of expedite requests are denied unfortunately.