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

The gentleman is a US immigration attorney, not an international tax expert and corporate therapist.

The way most digital nomads (including myself) approach this is to not be an employee, but rather a contractor. I'm an Australian and run an Estonian company (it's far from the only option, but they make it very easy). I invoice my customers for long term contract work.

Assuming your large corp / HR are friendly, they might even be willing to switch to a contractor relation (depending on the juristiction this might not be allowed, e.g. Germany is very tough on contractors as employees).

This prevents the biggest problem of large corporates. Being in the country with employees might make you a 'permanent establishment' and therefore liable for local tax law.

Worth looking into Estonia's e-residency program and suppliers like xolo.io (The leap product, not the Go product).

Beyond the contractor solution you could go for a Place of Employment (POE) solution like remote.com or Deel. The POE would employ you and ensure the tax and employment liabilities are taken care of.

Would this be to employ these individuals in the U.S. or remotely?

Deel, Remote, Pilot

  H-1B1: Chile and Singapore
  TN: Canada and Mexico
  E3: Australia

U.S. immigration law doesn't apply to those outside the U.S. so there's no immigration issue with working for your own company while outside the U.S.

My (non-proberts) understanding is that H-1B is for US employers to bring in specific individuals because their skills are hard to find in the US. If I've understood you correctly, your scenario isn't relevant to that.

Yup that's the idea, somehow most folks seem ok with it and don't voice their opinions to politicians.

It depends on where you are in the green card process. If you are somehow in the last stage, with a pending I-485 application, you do have job flexibility (known as portability). Short of that, the only way to get out of this awful loop is to pursue a self-sponsored EB1A green card, but the standard is high as you probably know.

I am moving to either London or Canada. Applying for express entry next year. If I can get my Canadian residency by 2024, then I'll move to Canada. Otherwise, apply for a transfer to the London office.

Sometime, in the future, if I can have $800K to spare, then will go for EB-5. Although, this may take about a decade.

Full control isn't an option but one can be a CEO and even own a substantial portion of a company in H-1B status. This is one of the reasons that founders get O-1s and not H-1Bs.

If you are not from India/China its all good otherwise its a 100yr wait currently.So yeah country based discrimination baked into US immigration law sucks.

It's luck in the sense that for your first H-1B, you must go through a lottery (a completely random selection process). The actual adjudication and approval of an H-1B petition, if the individual is selected in the lottery, for individuals with good educational backgrounds, is actually pretty easy. It's getting picked in the lottery that's the hard part.

As a general rule, the U.S. immigration options for founders are the same as the U.S. immigration options for non-founders. The question is what nonimmigrant/temporary work visa would a founder qualify for and this would depend on a variety of factors. The work visas that we typically look at for founders are the O-1, L-1, E-1 and E-2, and H-1B unless the founder is a citizen of a country with its own visa (Australia, Canada, Chile, Mexico, and Singapore).

1) It depends on the green card path and has nothing to with being in TN status but the default employer-sponsored green card path (PERM/labor certification) is taking 2-3 years right now. 2) It's not a definite no but your demonstration of intent to get a green card could compromise your ability to get a TN, particularly in the short-term.

Yes. The odds depend almost entirely on the strength of the individual's background or more specifically whether he or she meets enough of the O-1 criteria. But the O-1 if oftentimes is in reach of founders because - I would argue - the O-1 criteria favor founders over non-founders.

Engineering.

There's so much variation right now but we are seeing - even without premium processing - much faster adjudication of I-140 NIW petitions, shorting the process by 6+ months. My feeling is that before the end of 2023 premium processing will be available for all I-140 NIW petitions, not just those that have been pending for a while.

Depending on the exact circumstances you might be able to try the SB-1 route, otherwise no, you are essentially starting over.

Yes but you need to be careful because the line between business development/marketing and work - at least as perceived by CBP officers - can get blurred. I am assuming that the only company here is your company in France, and not in the U.S.

Without going into the specifics, there are many Australian founders in the U.S. on the E-3 visa but this is problematic/challenging for solo founders.

I can vouch for https://usimmigration.com.au/ for this sort of work.

Not proberts, but I followed that path. It's possible, but your odds of success are proportional to how legitimate the US business is. "Legitimacy" is easily verified by having substantial revenue, investments, co-founders, and other employees. If the business has no meaningful trade, the odds of success are minimal. That is, just registering a company in the US will do little to support your case.

Assuming that you are a citizen of a country that doesn't have its own visa, then the only options are the O-1 and E-2 (but the E-2 is only an option if the U.S. company is owned by citizens of the same country as you and there's been a substantial investment into the company by citizens of that country).

The answer is complex and nuanced unfortunately. You absolutely cannot get compensated by another source unless that compensation/work has been authorized by USCIS. One option is to obtain a concurrent part-time H-1B through your company. This has its own challenges because of the newness of the company and the founder's ownership in and control of the startup. There are however many things that a founder can do in connection with his or her own startup while in H-1B status with another company without crossing the line.

I'm not Peter, but I guess I can answer this:

1) For O1 it's checking the boxes - one paper or one award is the same as 10 papers or 10 awards. Even for non-technical people where papers aren't really a thing, an article about a company was written in a high-profile website and that persons name was mentioned. He got an O1. I also know a strong competitive programmer (but no other achievements of value) who got it - presumably his masters thesis from 3-rd tier uni in Eastern Europe was used as "published research". So if you can work on checking the boxes - getting a patent / a published paper / an article about you in a reputable venue, you can get an O1. You just need 3 out of 9 or 10. So threshold is achievable if you work on it.

2) No.

1) It's less about whether the individual is extraordinary and more about whether he or she can check - through evidence - at least 3 of the O-1 boxes. 2) There are no O-1 quotas.

Do you mean to improve/automate the immigration process?

A very interesting question but outside my limited area of expertise.

You could also consider an EOR like remote.com or deel to hire them as employees abroad without needing to register your own business there and deal with benefits payroll taxes etc.

There is risk in misclassifying employees as contractors in many countries.

The 5 months out / 1 mo in / 5 mo out again would be frowned upon by the admitting officer. They still have to let you in, but you risk being referred to an immigration judge depending on how the officer is feeling that day.

As per the handbook (https://www.uscis.gov/policy-manual/volume-12-part-d-chapter...):

> An officer must review extended or frequent absences from the United States to determine whether an applicant has met the burden of establishing that he or she has maintained LPR status. This applies regardless of length of time or if the applicant was permitted to return to the United States as an LPR at the port of entry after the absence.

So even if you risk it it'll still reflect poorly during naturalisation.

From what I understand, in the realm of Nobel Prize, Oscar/Academy, etc. winner. Especially in a way that would greatly benefit the US.

It's an extremely tough category.

https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-...

IANAL, not legal advice, etc.

The NIW specifically waives the PERM, but everything else is basically the same. There's 2 parts:

- Advanced degree (ie masters or PhD) or exceptional ability, more specifically 3 of the following 6:

> An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

> Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;

> A license to practice the profession or certification for a particular profession or occupation;

> Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);

> Evidence of membership in professional associations; and

> Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

For you patent + salary + winning competitions is probably good enough.

- Waiver is in the "national interest" of the US, which has 3 prongs:

> The person’s proposed endeavor has both substantial merit and national importance;

This may be the hardest portion for you. To quote the manual:

> In determining national importance, the officer’s analysis should focus on what the beneficiary will be doing rather than the specific occupational classification ... if the evidence of record demonstrates that the person’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance

Depending on what you and your startup does, this may either be very hard or very easy. You have to show that you'll be working on something that "may rise to the level of national importance", which hopefully your startup is doing.

> The person is well positioned to advance the proposed endeavor; and

You're already working as an engineer, presumably doing the thing you said you'll do in prong 1. A freebie.

> On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

This also has 3 factors:

> The impracticality of a labor certification application;

> The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and

> The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

Usually STEM people get through on the 2nd or 3rd part, especially if the factors in prongs 1 and 2 are good enough.

If I were you, I would focus your letters on the national importance of what you're doing and on the 3rd prong of how you'll be beneficial to the country. This is where lawyers are really helpful in drafting the letters, but you may choose to do that on your own. Read https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-... the entire chapter very carefully beforehand though.

What does the company do? What's your educational background?

We do both as most immigration attorneys do and for those in academia, the NIW green card path is often within easy reach.

If these employees manage other employees now and will manage other employees in the U.S., then the odds are high actually. Conversely, if these employees aren't managing any employees and won't be managing any employees in the U.S., then, unless their work is highly complex and technical, the odds are low. Does the acquiring company also own the company abroad?