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

232 points by proberts ↗ HN
I'll be here for the next 2.5 hours and then again at around 11:30 am PST for another 2.5 hours. As usual, there are lots of possible topics and I'll be guided by whatever you are concerned with. Please remember that I can't provide legal advice on specific cases for 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.

348 comments

[ 4.9 ms ] story [ 245 ms ] thread
dkarp
Hi Peter, have you seen any change in immigration as a result of covid? What do you believe the long term impact may be?
proberts
Really the main change has been at the consular level with the shutdown and reduced operations at US Consulates and unavailability of visa application appointments. But this finally seems to be changing. Regarding long-term impacts, I really don't see any other than possibly greater sensitivity to infection disease-related requirements - i.e., vaccinations and testing - for immigration benefits.
vasili111
Stay with b1b2 visa was extended by US government and total stay in US is 8 months. When person leaves to home country after how much time he can return to US with same visa?
proberts
Yes but he or she needs to be very careful because he or she likely will be scrutinized and questioned aggressively by CBP when traveling back to the US.
ryanelfman
Do you forsee the government doing anything able slow wait times for Visa/green cards?
proberts
The green card process through USCIS seems to be speeding up significantly.
godelmachine
Hey Peter, in one of the other comments you mentioned that NVC/ immigration process is a disaster, whereas here I see GC through USCIS is speeding up.

As I understand, once USCIS approves a petition, it goes to NVC where paperwork is checked to be documentary qualified and then consular interviews are scheduled.

Is there a difference between the 2? Asking because ultimately both are responsible for issuing GC’s.

proberts
I was referring to the final stage of the GC process (not the penultimate I-140 stage), an I-485 application filed with USCIS and an immigrant visa application filed with a US Consulate abroad via the NVC. The former is speeding up and the latter is a slow mess.
gordon_freeman
Asking for a friend - Is it possible to start a startup/side biz (while keep doing his full-time job)by an H1B visa holder with his wife if the wife is on H4 EAD?
proberts
There is but there are limits on what he can do and unfortunately other than not getting paid by the side business the limits aren't very clear. If he's interested, he should speak with someone so that he doesn't cross any lines.
gordon_freeman
I'll pass your note to him. Thanks so much for your contributions to HN and advise. Appreciate it.
eganist
Going by your post history, you tightened from "YC and Startups" to just "YC Startups" for most of 2021 before broadening back out again - what happened during that time?

(on a larger scale as best as you can tell, rather than just an uptick in personal business)

proberts
Sorry! That's a typo which I will correct now. Good eye!
eganist
Aw, was hoping for some macro insights about startups and hiring as a whole. lol

So are you still "YC Startups" then, or were the previous two typos by omission of 'and'?

dang
They were typos, as Peter's already explained. I've edited the old titles now. Good catch btw, I completely missed that!
proberts
To be clear, the error was in my previous AMAs. It was always meant to be YC and startups. Thanks again.
PeterisP
In general, if someone is in USA on a visa that does not allow employment (e.g. the F-1 student visa, or perhaps J-1 exchange programs), can they do things like job interviews with USA startups (or perhaps starting a startup company registered in USA) with the expectation that the actual job would be started later, when it's permitted e.g. remotely when back outside of USA ?
proberts
They absolutely can interview for jobs. Starting a company is more complicated because they can do some things but there's a limit and that limit is grey - other than not getting paid by their company which is absolutely prohibited.
brodouevencode
Out of curiosity (and I apologize if this has been asked before) - why do you do these?
proberts
I work all the time in my private practice and really don't do much charitable work or work for the community so this is a small way of doing something. As a firm, we're also starting to do some pro bono asylum work but really not enough yet.
nsonha
Is it required by the law that you do some percentage of pro bono?
proberts
It isn't but it probably should be. We just don't do enough.
anter
Would a startup founder with a history of various fairly popular, but not huge projects have a chance applying for an O-1 visa, or do you have to be a celebrity of some sort (in business/science/etc) to get it?
proberts
Definitely possible. The O-1 standard isn't as high as the black letter language of the regulations suggests.
annon2323
Hello, can a H1-B holder work permanently in a fully remote US position? Are there any restrictions? Thanks
proberts
Yes. It just needs to be disclosed as part of the H-1B process.
gautamdivgi
This is my experience (not legal advice, ymmv, etc, etc.). I have done this when I had an H1-B. I was classified as remote. There are two implications:

1. Prepare for USCIS to visit your home. They want to see if you're really working ;). I had someone come and showed her around. Make sure you have a designated "office space" in the house. This was in 2012 or 2013 so I'm not sure if they still do it.

2. Obviously, if you're applying for your green card, then recruitment happens country-wide as opposed to just being in your local zone. At least this is what my lawyers said (again around 2012-2013 :) ).

pvarangot
I did this on H1-B. Your employer may or may not need to change the "statistical zone" where you are working if you move around, because salaries need to match it. A work location change is an easy H1-B amendment but you need to file it, and it may also reset your greencard application on some cases. You should really talk to your employer about it, they will need a lawyer.
danschumann
So if I'm a programmer, with basically no funding, is it possible to meet someone online and get them here? What's the minimum to get a foreign hire?
proberts
To employ a foreign national in the US? For the company, it needs to be incorporated, have an FEIN, and have physical commercially zoned office space and the ability - but that doesn't necessarily need to be demonstrated now - to operate and pay the FN a salary. For the FN, he or she needs to qualify for a specific visa, which is probably the tougher issue.
rsstack
Thankfully I'm personally on the other side of this already (got my green card less than a year ago). With many jobs becoming fully remote, do you think it's still possible to offer relocation to employees through L-1s, O-1s and H-1Bs? On the one hand, it's hard to claim that they truly need to be in the States, but on the other hand, it could be important for the timezones to match (and it's an amazing employee benefit).

Obviously my question doesn't apply to in-office or hybrid positions, only to pure remote.

proberts
There's some variation depending on the visa classification but yes, an employee could qualify for a visa even if the job is fully remote. But the employer must be a US company with US operations.
ricardobayes
I would heavily disagree on any benefits of being physically in the US. Working for US companies remotely while in a warm European place (Italy, Spain, Portugal) is the real deal.
rsstack
The US is diverse in terms of both culture and climate :) Many people I know want to live in the US for various reasons. And I can't offer relocation to any European country without having operations in Europe, for the same reason that people outside of the US can't offer relocation to the US.
klipt
> And I can't offer relocation to any European country without having operations in Europe

That's not entirely true - several European countries offer "Digital Nomad" visas that are specifically aimed at attracting people who won't take jobs in their host country, but will instead receive income from elsewhere and spend it in their host country, thus boosting their host country's economy.

See: https://www.etiasvisa.com/etias-news/digital-nomad-visas-eu-...

If you partnered with the right European law firms, you could totally offer a nice package of US based salary + assistance with "Digital Nomad" visa application.

paxys
It is difficult to meaningfully collaborate with a team that is working in US time zones if you are in Europe/Asia. You can make it work, sure, but saying that there is no benefit to being in the same place is disingenuous.
asPontas
How does one go about doing that? I have been living in Spain and having a hard time getting remote work with U.S. companies despite having a PhD in computer science and being a U.S. national. Do you have any pointers?
ashconnor
I'm in Canada and will be relocating to the United States on an L1 visa next year.

I was worried that PERM cannot be filed for remote employees but that doesn't appear to be an issue.

https://www.lexology.com/library/detail.aspx?g=5bddb770-63de...

proberts
When you say remote, you mean remote in the US, right, such as working from home? You definitely can be PERM sponsored as a remote employee under these circumstances.
0des
Hello, just a heads up, your account is shadow banned.
annon2323
What does this mean
chrisseaton
Every commented you've posted since 2017 has been silently hidden from almost everyone on the site as a punishment for something you've done to annoy someone at some point.

You've been talking into a void.

dang
I'm a moderator here. It looks like we banned your account early on because you posted something that broke the site guidelines. We have to be strict about this when accounts don't have much history because HN gets a ton of troll accounts.

Unfortunately, this also means we have to make guesses when there isn't much information to go on, and that leads to false positives. Your account looks like one of those, since it went on to participate on HN in a good way. I'm sorry about that—we always correct these situations when we see them, but sometimes it takes time before we see them.

I've unbanned the account now, so everything should be fixed. If you need anything else, email us at hn@ycombinator.com.

dang
We've fixed this now (https://news.ycombinator.com/item?id=29201489) so I'm going to detach this subthread and mark it offtopic so the thread can stay focused on immigration questions.

Btw, it's better to let us know at hn@ycombinator.com about cases like this so we can be sure to fix them. I only saw this randomly. We're grateful when users watch out for each other and we're always happy to unban accounts when it's clear that they're using HN as intended.

(Detached from https://news.ycombinator.com/item?id=29200985)

throwaway-09221
Hey Peter! Thank you tons for your contributions here!

I'm an Indian in the US on an H1B visa and working in software. I've also made a product for fun on weekends (which my company knows about and approves of).

I was thinking of opening access to it for the world, but as it'll involve substantial costs on (cloud) infrastructure, I'll have to ask people to pay for usage on it. I don't plan to profit from this in any way right now. People will mostly pay for their share of usage.

From some rough googling (oh, no!), it seems like this wouldn't work under the rules of the H1B as it'd be considered unauthorized work. Is there any legitimate way of giving people access to this without having to also just pay for all the infrastructure myself?

Also would it be fine to just release it for free?

proberts
It is a gray area but I don't see any issue if you release it for free. Getting paid, even if to cover your expenses, is more problematic, however. I wouldn't say it's a complete non-starter but it would have to be structured very carefully and properly to avoid crossing any lines.
eb1-qun
Is there any documentation you'd be able to point to about how to structure this? Not the OP but in a similar boat.

Or would you recommend reaching out to an attorney to do this instead?

proberts
Really the latter because what's out there is just too general to be really helpful.
OJFord
IANAL but could you not just base the business and get paid in the home country? Surely even if US taxes on worldwide income it's just that, tax, not any sort of 'unauthorised US work violation'?
umbcorp
No. They check your tax returns every year with some automated process. If you document any income that is not approved youll be in trouble. My college rounded up all the international kids doing business in their own countries and told them to stop immediately.
OJFord
Weird, I just don't see why business-related (or even employment) income in other country X should be any different to investment income, rental income, etc. in other country X.
dotBen
Not wanting to pick on the parent comment but this is were 'lay person opinion led forums' don't work for legal questions.

You may not see why, but that's you conveying your opinion based on common sense or your own reasoning vs the law.

The law says that your H1B via only covers you to receive income via your W2 employment with the company the visa is attached to.

If you are an H1B holder you can't be employed or contracted to work for another company in your home country/another country outside the USA because you would still be performing the work in the US and you are out of visa. Even if it's your own company.

If you put this income on your tax return you will be disclosing to the government you are working outside your visa. If you don't put this income on you tax return you are filing an incomplete tax return (and still working outside your visa).

The difference here from receiving investment or rental income from abroad (which you still have to include on your US tax return!) is that investment and rental income isn't 'work' covered by an employment visa.

A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway. But it's a corner case and the law isn't built around corner cases.

(IANAL)

OJFord
Well I never answered anyone's question, tried to, or claimed to be able to. I said IANAL just as you did. I never claimed to have anything other than an opinion. I think I even made it pretty clear that I'm not in the US and don't know how its visas and taxes work.

> A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway.

Exactly. Hence 'I don't see why'. Not legal advice. An opinion that it's (assuming true) dumb. I don't see what the problem is with expressing that opinion on these 'opinion led forums'.

phonebanshee
It's way off topic. The Q-and-A here is are about getting actual legal expertise applied to questions, not opinions about how US immigration law is flawed. You're not wrong to say it, it's just that this isn't the place/time.
OJFord
So Ctrl-F for proberts if your time's so valuable.
KorematsuFredt
This is entirely gray area. The rules of thumb are following:

- Owning companies is totally fine. - Generating income from various sources is totally fine.

What is not allowed is: - You should not work in any capacity where an American citizen could have been gainfully employed. Lot of people mis-represent is that you can not get paid a salary, that is not true. Salary is just an evidence of you worked.

How many people structure this is the following. Partner with an American citizen and start the business. The American partner will hold 51% stake and you will be a passive investor with 49%. If you are married you can apply for H4EAD. You spouse has unconditional EAD and she can run the company.

Important note: This issue is only for people born in India. Everyone else can get their EAD/GC in an year or so.

safog
I would love to know more if you have pointers as well. I always assumed it was a no-go and released a few apps for free over the years.
proberts
We would need to talk but I evaluate this question - what can I do on the side - by looking at the extremes first to set the parameters. So, for example, ideating or building a product in your garage is clearly fine and getting paid cash for selling something that you created is clearly not. But in between these two extremes there are gray areas. So, for example, is creating something and posting it publicly problematic if people start using and sharing it at no cost? That seems fine, right? What if there's a cost to using this product but the cost is simply to cover and only to cover administrative costs? And does it matter if this is all associated with an individual or with a company created by an individual? And what if this creation is only accessible and used by those outside the US? There definitely are grey areas and potential arguments to be made to allow for certain seeming work-related activities.
dawsmik
If it is software, Could he just set a company in his home country that purchases server space in the US?
paxys
Every attorney I have spoken to in the past has said that something like this is a clear and obvious violation of H-1B visa terms, so I'm curious what the "gray area" you are referring to is.
muzani
#444444 as opposed to #808080
bialpio
IANAL. Can non-citizens run US-based companies? If yes, can't this be done through a company, then OP would just be forbidden from drawing a salary from this entity?
ab_testing
Yes . Non citizens can run us based companies as long as they do that from outside the US. If they want to come to the US to run their US based company, then they have to decide on a visa. There is E2 which is a business based visa but only for certain countries. H1-B is essentially a skilled worker visa and it is assumed that you would have a company and a boss who would file for that visa.
epa
Run your work through companies in Canada and Us. You are employee of Canadian consultantcy which happens to own stock and pay you on the payroll. Your quarterly meetings are nothing other than paper work.
bialpio
> If they want to come to the US to run their US based company, then they have to decide on a visa.

Only if they want to get paid in any way, right? Can a person run their company w/o drawing any profits (i.e. no W-2 needed) and not have to go through the visa process? If I were to look for a way out of the situation ("I want people to pay so that I have money to maintain the infrastructure"), this is how I'd try to approach it ("create an entity that is allowed to accept money from other sources and use that money only to run the infrastructure").

john_moscow
IANAL, but you can be a 100% owner of another U.S. company, that will be collecting the fees, paying the bills and dividends, but you cannot run it. I.e. on paper, somebody else with the work permit will have to be the CEO.
moneywoes
Could you open up donations for the project instead?
proberts
I still think problematic and would have to be carefully structured from both an immigration and tax perspective.
surajs
curious if there is a visa that allows more the entrepreneurial amongst us?
proberts
The visas most closely aligned with entrepreneurs are the E-1 and E-2, the L-1, the O-1, and the IEP (parole).
bmcahren
"Donations" in most contexts are just income with no expectation of a product in return. e.g. twitch donations, patreon donations

PayPal had to explicitly ban the use of the word "Donation" for non-tax-exempt companies for instance.

I don't think calling the contributions donations will change much and it may actually complicate the payments for tax reasons.

rsstack
Would it be an option to let someone else operate the system and collect payments/donations, and then you'd cover the rest of the costs? You wouldn't be able to get any profits if those ever come in, but I wonder if this would qualify as "not working" when all you're doing is giving software & giving money.
satya71
I'm no lawyer, but if your intention is to release the project but to cover the costs, it should be possible to set up a 501(c)3 (or partner with one). The organization can charge a fee to cover the costs, and you don't personally need to get paid.
[deleted]
(comment deleted)
aeonik
IANAL have you considered building a direct payment mechanism into the platform that allows your hosting provider to pass their costs directly to your clients? Cryptocurrencies might be well suited for such an automated micropayment passthrough service. I'd love to hear probert's take on such a system.
TehShrike
Do folks in your circles talk about the meta of US immigration? Is there any expectation that as the US workforce ages and the tax base declines, that worker immigrants will be allowed in more freely over the next decade or so?
proberts
That's an interesting question which I haven't really thought about but as the US possibly moves to a more market driven immigration system, the aging of the US workforce could have a major impact on US immigration policy and practice.
sb2nov
1/ Do you what countries are allowing third country nationals to get an H1B visa stamp?

2/ When will Canada and Mexico allow that?

PS: It seems impossible to get an appointment in my home country.

proberts
That's the $64,000 question because it changes all the time and so is incredibly challenging and frustrating. That being said, the trend is definitely toward the opening up of consulates in general and to third-country nationals in particular. Many of the US Consulates in Europe, for example, have opened up. We're also seeing a positive change as a result of the lifting of the travel ban on November 8th. Regarding Canada and Mexico, there's been no announcement but I suspect soon - and Mexico is accepting TCN applications but only on an emergency basis.
borjah
I'm Europe based at the moment, but I'm curious about how to validate your degrees from an European country to be recognised in the USA as a valid diploma and search for a job. Maybe is not your area of expertise, so I'm sorry for the question if is not.
whimsicalism
Not the OP. The validation probably comes in the background check stage (not the hiring stage) and the background check companies should have the expertise to check degrees in Europe.

All in all, this should definitely be manageable.

proberts
And from a US immigration perspective, you can get an education evaluation service to evaluate your education in terms of its US education equivalency. These evaluations aren't expensive at all.
borjah
nice, maybe USA is the next stop in my carreer
outPersona11
I am a DACA recipient, and have not been able to renew my application due to a situation that I will not get to specific with. I am still working at a tech company and been extremely anxious this past few months about what my company might do to me since its been expired for almost a year. I've worked so hard for this and can't the fact that I might get fired due to this. Any suggestions or sources that can help on this? Sorry for being a bit generic but this means a lot to me.
proberts
I know what you're referring to because we've dealt with that issue for several employees of one of our clients. But it's really impossible to advise without knowing all the facts.
moneywoes
How popular is Canada becoming as an alternative to the US for both YC companies and employees? For reference, I believe the US takes in approx 2 million immigrants a year whereas Canada's target is at 400k. Additionally, the USA's population is 330 million compared to Canada's 38 million.
proberts
Unbelievably popular. Based on my own limited experience, we've seen a lot of entrepreneurs return to Canada and operate their US business from Canada and come to the US as needed or simply decide in the first instance to base their company in Canada rather than the US. This all might change, however, as the pandemic continues to get under control.
yibg
Are there any tax implications with this type of setup? e.g. equity granted in the US, but then perhaps eventually vest and get exercised in Canada.
proberts
That I don't know. You would need to consult with a corporate/tax accountant or lawyer.
bluealienpie
Law firm filed for the wrong category perm and it will be 1 1/2 years before I could get AoS based on new visa. Any way to expedite the process?
proberts
It's extremely tough to expedite. Sometimes, if the work is clearly serving an important national interest, the process can be expedited.
ciguy
Not exactly startup related but perhaps you have some insight. My wife is from the Philippines and we are currently in the process of applying for her AOS (I-130 and I-485). We left the Philippines late last year and went to Mexico for around 6 months waiting for things there to normalize after all the covid lockdowns.

The Philippines hadn't fully opened to tourists so in July of this year we entered the USA with the intention of getting married and then applying for a marriage based visa to the Philippines for me so I could return with my wife. After we entered the USA the Philippines went back into stricter covid related lockdown and we found out there was a 9 month wait time for the visa I would need to be able to return.

Given these issues we decided to stay in the USA and go through the AOS process for my wife instead. My wife entered on a normal tourist visa, this was her third visit to the USA since we had visited my family here a few times while we lived in Manila prior to being married.

Based on my understanding we may have issues with immigration since they will assume my wife entered the USA on a non-immigrant visa with immigration intent. Especially since we go married within a month of entering the USA.

Is there anything we can do to mitigate the chance of a denial based on these circumstances?

proberts
Actually I think you'll be fine because it wasn't your wife's intent to apply for a green card when she entered most recently as a visitor. But I absolutely would speak with an attorney before you and your wife have your green card interview.
ciguy
Appreciate the response, we are in the process of getting an attorney now.
HippoBaro
My company wants to bring me over to the US from France under an L1-B visa. The pandemic makes getting interviewed at an embassy very difficult, and the process has stalled because of this. Do you have any idea when visa processing will resume, and is there anything my employer or I can do to speed things up?
proberts
It's already resumed although there are delays in getting appointments. And Paris has been very receptive recently to requests for expedited appointments. Also, appointments become available all the time so it's worthwhile to check the system regularly. For example, London just released a bunch of appointments today.
xriddle
Hi Peter,

Thanks for doing this again. Is a work authorization visa (TN H1B etc) required to be hired for a remote US position for a Canadian not looking to relocate just yet.

Thanks

proberts
No. US immigration only comes into play if one will be physically in the US.
mettamage
From a legal/immigration standpoint, do you have a clue as to why many companies only mention that a remote position is US only?
akshaykumar90
Companies will have to setup a local entity in your country of residence to pay you.
soneca
What are the legal risks for a US company to hire a foreign contractor in a model that is more like of a full time employee?

I am the foreign contractor in this situation and I like it. I wish many more companies would hire this way, since a real FTE would require the company to establish a presence in my country (which will never happen).

I understand the risks of hiring as contractor with an employee-like agreement if I was in the US. But I am not. So what are the risks then?

proberts
So that I understand, do you mean being based outside the US but being employed by a US company as an employee or contractor?
mettamage
If it is the same case that I want to be in them I think he/she means:

* He/she is employed by a US company as a contractor and works remotely

* He/she is not a US citizen and lives outside the US

* In the day to day work and team culture, there seems to be no difference between employees and contractors

proberts
Thanks. Then this isn't really a US immigration issue since this person will be working remotely/outside the US but more of an employment law/tax law question.
soneca
Exactly as mettamage said, so yes, more of an employment/tax law question. Anyone on YC to do a AMA on that? :)
lhorie
The way I've done this in the past is by registering a company in my home country and billing through that. For the company procuring your services, it's no different than paying for a service like AWS. The company you registered is responsible for paying applicable service taxes for rendered services as well as payroll taxes and other contributions as required by law on behalf of the employee, aka your physical person.

Basically the benefit to the client company is that it lifts the burden of employment/taxation questions from them. The benefit for you is that since you now own a proper company, you have more tools to manage your finances, for example your company could conceivably pay for office expenses, effectively making those purchases pre-tax (as opposed to paying yourself the equivalent amount and being subject to income tax deductions).

soneca
Yep, that’s exactly what I am doing, for all the reasons you said.
morpheuskafka
It would ultimately be more of a question of the laws of your country. From the US's perspective, even if you were an employee, it would be foreign source income as long as you remain outside of the US so they aren't going to gain any taxes if you were considered an employee.
soneca
Thanks, makes sense. On my side is all good. I formed a company to export services. But that’s why I wonder why more companies don’t do this
onn_h1b1
What did paperwork did you have to do to form a company to export services?

Is it possible to just export services as a sole proprietor without forming a company?

soneca
I think it depends on your country. Also I am not sure how well legal terms translate. I am in Brazil, so I created what I would call a ”sole proprietor company” that can export services.
zhbhmd
Hi Peter,

I'm a founder of a Canadian corp looking to move to the US. We have a subsidiary in the US already

proberts
I think your question got cut off.
abhishektomer
Thanks for doing this Peter! I am on an H1B and recently got an EAD/AP card valid for 2 years. Unfortunately in the November bulletin, the final action date retrogressed and my AoS application is not current any more. Can I quit my job and be jobless for a few months to work on my own or take classes at a university, until my final action date becomes current again?
proberts
I know. The retrogression was worse than expected. Possibly, to answer your question, but the facts matter so definitely consult with someone before taking any action.