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

338 points by proberts ↗ HN
Hello HN! It's been about 9 months since we've done one of these and it seems like time for another. Previous threads we've done: https://news.ycombinator.com/submitted?id=proberts.

I'll be here for the next 2-3 hours and then after a break of about 1 hour for another 2-3 hours. As usual, there are many 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!

408 comments

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egocodedinsol
What nonspecific advice do you have for immigrants who want to (co)found companies but are on h1b’s or student visas?
proberts
The issues oftentimes are what can the founder do before he or she moves to the startup and what company-related items need to be in place before the founder can be sponsored by the startup. This requires a conversation unfortunately since the advice is case-specific. My advice then is to find a good corporate attorney and to speak with an immigration attorney who works with founders and startups before setting up the company.
cushychicken
What's the typical fully loaded cost for a company to bring someone in on an H1B or similar visa, in terms of attorney time and application fees and whatnot?
proberts
There is some range depending on the size of the U.S. workforce and whether the petition is filed with premium processing. A rough range for a company with less than 25 FTEs would be $4,000 to $5,500. For a company with at least 25 FTEs, add $750 and if the petition is filed with premium processing, add $2,500.
neodypsis
What is premium processing?
matchbox
To get the visa application processed in two weeks, else it will take up to 4 months or so.
proberts
All correct! But with an H-1B to H-1B transfer, the filing alone allows the sponsored employee to work so sometimes there's no need for premium processing.
Maciek416
It's like TSA pre but for certain steps in the USCIS flow chart.
samgray2933
What about cost in applying for a green card while on H-1B1?
textread
Have any YC founders previously opted for 'citizenship based on investment programs' such as St. Kitts & Neves etc?
proberts
I haven't seen that with any YC founders but other clients of ours have opted for foreign citizenship investment programs and they seem to have worked well.
joey-mamba
How important is a degree for o-1? and what are easy or non-negotiables or important conditions or awards that definitely make someone qualify for a o-1?
proberts
A degree is not required at all. Of course those with an advanced degree by virtue of having obtained an advance degree often check a number of O-1 boxes (publications, journal/conference paper review work, original and significant contributions). I'm not aware of any easy awards that would help.
Detrytus
Nobel Prize is your best bet :) Also, if you are an athlete then Olympic medals help. Other than that, it's all subjective.
I_am_tiberius
Are you permitted to voice opinions here that may not endorse YC's stance?
proberts
There's no YC stance. I'll do my best to provide helpful, honest, and independent answers and advice.
photonbeam
Given recent industry layoffs, is there less demand for H1B visas? Ie, is it a better time for applicants to get one through?
proberts
The H-1B lottery this year was riddled with fraud - so much so that USCIS will be conducting a second lottery soon - but it appears that there was no reduction in the numbers despite layoffs in certain industries.
not-my-account
Where is there opportunity for fraud in the H-1B system? Fake / Shell companies sponsoring workers?
proberts
That's it and the reason a second lottery is being run.
legolas2412
Calling it fraud is stupid. They deliberately reduced the work that is required, allowing people to file applications easily and cheaply. They deliberately allow people to file multiple applications, that I have not seen a single legitimate employee file. This is all deliberate, not a loophole or fraud.

Also, it is stupid to call H1B a high-skilled visa when you hand it out via lotteries. I wonder if people consider winning powerball as a skill?

But to answer your question, many people filed 10-20 applications each through fake companies to get H1B. The H1b acceptance rate was down to 13% and more than half the applications were filed by people with multiple applications.

vecter
Is submitting multiple applications illegal? I'd have to imagine that you would get caught for doing this once they see the same person in the system, especially if they approve the same person multiple times.
still-old
Doesn't this essentially prove that these are mostly not high skill positions that can't be filled but are actually just a way to get high skill labor at below market rates?
pasoevi
Are there cases where someone without any university degree has been able to obtain H1B visa? E.g. by having years of experience but no degree.
PointyDog
This was my path, so it's possible. I dropped out after year two of my degree to join a startup and worked for 10 years in industry.

I converted 8 years of that experience to 2 years of a bachelor's degree to make the full 4 required, and had a University professor provide a letter of endorsement.

I was applying from Europe, and even then it was apparently a fairly expensive process for my sponsor.

proberts
Absolutely correct. The requirement is a four-year U.S. bachelor's degree or it's equivalent which can be a foreign degree or a combination of education and experience (or even just experience) evaluated to be the equivalent of a U.S. bachelor's degree. The rule of thumb is that 3 years of professional experience is the equivalent of 1 year of college education.
pasoevi
Thanks for the clear answer! is proving the years of experience usually difficult? e.g. references from 12 years ago can be hard to get (although I have those 11 years ago myself).
proberts
Not at all. Detailed prior employment letters are enough.
gottorf
> The rule of thumb is that 3 years of professional experience is the equivalent of 1 year of college education.

I know you don't make the rules, but on the surface it would seem that these numbers are switched around ;-)

next_xibalba
What are you seeing in terms of impact of the Canadian Open Work Permit for U.S. H-1B Visa Holders? Has there been a large volume of talent moving to Canada from U.S. tech centers?

Edit: It looks like the 10,000 person cap was already hit [1]. Do you think there is a huge demand beyond the 10k cap?

[1] https://www.canadavisa.com/h1bowp.html

Waterluvian
Might need to ask a Canadian immigration attorney. I’ve reached out to a few in the family and will report back if they have anything to say.

Edit: sorry. Got the “not that kind of lawyer” response. They do refugees.

proberts
That's right. I can't help here. But if you need a referral to some, let me know.
tamimio
The might did it out of desperation, but soon they will realize it was mostly a mistake due to low wages, high prices of goods and taxes, very limited opportunities and funding for small businesses, limited market, and obviously the harsh weather is the cherry on top.
websap
I know many of my friends who used to work at Meta, Google, Amazon, etc. who have applied for this visa, or Canadian PR to move away from the US. People prefer having the emotional safety of not having to uproot their lives when they lose their job, over a few more bucks.

People at senior levels in big tech are now earning 400k CAD. That should afford a nice life.

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giobox
For the bulk of H1 holders (who I can assure you will not pick up 400k CAD jobs) it's not necessarily a switch to an easy life with great salaries once CoL is accounted for. I wouldn't want to make move to Vancouver as an example for $average unless I had serious cash for a family home etc - property prices are wild.

The jobs H1 holders will want don't tend to be in the "affordable" parts of Canada either.

The speed at which these Canadian offers were consumed speaks far more to the desperation/frustration of many average workers in the US stuck in Green Card wait lines - I doubt we are witnessing the flight of many from FAANG etc in majority of cases.

bobolino123
What are the reasons to bring people to san fransisco in the first place and deal with immigration problems? Why can't startups just use a payroll provider like deel and have a semi-global team?
Kalpeshbhalekar
I think there are legal limitations like IP and compliance for some industries that make it tricky.
proberts
That's right. But many U.S. companies in fact do use Deel and similar platforms to employ contractors living abroad.
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SXX
At least founders team often can't be semi-global. A lot of VCs simply wouldn't bother working with you if some people on your board are not from US and it's even worse if someone live in some developing country. For them it's too much risk.
subtech
If an international student is on a stem opt extension (24 months) that just started, and does YC, is it possible for them to get a green card before the stem opt expires?
proberts
As a general rule, an F-1 student on OPT can apply for a green card. There are backlogs in all green card categories right now and this is really what determines the length of the process. So, assuming the backlogs don't change in any significant way, those in the highest category (EB1) from countries other than India or China could get their green card within 2 years but those in a lower category (EB2 or EB3) or from India or China should expect the process to take longer than 2 years.
numair
What’s the easiest way for a startup to poach H1B workers from competitors and large, established companies? Is it even possible, or are they trapped at their sponsoring company? If there is a process or workflow for accomplishing this in a repeatable/scalable manner, I’d be keen to know!
proberts
The H-1B transfer process is easy for qualified workers even if the sponsoring company is a startup. So the blocker really isn't the H-1B transfer process. Sometimes employees are in the midst of the green card process and feel trapped until they have a green card or are far enough along in the process such that they can port their green card application to a new company. One advantage that smaller companies have is that they often are much more willing to sponsor employees for O-1 visas as well as NIW- and EB1A-based green cards and that the relative impact of employees at a smaller company is much greater than at a large company and this can help with NIW- and EB1A-based green card applications.
adamredwoods
How do the immigration efforts change between US political regime changes? Is it easier or more challenging, or does it stay the same?
proberts
Significant changes. While immigration laws rarely change, the way they are interpreted and applied can change significantly from administration to administration. We saw that when Trump became President and again when Biden became President.
HDMI_Cable
What changes specifically? I'm lucky in that I am American, and honestly have never had to deal with immigration, so know nothing about it. Do immigration procedures become harder/easier to navigate? Are quotas (if there are quotas) reduced?
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returningfory2
I'll give you some concrete examples:

- During the Trump administration, the number of RFEs (request for evidence, often step 1 of denying a petition) for H-1B petitions increased significantly. I'm reading that 40% of H1Bs were RFEd in fiscal year 2019 under Trump, versus 16% under Biden in 2021 [1]. I was personally affected by this: both of my H-1B petitions were RFE'd under Trump (I have a math PhD from a top 20 American university and am working in software). These RFEs are incredibly stressful, time consuming and costly for companies.

- During the Trump administration, USCIS started requiring almost all employment-based green card applicants to attend an interview. This significantly slows down the green card application process because USCIS is bottlenecked on officers to perform interviews. Biden reverted this change.

- During FY2022, due to the dynamics of US immigration law, nearly double the number of employment-based green cards were available than usual (265k versus 140k normally). Under Biden USCIS basically had a task force actively dedicated to ensuring all of these green cards were used [2]. I think we can pretty sure that under Trump, USCIS would have had a business-as-usual attitude, not deployed any special measures, and would only have issued around the regular quota of visas.

[1] https://resources.envoyglobal.com/global-immigration-compass.... [2] https://www.uscis.gov/archive/fiscal-year-2022-employment-ba...

proberts
Another very concrete example, during the Trump administration, USCIS revoked it's long standing policy of giving deference to previously approved H-1B petitions when adjudicating extension petitions with the same employer. This was a significant reason for the above-referenced explosion in RFEs. Soon after Biden took office, USCIS reinstated the policy and RFEs dropped significantly.
bubblethink
Donny was also very petty. He would reject forms that had blank fields instead of N/A or reject forms that were signed with Apple pencil instead of wet ink. Stuff like that.
duncangh
What is the best source of government data on the H1B program (e.g total visas per year, count by industry / job function, nationality of recipient counts)? Also, do you know of any original sources / documents which discuss the future of the program and how it will be assessed whether there is enough talent domestically in a given field of work. Thanks
sovietmudkipz
Tangentially related Q: in the USA there are “illegal” immigrants who have moved into the country. I worry about human rights abuses against these people. What are the methods available for these people to become citizens if they so wish?
geodel
Leave the US and apply for US immigration from their own country?
howinteresting
This is the worst possible advice in this situation. If you're an unauthorized immigrant, DO NOT listen to this advice. Talk to a lawyer instead.
EduardoBautista
I did this. I left for Mexico in 2011. Best decision I ever made. Currently typing this message from San Diego, CA too.
morpheuskafka
There is not currently any specific "pathway to citizenship" designed for people who are currently in the country illegally. They would have to qualify for a green card on the same basis as anyone else, then apply for citizenship after that.

However, they often are not eligible to do so because of their illegal prescence. If one has been in the US illegally, as an adult, for more than 180 days, they have a three-year ban. After one year it becomes a 10-year ban. This applies to both visiting and immigration. They have to return home (or another country) to serve the ban before getting a visa to return.

One notable exception to this rule is marrying a US citizen, but only if the initial entry was legal (i.e. visa overstay, not border jumping). Being a parent of a US citizen also works, but the child has to be 21 first. Being a parent of a US citizen under 21 has no immigration benefits.

Laaas
The child rule makes no sense to me. What was the motivation?
howinteresting
The idea is that adults can sponsor their parents for a green card but children cannot. Of course it makes absolutely no sense given the disruption to US citizen children's lives if their parents are deported, but US immigration generally is quite cruel if you're on the margins.
Detrytus
I think parents of US citizen children cannot be deported for that exact reason: it would leave the child without a parent. That's why they are called "anchor babies".

But of course if they leave the US willingly (e.g. traveling to their home country) they will be banned from ever coming back.

EduardoBautista
> I think parents of US citizen children cannot be deported for that exact reason: it would leave the child without a parent. That's why they are called "anchor babies".

Yes, they can be deported. This has affected me personally and other members of my extended family.

morpheuskafka
I'm almost certain that the reason is to prevent people from entering the US as a visitor when pregnant, having a child, and then immediately being able to have the one-day old child petition for the parents. Or having a child while facing removal proceedings. As it stands currently, the child still becomes a citizen immediately, but cannot petition the parents until they are an adult.

If the rule stays, then US citizen children can be left with no adults in their life legally able to raise them in the US. On the other hand, if having a child in the US becomes an automatic ticket to citizenship, there will be a significant increase in children being born for this reason only that may be neglected, and people who want to overstay and are willing to have a child are basically guaranteed the ability to do so.

Another side effect if removed would be that the US border folks may be unwilling to admit pregnant visitors even with very legitimate reasons, because they know there is nothing to stop them from obtaining a green card if desired.

edit to clarify: even without this rule, you have to have entered legally, so just illegally crossing and immediately having a child wouldn't work--you would have to enter as a tourist or otherwise.

ShivTheShiv
They want to discourage birth tourism and “anchor babies”
howinteresting
Marrying a US citizen is the only practical way forward for most people. And on top of that, it is only available to people who entered legally initially (which is around 50% of unauthorized immigrants if I remember correctly). It is deeply tragic.
onetimeusename
Is a J-1 more likely to be approved than an H-1B? What criteria need to be met to get a J-1 visa approved? I know people working ordinary jobs with these fyi.
proberts
The J-1 is not supposed to be used to fill regular positions although the J-1 is sometimes abused by companies. The J-1 is supposed to be for training and career development and the J-1 trainee/intern is supposed to have the intent to return to his or her home country or last place of foreign residence. All that being said, it's generally pretty easy to get a J-1 visa.
codingdave
I work in a tourist town that only stays operational by bringing in thousands of J-1s each summer, and it honestly looks to me more like trafficking more than a legit use of the J-1 program - housing tied to job status with instant evictions if you lose a job, that kind of thing. I've always felt like the whole program feels sketchy with the way it is used here. Is there a good resource for understanding what is actually legal or not in the context of J-1 workers, so I can know for sure when a company in town crosses the line?
proberts
The State Department's website has very good information on the J-1 regarding the employer's responsibilities and the worker's rights.
kecupochren
How common are H1Bs for people without a degree but with 12+ years of experience? Is that a legit thing?
PointyDog
I replied elsewhere - but this was my (successful - now an LPR) path.

My lawyer told me you need a 4 year degree equivalent, and 4 years of experience can convert to a year.

If you have zero university education, that would be 16 years' experience required, based on that lawyer's legal instruction.

tehsauce
8 years of real experience equated to 2 years of university? That is such a shame.
pasoevi
I don't see 8 => 2. I see 3 => 1 from Peter and 4 => 1 in this answer.
ke88y
This is ridiculous in both directions. In one direction, someone can have 12 months of tech industry experience with more knowledge than a Masters degree holder. In the other direction, it's also possible to have 30 years of real experience in the tech industry without being particularly skilled labor (the apocryphal "three months of experience, repeated a hundred times").
shagie
The relevant part is 8 CFR 214.2(h)(4)(iii)(D)(5) ( https://www.law.cornell.edu/cfr/text/8/214.2#h_4_iii_D_5 )

> 5) A determination by the Service that the equivalent of the degree required by the specialty occupation has been acquired through a combination of education, specialized training, and/or work experience in areas related to the specialty and that the alien has achieved recognition of expertise in the specialty occupation as a result of such training and experience. For purposes of determining equivalency to a baccalaureate degree in the specialty, three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks. For equivalence to an advanced (or Masters) degree, the alien must have a baccalaureate degree followed by at least five years of experience in the specialty

proberts
USCIS applies a 3 to 1 rule.
elfleco
This was my own path; I had to use a service to certify my experience (it included getting multiple letters of recommendation from previous employers) and after three tries I got my H1B. The odds of getting accepted for each year were impacted because the pool for people without degrees is smaller than the rest, so it took patience and time.
proberts
Very legit. The experience just needs to be professional and well-documented and the evaluation done by a reputable evaluation service.
kecupochren
Documented meaning I need to have all my previous job contracts/documents? What if the companies don't exist anymore?
ishan_dikshit
Hey Peter, I want to learn more about the H1B program, why it is broken, and the bottlenecks and incentives for fixing it. Is there a resource you recommend? Something to ramp up on this corner of immigration policy?

Thanks for doing this! Apologies for the generic question

crtechmbd
In your experience, what does the success rate looks like for incorporating a company with all H1B founders and with 1 US citizen& 1+ H1B founders? Thanks
proberts
Very high in fact if handled right.
simonbarker87
UK couple, both have engineering PhDs and 10+ years experience in engineering (dev and automotive), not rich but not poor. Is there a sensible path to US immigration that doesn’t leave them in the H1B bind or always on the verge of being deported?
bonestamp2
In case Peter doesn't answer, my personal experience has been that you'll want a more stable work visa than an H1. Given your skills, one of you should be able to get one (and the other can come as a spouse and apply for a work permit with the right visa type). After a few years with that, you can apply for a green card (permanent resident status). I know people who have renewed those for decades without becoming citizens. Or, after a few years with the green card, you can apply for citizenship.

I know lots of Brits and Canadians in California who have also followed this path.

A lot of talk in here about H1B visas, and that's probably because they're the most plentiful. But, that's not the only type of visa that people should be thinking about.

proberts
Thanks for the response. Yes, there are other options that aren't subject to the crazy and uncertain H-1B lottery such as the O-1 visa (which, without knowing more, you both probably would qualify for). And while the O-1 is tied to a company, this can be your company. A lot of founders in the U.S. are on O-1s. There is also the intra-company transferee visa (if you are transferring to a related company in the U.S.) and the E-2 visa if you are looking to start a company in the U.S. based on a substantial investment.
injb
Could you elaborate on how an E2 founder could get to become an immigrant?
proberts
Most countries have a treaty of commerce and trade with the U.S. that gives rise to the E-2 visa. In short, you must establish a U.S. company, you and/or others from your country of citizenship must invest at least $100k in this company, the company must spend a substantial portion of this on business related expenses, and you must have a good business plan showing, among other things, the employment of U.S. workers over a 5-year period.
injb
Thanks. I'm asking how it would help you to become an immigrant (the original question).
0ct4via
You could've restated your original question without the condescending first sentence, GP obviously didn't know that, so the derision is wholly unnecessary.
injb
OK I edited and removed the first sentence. Apologies if I sounded condescending.
proberts
There's a basic common misunderstanding that there's a connection between an individual's underlying nonimmigrant status and his or her green card options. There's no connection. Underlying status has no bearing on green card options. The connection is merely coincidental. Green card options are analyzed separately regardless of underlying status. Underlying status can impact timing and travel but not the path. So, as an E-2 you can pursue a green card and the path will depend on your job, your qualifications, etc.
bubblethink
The most straightforward approach in your case would be an EB2-NIW green card application assuming you were born in the UK. It basically amounts to showing that you are doing something demonstrably useful to the US (e.g., papers, grants, awards, citations, the usual). You can do it yourself on the cheap for 2-3k in USCIS fees including premium processing, or add another 5-10k for lawyer fees if you go through a lawyer. The only issue with this strategy is that consular processing from outside the US can take up to a year or more. Google/Youtube for EB2-NIW, you'll find plenty of resources.
rcme
You could find a US company with an office in the UK that will let you work there for a year before brining you to the US on an L1. You could also apply for an O1 if you’ve published a lot.
giobox
The L1 can be worse than the H1 bind in some ways - has effectively all of the same rules, with the primary and critical exception you cannot change employer in the US. On the L1, your Green Card is much more at the mercy of how nice your employer is, as you won't be able to change job if they start slow-walking it etc. The trade off is not being subject to the H1 cap of course.

You can also try to convince your employer to keep applying for an H1 for you while you are working on an L1 - if they agree that's usually a good sign the employer is going to work hard to complete your GC process, and isn't just using the L1 status to handcuff you to the company.

pyuser583
May I ask why? I’m considering moving to the UK.
simonbarker87
Mainly for the weather, also the UK is on a downward trend as a place to live at the moment. It’s by no means a bad place to be but it the trend isn’t up.

Sky high property prices across the country compared to wages (not just on the coast or in London, everywhere).

Low salaries and high cost of living compared to equally developed countries.

Chronically underfunded public services but ever increasing taxation.

It rains a lot and the weather miserable, this is the biggest one for us personally.

sanctified384
Regarding the GC backlog for India, what is your best guess for the number of years it will take for priority dates in 2016 to become current?
WirelessGigabit
Which category?

    1st 01JAN12
    2nd 01JAN11
    3rd 01JAN09
    OW  01JAN09
    4th 01SEP18
OW = other workers.

So check the diff between those dates and your date.

proberts
It's impossible to say because as I'm sure you know, the numbers don't always progress, sometimes they retrogress. But I expect at least 5 more years.
letitgo12345
For EB1 - probably Oct.

For EB2/3 -- likely 15 years or more...

itronitron
Regarding remote work between Europe and the USA, is there an easy path for US based companies to hire a US citizen or an EU citizen to work remotely from an EU residence?
proberts
Unfortunately, this isn't really a U.S. immigration question. U.S. companies can employ anyone who is outside the U.S. without needing to obtain a U.S. work visa. U.S. immigration doesn't apply if the worker is outside the U.S.
JulesRosser
The US company I work for is remote first and we hire all around the world.

Not sure how helpful this is, but our method is that if we have a registered company in their country they will be hired as a typical employee. Anyone hired in a country we don't have a corporate presence in is hired as a contractor.

sratner
Another option for hiring outside U.S. without a local entity is to involve a global payroll provider for a reasonable fee (we have used Papaya Global, and Rippling does it now as well for certain countries).

A global payroll provider effectively acts as the "local employer" (they have a local entity in each country) and contracts out the employee to your company, so while the employment contract is with the provider, you can still sign all sorts of side-letter contracts like NDAs, IP assignments, stock grants etc without issue.

Pros are that unlike a contractor, the employee is subject to local labour laws and protections. Cons are that the employee is subject to local labour laws and protections (and the employer is subject to local labour taxes, which the payroll provider will pass through to you).

In certain countries with employee-favourable labour laws, we found it easier to attract employees this way, as they may be unwilling to forego the protections and social security / pension payments they would normally get as an employee.

[Edit: but beware of the double edge of course - if you ever want to fire such an employee, you may run up against said strong labour laws.]

brianbreslin
How can startups more effectively use the OPT program? (I work at a university) I see a lot of graduating international students who would love to stay in the US post graduation and work at startups but navigating that seems difficult for startups.
morpheuskafka
Isn't OPT quite simple for the employer compared to H1-B, etc.?

For the basic OPT, you don't really do any paperwork--the school and student do some paperwork and obtain an EAD that you use for the I-9 form.

For the STEM OPT extension, you have to be participating in E-Verify (required in many states anyway), and fill out a training plan for the two years: https://www.ice.gov/doclib/sevis/pdf/i983.pdf

I think the bigger issue is continuity--employers that plan to convert these to other visa types for continue employment will need to be planning for that from the beginning to avoid interruptions.

proberts
All correct. It's easy to employ those in F-1 OPT and STEM OPT status. And the size or newness of the company has no bearing on the company's ability to employ those in F-1 OPT and STEM OPT status. The main additional requirement is e-verify for companies wanting to employ those is F-1 STEM OPT status. But this isn't a burdensome requirement at all.