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

330 points by proberts ↗ HN
I'll be here all day (with a few breaks). As usual, there are many possible topics and I'll be guided by whatever you're concerned with or interested in. 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. Please stick to a factual discussion in your questions and comments and I'll do the same. Thank you!

Previous threads we've done: https://news.ycombinator.com/submitted?id=proberts.

Edit: Good evening. I'm signing off now. I tried to get through most of the questions but I know that I haven't answered them all and for that, I am very sorry. Please feel free to email me directly (email in profile) if you have any questions. Thank you for participating in this AMA. The questions and comments were great and as always, I learned a lot myself.

424 comments

[ 3.2 ms ] story [ 303 ms ] thread
jacksoncloud
Hello Peter, I have a friend coming from China and pursuing bachelor degree in America under F1 visa. What are some options available that can get green card as soon as possible other than the traditional route f1-> h1b-> eb3 ?

Is self-sponsorship an option?

jacksoncloud
Is there any limitation or challenge in sponsoring greencard by very small business and the risk of getting rejected?
proberts
As long as the company has the ability to pay the offered green card wage, green card sponsorship by small companies usually works. The main issues are unrelated to a company's size.
crbaker3
You could always look at an E2 visa if you don't want to invest $800,000 in an EB-5 project; however, investment amounts vary from $150-400,000. The range is based on what USCIS would consider a "significant investment" based on your country of citizenship. E2s don't lead to a green card or US citizenship, but you may find a USC/PR spouse or another path while saving some capital.

Either E2 or EB-5 will have significant fees associated with them. Typical EB5 "administration/syndication" fees will run $80,000. You may be able to reduce this by going to the EB-5 Project directly and negotiating. Most of the time, 90% of that fee is used to pay a foreign agent(aka finder) for bringing the investor

crbaker3
Oh wait, China doesn't have a E2 treaty. You may still be able to find a way via Grenada but I am not sure that tactic still works.
Exorust
Hey Peter, How can F1 students start their own startup and how does that affect their visa? What needs to be done later as well?
proberts
While they are in school? That's tough and the student has to be very careful not to cross any lines. CPT and pre-completion OPT sometimes work but there are significant restrictions and conditions that must be met. Oftentimes, the solution is to take a leave of absence and switch to a work via (if possible and it oftentimes isn't).
clbrmbr
Can you comment on different models for international employees of a US startup who split time between their home country and USA?

It seems clear that they could come a few weeks a year to USA for training, meetings, etc. but coming for a year+ to do their work in USA clearly requires work authorization.

proberts
The frequency and duration of the trips can raise questions but in and of themselves aren't issues; what matters is the purpose of the trips, regardless of the duration; they must be limited to non-work/non-hands-on activities and the primary beneficiary of those activities must be entities or individuals outside the U.S. So it's possible to spend a lot of time in the U.S. as a visitor without crossing any line. But it's still important to be mindful of later repercussions even if no line is crossed; that is, if and when applying for a work visa, for example, an applicant might be questioned aggressively by a consular officer about the applicant's time in the U.S. as a visitor and might simply not believe that the applicant wasn't working if the applicant spent a lot of time in the U.S.
frankfrank13
Hey Peter, whats your checklist or just intuition for when a company is ready to support H1B visas? Is there some clear point between seed-round/current-YC-batch and public-mega-corp?
proberts
The bar is low. It's presumed that the sponsoring company will be able to pay the sponsored H-1B worker so the focus actually isn't on funding but the existence of basic corporate requirements - that is, the company must be incorporated, have an FEIN, have physical commercially zoned office space, and be authorized to do business where it operates. So, the long and short of it is that new small companies can sponsor H-1B workers.
dartos
At what point should I make a legal entity for my business?

I’m working on a niche tool and have some interesting and I’m just starting to bring on the first users.

At what point should I incorporate?

proberts
That's not so much an immigration question but be careful about incorporating and creating products while currently employed because your current employer might have a claim over your IP. If the question is when can I/should I incorporate without crossing any immigration line and when should I get a work authorization through this company, then the act of incorporating isn't the issue, the question is whether your activities and the business's activities require work authorization and there are both legal and non-legal lines that shouldn't be crossed. The primary non-legal guideline is when a a gut level, the activities are no longer a sideline but a business, a focus of what you do. The primary legal guideline is when the company is starting to generate revenue. In both instances, you should look to move to a work authorization status.
ryandrake
(Not a lawyer) I remember being told a rule of thumb that you should be a separate legal entity before "first contact" with a customer because that's generally where most of the risk of legal liability starts ramping up.
proberts
That's one approach and a defensible one but I think that might hamstring efforts to build a company to the point where sponsorship is an option. Another approach is providing services or products for a fee. But this is really a grey area and risks must be managed against the ability to be an entrepreneur and create valuable business and technology.
dartos
Oh woah, sorry I didn’t see the word “immigration” in the title.

Thank you for the answer nonetheless

skuenzli
Do you have any suggestions for finding firm or attorney that can help with immigration of health care workers, specifically nurses?

I have a friend searching for such a firm now and of the ~15 firms contacted none had any experience with health care immigration.

They have decades of experience with IT services and the path to H1-B for IT.

If no suggestions, can you share thoughts on why healthcare immigration attorney help seems to be difficult to find?

dunbar11
My company (healthcare non-profit) filed my H1B on my behalf through Kramer Levin. Had to fill out a questionnaire, a little bit of back and forth, and they handled the rest.
proberts
There used to be a visa specifically for nurses, the H-1C, and when that sunset, the options greatly were reduced but there still are solutions if the global organization is structured and funded properly. It's not appropriate for me to mention the names of firms here but I can give you some via email.
skuenzli
Thank you - I appreciate the background.

I'll reach out to the email address in your profile.

krembo
Do you recommend saas companies founded by non-us citizens to form llc and bank accounts in the us, or outside? For the rest of the readers- what online service would you recommend for that as agent llc + accounting?
proberts
That really involves a case by case analysis particularly where work is being done in the U.S. for U.S. entities.
jacksoncloud
can a US based company sponsor green card for an international manager has not taken the job yet ?
proberts
Who has not taken the U.S. job? Yes (if I understand you correctly).
nasso_dev
Hey Peter! How can a YC startup be founded in the US if none of the co-founders are US citizens? Does it mean after their batch they need to leave the country? Or are they allowed to stay in the US by the "$100k investment rule"?
proberts
If the activities of founders are limited, then it's possible to spend a significant amount of time in the U.S. as a business visitor but more often than not, a work status/visa is required and the timing of getting that must be managed so that that it's possible to remain and work in the U.S. But it's possible and done all the time. (There's no $100k investment rule by the way unless you are thinking of the E-2 investor visa, which requires a substantial investment and is another type of work visa.)
jacksoncloud
Can a F1 student start their own company and sponsoring themselves?
proberts
See my response above. After they graduate, it's much easier, OPT and under certain circumstances STEM OPT permit this.
jacksoncloud
Thank you for your response! Which type of greencard should be used by the startup LLC?
jacksoncloud
What options are available for a F1 visa holder to get greencard through his/her own startup?
bubblethink
The same as everything else. Green cards and visas are largely independent and one does not depend on the other.
conqrr
What's the easiest way for an H1b holder to work on their own startup and control their company? I've heard of VC like Unshackled, but taking VC seed is already shackling myself. I'm looking more for a solution where I'd pay some fee to a lawyer and turnkey solution for a company structure setup.
proberts
There are visas where the foreign national can control/own/run the company he or she works for, such as the E-1/E-2, O-1, and L-1 visas. It's more complicated and tougher if you want to remain in H-1B status and work for your own company; in that situation, you have to give up some control to a cofounder or board. To be clear, it's possible to maintain your H-1B with your current employer and get a concurrent part-time H-1B through your own company (assuming the conditions above are met).
BlandDuck
My impression is that over the past 20 years or so, the visa process has become a lot more bureaucratic, involved, and time consuming.

Is that your impression as well? What has changed, and why? Are any of the changes for the better?

proberts
I agree. From an outcome standpoint, the changes are for the worse. But some of them are understandable to the extent that in certain contexts USCIS is paying more attention to the letter of the law and not just accepting representations on face value but requiring evidence. From my standpoint, the biggest negative changes are the delays in the processing of green card applications (partly statutory and partly administrative) and the lack of access to USCIS officers.
BlandDuck
Thanks, that's sounds very reasonable.

Unfortunately, it also sounds like there is not much push at this point to reverse these changes and streamline the process.

proberts
Not much although the Biden Administration is prodding the agencies involved in immigration to facilitate (within the bounds of the law) the attraction and retention of tech/AI talent and companies.
ashconnor
My PERM was certified yesterday after 12 months and 2 weeks. That used to take 6 months.

I'm now backlogged until October which never used to happen at all to ROW (rest of world excluding India and China) applicants.

swalberg
My PERM was certified in August. Took a little over 16 months because it went to audit. Timelines on PERM shot up around the same time as I applied and have been steadily getting worse.

Filed I-485 in November, approved in 4 months and a week. So once your date comes up, they seem to be moving quickly.

refurb
It changes over time. My spouses PERM took 4 years.
ashconnor
That seems excessive. Just PERM or PWD, recruiting and PERM?
jxramos
Hi Peter, I've been curious regarding what sort of legal arrangements a certain family of content providers setup in order to display large sections of third party published materials.

Some examples

* Lexis Nexis news archives https://www.lexisnexis.com/en-gb/products/research-insights/...

* https://books.google.com/

* https://www.perlego.com/

Google books has restrictions to display a fraction of many texts but they obviously reproduced entire texts to filter upon. I'm curious if there are commentary apps out there that take whole literature and overlay new layers atop it and have published reproductions of their own somewhere in their infrastructure.

I'd like to know how websites like the above are made possible with most published stuff gated with permissions going like """All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher""".

Thank you.

proberts
That's a very interesting question but outside my area of expertise, unfortunately.
jxramos
whoops, my apologies, I somehow glossed over the immigration attorney detail and somehow my mind centered on IP attorney.
bubblethink
Google books has a long history. Read the Atlantic article. In short, everyone cried and eventually reached a deal with google.
erehweb
Is AI changing anything about immigration law work / do you see it doing so in future?
proberts
I think it will dramatically change the work of immigration lawyers (and I suspect most "white collar" jobs). I think lawyers will still need to develop the strategy (and evaluate the pros and cons of each approach based on the facts) but I think AI will dramatically change/accelerate the execution of the work.
not_a_dane
Hi Peter,

What do you think about high skilled immigration in general post-covid era. A lot has happened since then...Ukraine war, recession, major macro economic shifts...How do these affect the talent pool in US ? Would you share your experiences ?

proberts
I don't see those as the main drivers of change for business/employment immigration. I think the biggest change is the explosion of AI technology and companies and the massive flow of money to AI technology/companies, which in turn is driving a frenzy of hiring of tech/AI talent.
throwfjk
Can illegal immigrants be hired?

There are so many educated illegal immigrants. Which is good for small startups i think

proberts
If they have no work authorization, they can't be hired legally. But even talented illegal immigrants, unless they are long-term overstays or have criminal records, can get sponsored for work visas.
idkdotcom
What's current USCIS policy, in terms of months, for allowing out of status immigrants to be sponsored for say an H1B visa? 6 months, 1 year, longer?

Thank you in advance!

crbaker3
What do you believe would be the best path to citizenship from an H1-B visa in most cases?
nehiljain42
Hi Peter, How easy is it to get an O1-A if someone meets 4 out of 8 criteria for extraordinary abilities but wants to do a single-member LLC and do some consulting to find the problem they would like to build a startup for?
proberts
That could work. There also might be other visa options.
everyone
Hi Peter,

I have a young friend in Russia who is a computer / programming prodigy. I'm trying to help him get out of Russia by getting a tech job in any other country. He's only 18 atm though. Can you give me any advice? I'm based in Ireland so companies I've worked for + my friends work for would mainly be Irish. I have good contacts in USA and also Germany though.

I want to know...

1. If a company realizes he would be a great hire how feasible is it to hire a Russian?

2. Can the company help with Visa and getting him out of Russia (so as to not be conscripted)

3. What countries should he be applying for jobs in?

proberts
His age is not a bar. Broadly speaking, there are visas available to really bright and talented young people (such as the O-1). The issue is that Russian citizens are typically experiencing significant delays now when they take the final step of applying for a visa at a U.S. Consulate while background/security checks are done.
csdreamer7
Hello Mr Roberts,

How much do you agreed with the internet sentiment that HB-1 visas are exploitive? What rights or recourse do HB-1 holders have that they are not aware of?

I am an American citizen, but I do notice quite a few jobs filled by HB-1 that could have been filled by Americans but many Americans do not stay in because of low pay or poor career advancement.

proberts
The H-1B program is supposed to protect the wages and working conditions of U.S. workers (but it's debatable whether it does either) but there's no labor market test requirement to employ an H-1B workers.
jbn
US citizen here. I have a special situation which I think will be only of interest to me...

My wife (a green card holder) and I have moved abroad and her travel document is expiring soon (in July). We have no returned to the US in the past 3 years, and were not planning to visit only for the purpose of resetting the counter..

We are planning to actually fly into the US for a vacation right after the expiry date... what if anything can be done to renew or extend the travel document (a.k.a re-entry permit)? Of course we are in good standing with respect to US taxation.

Else, can she apply for an ESTA (country of citizenship is part of the visa waiver program for tourists), which I believe be done up to 3 days before travel (is it ok to apply right at the deadline when the permit is about to expire but just so we travel 1 or 2 days immediately after expiry) ?

proberts
Good questions and a not-uncommon situation. This is very specific to your situation so please email me.
[deleted]
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jmyeet
Oh wow. Your wife is going to have to prove she hasn't abandoned her residency, which is normally automatic with a 2+ year absence (or even 1+ year without a re-entry permit). This will come down to establishing existing ties to the United States. Married to a US citizen helps but this doesn't mean you can stay abroad indefinitely either.

I hope she was filing US taxes while abroad. Every US citizen and LPR has to do this. Not doing so is more evidence of residency abandonment.

An obvious exception here is if you were sent internationally to work for your US employer on what is essentially a temporary assignment eg working for a US consulate in another country.

You have the option of just returning to the US before her green card expires. This will probably land her case in immigration court and you will need a laywer. Or you apply for re-entry at an embassy. You will also need a lawyer.

Get a lawyer.

If you do return and then leave again in relatively short order, you can probably kiss that green card goodbye, particularly if it's before your immigration court date. USCIS takes the view that green cards are for people who reside in the United States. The only form of "return when I want" status is citizenship.

sgjohnson
> Oh wow. Your wife is going to have to prove she hasn't abandoned her residency, which is normally automatic with a 2+ year absence (or even 1+ year without a re-entry permit).

Practically, it depends on how picky the CBP officer is. I personally know of a guy who re-entered the US on his Green Card after a 7 year absence. From what he told me, he didn't even get sent to secondary inspection and was just welcomed back home. He flew into JFK.

I don't see them yoinking the GC of someone who has a US citizen spouse because of >2y absence, even though the law tells them to.

morpheuskafka
If she is no longer residing in the US, the legal thing is to enter as a visitor. There are two problems with this, first they will require her to sign a form giving up the green card status, and two, they may be suspicious that she actually intends to be a visitor since she is married to a US citizen.

They are definitely not going to let you extend the permit after it expired especially since you don't really meet the criteria for it (temporary long duration absence).

If you entered before it expires, you probably wouldn't face questions from CBP since you did get the permit, but that is just my guess.

Taniwha
She may find herself in the position I was in after 20 years we left the US, I stopped using my green card for entering the US because I was no longer a resident, but didn't realise I was required to physically hand it in when I was done with it (it was 20 years later) - got stopped at the border and got a good talking to. So make sure you hand it in when you're done with it
ckrodrigues
What are the odds of someone with a master's in Computer Science and 10+ years of experience (pre-degree) to get a EB-2 NIW visa? Does the master's itself increase the odds by a lot or does it even make any difference whatsoever?
strongpigeon
A friend of mine is on a TN status (Canadian) and has a lot of side-projects he’d love to monetize but feels like he can’t due to his status. What options does he have to make money off of his side projects barring returning to Canada?

Thanks in advance!

proberts
He could change his TN to a Management Consultant but that would mean entering into a consulting agreement with his current employer (assuming that he also wants to keep this employment).
dotBen
Even if this change occurred would he be able to accept independent income generated outside of the sponsor of his TN?

In this case, wouldn't his new management consultant TN be tied to his (now former) employer, so would such revenues from his side projects need to flow through the TN sponsoring company in order not to step outside of the terms of his TN?

Side question: what are the risks of a TN holder operating what looks like commercial side projects whether they generate revenue or not (eg publishing a mobile game or running a successful website unrelated to the TN they hold - is it still commercial activity, is it still seen as removing a job from the US labor pool, etc?)

rocklee93
Hi Peter, what does a prospective founder on h1 need to know about starting up with YC? I’m really interested in becoming a founder however i currently work a full time job so not sure how much time I can legally dedicate based on h1. I also worry about the job safety aspect especially given my h1 (i do have an approved I140 if that matters). What would be the path to more flexibility that you have seen founders take?
proberts
That's more of a YC question because you have to go all in when you're in YC. From an immigration standpoint, there are ways to find an immigration path participate in accelerators/incubators even if currently in H-1B status with another company.
rashidae
How can Mexican founders of a Delaware C Corporation establish an office, hire employees, and reside in Texas?
proberts
The TN visa might be the easiest quickest option. The O-1 and E-2 also might be options although the timelines are longer and the costs are higher.