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

245 points by proberts ↗ HN
I'll be here for the few hours and then again at around 1 pm PST for another few hours. As usual, there are countless 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. Thanks!

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

405 comments

[ 3.2 ms ] story [ 272 ms ] thread
yu3zhou4
What is a difference between acceptance rate among teams vs solo founders in YC?
proberts
Again, this is outside my scope. That question should be directed to YC directly.
htrp
How are YC startups addressing the myriad of legal and copyright concerns around the AI models that seem to underpin so many of their business models?
proberts
That's outside my area but the key is to engage with corporate/IP counsel at the outset, ideally before the company has been incorporate. One non-immigration issue that comes up all the time is incorporating before the founder has left his or her employer and thus putting the IP at risk.
htrp
Ah apologies, didn't realize you were talking immigration only
ub-volta-toss
Do you have a list of common red flags that engineers should avoid when considering working at a startup?
proberts
From an immigration standpoint? Only that the immigration options and issues should be fully vetted and understood as early as possible. While there are some minor differences, from an immigration standpoint, there's little difference between the immigration options/path for employment with an established/large company and a startup.
baxtr
Just meta: You dropped the "immigration lawyer" part. Does this mean the scope of questions is different?

Thanks for doing this regularly!

proberts
Good catch! Thank you. Immigration lawyer should have been included.
vinnymac
I don't have a question, but wanted to let you know that your site, www.robertsimmigration.com has a self-signed certificate and therefore others cannot create a secure connection to it.

> openssl s_client -connect www.robertsimmigration.com:443 2>/dev/null

> ---

> SSL handshake has read 1859 bytes and written 427 bytes

> Verification error: self-signed certificate

> ---

Cheers

proberts
Thanks! I need to shut down that website. I merged my firm with another.
porker
In the USA is there any concept of prior art when considering trademark applications, like there is with patents? If "YCombinator hosting" had been commonly used by businesses, and YC decided to trademark that phrase, would the prior usage be taken into account (and void the trademark application)?
ryangs
What are some of the challenges involved with international hiring in a remote environment? I work at a fully remote startup with ~200 employees. We hire from a couple dozen countries but I know there are fairly significant barriers whenever we add a new one. What are some of those challenges? Are they getting more streamlined?
proberts
From an immigration standpoint, there are no issues with U.S. companies employing foreign nationals who are working remotely OUTSIDE the U.S.; U.S. immigration doesn't come into play unless and until the individual will be working IN the U.S. For employees working remotely in the U.S., while this needs to be noted and referenced in any immigration application, it doesn't really change the immigration options and paths.
norswap
This is not immigration per se, but how often do you actually see issue with contract requalification?

For context: hiring remotely you don't want to set up a corporate presence in every country, that would be mind-boggingly complex & expensive — so instead you hire people as contractors or use an employer of record (EOR) like Deel to hire people and then you contract Deel.

The one risk with hiring contractors that will basically only work for you (though for sure, the contract should not make this a condition) is that in some jurisdiction is allegedly pretty easy to take these contracts to court and requalify them as employment contracts, putting you on the hook for back taxes and possibly fines.

I'm just wondering how much that stuff happens in practice, and how much of an issue it is when it happens.

gc_burner123xyz
Do you have any recommendations on how long one should wait before starting a startup after receiving permanent residence (EB2) in the US?

I've heard rumors that quitting the job that was used to justify the permanent residence too soon can jeopardize either the green card or future naturalization applications. Is this true?

proberts
That's really not true. There was some slight truth to this (but really just slight) years ago before the AC21 legislation, which allows those in the green card process to change employers without having to restart their green card process. Again, to be clear, lawyers used to say there were issues leaving soon after getting a green card, but that really was never true and with AC21, there's really no risk. All this being said, it's still good to have a consultation about this to rest easy.
sangupta
Is there a possible track for H1B holders (solo/team) to be able to start one? What I have usually been briefed is that you need a US citizen as a majority stake holder. Thanks.
proberts
It's challenging but not impossible. A key is having less than 50% ownership interest in the company and an employment agreement with the company. It's close to impossible where the ownership is vested and at or above 50%. Again, not impossible but extremely challenging. The other owners also can be foreign nationals; they don't need to be U.S. citizens. So, where there are three foreign national founders, each owning a third, this should be fine.
sangupta
Thanks - this helps.

> employment agreement with the company

I believe this means that once the entity is founded and funding secured, all participants will need to transfer their H1B to this new entity in order to work for it, right?

norswap
What's the general schema of getting someone a work visa in the US?

My understand is big tech usually tries to see if you're eligible for an O-1, and then they take their chances for H1-B, and then there's also a pathway for bringing in workers that have already worked from you from abroad (for one year).

Wondering if there's other types of Visa that are applicable, and where they slot in in the general algorithm of a US-based employer that wants to get a Visa for one of their workers.

I also recently learned about the EB1 Visa, though that one is not tied to an employer. I'm wondering how it compares to the O1 in ease of access / modalities.

proberts
If the individual is employed by a related entity abroad, then large companies would transfer him or her to the U.S. using the blanket L visa, a super fast and easy process. If the individual is not employed by a related entity abroad, then other options must be considered. First, there are easy options if the individual is a citizen of one of five countries with its own visa; these are Australia, Canada, Chile, Mexico, and Singapore. These countries have free trade agreements with the U.S. that give rise to these visas. If the individual is not a citizen of one of these countries but is employed in H-1B status by another company (or previously was employed in H-1B status), then an H-1B change of employer application is usually the best option and an easy one. If the individual is not employed in H-1B status (and never has been), then we look at the O-1. Sometimes the E-1 or E-2 visa is an option but this has very specific and limited requirements regarding the nationality of the company and the individual and regarding the company's trade with U.S. and investment into the U.S. company. It's a great option when it works. The EB1A is a green card path and is a high standard that takes a while.
punitvara
I think you missed to mention your area of expertise in AMA description
proberts
I know. That's embarrassing. I've never done that before. Thanks for pointing out!
[deleted]
(comment deleted)
proberts
Sorry, there's a dropped phrase in my title. It should read "I'm Peter Roberts, immigration attorney, who does work for YC and startups. AMA." Thanks.
cirrus3
That is going to be confusing, good luck ;)
aaronbrethorst
How are you thinking about the potential effects of a second Trump administration on immigration and how it might affect tech companies?
proberts
There's a lot to worry about but to keep the worry/analysis grounded, I think it makes sense to review what his administration did last time. And most of the damage was done to those who were illegal or seeking asylum or were from certain countries and seeking to travel to the U.S. It was awful and very disruptive to the lives of many. On the legal business immigration side, the main damage was the result of changes in policy and the way regulations were interpreted and applied. This included doing away with the deference given to previously approved applications when extensions/renewals were sought. This was disastrous, resulting in the denial of applications for people who had been employed in the U.S. by the same employer for years. The Biden administration immediately undid this when it took office. The other major change was in changing/increasing the requirements for getting H-1B and O-1 visas and extraordinary ability green cards. The Biden administration undid some but not all of these changes. There is concern that a Trump administration would undermine the H-1B program as well.
tombert
Is there any reason to think that Trump will ramp things up if he gets a second term? Particularly since the Supreme Court is so thoroughly conservative now?
shimon
It would make sense to expect some ramp up because immigration is a stronger electoral issue than it was previously, and because a second Trump administration will probably be more coordinated and effective in implementing its goals than the first one was. Given how laden with unintended consequences any change in immigration policy is, though, there are probably some limits on the rate of change that would be possible and politically prudent.

For example, without undocumented immigrants, milk would be a lot more expensive (https://www.nytimes.com/2024/10/15/magazine/milk-industry-un...). The current election is showing us quite starkly how significant grocery staple prices are in shaping public perception of a nation's economic health.

Eumenes
> For example, without undocumented immigrants, milk would be a lot more expensive (https://www.nytimes.com/2024/10/15/magazine/milk-industry-un...). The current election is showing us quite starkly how significant grocery staple prices are in shaping public perception of a nation's economic health.

This strikes me as a bit tone deaf. These people are paid slave wages to do this work. They have unsafe housing conditions. They pay cartel fees to get across the border. Their "employers" are breaking the law. The government looks the other way. Personally, I'd be willing to pay more for milk (or any grocery product) if Americans were doing the jobs and getting paid fair wages with good benefits.

It gives me Kelly Osbourne on The View vibes: https://www.youtube.com/watch?v=a8INEYLFWwc

tinco
Are you saying American voters are tone deaf for prioritizing food availability over ethical sourcing of food?

I mean sure, but I don't think that judgement has any consequence unless anyone grabs a soapbox and starts chastising people for wanting cheaper food. I haven't seen any of the candidates do that yet.

tombert
I think even with a soapbox it wouldn’t be terribly effective.

We all know where our laptops and smartphones come from and the questionable-at-best labor practices associated with them, and nearly all of us continue to use them.

(To be clear, I’m no better. If a smartphone was released that was controversy-free but cost twice as much, I doubt I would buy it.)

I think food prices would be the same. People would complain about (and vote around) the prices rising, even if the higher prices were the result of more ethical labor laws.

I’m not saying that we shouldn’t fix bad labor practices, I’m just saying that people will invariably be hypocritical about it.

Eumenes
Smartphones/laptops/hardware is slightly different because its manufactured/assembled overseas. The dairy industry is domestically based and acting like its workers are based in the 3rd world. Threatening the population with higher prices if they can't continue to break the law is extortion and it needs to be treated as such. If you can't run a legit business with legal labor, you need to be shut down. Someone else will find a way to do it.
tombert
I don't really disagree, I'm against exploitative labor, and I agree that if you can't do things legally you probably shouldn't be in business, especially in an extremely rich country like the US. [1]

I'm arguing that most people are hypocrites on this, and the last two years have proven that they'll blame the current president if their food prices go up. I'm not claiming that this is accurate, I'm claiming that that's what people seem to think.

[1] Exploitive labor is wrong everywhere obviously, but it's much easier to justify a more "relative morality" in a place with much more limited resources.

Eumenes
Agreed, politics is a team sport and someone is going to get the blame on grocery costs or gas prices. Its really the medias fault because people don't have the interest/time/intellect to dig into these issues - its all on headlines/clickbait. Illegal labor practices in farming/dairy/meat processing have been going on forever but they only seem to be front and center every 4 years, or < 3 weeks out from a national election cycle.
Eumenes
This isn't about food availability or ethnical sourcing of food. Apparently the business model of the dairy industry has illegal labor baked into how they do things. They have the gall to threaten Americans with higher prices if their workforce is eliminated. Sounds like extortion to me. This is a problem of crony capitalism.
addicted
They also divorced the H4 renewal process from the H1B process.

USCIS had consistently renewed H4 visas along with the primary H1B application. Since H1Bs can pay for premium processing this meant both would usually be renewed within a month.

The Trump administration added a completely unnecessary biometrics requirement to the H4 renewal application (even if you had literally got your biometrics done a week ago) which meant the H4 application was now separated from the H1B application and now took at least a year to process.

Considering one can only apply for a renewal 6 months before expiry this led to tens of thousands of H4 visa holders losing the ability to travel, and having their EADs expire forcing them to quit their jobs.

This was a completely malicious action with the only purpose being to make people’s lives worse.

kimjune01
I'm a Canadian looking for remote work in America. Is there any downside risk to the employer if I work a W2 remote job from Canada? As long as I pay taxes, is there any risk to the employee?
proberts
From an immigration standpoint, no downside and no risk. We have a lot of companies that do this: employ people abroad as W-2 employees without any U.S. work authorization (which isn't required if the employee is working remotely outside the U.S.).
infinite8s
How are these companies able to employ remote people as W2 employees? Aren't the remote employees subject to their local employment law? For example, in Canada the GP would need to be employed as a T4 which requires the company to maintain a Canadian presence (and pay corresponding taxes in Canada).
infinite8s
Any potential employer would need to have a Canadian presence (usually a ULC, which is a Canadian subsidiary of an American corp) or go through an EOR (Employer of Record), which would handle taxes, insurance, benefits, etc. "Quietly" working remotely from Canada isn’t a good idea as you'll likely fall foul of Canadian tax law (amongst other things) and immigration law (if you aren't a Canadian citizen), and your employer would likely have issues as well. This is a good summary of the issues:

https://www.swanwealthcoaching.com/blog/2024/05/07/working-u...

nceqs3
How common is it for companies to skip over a minimally qualified US worker during the PERM labor market test process?

If a minimally qualified US worker is found, are they under a requirement to hire the worker or can they just reapply for PERM later and conduct another labor market test?

abixb
What has been -- in your personal experience as well as in the experience of some of your lawyer colleagues -- some of the 'hardest' cases wrt employment authorization for US-based startups and YC? And why?

Also, how are you anticipating the immigration landscape to change especially if President Donald Trump returns to the White House in January 2025? I'm asking this in the context of the 2017-2021 Trump administration's massive clampdown on Specialty Occupation visas through executive orders. [0]

[0] https://trumpwhitehouse.archives.gov/briefings-statements/tr...

proberts
Those who are in YC and who previously were in YC almost always can get work authorization, whether it's an O-1, E-2, H-1B, or country-specific visa. Relatively speaking, the harder cases are those involving those who don't have at least a bachelor's degree. While lots of experience sometimes can fix this, not always, which means that an O-1 visa is usually the only option. Regarding the impact of a change in administration, I just touched on this in response to another question/comment.
EduardoBautista
Could a married couple each get their own individual E2 visas and then sponsor each other on the dependent visa and then both have open work authorization?
proberts
One can only hold one visa so one would need to hold the principal E-2 visa and the other could get the benefit of the E-2D visa.
jasonbourne4
How much of a fuss is it for a start-up fresh out of YC to hire someone on an E-3 visa (the one for Australians) ? i.e., time & cost of the process including legal advice & applying for licences if any
proberts
Super cheap, easy, and fast. The E-3 visa is the easiest visa to get (as long as the applicant is Australian of course) and it doesn't matter whether the employer is a startup or an established large company.
square_usual
Good morning Peter! I don't mean to get political, but do you anticipate any changes in the H1b process based on whoever wins the upcoming election? I've heard there were significant difference between the past two admins and that could play out again.
gr4vityWall
I'm a non-American Software Engineer, living outside the US. Me and my girlfriend (who's an American citizen) are seriously considering marrying and moving together next year.

Any advice or anything you recommend reading? Also, how long it typically would take until I was able to legally have a job in the US, once I move?

I have a tourist visa and traveled to the States countless times. If I go there with the intent of getting married, do I need a special visa or not, considering I can already enter legally?

Thank you for your time.

proberts
This is complicated so it's important to speak with an immigration attorney before you take any steps. The better option is to apply from within the U.S. but doing this while in the U.S. as a tourist is problematic. The other path, through a U.S. Consulate abroad, raises no legal concerns but can take a very long time (compared to a U.S. based application).
proberts
A work around would be to get some type of work visa (a challenge itself) and then once in the U.S. on this visa, apply for a green card based on marriage.
shuckles
Is this workaround applicable even if the work visa is of non-immigrant intent, like the H1B1?
mbbbb
Yes, for example I married my partner who was on an F1 visa, which is a non-immigrant visa, and we were able to easily adjust his status to the GC (this is faster than the K1 process)
shuckles
That’s useful to know. One difference for my situation is I’d like the H1B1 holder to be able to continue working during the application, but I have heard mixed information on how feasible that is. The H1B1 needs to be renewed quite frequently but may not be renewable while you have an adjustment pending.
proberts
There are potential issues with being in H-1B1 status and applying for a green card but they revolve more around timing - so, for example, if you entered the U.S. on an H-1B1 visa (as opposed to H-1B), which is not a dual-intent visa, then you would need to wait some unspecified period of time before applying for a green card to avoid being "charged" with immigration fraud at the time of your entry in H-1B1 status. Also, after filing your green card application, while you could continue working on your H-1B1 visa, you wouldn't be able to travel internationally on it and you wouldn't be able to travel in general for an extended period of time unless you had a family emergency abroad.
KK7NIL
> I go there with the intent of getting married, do I need a special visa or not, considering I can already enter legally?

Yes, you absolutely need a visa (specifically the K1). Entering the US with the intent to get married without it is immigration fraud!

I've been through this process myself and I can tell you that it's quite the lengthy process and there's financial requirements and many checks along the way. For me it was about 18 months from start of K1 application to issuance (delayed due to COVID) and then about 6 month wait on employment authorization (and greencard about 6 months later).

These times could be much longer if you're not from a western country or mess up the paperwork along the way (easy to do, there's quite a lot of stuff both partners need to file).

Just letting you know so you can start the process early. There's several forums online for people going through such a process with a lot of resources, I'd suggest looking there for other's experiences.

returningfory2
> Yes, you absolutely need a visa (specifically the K1). Entering the US with the intent to get married without it is immigration fraud!

While this is theoretically true, the reality is that thousands (tens of thousands?) of people do it every year successfully. And it's hardly surprising, especially under a pro-immigrant administration like Biden's. I doubt strictly enforcing previous non-immigrant intent in family-based green card applications is anyone's priority.

I'm not advocating people do it. I just think there's a strange dynamic in immigration conversations online where a lot of people talk as if theory and reality are exactly the same. They're not. The reality is that people are constantly engaging in various immigration violations that are overlooked/undeclared/ignored/etc.

KK7NIL
> While this is theoretically true, the reality is that thousands (tens of thousands?) of people do it every year successfully.

You are correct, but if you do it on a tourist visa, you can expect to wait well over a year for employment authorization, which is very difficult on a relationship.

Not to mention you always risk getting rejected (particularly if you posted your intention online) and then being essentially banned from entering the US.

For two grown adults with careers, it makes no sense to risk it, just take one of many legal routes (K-1, work visa, getting married outside of the US and then applying for a greencard, etc).

zie
We went through the Fiance Visa program and it wasn't a big deal, but the foreign one of us was Canadian, which is on the we like that country list, which probably helped a lot.

You have to follow special rules for the fiance visa program, and most all the paperwork happens before you get married.

The big thing I remember(it's been decades now), there was a fee we had to pay at one of the consulates somewhere, and they gave us 2 receipts, a big fancy full page one and the tiny cash register receipt. Way afterwards they made us prove we paid the fee. They wanted the tiny cash register receipt, not the fancy full page one. Make sure you keep literally everything , you have no idea what might be important later on.

I'm not saying the fiance visa is right for you in your situation, just mentioning it in case you are not aware.

souvlakee
If you seek evidence like judging others' work or association membership for your O1/EB1, contact me at halloumee(at)proton(dot)me.
souvlakee
That's regarding the judging of hackathons.
souvlakee
I also can refer you to BCS or IEEE.
TZubiri
Remote workers are clearly a gray area in immigration law. On the one hand if the worker lives abroad and imports products and related support services to the US, that's clearly not a migrant worker.

On the other hand, if a remote worker is a virtual receptionist for a US business, or if the worker controls machinery remotely that operates in the states, they clearly compete with local labour, and bring cybersecurity issues.

As an attorney with power to interpret and shape case law, do you think there is any grounds to require visas for some types of private remote work, given the current laws? Or would this be a matter that needs to go through congress.

proberts
Individuals working outside the U.S., even as employees of U.S. companies, are outside the reach of U.S. immigration law. Now, that doesn't mean that they are outside the reach of all laws, such as those controlling exports or combatting (cyber)terrorism. But immigration law has no say.
TZubiri
Interesting, but couldn't immigration laws have jurisdiction over the US company that employs the outside employees? Especially in the ways that they interact with US Soil and US citizens.
spondylosaurus
Immigration policies primarily govern residency, no? If you're not a resident of the US, any laws that apply to you would likely fall under employment or commerce, not immigration.
eapotapov
Many Russian citizens who have moved out of Russia are currently being denied B1/B2 visas, regardless of their prior history or any proof of ties to their current country of residence. The rejection rate is around 60%, and I am among those affected under 214(b), despite having held five B1/B2 visas before, with no visa overstays or other issues.

I don't plan to move to the US, but my startup operates in the US market, and it would be beneficial if I could meet customers and investors in person.

I plan to apply again next spring (a year after the denial), and if I’m unsuccessful, I’m considering applying for an O1 visa to be able to visit the US, although I have no intention of staying long-term. Do you think this is a good idea? I’m concerned that after the O1 visa expires, my only option to return might be to apply for another work visa or O1 visa.

proberts
What you write is incorrect. Even worse, arguably, is that applications by Russian citizens sometimes just end up in a black hole and never get reviewed. Unfortunately, while applying for an O-1 visa can be a solution, this isn't always the case and O-1 visa applications also can end up in a black hole. In other words, there are no easy solutions for Russian citizens unless they are seeking to travel to the U.S. on government business or possibly seeking to travel to the U.S. to create jobs. But the background security check/security concerns can undermine just about any application unless the Executive branch/State Department is involved and is specifically supporting the visa application.
eapotapov
Well, that's life. Thank you so much—at least now I know my chances.
alkh
Just to chime in, what's the situation with getting an H1B visa for a Russian Citizen? Are there similar issues or is it still possible to get one?
proberts
Similar issues because the background check is the same regardless of the visa being applied for. Again, if you re already in the U.S. and seeking to change your status to H-1B or O-1, this isn't an issue.
maskerinze
My B1/B2 visa application has been in administrative processing (221g) for over 8 months. I assume the security checks are in place. Russian citizen, multiple US visits in 15 years. Last time it took 2 months to issue visa. If I seek to travel to the U.S. to create jobs (I own a US company), what visa option should I pursue to maximize my chances of getting approved?
eapotapov
I don't know if it's good or bad news for you, but at least you're pretty lucky to have reached this stage—the majority just get rejected.

From what I know, some people have received their visas after 12-16 months of processing. It will most likely be valid for only one year, though. Eight months is pretty early to expect anything at this point.

Here’s a Serbian-Russian expats visa Telegram group where there’s a US section. You can ask people there about their processing times: https://t.me/serbia_visas_chat

Again, I’d say you’ve had some luck!