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

224 points by proberts ↗ HN
I'll be here for the next 4-5 hours and then again for anther 2 hours. 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 since I won't have access to all the facts and documents. Please stick to a factual discussion in your questions and comments and I'll try to do the same in my answers!

317 comments

[ 3.0 ms ] story [ 318 ms ] thread
julianeon
How has the immigration law situation changed in the past 10 years? Have things become easier (doubt it), harder, or much harder, to work in the US? If I had to guess from what I've heard secondhand, I would say harder.
proberts
I think it's harder now than it was 10 years ago but not that much harder to get authorization to work in the U.S. The changes are really very specific to specific visa types and processes.
simonw
What are some non-obvious mistakes we can make that might threaten our immigration status, for different classes (for example H1B vs got-a-green-card)?
proberts
For green cards, it's really more about what can you do to increase your chances; for nonimmigrant work visas, the main issues are (these probably aren't non-obvious, to answer your question) unauthorized employment, overstay, criminal record, and immigration fraud.
j33zusjuice
US immigration? If I live past tomorrow, I want to leave the US. Idk how to even start.
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not_your_vase
The grass is always greener on the other side lol

Personally I am investigating how could I move to the US...

4death4
I’ve lived in both the US and Europe. They’re vastly different places. I wouldn’t say one is better than the other, but certain types of personalities will definitely enjoy one more than the other.
orangepurple
If you are talented and influential and meet the requirements don't forget about EB-1 and O-1 visas
not_your_vase
Unfortunately I am not particularly talented nor famous, just a run of the mill code-monkey who thinks to be better than the others (but objectively that's most likely not right).

Even though I am very interested in moving to the US, realistically that will remain only a plan.

4death4
What is your profession?
orangepurple
One does not simply leave. You need permission from your destination to reside there. Tourism is different.
salamandersss
Constitution and ground level dynamics of Argentina makes this false for their country. Even criminals entering as tourist on false passport have been granted citizenship in accordance with their constitution.
shiroiuma
The OP's statement doesn't seem false. Argentina is simply giving these people permission, even though their standards are apparently quite lax.
salamandersss
Not really. It takes 2 years to meet citizenship criteria and until then you are illegal without a visa but it's unenforced at ground level and not even a crime. It's actually much easier for many to obtain citizenship by residing illegally without permission and then applying under constitutional provision which doesnt care their residency was illegal.

That is the method to obtain citizenship for most without means is you must act without permission and then run down the clock.

shiroiuma
It sounds like they do have permission, it's just not "official". If the law isn't enforced at all, and breaking it isn't considered a crime and there's no punishment for simply ignoring it, that sounds like tacit approval to me.
salamandersss
That's one way you could interpret it. You might say the same thing applies to visa overstays in the US, which isn't a crime and essentially unenforced except at easily predictable attempts to elicit self snitching at inland border checkpoints.
shiroiuma
Huh? Overstaying a visa in the US isn't a crime AFAIK, but they can still detain you and deport you if you're caught. "Not a crime" just means they won't sentence you to prison for an offense, just like many other offenses are not crimes, but instead are torts or violations (like parking tickets): those things are still enforced, and you will (or may) suffer some punishment for them. When you said that Argentina doesn't enforce its law, I took you at your word, that it literally doesn't enforce the law at all.

The US immigration authorities do occasionally do raids on employers that are known to employ lots of illegal immigrants (which can be people who simply walked over the border, or people who overstayed a visa). It's not unenforced. For people in higher socioeconomic strata that blend into the population better, it's not that well enforced probably because it's just hard to find them, and local law enforcement doesn't deal with it.

salamandersss
I knew you'd understand these nuances a lot faster once presented with an American imperfect analogue. The truth as I gather is somewhere in between -- deportation extremely rare but possible especially in case of serious crime.
striking
If you're rich, try applying for a golden visa. If you have certain kinds of ancestry, try applying for citizenship based on that. If you're educated or well-versed in something important, there are some kinds of visa specifically available to those kinds of folks. Otherwise, I guess you can try to get a job somewhere and then work that job long enough to turn a work visa into a citizenship.

That all being said, as some sibling comments put it, the grass really always is greener on the other side. As a dual citizen (US-EU) I'm perfectly happy to stay in the US. Some of my family moved back and immediately came to deeply regret it. (Specifically wrt your note about living past tomorrow, I promise you I wouldn't be attending my grandmother's funeral today if she had stayed in the States.) Maybe you should take a full inventory of the advantages and disadvantages of your current and target states before devoting many long hours to the immigration process.

shiroiuma
If you're a skilled tech worker as is typical for the HN crowd, it's pretty simple: look for jobs abroad that will sponsor your work visa in those countries. There are many job sites oriented towards expats (or prospective immigrants, depending on your viewpoint) with job postings. Many of the mainstream sites like indeed.com and glassdoor.com also allow you to search for jobs in particular countries.

I will warn you, though: salaries in the software sector are generally much lower abroad, though the cost-of-living is generally lower too, so it's not necessarily that bad.

boringg
What are the biggest issues that you see in the immigration mechanism that the US currently has in place (in terms of tech work visas) and how can we improve upon them as a community? From your vantage point is the immigration mechanism (for tech) working effectively for its intention or does it not align with its stated intent?
proberts
For the most part, even if bumpy and burdensome, I think the immigration system works well (or well enough) for stars (or certain types of stars). But I don't think it works well for many others, such as talented engineers, for example, who don't meet the star definition, and for the companies that want to employ them. This was one of the purposes of the H-1B program - to allow for the employment of talented professionals - but that program seems broken because of the massive demand and the limited supply.
lmm
Can you see any paths to improve it? I'm sure any radical changes would upset one political side or other, but are there provisions or processes that are just lose-lose and could be adjusted without making either side unhappy?
alexalx666
I know it's not your specialty, but perhaps you have an informed opinion about differences between EU and US laws that govern residence permits for software developers?
written-beyond
Why aren't there easier more accessible law and accounting services for early stage Startups. We used clerky for most of our registration and setup but the other 90% was just them telling us consult an attorney.

For non us founders it's almost impossible figure that out. There really should be more price accessible law and accounting services for early stage non US founders.

proberts
I think there are but there's no one place to find them. Many lawyers in the startup space will discount or waive their legal fees when working with entrepreneurs and founders.
awei
Hello Peter,

Thank you for taking the time to provide insightful answers to our questions.

My question concerns EB-1 visas and greencards for extraordinary ability. The usual route to prove 'extraordinary ability' seems heavily skewed towards those with scientific publications under their belt. Would it be possible to qualify for a software engineer leaning towards tangible tech contributions, for example significant commits to open source projects and building online products with a decent user base ?

proberts
Absolutely! Most of the EB1As we handle are not done for scientists, they are not done for those with a significant number of impactful publications, they are done for engineers and founders.
awei
Thanks! Are there any tacit threshold to qualify ?
proberts
Not really. But it's critical - in addition to checking at least 3 boxes/criteria - to argue and demonstrate overall sustained achievement in the field.
marymkearney
Hi, yes, you're right, most of the info out there is for researchers and academics. It's not a template that fits well for makers and engineers in private industry, who actually build real things and sell them.

There's an EB-1A template that works much better for proving extraordinary ability for industry accomplishments. It's just not well-known or publicized.

If you have open-source commits and users for your products, then you're well on your way to a successful EB-1A portfolio.

The "academic EB-1A" template is such a universal pain point for tech founders and engineers, that I just launched an online course (my first! yay) on this topic. It explains how to structure O-1s and EB-1As for industry tech and engineering specialties, not academia. https://pro.visabuilder.com/tech-toolbox-product-page

Chandiran
Whats the best path forward for a h1b solopreneur who wants to gain some traction on the side project before quitting their full time job and going all in on an idea?

Keep going and get into an accelerator and apply for an o1? Or are there new paths with the entrepreneurial parole program?

proberts
There are other paths but this is a complicated/lengthy/nuanced discussion that requires a call with an immigration attorney.
impish19
Surely you can point to some direction about this?
proberts
While there are some black lines, what can and can't be done "on the side" is grey and requires a back and forth discussion.
marymkearney
Hi, agree this is a nuanced area. I can comment generally on how other founders have threaded this needle. The IEP isn't a very mature or robust alternative at present.

As you know, the H-1B category is quite strict in permitting paid work only for the H-1B employer-petitioner. It prohibits paid freelancing of any kind, including driving an Uber, running a paid Substack, working for an overseas employer, and monetizing your side project. That's the bright line you start with.

So, Step 1, what can you do with your side project that keeps it in the realm of a hobby, while in H-1B status? Probably quite a lot. You can test and perfect how the thing runs. You can polish the user interface. You can talk to your target audience, every day. You can immerse yourself in how they describe the needs, hopes, fears, etc., that your product addresses. You can set up a special-interest website for it (but not on Shopify).

IOW do it for fun, not for money, at first. Take it as far as you can in the special-interest realm. Get all the "hobbyist" moving parts working together.

Step 2, start building your O-1 visa evidence portfolio, at the same time. Pick a niche, related either to your side project or your job, and become a subject-matter expert in that thing. Publish, do podcasts, get interviewed, do open-source, attract some "sustained acclaim." As long as you don't get paid, it's perfectly consistent with H-1B status to become an influencer in your niche specialty.

Step 3, when your product's ready to monetize, you'll also be ready to incorporate, have your company sponsor you for your O-1 visa, and have an O-1 evidence portfolio ready to go. Alternatively, present yourself and your product to an accelerator, O-1 portfolio in hand.

Check out the links in the "Swizec" comments above. Swizec didn't have an H-1B, as I recall, but he's absolutely cracked the code on how to build your own O-1. And with an O-1 portfolio already built, you'll have many, many options for moving forward.

Long answer to short question. But it's a great question! I hope this framing might help others who are tackling this challenge also.

m3kw9
What are some of the toughest part of your job?
proberts
The stress/burden of not messing up people's dreams of living and working in the U.S.
bubbleRefuge
A company in California wants to push me out the door unfairly and I'm a remote employee in another state and want to fight it or get some just compensation, should I consult an attorney in California or my state. ? (edit: sorry just noticed this is regarding immigration law only )
Fin_Code
Employment agreements are at will. Its highly unlikely you can fight this. You need agreement with your employer to continue.
snotrockets
This isn't necessarily true: "at will" means a legitimate termination has no notice period. Employers are not allowed to fire employees for any reason, or to have an abusive employment environment.

OP: any employment lawyer could also advise you on jurisdiction.

paxys
Employers are absolutely allowed to fire employees for any or no reason as long as the reason isn't specifically illegal (e.g. on the basis of race or gender).
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lmm
California has a privacy law that makes a large swathe of possible reasons (essentially anything to do with your private life, which covers most off-the-clock activities) specifically illegal.
paxys
The laws of your state of residence will apply to you regardless of where the company is based.
dexter89_kp3
Hi Peter,

Would love your thoughts on the recent EO on AI and it's possible impact on immigration.

proberts
I think the impact will be huge; it gives USCIS officer the green light when reviewing applications where there's a scientific/AI component involved.
sbolt
Hi Peter, thanks for your continued presence on HN over the years!

What wait times are you seeing for I-485 processing of EB-3 green cards? Are the interviews still being skipped?

proberts
There's a wide range but what I mostly see is that once an I-485 applicant's priority date is current, his or her green card application is being approved within 3-6 months.
dahlio
What's the best practice for a founder or startup employee who is on a work visa in the US but works remotely / nomadically and doesn't have a fixed address (from an immigration perspective)? Use mailforwarding? Ask to use a friend's address? Is that frowned upon by USCIS?
proberts
The issue here is getting government mail. Any government notice or document also should go to the individual's lawyer, if he or she has one. Regarding your specific question, what addresses to provide will depend on the immigration form and the purpose of the question being asked and whether the applicant/beneficiary is a founder or an employee.
holts-shoe
Hi Peter, generally speaking, what is a route to consider for Canadians who are currently Software Developers and want to switch fields (ex. Product Manager) and work in the US for at a startup? TN NAFTA visa looks good although the "NAFTA Profession list" criteria is narrow (ex. doesn't include Product Manager)
proberts
Definitely, the TN is almost certainly the best option and the Engineer occupation can be used for Product-related positions that require a strong technical background.
blovescoffee
Could you advise on when it's appropriate/advisable to contract an attorney for assisting immigration?
proberts
I'm not sure that I understand the question. Can you elaborate?
blovescoffee
Thanks for doing this. My GF is from Mexico and would like to come work in the US. It is quite the process. Paying for an attorney could be very expensive for someone from __not_the_US__. Do you have any advice on what tips the calculus such that it's worth the cost to contract an attorney?
proberts
I see. Given the benefit and the potential for delays/problems, I definitely would go with an experienced TN attorney, not only will he or she see options where your girlfriend or a prospective employer might not, but he or she also will ensure it's done right. Also, TN visa applications tend be some of the least expensive U.S. work visas relatively speaking.
vimota
Is there any path for a founder from Canada to move to the US by being employed by their company under a TN visa - especially if they don't believe they can prove O1 requirements? Why is the O1 preferred (other than permanence)?
proberts
An O-1 isn't preferred but oftentimes is the only option for Canadians because they don't fall within one of the NAFTA occupations or there's some disqualifying element, such as a controlling interest in the petitioning/employing U.S. entity.
thatfoundergirl
What’s your take on O1 visas for company founders (from European Union) wanting to move to the US for 2-3 years, possibly opening up a business entity of their company there?
proberts
With some funding and a good business model, the odds of an O-1 are surprisingly strong.
moralestapia
Hi Peter,

Could you shed some light about what kind of profile could apply for (and get) an O1 visa? Specifically, if I have a tech company set up in the US that's pulling some decent revenue, is it worth applying for an O1? What other circumstances come into play against/in favor of this?

I've seen a lot of advisors and "influencers" all over the web saying that it's "easy". I don't think that's the case because nothing in US immigration is easy, unless your net worth is like 9 figures, maybe; but if it's not that far-fetched I may consider applying for one.

Alternatively, could one sponsor its own H1B visa? I guess the actual underlying question is: if I'm an entrepreneur with a real, solid company based in the US (but I'm not in the US and not a US citizen), what is the best way for me to move there and keep working at my company?

proberts
I wouldn't characterize an O-1 as easy but it's often within reach of talented professionals, particularly founders. At the end of the day, the issue is less about the quality of the evidence - although that matters - and more about the existence of evidence that checks at least 3 boxes/criteria. And now, with the recent public announcements from the Administration, O-1 petitions with an AI component have an even greater chance of approval.
abra0
Bonus question on O-1: what do you think are the easiest boxes to check for a talented professionals in AI? High salary and critical capacity for established organizations are a given, but what else?
marymkearney
Hi, yes those two, for sure. And certainly add "original contributions of major significance." AI specialties are generating "original contributions" thick and fast right now for engineers and data specialists.

"Original contributions" is the foundational category for a tech or engineering case anyway. And trending specialties like AI are well-placed to develop solid evidence in this category.

I'd also add the publications and judging categories. These are easy-win categories that are evaluated with a more lenient standard than the other 6. They're also a great way to attract "sustained acclaim" by building a reputation as a thought leader in your field.

Note that the "field of endeavor" for these 2 categories in private-industry cases is industry publications, presentations, podcasts, broadcasts, and events, NOT academic publications or citation counts. (All these industry activities "count" as publications.)

marymkearney
Hi. I'm a colleague of Peter's who specializes in O-1 / EB-1A cases. I have a special interest in tech and engineering. Peter's nailed it here as usual. The key to "extraordinary ability" is to collect and present high-quality evidence, tailored to fit within the 8 rigid, archaic categories that qualify you for O-1 / EB-1A. That's much more important than being a "genius."

This sounds painful (and it can be), but it's also liberating. Knowing that USCIS is looking for exacting compliance with the checklist, means that you can give them lots of what they want: Exacting compliance with the checklist!

Based on the information you've given here, it sounds like you could be quite close to qualifying for an O-1. It's become a fairly standard route for non-US founders. It's a great option, much better than H-1B for almost all use cases.

Swizec
I have gotten two O1's and then the greencard version (EB2). It isn't easy in the "not a lot of work" sense, it's easy in the "not random" sense. If you put in the work (that also helps your career), tick off the required boxes, and present the evidence correctly, you will get the visa.

But yes an O1 takes a shitload of work.

dilyevsky
I think gc equivalent for o-1 would be eb1. I got eb2 with just a masters degree
marymkearney
Hi, huge Swizec fan here. I've been following your extraordinary-ability story since 2016. It's an amazing, inspirational, funny saga about the work and perseverance required to get this done. Hope it's OK to share these here:

https://swizec.com/blog/how-i-got-a-visa-normally-reserved-f...

https://swizec.com/blog/sponsored-genius-visa/swizec/8612

https://swizec.com/blog/how-i-used-indie-hacking-to-sponsor-...

Congratulations to you, sir. This is how you do it. Thanks for sharing your epic journey! I'm glad it paid off.

mingyeow
How about a blockchain founder?
marymkearney
Yes, certainly. Same requirements as other industries and occupations. And the same challenges: Fitting your 2023 accomplishments into the rigid required elements of the 1991 USCIS categories.

One especially helpful force multiplier here, would be to practice writing out a simple one-page description of your industry and your job. Like a little elevator pitch, that's easily grasped in a minute or two, by a time-pressed layperson USCIS examiner. You're basically explaining blockchain at a 9th-grade reading level.

This is hard! It can take a lot of iterations and analogies. But it adds a ton of value, when the examiner can grasp right up front what you do and why you're special.

marymkearney
Addendum: This "1-page elevator speech," specifically voiced for your USCIS examiner, can pay handsome dividends for any complex specialty, in the form of a quick O-1 / EB-1A approval. Not just blockchain, but crypto, all AI and ML specialties, platform integration, big databases, programming languages, data science, anything that requires effort to explain to a layperson audience.

Explain it to: Your dad. Your 14-year-old-kid. Your non-tech investor. Your CEO. Your spouse. Your best friend.

We're seeking that "AHA moment" where they go: "Oh! THAT's what you do? That's really cool!"

If you've lined up all your evidence correctly, that AHA moment, is the moment you win your case.

crowcroft
For people running a small business that is remote/can be done anywhere (a small SaaS company for example). What are their options for operating in the US?

To give a specific example. An indiehacker runs their own business, and wants to move to the US, potentially with the view of trying to become a citizen at some point. They have plenty of income, don't need a job/so don't really have a visa sponsor etc.

What steps should they look to take?

proberts
While physically in the U.S., with very limited exceptions, a foreign national must have some form of U.S. work authorization to engage in revenue-generating activities, even if those activities are remote/virtual or occurring in another country. The default options, depending on the individual's country of citizenship (excluding those from Australia, Canada, Chile, Mexico, and Singapore, who have their own work visas), are the O-1, H-1B, and E-2.
salamandersss
An interesting exercise for the reader is to look up I-9 authorization, or lack thereof, checks for 1099 workers.
crowcroft
This is super interesting Feels like a lot of people just travel the US and work remote a bit with the expectation that they will just slip the cracks.

Thanks!

proberts
I think there's a difference from CBP's/USCIS's perspective between visiting the U.S. for brief trips for pleasure or business and continuing to work while here (for the benefit of a foreign employer or client) and traveling to the U.S. to work remotely from the U.S. (even if for the benefit of a foreign employer or client).
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crowcroft
I see, so the 'correct' path would likely be something like: Incorporate in the US -> apply for an E-2 (appreciate this is a gross simplification).
marymkearney
Hi, yes, something along those lines. E-1 or E-2 can be good options. Or, for example, open a US branch of your existing company, then have your company sponsor you for an O-1 or L-1 visa.
aaraujo002
Hi Peter! I am an ML postdoc with ~200 citations and a few papers at top ML conferences. I would like to apply for the EB2-NIW and I am wondering if it is really necessary to go through a lawyer. I have heard from a few people online who have wrote the petition themself, but from what I have gathered, most people go through lawyers. What would you recommend? Thank you.
proberts
That's really a question of cost-benefit because from a purely outcome standpoint, I would recommend going with someone (a lawyer) who has prepared and filed these types of applications. At a minimum, I would recommend having a lawyer review your background to see what options you have (NIW or even EB1A) and to identify any issues. Because with your focus and background, you also might qualify for EB1A.
tschellenbach
Peter helped us many times over at getstream.io, appreciate it.
jb12
Hi Peter! You did my E3 visa a while back. When I was standing in line at the US consulate in Sydney, the person in front of me was really nervous, visibly shaking. I saw that their papers had your letterhead, so I was able to calm them down a bit by showing them my papers, which also had your letterhead.

Thanks for all your hard work!

boplicity
Maybe this is too far outside your area. I'm an American living in Canada, and am leery about the best legal structure for my business. Cross border accounting is a nightmare. Any advice?
proberts
Unfortunately, that is outside my area. I just always refer these questions to accountants.
wxnx
I really want to know this, too.
atlasunshrugged
If you had a magic wand for Congress to do something to support immigration for entrepreneurs, what would you have them do?
proberts
Really get behind the IEP program and start to review and approve good faith solid applications (those that are likely to generate jobs).
mportela
An H-1B person, after having extended the visa once, will need to go through the lottery again next time, right? If they have done a Master's degree in the US, will this second H-1B application go to the Master's cap quota like the first one?
proberts
No, with limited exceptions, once someone has been selected in the lottery, he or she won't have to go through the lottery again, whether in connection with an extension or job change.
mkagenius
Why is US having 500 days waiting time for visitors visa from India. Makes no sense. Will that wait only end if Kamala Harris becomes the prez?
proberts
I don't know. It's a disaster and embarrassment of course. Surprisingly, other immigration processes have been fixed so I think this one will be fixed as well.