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I’m Peter Roberts, immigration attorney who does work for YC and startups. AMA
257 points by proberts on July 6, 2018 | hide | past | favorite | 331 comments
I’ll be here for the next 2 hours and then again at around 1 pm for another 2 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!

Previous threads are here: https://news.ycombinator.com/submitted?id=proberts. Email is in my profile and you are welcome to get in touch!




Hi, first of all thank you for your time.

I have been a green card holder for a bit more than 5 years now, and would like to move forward with the naturalization process.

For better growth opportunities, I changed employer soon after my green card was obtained (about 2 months after). I have stayed with my former employer (big enterprise which sponsored my H1B and then GC petition) for 3+ years, and with my current one (the small startup I moved to after the GC) for 5+ years, always working in the same field and performing similar software engineering duties.

Besides that, clean record (just a couple minor traffic tickets).

My question for you is: do you think it would be wise for me to move forward with this and start the N400 process, or do I risk opening a can of worms which could backfire on me and in the worst case having my green card revoked because of alleged fraud, especially considering the new administration?

Thanks


Move forward. You shouldn't have any issues whatsoever (based on the facts that you provided).


My case was very similar, I switched jobs in about 2 months from getting the GC. I recently got my citizenship, and it was no problem at all.


    > ... especially considering the new administration?
Not to be rude, but it sounds like you are a lawful permanent resident. Do you have any evidence that suggests that lawful permanent residents are being treated any differently by the government now or in the future by the government? There’s a lot of FUD trying to conflate what’s happening to people entering the country by bypassing official immigration processes and those, like yourself, who have done things by the book.


There have been plenty of news articles in the last two days about the current administration forming a task force to remove citizenship from naturalized citizens that they believe lied on their applications. That's citizens, not just permanent residents. The immigration process is long and complicated. It would be easy to make small mistakes here and there. Technically, some of those mistakes could get you deported.


> remove citizenship from naturalized citizens that they believe lied on their applications

If the individual was given citizenship on the basis of those lies, then it makes total sense to revoke citizenship.

That would be like hiring a developer who says he is an amazing programmer who can solve any problem. Turns out after he got the job, not only is he terrible at programming, but he's also a liar. So you fire him.

If you lie on an application for something, and you are awarded, generally speaking it makes sense to revoke the award if it is discovered that you lied.


On the other hand, what if you say, for instance, that you got your degree in '93, but actually it was '92? The trouble with the law is that it doesn't distinguish between whoppers, fibs and clerical errors. They are all falsehoods, and all are grounds for deportation if the government decides it wants you out of the country.


I assume you meant to say "you claimed you got your degree in 93 when you actually got it in 92". I work in the background check business and each check has its own windows of acceptance. Depending on how long ago the degree was awarded, the window can vary from 0 years to 10+ years. This is also contextual, as if the immigration application was submitted in 93, and you say you got your degree in 92, when you actually got it in 94, and your immigration was approved in 95. This is a clear case of an invalid application.

Having said that, I'd like to see an example of deportation on the grounds of a 1 year mistake in the year one had received their degree, when the degree was received 30 years prior to application. I would like to see it not because I'd agree with such a measure, but because it would give you a strong case.

As it stands I don't believe that anything close to that has happened.


If I continue the logic of your reasonning, the employer should have a technical test the candidate needs to perform in order for the employer to ensure that the candidate is not simply lying about his competences. If the employer gives the test, the employer hires him because he succeeded, then it is more the employer fault to hire him in the first place, not the employee fault because he performed the test.

The moment a person becomes a citizen of a country, he is entitled to the exact same right that the citizen next to him. There is no distinction of a citizen who was born in the country vs a citizen that was naturalized.

In your case, if someone profits from a lie, then we correct the process so that people cannot profit from it anymoreinstead of revoking things you gave by mistake (things _you_ gave by _your_ mistake).

If you hire someone without checking that what they say is true, then I am sorry but you're just stupid. If a country give citizenship to people without verifying that what is written in the application is true, then I think the process is incredibly stupid.


Okay let's just spend trillions of dollars giving every person who has applied for immigration complete background checks, and if any of the checks can't be completed for any reason what-so-ever, we should deny them citizenship. Sounds like a plan, Stan. That, or we just deny everybody because we can't afford it.

Employers can afford to vet their employees. The state cannot afford to vet any regular citizenship application to the same degree. If we could, that'd be great.

This is why it makes sense to assume the best in people (like we do), and if it turns out they intentionally lied or mislead on their application, then revoke the awards that were provided based on that misinformation.


Not to repeat myself, but this is similar to an action taken by the Obama administration.

https://www.cnn.com/2016/09/19/politics/us-citizens-deported...


I have sponsored an immigrant (have you?) who is now a citizen. If they were at even minimal risk of losing their citizenship, it would be horrifying. Since the articles referenced involve fraud on immigration applications, I’m sure there is zero percent risk of deportation in my case.

Fraud requires intent. It’s not making a small mistake here and there on an application (been there, done that, fixed it, process goes on).


Once again, this is a quote where a small "mistake" (if you can call it that) caused a visa holder already in the country to be deported: https://news.ycombinator.com/item?id=15679062


First of all, an H-1B does not give someone not a lawful permanent residence. Second of all, it seems like his/her employer screwed up. The poster was vague on the timing, but if accurate, the employer was supposed to notify USCIS about the change prior to it taking affect (hence the response that they were not notified on time).

    “If you do not file an amended petition for these employees…,
    you will be out of compliance with USCIS regulation and 
    policy and thus subject to adverse action. Similarly, 
    your H-1B employees would not be maintaining their 
    nonimmigrant status and would also be subject to
    adverse action.
This is from a decision made in 2015. By changing locations prior to notification, they didn’t maintain their status. No ill will or targeting. USCIS did exactly what they said they would do.


LPR or not, it seems totally scary to me that a visa was revoked because the company committed a minor mistake in filing the notification: for all we know, the company filed the notification in a timely manner but sent a superfluous check with it that caused the document to be returned.

In what world is this something that shouldn’t be considered a minor mistake and be looked past by an immigration officer, considering that the company was in good faith? Hell, the guy didn’t even change employer, it was a simple change of address for the same company!


That has always been a possibility. Nothing new with this administration.


Please read this, from another fellow HN user just a few months ago, and let me know what you think: https://news.ycombinator.com/item?id=15679062

This is an employee working with a company where things have been done "by the book", and yet USCIS found a silly reason to deport the candidate.


The comment you link to [1] is not written by a "lawful permanent resident." They were on an H1-B visa. That's lawful, but not lawfully permanent.

[1] https://news.ycombinator.com/item?id=15679062


As I said in another comment, LPR or not, it seems totally scary to me that a visa was revoked because the company committed a minor mistake in filing the notification: for all we know, the company filed the notification in a timely manner but sent a superfluous check with it that caused the document to be returned.

In what world is this something that shouldn’t be considered a minor mistake and be looked past by an immigration officer, considering that the company was in good faith? Hell, the guy didn’t even change employer, it was a simple change of address for the same company!


Both LPRs and even naturalized citizens are being targeted; notably, for the first time since this was done during the second Red Scare, the Administration is actively seeking out naturalized citizens to denaturalize.

https://www.npr.org/2018/07/04/625980910/white-house-launche...


> for the first time since this was done during the second Red Scare

The Obama administration also sought out citizens for potential denaturalization when it was revealed that some of the fingerprint records they were naturalized under may have been faulty, or incorrectly held.

https://www.cnn.com/2016/09/19/politics/us-citizens-deported...


The article you cite does not say the Obama Administration actively sought to find denaturalizable citizens, it says that an error which would have made citizens denaturalizable was discovered late in the Obama Administration, and a recommendation was made to identify all the effected persons and decide what course of action to take.

Yes, every Administration has reacted to discovery of information which would have made citizens denaturalizable, sometimes by pursuing denaturalization. Since the second Red Scare, however, the government has actively and specifically sought to find bases for denaturalization as a policy goal.


Despite the poor media framing, Trump's "task force" is a response to that same fingerprinting snafu, and is predicated on the suspicion that some of these naturalized citizenships were improvidently granted.

https://www.theroot.com/trump-creates-denaturalization-task-...

From CNN:

> Since the Obama administration, Immigration and Customs Enforcement has also been working to put more than 300,000 fingerprint records into a system that can be checked against citizenship applications.

> According to USCIS, the effort to followup on those records has resulted in 2,500 cases that have been flagged for in-depth review, and 95 of those have been referred to the Justice Department to date.

Yes, I get that Trump's a big scary monster, but despite the media charade, and his inartful presentation, this seems to be exactly an extension of what the Obama administration did.


I am going to sign off now. As always, it was a pleasure and honor to correspond with everyone. If I missed your question or if you have a question not asked, either post here - I'll be checking in over the weekend - or send me an email (my email address is in my profile). Have a great weekend.


Thanks for taking the time Peter! In case this question catches your eye on the weekend: Suppose, as an Indian citizen working in the US on an H1-B for a large tech company, I want to start my own company, but don't plan on having funding soon. Would the path be to incorporate a company, get some people to serve as a board of directors for it, and then file a concurrent H1-B? If so, some questions:

1) Can the new startup, with a competent immigration lawyer, file a concurrent H1-B petition with sufficiently high chances of success? Or can the USCIS apply discretion to choose not to approve the petition since it's a tiny company?

2) The concurrent H1-B application wouldn't require me to go through the lottery again, right, since I've already gone through it for my primary one?

3) Is ceding control of the company as simple as electing people you trust to the board of directors, and giving them the power to hire and fire you? While still maintaining 100% ownership with a co-founder?

Also, unrelated question: have you been seeing trends in the acceptance rates for L1A applications? I'm currently working outside the US for a large tech company as a Product Manager, and while I don't directly have people reporting to me, I do have executive-level responsibilities. PMs from my company previously had no trouble getting L1As, but I'm hearing rumors now of things getting harder and slower and more rejections happening on the basis of people not being "manager" enough with the new administration.


Hi Peter, Thanks for taking time. You mentioned earlier that people on H1B can file for a part-time/concurrent H1B with the start up that they are founding. I have couple of questions with this approach 1. Can I register the company with 100% ownership while working on H1B full time? Can this company make money?

2. What will be the requirements for this new company to file for concurrent H1B

3. Any recommendation around which type of company (LLC, C-corp, etc)

4. Is there a minimum requirement around the number of employees, funding amount and VC investment for this new company's H1B petition to be successful?


Thank you for answering all of our questions, Peter!

I am currently on an L-1B and in the process of obtaining the GC (EB-2). My I-140 just got approved, and my lawyers said that my case should take 12 more months.

I have been with my employer since mid-2015 (1.5y in an European office, since beginning of 2017 in SF office).

How long would you recommend that I wait before I switch employers after I receive the GC? I hear conflicting advice, so I would really value your opinion!

I won't be applying for citizenship later but don't want to risk losing the GC.


Peter - are you seeing a shift or a trend where individuals with immigration need are possibly heading to other countries (e.g Canada) given the toughening stance on immigration here in USA recently?

Also what would be your 2 cents for citizens from oversubscribed countries such as China/India who practically have to wait for ever now to get work based GC? Head over to Canada?


Absolutely. A lot of our corporate clients are deciding to set up shop elsewhere, such as Canada, and a lot of our individual clients from China and India are moving elsewhere as well, such as Canada - or pursuing an EB1A green card, although the standard is tough and getting tougher.


I moved from SF to Toronto last year with a Canadian PR. Absolutely love Toronto and miss Cali. My motivation was to get out of a work visa and explore some startup ideas. I have a blog https://movnorth.com to help others who are considering Canada. From traffic to the site and the forums I can tell that a lots of people are going this route.


Unfortunately with the new provincial government (elected to a majority with a strong 37% of the vote...) Ontario is starting to look a lot more like the US in its attitude toward immigrants, among other things. I would suggest Vancouver instead, if not for the astronomical cost of living (although I guess not compared to San Francisco).

Edit: Fortunately the provincial government doesn't really have any say over immigration, but I am disappointed to see these attitudes spreading.


You're making a very broad assumption and making a very specific suggestion based on it. Even though you corrected yourself later saying that immigration is not controlled provincially, this type of thinking is pretty backwards.

I think it's caused by people reading too much into sensationalist news articles and headlines which exaggerate or hyper-focus on useless details to get attention and views. While in reality, nothing has really changed (or will likely change) that would cause someone to move to another city.

It reminds me of the people who talked about moving to Canada after the last American election. I'm curious to know if the people that moved were actually impacted directly by the election or whether they were just trying to make a political statement.


I'm not suggesting that someone would leave Toronto to move to Vancouver because of the change in government. Just that if you were thinking about moving to Canada and evaluating possible destinations, the more immigrant-friendly attitude in BC compared to Ontario might be considered. Mostly I'm just lamenting the negative attitude in general though.


I think I am in a long line of people who really appreciate all the help and guidance Peter has given. If you have startup immigration issues, Peter is your guy.


That's very kind of you to say. Thank you.


Hi Peter,

Fully agree with @ajiang -- Thanks a lot for taking the time.

outside of YC and start-up specific immigration matters, do you handle non-YC/start-up cases?

Thank you.


Of course but to be clear (and I'm not being modest) there are a lot of good immigration attorneys and many who specialize in the representation of startups and entrepreneurs.


Hey Peter. I've been researching this question online a lot and always see conflicting answers. Can you start a side project or job (e.g., a website generating revenue or teaching classes after work) if you're on H1-B but already got an EAD card while waiting for a green card?

I see many people online saying that would invalidate your H1-B and many other people saying it's ok because your H1-B and EAD card are independent.


Yes, once you have an EAD as part of a green card application, you can do anything - but just make sure that this work is consistent/isn't inconsistent with the basis of your green card application. What's the basis, if I may ask?


My Green Card application is a (EB3-> User Experience Designer) and I have an unmonetized website with a good amount of traffic. I want to monetize (getting Ads income, potentially setting a content subscription) it without jeopardizing my H1-B.

Is this consistent?


And you'll remain with the sponsoring employer? If so, then no issues.


Piggybacking on this question, can you have a secondary source of income (e.g. from a website) if you're on an H1B but have not applied for a green card yet?

More specifically, at what point of your status can you start earning money legally from another source?


So, selling something every now and then (like your car or used furniture, etc>0 is permissible but when it becomes a business (a grey line admittedly), it requires work authorization.


Yes. Remaining with my sponsoring employer. Thanks for the clarification.


I'm back and apologies for the delay. (It was not because I was watching Brazil Belgium.)


Hi Peter, and thanks!

My question relates to the ability of reactivating "old" H1Bs after several time periods abroad.

(French national here)

I got my first H1B in October 2008 and left my job (and the US) in November 2009 (that's ~1 year and 1 month)

Then I got it "reactivated" and came back to work in the US in November 2013.

Transferred the H1B visa to another company in May 2013 (so that's ~6 months) and left the US again in June 2015 (that's another ~2 years and 1 month)

All in all, I have used around 3 years and 8 months of the "same" H1B in total.

At this point in 2018, would it be theoretically possible to come back to work in the US under the "same" H1B visa without going through the whole process of quotas/lottery etc. ?

All the best


We've dealt with this issue several times and the outcome will depend on how USCIS applies its rules/policies but it is possible that you will not be subject to the lottery and could get another H-1B for the balance of your 6 years.


Hi Peter, A friend of mine is a US citizen from Iran. His father is receiving medical treatment in the US for a very serious condition. His mother wants to visit to be with her husband, but has been unable to get a visa due to the Travel Ban. How can we petition for a waiver? We have contacted congressional representatives, so far no answers. Worried that his mom may not have the opportunity to see her husband if his condition worsens.


So she applied for a visa and wasn't granted a waiver?


Yes, she has applied for a visa multiple times, and has taken medical documentation on her husband's condition. So far she has not successfully obtained a visa.


Email and let's talk because we've obtained waivers for Iranian citizens.


Thank you! I will email you!


Not Peter, but from experience waiver doesn't piratically exist. A relative of ours got diagnosed with late stage of cancer and her parents (her mom a nurse) were denied visa to visit and was told "tell you daughter to come and visit you in Iran".

My brother also a US citizen is moving to Canada because her wife can't get a visa to enter the US.


Yea, they seem to be very difficult to get. This article says the State Department has approved 375 waivers. So the waivers exist in theory, but the practical process of getting one is unclear.

http://thehill.com/policy/international/380975-us-visa-grant...


Hi Peter, Thank you for your time, I have been in the US for 16 years and stuck on the H1-B-> GC infinite wait list since I am from India. I co-founded a startup that now employs > 10+ U.S Citizens with ~ 1M ARR. Any advice on accelerating my GC application would be immensely helpful


I will write a bigger post later on. But whatever happens do not apply for I-485 till you get your I-140 approved.

I did that mistake and had to leave US recently after my I-140 and I-485 got rejected. Once your I-485 is denied - you can't move to options like O-1, E-2, B1 etc. H1 will be your only option.

As far as chances of EB1-A. If you work in tech and are a startup co-founder, the chances of getting an EB1-A currently are really low. I talked to quite a few top law firms recently - BAL, Wolfsdorf etc, and they all mentioned that tech startup founders are finding it really difficult to get EB1-A.

Two of my petitions were rejected. I had lot of media about me, sold a company, leadership positions in various companies, wrote a book which is part of MBA course, judge at hackday. Apparently that was not enough.


It sounds like an EB1A green card could work for you. Send me your CV.


In your opinion, are there other countries that have a significantly better process for handling skilled immigration applications. And, if so, what lessons from them would you like to see brought over to the US?


Canada. Transparent, point-based system and a conditional PR for a limited period which can be extended and eventually lead to citizenship.


Harper got rid of the points based system around 2013.


Not true. https://www.canada.ca/en/immigration-refugees-citizenship/se...


It appears that Trudeau has moved to a hybrid of the Express Entry system when it was introduced and the old points based system. This describes how it worked a few years ago: https://www.cbc.ca/news/politics/immigration-changes-to-watc...


I really don't know the systems and procedures in other countries although I've heard anecdotally that Canada is welcoming talented founders and professionals with open arms.


Pretty much every other country. In the UK for example, if you want to work, you just need to get a job offer. To keep numbers under control, they simply put a wage minimum that's high enough. Not fair for positions like nurses and teachers that are valuable to society, but generally ensure skilled migration. If you want to start a startup, a UK university can endorse your startup idea for a 2 year visa, and then raising a small amount of funding gets you 3 more years.

After 5 years of residence in the UK (except time as a student), you get PR, and citizenship soon after.


> Not fair for positions like nurses and teachers

In Australia and even in Canada teachers earn as much as IT professionals


> In Australia and even in Canada teachers earn as much as IT professionals

That is not true in Australia, IT wages are higher.


Not true of average wage in British Columbia, Canada. IT pays much better than teaching.


Australia has points based immigration which looks at your age, education, work ex etc. If you have the points you get the resident visa even if you are outside Australia, you dont even need a job offer.


Not exactly, having enough points means you may get invited to apply for a visa. Points don't guarantee receiving an invitation or being granted a visa.


You missed the bigger point of countries having a significantly better process for handling skilled immigration applications.


No, I didn't. I just didn't want anyone to get the wrong impression that everyone with enough points gets in.


There will always be exceptions but more or less everyone with enough points gets in unless you have some official data which says otherwise.


PhD in Machine Learning, on O-1 based on research. EB1B got denied (I have enough accomplishments, company accomplishments excluded for weird reasons). O-1 up for renewal next year. 1. How often are O1 extensions approved? 2. Am working for the same company, which does not publish its research, does that hurt chances of extension? 3. How much harder is EB1A standard than EB1B?


I am a Canadian citizen in California on a TN visa. I have been working on a project that I would like to post as a website and monetize, but has no relation to my TN visa, of course. Is this possible to do without having a green card?


You would need separate work authorization to do that.


Good to know, thanks. Can I ask for slightly more direction on that? Can it be something like https://www.uscis.gov/greencard/employment-authorization-doc... or is there a specific form I can seek to fill out somehow?


You'll need your employer to sponsor you for employment-based green card - you can't self-sponsor.

However, TN visa is single-intent and meant to be temporary, i.e. you can't immigrate on this visa. This is different from dual intent visas H1B and L1 where they are dual intent.

This means that you can't travel until you are granted Advance Parole. This can mean a year or two waiting in limbo in the US.

Source: in the process for employment based green card and have a few friends who switched from TN/E3 visa to green card


My wife received a job offer from a start-up, however her i-765 application (c09 category) has been pending for over 8 months with no action.

We filed a service request back in April based on the case outside of processing time. NBC responded saying we'll receive an action notice within 60 days. It's been over 80 days now and no status change.

We filed an expedite request, then faxed the job offer. They are asking to wait until next week. We have contacted one of CA's senator office in parallel, but not response yet.

How likely do you think this will finally go through? And is there anything else we can do? Her job start date is 3 weeks from now.


You should contact your local Congressional office and ask for that office to make an inquiry - this is done all the time and oftentimes yields helpful information and results.


Hi Peter,

What are the chances of RAISE act being approved by Congress? It aims to curb legal immigration by more than 50% over the next 10 years.

Really wanna know your opinion on this.


Even with this Congress, I think that the chances are low.


Thanks for your thoughts, Peter :)


I've heard that NAFTA provides an easier immigration process for employees in a NAFTA country (Canada or Mexico). How does that work, and what are the limitations and trade-offs of this method, if any?


The TN process can be very quick and easy but it's definitely getting a lot tougher and the outcome oftentimes really depends on the NAFTA occupation - some are straightforward and some aren't - and, as a general rule, it's easier to get a TN as a Mexican citizen than as a Canadian citizen.


As a Canadian I got my TN at the port of entry. I've talked to Mexican nationals who said they had to go to a consular and pass an interview before getting their TN.

Unless this has changed recently, this comment is not true.


I read @proberts comment to say Mexicans are more successful than Canadians at getting TN visas. That the Mexican process is more onorous does not necessarily influence the outcomes. Maybe, that a Canadian TN application is solely decided at the border works against it.

Unfortunately AFAIK there are no published statistics for TN approval rates.

It might also be worth noting that TN is not a dual intent visa like H1B.

IANAL.


Hi Peter,

Here is my situation: I am a person with passport of Russia, but I have chance before me to participate in US startup as co-founder. Company will likely be incorporated in Delaware with US citizen as primary founder. So I have a few questions:

1 - With "startup visa" initiative dead in water would it be possible for me acquire US visa with work permission if company likely going to have no more than 5 employees at least in first few years?

2 - How should I go with managing my share in US company? Do I absolutely need to find US lawyer to represent my interests? (I absolutely trust my US colleague, but I worry that we can accidentally do something wrong). Should I register myself as owner of share in company? Or it's better to control share through my own company in EU / UK?

Thanks for many answers you're already given; they are all really useful! Excuse my grammar since I write this in haste.


1. Yes, and an O-1 is often the visa that we get for talented founders (from Russia and elsewhere). 2. With the long view in mind, I would recommend that you all hire a lawyer to handle the corporate stuff.


That’s very interesting. I was under the impression that O-1 visa require verifiable world class talent (such as making the olympics in your discipline). Could you elaborate on what the bar is to be eligible for O-1 visa?


Hi Peter,

As an H-1B holder with entrepreneurial ambitions and no Green Card in sight for any foreseeable future, how hard is it get an O-visa?

I am not a research scientist or a Ph.D. holder or have any publications, just your garden variety Software Engineer (with a graduate degree). With IER parole gone, what is a feasible way for me to quit my job and work on my own idea?

I don't have funding yet (and don't plan to receive one nor do I need one immediately), but have a feasible idea, some crud prototyping and positive responses from a small clientele.

My idea requires a good amount of field research, going to conferences and workshops, etc. (it's a B2B product). I am also required to go to meetups to scout for talent and to keep abreast of latest happenings in the tech scene, etc. I can't do any of these with my regular H-1B 9-5 job. How do I get off H-1B?

P.S. EB-1, E-2 are not an option.

Thanks.


I know, the options are very limited and the O-1 can be tough even for incredibly talented engineers who don't have publications, press, etc. I would need to review your CV to give you a firmer assessment.


Hi Peter!

I believe you have already helped my case via email through my company, thank you for that! I just happened to see you here by coincidence and thought it would be a great chance to clear some of the follow-up queries I had:

I just received a Job Offer from a CA-based startup. Here is a refresher of my H1B case:

1. My H1B stamping expired in Sept 2015, but I understand that the petition is valid till Sept 2018 as it was approved in Sept 2012

2. I spent only 1 of the total 6 years working in the States, so there are a remaining 5 years of time that can be 'reclaimed' on the Petition

3. I was issued an L2/B2 Visa in 2016, at which point the H1B was stamped 'Cancelled without prejudice' (the original stamping had expired by that point anyway).

4. I understand that I fall into the category that is referred to as 'Cap Exempt' and a new H1B petition needs to be filed with the same petition id.

------------

My questions are:

1. I understand that there is no provision for unmarried partners to get H4 Dependent Visas in the US, even if they are long-term partners. Could you please verify this?

2. My girlfriend and I have been together for ~10 years now and plan to get married sometime soon (in the next 2 months), primarily so that we can be together once I move there. Is there any restriction/complication for newly married couples to emigrate? In the UK, I know that there is extra scrutiny for newlyweds.

3. Because my first H1B stamping has expired (and was 'Canceled without Prejudice' when I was issued my B1/B2), I am assuming that I will need to get a new stamping, and for that, I will need to travel to the nearest US Consulate. Could you please verify this?

4. My Passport expires in July 2019. I understand from research that the Passport needs to be valid for the entire duration of the intended period of stay. Would you recommend I apply for a fresh passport (I will be only able to apply on the 12th of July as in India you can apply for a fresh passport only 1 year before your existing one expires)? The process takes a 15 - 20 days.


1. That is correct. Marriage is required. 2. There are no restrictions. 3. That's correct, after a new H-1B petition is approved. 4. You don't need a new passport now but if you can get a new one quickly, I would before you get your H-1B visa so that you don't have to travel with two passports later on.


Hi Peter,

This might be a pretty basic question, are there currently any legal options for retaining an employee who you learn is undocumented?


There are some very narrow exceptions but generally the answer is no, unfortunately.


Hi Peter. What are your thoughts on the government counting derivatives of employment-based green card applicants against the per-country and overall quotas, thus worsening the current visa backlogs? There are opinion articles that argue the government's interpretation of the law is wrong and could be challenged[1]; I would be interested to hear your thoughts on this issue. Thank you!

[1] https://www.cato.org/blog/proof-government-cheating-legal-im...


I think that it's clearly wrong and it's clear that the motivation is political not legal.


Peter, thanks for doing this.

For someone with I-140 approved and now waiting for the priority date to become current for a long time due to the GC backlog, how does relocating outside the US affect the validity of I-140 approval? Or in other words, is it possible to quit the sponsoring employer, work in the home country till the priority date is current, and then restart the GC process using the last I-140's priority date with a new US employer? If so, can the H-1B application with the new employer be done without going through the cap and using the indefinite extension provision?


Yes to your last two questions. And regarding your first question, being outside in and of itself does not impact the validity of the approved I-140 but changing employers does.


Thanks!


Peter? Thanks.


What would you recommend to an H1B holder in terms of next steps? Applying for green card through employment(EB2) would take really long (Indian nationality). Does pursuing PhD improve the chances any better (EB1?)


The shorter and an easier route is to get transferred as a manager. If you are from India, join an Indian company which has a US office or US HQed company based in India (or any other country, maybe Canada), get promoted to manager and transfer to US on EB1C. There are certain restrictions, you have to be outside US for atleast a year and some other restrictions. But, this is the shortest route. Do not be like me and wait in the queue for 15 years. Use the shortest legal means possible.


That's all correct although an advanced degree also might help you qualify under the EB1A category (assuming that you publish, etc.).


Have you already finished your MS? If yes, may I ask from which university and when?


Hi Peter, here is the summary of the situation:

- The person has been a GC holder for a little over 2 years now and has not been out of the US for over 10 years for any significant period of time.

- The person has recently left the previous company that sponsored her GC (big enterprise) after 8 years there in order to join international remote-only startup that is expected to have US presence in about a year.

- The person is not an employee of the startup directly, but rather has a US-based corporation that is providing consulting services to the startup and she is the single share-holder and employee of the corporation. Her position in the startup is in the same field as GC application.

- The person is travelling around the world, while still staying in the US for 6 months per year or more.

- The person is considering purchasing one of the "golden visas" (real estate or business investment similar to EB5) in a foreign country that is different from startup domicile where the person is not planning to reside or stay. This investment program makes her eligible for the foreign passport in 5-10 years even if she is not residing in that country.

The questions is whether you think that either of the last 3 items (providing consulting services to company in foreign country through US-based corporation, travelling, or applying to "golden visa" program in other countries) would affect her GC status or US naturalization application in 2.5 years.

Thank you very much for your help!


Given the facts above, I think not at all with the exception of the acquisition of a "golden visa," which could be construed as the intent to reside permanently in that country (as opposed to reside permanently in the U.S.).


Hi Peter,

I'm currently a remote freelancer and have spent the last 5 years on the move and working in different countries. My main client base is in the UK (where I'm originally from). I would love to move to the States, however I would obviously need to get a work visa. My research has only really lead me having to stop freelancing and get sponsorship with an US company.

So, I was wondering if there are any other routes you might know? I'd rather not give up the freedom of remote freelancing just for the US.

Cheers, M


The options are a green card (if your background is strong enough) or an O-1 or an E-2 visa through your own company. What's your country of residence?


(Similar to another question asked in this post: https://news.ycombinator.com/item?id=17473654)

If you are on H1-B and have received EAD but not yet green card, is it easier to leave your current employer and start your own company than if you are just on H1-B? And as an extension to that, what benefit does green card provide in regards to starting your own company over only having the EAD?


I'm a US citizen cofounder working abroad married to a non-citizen, non-green card holding spouse. It appears our company would meets the qualifications for expeditious naturalization of my wife. However, expeditious naturalization requires that she already hold a green card, which she does not. Given that we live abroad and won't be returning to the US while this company requires me to be abroad, is it possible for us to move ahead with expeditious naturalization?


That's going to be really tough. I'd need to talk this through with you.


I just wanted to say that you guys should look into the green card lottery. The odds are slim (2%) but hey, fortune might be in your favor. Not all countries are eligible tho.


Excellent point and something I sometimes forget to mention. We have a lot of clients who've obtained a green card this way.


what nationalities do you have the hardest time getting visas for? what is your success rate with getting H1B vs O1 visas? How long does the process take for an O1?


I really don't see any variation among nationalities. It's really less a question of nationality and more a question of the location of the Consulate - certain Consulates, particularly those in the Philippines and India and now London more and more, have a relatively high denial rate. Our success rate is still high but, like all immigration lawyers, to get there we're having to battle more and more, particularly in the H-1B context, on oftentimes ridiculous issues. With premium processing, an O-1 will be reviewed within 2 weeks; without, anywhere from 2 to 5 months.


Hi Peter,

My current employer has offered transferring me to the US under an L-1B visa in approximately 6 months. On the other hand, my girlfriend (US citizen) and I are thinking of getting married.

From a purely technical point of view, do you see any issues with transferring under an L-1B visa and then getting married? Do you recommend taking the fiancee visa route instead?

Our goal is for me to become and American citizen at some point and live the rest of our lives in the US.

Thanks!


Is the american dream over for Indian nationals (multiple decades wait for GC in EB2/EB3 category). What would you suggest to people stuck in backlog?


It's incredibly frustrating of course. The only short-cut is via an EB1A green card or marriage to a USC, which are very limited options. That being said, we've helped many stuck in the backlog through the EB1A path.


or EB1C


If the individual has worked outside for a related company for at least one year in a managerial or executive capacity and is or will be working for the related US entity also in a managerial or executive capacity.


Could you share more details with those of us who are unfamiliar with the issue? People from India have a multi-decade wait to work in the US? That sounds horrible.

A new US President may be more interested in immigration. AFAIK the US public largely supports it still, as do the powerful (businesses). It's mostly the nationalists who object.


https://www.gcreforms.org/key-issues/


I agree but missing some info. Republicans in Congress are actually more willing t fix this and bipartisan bills that will for sure pass the House with a super majority have been introduced but not in the Senate. The Democrats don’t want to pass anything without passing DACA because they get no political points and The Trump Administrarion wants some other types of immmigration cut before passing this (giving diversity lottery slots to h1b backlog) to appease the nationalist base. Traditional GOP non nationalists and moderate Democrats are for this strongly however. Basically there is no political push to get this fixed. If h1b were more vocal or had more political capital, it’d get done in a month.

Edit: not sure why the downvotes, here’s a source?

http://thehill.com/opinion/immigration/377886-congress-leave...

325 co sponsors 174 D 151 R with many more willing to vote for it.


It doesn't sound like the Republicans are more willing to fix this based on that article - the bill is held up at the House Judiciary Committee, which is controlled by the Republicans.


> The Democrats don’t want to pass anything without passing DACA because they get no political points

Which Democrats feel this way? What evidence is there?


From your perspective, is it easier for people to apply for a visa with a different employer after they already have one with a different employer in the USA or is it the same as if they were applying from abroad the first time? I've felt at times like switching jobs from an E2 to a TN visa might be risky if they evaluate me the same as any other candidate given I don't have a formal CS education.


There's really no deference given to prior approvals except sometimes in the O-1 context.


Thanks for your reply!


I'm currently working in the US on an L1-B visa, is there any possibility for me to switch to another employer without leaving the country?


Yes, but limited - via an O-1, H-1B, or E-1/E-2.


Hi Peter,

I lived in US for 7 years, 2 years studying and 5 years working as software engineer (Microsoft, Startup). I came back to India 4 years back, started a company and now employs 10+ folks. Our customers are from US.

We want to setup an office in US and I want to come there to setup and work for my company to hire people and increase sales.

What is the best part to achieve this?


An L-1 or O-1 is probably the best option. If you were in H-1B status while in the U.S., an H-1B might also be an option but as the company's founder, probably not a good option.


Would be available to help out?


Yes.


What's the path for an H-1B employee to start a startup in the US? In particular if they aim to have ~50% ownership.


USCIS is really tough on H-1Bs and getting tougher where the beneficiary owns 50% or more even if there's an independent board of directors that can fire the beneficiary So, given this, the best chance is to own less than 50% and have a board that can fire the beneficiary.


Hello, Peter.

Thank you for answering so many questions. It's been helpful and I think I know the answer to my question, but thought I should ask explicitly anyways.

I am on H-1B with mid-2017 priority date. I am of Indian nationality, approved for GC and have got H4 EAD for my wife.

There are things I want to work on that could be monetized over the long term (websites and online services). My family members have similar interests.

Is it OK for me to be able to contribute to the set up and growth of the business(es) without being a stakeholder? For example, the ownership can be with my brother (based in India) and my wife (based here in US) with the parent company based in India. I would personally get no stake in the business or any part of the profits.

I like my job and will stay full-time with my employer. Does this situation violate my H-1B status requirement in any way?


Hi Peter, thank you very much for doing this.

In 2018, what is the best visa avenue for an Indian student on an F1 visa to approach VC-funded entrepreneurship? I would like to take my business to market. I am starting to get traction and I have VC funding lined up, could this be used as a justification for an O1 or EB1 visa?

Thank you.


Yes, it could and the O-1 is oftentimes the path taken by international founders (where the E-1 or E-2 is not an option). And given the toughening EB1A standard, it's generally advisable to get the O-1 first.


Hey Peter, We're a company based out of Turkey but have also incorporated in the US with a single US employee making ~700K/ARR as of last year. We're thinking of getting an L1-A to move some of our staff and myself to the US. Do you think we would be eligible for L1-A as of yet?


Yes, it's possible, but you'll likely have a fight on your hands with USCIS because of the newness and size of the U.S. company. But I would still fight the fight if this is something that you want to do to grow the business.


That's the whole idea. Thanks.


An E-2 also might be an option if the U.S. company is majority Turkish owned. We've done this for a number of Turkish entrepreneurs/companies.


Great. We'll look into it and how do we reach you?


My email address is in my profile. Feel free to reach out to me.


Hi Peter,

I am currently on a L1B Visa, company wants to sponsor the green card process. As part of the initial process, they asked my manager for a list of skills that I possess, and to me they asked me to fill in how I got those skills and how to verify them (diplomas, letters from employers, etc).

I have picked plenty of those when I had my own company and also on my own, but apparently this is usually not admissible. They want some verification letters from previous employers, on company letterhead. I can get it from one of my previous employers, but it is unlikely to be able to verify all skills. A couple of companies I worked for are not even in business anymore.

What would you suggest would be the best course of action in this case? There is a possibility of getting a H1B Visa too, would that change anything?


How long have you been with your current employer in the U.S., have you held different positions with this company, and how long were you employed before transferring to the U.S.?


In the US: Since November 1st, 2015.

I always get confused about what a 'position' is, in this context. The company job code is the same, although I have switched to a different group(more devops oriented, rather than just software development, although it is still a major part of what I do).

I was hired and worked as an employee for the overseas "affiliate" for exactly 1 year, after working a little under 2 years (same project) as a contractor from another company – that company is still in business and I can get the letter from a former manager.

Total work experience dates from 2004, but most other companies did not survive to this day.


It's hard for me to comment without knowing more about your position and job requirements but it sounds like you have plenty of experience to meet the requirements for the job and you can rely on and document experience gained through companies that are now out of business through letters from former supervisors or colleagues.


> you can rely on and document experience gained through companies that are now out of business through letters from former supervisors or colleagues.

This is exactly what I was looking for, thank you so much for your time. I'll contact your firm if it turns out that I need more assistance.

Again, thank you.


Hi Peter,

Thank you for taking the time to help us all out!

Re my case: I am looking to transfer from F1 Visa to H1B. My petition got picked in the lottery and I was issued an RFE recently. Request is to provide more evidence on how my masters is relevant to my job role. I have a bachelor's degree in architecture, experiencein construction management and masters in strategic design and management. I made a career shift to UX & UI and user reserach. I currently work as a product designer at a start up. My masters in strategic design, basically design thinking, is meant to prompt me into a design strategist role, but product designer is the step one for that.

Would be great if you have any tips for writing a cover letter explaining the above. Or if you have any examples, I can learn from!

Thanks!


H-1B RFEs are commonplace these days unfortunately. Does the petitioning employer have an immigration attorney because it's really tough for me to opine on this in the abstract?


Yes, employer has an attorney. Would you happen to know of a reliable forum that offers advice on writing RFE petition case replies?


Do you think it is possible to receive L-1A after working one year on a US branch incorporated while on F1 OPT?

I've a start up incorporated on UK. If I open a US branch under F1 OPT status and work it for 1 year on this branch, my application for L-1A can succeed?

As USCIS states:

"Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1."

and

"To qualify, the named employee must also:

Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States;"


Yes, it's possible. Your F-1 status is really irrelevant to the analysis.


Thank you!


Hi Peter, Thank you for doing this!

What is your recommendation for a Canadian H1B holder who wants to stay in the US Permanently, but employer will not sponsor/petition a i-140? (Commenting on other nationalities would probably help other readers too).


Either change to an employer that will sponsor you or look at self-sponsorship options - that is, NIW or EB1A.


Maybe transfer your H1-B to a new employer that will sponsor you?


I appreciate the sentiment, I would really like for it to not come to that, if at all possible.


Hi Peter,

I'm a naturalized Australian citizen with southeast Asian origin.

My I-797 petition was approved, but the H1B visa application is under "Administrative Processing" for the past 3 months.

I had lived in San Francisco for almost 3 years, and previously held multiple US visas (J1, E3, H1B etc.). I came back to Australia to renew/receive the new H1B visa as I was switching company in US, but currently unable to return.

What would you suggest I do to expedite this? Thanks a lot.

P.S.

My apologies if this is irrelevant -- I hold masters and PhD in fields very relevant to my US job offer. My offered role in the company is one of the senior roles, and I'm the only H1B in the company AFAIK. Thanks.


I suspect that your field of expertise is one that has triggered the additional review by the Consulate. There's little that can be done when this is the basis for administrative processing. You could contact your local Congressional office and ask it make an inquiry but unless your application fell through the cracks, this usually doesn't change anything. What's your field of expertise, if I may ask?


Thanks. My masters and PhD are in Electrical and Communication Systems Engineering (EE; TeleComm).

My initial H-1B in Dec 2016 was granted without any hiccups, but it seems that the transfer is about to take ages.

Also, I didn't receive any 221(g) slip after the interview. In fact, the visa interview officer was quick to add that my visa was granted, and I was asked to make the visa issuance fee at the consulate (which we promptly did and returned him the receipt).

However, I did receive email for supplemental information the very next day, to which I replied promptly (within a day), and since then the case is stuck in "Administrative Processing".

> ... but unless your application fell through the cracks

By "falling through cracks", did you mean that they might be doing a lots of extra scrutiny, or is it that I'm at the bottom of the priority right now?

Is there any way to guess how long it might take further -- more than a year?

Thank you.


Bottom of the pile or sitting on the desk of an officer on leave. It's impossible to say how long but 3 months is a long time already.


Thanks again.

My previous/original H-1B visa is still valid (expires in 2019), and as an Australian citizen, previously I could travel to US with ESTA for less than 90 days.

While being on "Administrative Processing", am I completely barred from entering US with the previous H-1B visa, or with ESTA until a decision is made? If H-1B is denied for some reason, how would it impact my ability to travel to US in the future?

Thanks a lot.

P.S.

I actually have a bachelor, double masters and double PhDs (from two different universities), multiple academic publications, patent, and a book that I think should count as publication. Do you think I could be eligible for EB-1, EB1A?

My plan was to apply for residency in US (via Green Card) after H-1B was granted this time.

Thanks a lot.


No, you are not barred but we should talk because the issue is a complicated one.


> No, you are not barred but we should talk because the issue is a complicated one.

Thanks a lot.

Any comment on EB-1 eligibility?

How can I get in touch with you outside HN?

Thank you.

## EDIT ##

Hi Peter,

Sorry to bump this [0] -- I know you have a lots of new questions to answer. Before you finish today, I'd really appreciate if you could please leave some comments on EB-1 vs employer sponsored GC from eligibility, timeline point of view.

Thanks a lot.

[0] https://news.ycombinator.com/reply?id=17474199


Sorry. My email address is in my profile and you are welcome to get in touch with me. In short, an EB1A GC application is a lot faster but the standard is much higher than a PERM-based GC application.


Hi Peter,

I'm a currently on the H-1B work visa. Is there any way for me to either:

1. start a company with another co-founder, who is an American citizen?

or

2. Get accepted to an incubator program such as YC (with an american co-founder) and be a part of the program under legal work status?


Yes but ideally your USC co-founder should own a controlling interest and you should establish an independent board of directors that can fire you.


I thought one can solely form a Corp on H1 as long as one doesn’t draw salary?


There's no issue with forming a company but you can't get an H-1B through that company if you control the company and you can't "work" for that company even if you don't draw a salary unless you have work authorization through that company.


Hi! I just recently moved back from US where I worked with an O-1 VISA. Since I’ve already been once classified eligible for O-1 does that offer any shortcuts for getting another O-1 with potentially a different employer?


Generally, yes - it's easier to get the second O-1 visa.


Thank you so much for your reply. Appreciate it!


Hi Peter,

Thanks for taking time. You mentioned earlier that people on H1B can file for a part-time/concurrent H1B with the start up that they are founding. I have couple of questions with this approach 1. Can I register the company with 100% ownership while working on H1B full time? Can this company make money?

2. What will be the requirements for this new company to file for concurrent H1B

3. Any recommendation around which type of company (LLC, C-corp, etc)

4. Is there a minimum requirement around the number of employees, funding amount and VC investment for this new company's H1B petition to be successful?


What are the chances of obtaining an EB-2 National Interest Waiver (NIW) visa for startup entrepreneurs? Particularly after the new guidelines of Dhanasar.

Or what would need to be shown particularly?


Still high if the individual's background is strong and the national interest is clear.


Would you please elaborate on strong individual background?


Advanced degree and/or Track record of accomplishment and "well-positioned" to serve the national interest.


Can a F1,J1 or H1B visa holder register a company outside USA (home country) ? assuming it doesn't void any contract between said person and his/her employer or sponsor.


From an immigration standpoint, there's no issue but I suspect that there are corporate and tax factors that should be considered as well.


Any chance for EB3 green card for university drop outs? (assuming X years of studies finished and many many years of progressive relevant experience). Thanks so much.


I never finished my undergrad. Just got my EB-1 GC after having an O-1, didn't seem to be a problem at all.

Also had some help with Peter in the process - thanks!


Absolutely. A degree isn't necessarily a requirement for EB3 or even EB2 and EB1 green cards.


Dear Peter,

A citizen of Central Europe (not in Visa Waiver List) who needs to travel regularly to USA to attend different workshops/conferences. Every year I have to apply for B1/B2 (because of Technology Alert List I guess) anew.

1) Is there a better visa option especially if my main employer is a big tech US company? (with EU-based local R&D office)

2) May a B1/B2 holder do work for a short period of time (a week or two) while being in US?


1) Possibly get an O-1 through your main employer in the US. And this doesn't preclude you for working for other companies when you are outside the U.S. 2) No.


"Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor."

Peter, does this get Extraordinarity usually demonstrated through high salary and or patents or something else? What is the typical threshold there? Knowing this would help to convince my employer to invest in this process.


There are a variety of criteria and high comp and original contributions (patents) are just two. The others are publications, press, essential roles for distinguished organizations, memberships, and journal or competition review. And you must meet at least 3 to qualify for an O-1 visa.


Hi there Peter, I'm a Canadian citizen currently residing in Canada. I would like to incorporate a US startup (Delaware C Corp I guess.) I don't have any familial ties to the US, but my business partner is a US citizen. What are my options for incorporation in the US? And what considerations should I be concerning myself with? I would have controlling ownership of the company ideally.

Thanks for your time!


Not Peter obviously. You do not have to be a US citizen to start a corporation in the US, or to be the controlling shareholder. You can incorporate the business from outside the country. No need to have pre-existing ties to the US, and you don't even need a US business partner (could be helpful to have someone in the country however). You do not need a US address either, to form the corporation.

If I'm not mistaken, Stripe Atlas does some or all of what you're looking for:

https://stripe.com/atlas


Excellent response. Thanks.


Hi Peter, thank you so much. My company is currently sponsoring me for an EB3. I have two questions.

1) We just submitted the application to get the prevailing wage from the Labor Dept. From your experience, how much time is there left in the process given the current administration? I am of a nationality that does not have a backlog for EB3

2) When can I switch jobs without having to start all over again?

Thanks a lot for doing this, Peter.


1) It's taking 4 months or so to get a PW determination from the DOL and then another 4 months or so to get a PERM approval (assuming no audit) from the DOL; and thereafter, it's a wide range, anywhere from 6 to 12 months to get the actual green card - but note that the processing times change all the time. 2) Although there are exceptions and nuances, a green card applicant is "portable" after the I-140 has been approved and the I-485 has been pending for 6 months.


Thank you Peter!


Thank you for doing this.

I am from Indian working on H1B. I got my i140 approved in April 2018. I completed 6 years on H1B and extension is in process. Given the situation in US, I would like to go back to India.

If I do this, will I be able to use the i140 at a later point, for example 3 years from now to apply for an h1b extension? Will the i140 itself be valid if I resign from my employer and go back to India?


I'm a U.S. citizen. My girlfriend is a Canadian citizen, and lives in Canada. If we got married how quickly could she start working in the US?

Thanks!


Hi,

I'm not an immigration attorney but I am a Canadian citizen who moved to the US to marry my wife. I would suggest looking into the K-1 visa if you are sure that you want to go this route. Don't get married in the meantime; the K-1 is a fiance(e) visa that allows you to move to the US, get married within three months of entry, and then immediately adjust status to permanent resident. This avoids the appearance that the marriage was purely for immigration convenience, since everything is above-board and approved first.

Getting married first would require you to apply for a CR-1 immigration visa, which is a similar process, but neither is exactly "quick" (I would expect a year or more on average).

I would take a look at http://www.visajourney.com/ as they have a ton of good advice for family class immigration. Good luck!


All good responses. The problem with the K-1 is that even though it was designed in part to be quicker, it's oftentimes just as slow as a marriage-based green card.


Depending on what she does for work she could come to the US immediately on a TN visa. If she does a fiance visa or a marriage visa it will take 6-12 months before getting work authorization.


Thank you for your time. My question is not pressing (particularly since I haven't yet researched it exhaustively online myself) but I'm a Dutch citizen and US green card holder (marriage-based), and I'm wondering to what extent I'd jeopardize my green card by living/working abroad (e.g. Europe) for a while (like a few years)?


There are ways to protect your green card status while living outside the U.S., even for years, if your intent is eventually to return to the U.S. The document to research is called a reentry permit.


Hey Peter, I'm a US company incorporated in WA with a single US employee (me). We're thinking of hiring a recent STEM degree graduate from a local university. They are authorized to work under OPT, but I worry that the current environment would make it difficult for both of us. Am I right to worry or should we go ahead with making the offer?


Hi Peter. I am an international student from Vietnam and I am on F1 visa. I wonder if it is possible for the employer to apply for GC right when I first start at the company? If it is, is it possible to get GC without having to go through the H1B route, providing that I have 3 years on OPT total (1 normal OPT and 2 years on STEM OPT)? Thanks a lot.


Yes, there's no required waiting period before pursuing a GC and you can pursue a GC while in F-1 status.


To get an L1-A or even L1-B visa, does company size matter or is taken into consideration ? We are setting up a subsidiary company of our US company in a foreign country and the team size is 5 right now. Is that too small to consider issuing an L1-A/B for one of the team members whom we may need in the US after some time.


Yes, the size of the company matters but even more important than size is the specifics regarding the potential transferee's job duties - for example, how many employees is he or she managing now and how many will he or she be managing in the U.S. or how advanced, specialized, or proprietary is the knowledge possessed by the potential transferee and required for the performance of his or her job now and in the U.S.? Note that as a general rule, new/small company Ls are tough to get approved and almost always involve a battle with USCIS.


Hi Peter, thanks for doing this.

I'm on the 4th year in my H1B - when's the latest I can start the PERM/GC process and without risking the deadline (5th year H1B anniversary)? I'm in a dilemma on whether I should do the GC process with current employer or switch jobs now (given that it could take 2+ years). Thanks!


You also can extend beyond the 6th year based on an approved I-140 so actually the GC process can be started in the final year but this is riskier of course. Our generally practice is to kick it off at the beginning of the 5th year but I also feel strongly that it's almost never worth it to stay in a job for immigration reasons and that if you're inclined toi switch, switch soon and negotiate with your new employer to sponsor you relatively soon (after you've proven yourself).


This gives me some closure, thank you!


I really want to move to the US, it's one of the only things I'm sure I want to do with my life at the moment.

But, I have no idea what the best/viable routes to take are.

If I was prepared to do (pretty much) anything, What do you think would be the easiest way to immigrate to the US?


My answer will depend in part on where you are from and your background but the short answer is work for a large global company and then after one year seek to transfer to the U.S. on an L-1 visa.


Thank you!


I'm going to take a 30-minute break now. Thank you for all the great questions and comments.


As an Indian-American US Citizen, is there anything I can do to contribute to reducing the green card wait times for Indian immigrants (e.g. prioritize Indian immigrants when choosing a spouse), or is it zero-sum due to per-country limits?


Hi Peter, what do you recommend for entrepreneurs that work full time and hold a H1B currently with another company but want to work full time with their Startup. Just transfer the H1B to the Startup or apply for a different type of Visa?


Either transfer to the startup in H-1B or O-1 status or file a part-time concurrent H-1B through the startup and continue to work for your current employer until the part-time concurrent H-1B is approved and then make the complete switch. (This is a more conservative approach.)


If you were put in charge of all immigration policy, what would you implement first?


Get rid of the travel ban and pass the DREAM Act. And limit the workday of immigration attorneys to 4 hours.


Hi Peter,

Is it possible for an H1B holder to incorporate a business abroad and do business abroad? (i.e. the clientele is in the foreign country and the money is in the foreign country too) Would that bring immigration issues/problems?

Thank you!


I know I sound like a lawyer but the answer is yes and no and will depend on the facts.


Hi Peter,

What are the implications for a h1b holder join other startup at early stage as early member/cofounder? How much money the startup shall raise? What are implications when accepting offer at less compensation compared to earlier?

Thanks


The short answer, with some narrow exceptions, is that I wouldn't recommend joining until the H-1B petition is approved. But generally, the funding and overall operations of the startup are less important than the offered job duties and salary (ideally, it should be above a "Level 1 prevailing wage") and the individual's educational background.


This is you?

http://www.robertsimmigration.com/index.html

Your website should have a bio and information on your background, education and so on.


I don't want to scare potential clients away.


I am not seeing anything in your background that would scare away potential clients. And actually maybe the opposite.

Do you feel that because of your background potential clients will think you are expensive? If that is the reason you can counter that with the appropriate words indicating otherwise.

Or is it that you don't want potential companies to know you are a sole practitioner?

Only other thing I can think of is something age related given that the majority of clients are typically 20's or 30's.

If you'd care to elaborate I'd appreciate as I am curious and study this type of thing.


Thanks for doing this! If someone has OPT via F1 and green card via marriage, can OPT proceed concurrently with i485? Then once OPT application finishes and after i485 and i130 finishes an i765 can be submitted?


Hi Peter, I am an alien on a J-1 visa without the 2-year rule. If I get married to a US citizen, how long should I expect to wait before I am able to work for an employer that is not my J-1 host institution?


It's taking up to 5 months to get a work card after filing a green card application.


Is there any advantage in seeking visas for less trafficked parts of the US tech scene (e.g. not just SF, Seattle, etc)? Or is the location of the employer entirely divorced from the success rate?


The latter.


Thanks. I really appreciate these sessions - it's good of you to do them.


I asked this before but I think the response was you don't have numbers available. Has anyone been turned away or special arrangements needed to be made because of the travel ban?


I don't unfortunately but anecdotally I've heard yes.


:( I think it'd be a useful conversation to have. Contrary to what the news media says, I think vast majority people are pro-immigrant, including the red states. Showing the policy is blocking investment over the perceived safety would be valuable, especially to people who love that kind of thing.


I agree. I know clients of mine have made decisions to set up shop and invest elsewhere because of the difficult in getting visas for themselves and employees.


Is that so bad? Globally I don't think it's such a great idea to have the US draining most tech businesses as it currently is.


Hi - Can I transfer my Green card processing to another employer given the below? 1. My I 140 is approved. 2. I do not have the I 140 physically in my hand from the current employer.


Yes, if the I-485 has been pending 6 months and you'll be working in the same or similar "occupation" with the new employer.


Hi Peter, I've heard people mentioning they transitioned from TN visa to green card sponsorship, my understanding is that this isn't allowed, have you heard of this?


It's definitely allowed but there are certain minor requirements and restrictions specific to those in TN and other non-dual-intent statuses.


As an Australian E-3 holder, what kind of requirements/restrictions?


We should talk. Although an E-3 is like an H-1B, there also are significant differences.


Hi Peter,

Thank you for doing this.

While on H1b, 1. Can someone start/run a business? 2. How about a revenue-generating personal web/mobile side project while maintaining status with a full-time job?


There are exceptions and nuances but the short answer is no to both, not without separate work authorizations for these activities.


To me it seems that the answer to this question is contradicting your answer to "Can a F1,J1 or H1B visa holder register a company outside USA (home country)?" - am I missing something? Or are we assuming that just "registering a company" doesn't imply earning money? :)


Where the work is performed and where the beneficiary of the work is located can affect the answer.


Hi Peter, thanks for doing this! My wife is on H4 EAD which expires next year. What are the chances that it will be revoked, and if so, what are some options for her?


I think that there's a good chance unfortunately. The options will depend on her educational background and experience and country of citizenship but at a minimum she should go into the H-1B lottery.


Should there be a separate employment visa category for applicants who obtain education from USA and for applicants who come to USA via "consultancies"?


Please rephrase. I'm not sure what you are asking.


If you have not heard about "consultancies" yet then I am not sure how come you have not come across it during your immigration law practice.


What do you think about the stuff Christopher Richardson and similar folks are doing fighting the travel ban and the 'sham' of a waiver process?


Not sure why my comment was downvoted. I'm genuinely curious and used 'sham' because it's Christopher's word not mine. I'd say 'farce' or 'joke' myself.


Hi, thank you for sharing your time with us.

I have this case: 11 months ago I sold my company and obligated to run the company as CEO for the next 12 months (which is ending with September 1st). Also, I invested in another SaaS product and team on the side, but that product is still in private Beta and has 5000+ Non-paid users (and patment gateway will be ready from October). Also, my current salary is pretty much great and I'm doing what I love to do, but still don't want to be an employee, but business owner.

Question: what would you advise me based on your experience with YC founders?


What's your current immigration status and country of citizenship?


Is it best to apply for TN status at the border or through petition?

Can a Bachelor’s of Computer Science holder get TN status with a Software Engineer title easily?


Generally yes and the border/CBP is better.


Hi Peter,

Thank you for helping.

Does new greencard process will take time a lot?

My company is filling now, I have read about 150 years.

I have done MS in US, and according to news EB-3 is faster than EB-2


What is your country of nationality?


India.


Then it's very slow, unfortunately, not 150 years but up to 10 years.


Hi Peter, Should a person who is in H1B wants to create a startup in US, what kind of VISA issues that he/she might run into?


Generally, an H-1B through the startup won't work so you have to look at other visa options and oftentimes, under current law, this is limited to an O-1 or E-2 if the founder is a citizen of a country that gives rise to an E-2.


Why do some people capitalise ‘visa’? What are you under the impression it stands for?


The all caps Visa logo on credit cards is probably where it comes from. But, yeah, travel "visa" is a common noun.


chrisseaton, I don't get your question. Imagine a person while working for company has motivation to start a company. The option is move back to country of origin or to a different country or stay in US. My question was about staying in US and starting the company.


I was asking why you wrote ‘visa’ in capital letters. It’s just a normal word. It’s not an abbreviation.


Peter - Can a large company like Amazon sponsor an individual for the green card directly without going through the an H1B visa?


Yes, any company can and the size of the company isn't the most critical factor.


According to my understanding, GC has nothing to do with H1B visa. How will you work in the US while you obtain your GC? You can work at their foreign offices until your priority date is current and opt for consular processing.


Would a TN visa allow you to do this? As in obtaining a GC while staying with a TN? Thanks


E-2 and acquisition

What options are there for a startup founder in E-2 status (or on an E-2 visa) when the startup is acquired?

Thanks a lot for doing this AMA!


We usually switch our E-2s who are losing their E-2 status to O-1s or green cards.


From what you've seen, which TN visa categories have the highest approval rates and which have the lowest?


It's less the occupation and more certain traits/factors that cause problems, including being a founder or having an ownership interest or being in a managerial position. Also it's really tough to get TNs approved for those in business, marketing, or financial analysis positions.


How to drop a green card application and be able to visit the US afterwards? (I’m French, an ESTA country).


As an F1 visa holder, can I host a commercial app on internet if it includes not actively working on it?


So no income, no monetary benefit? Yes.


Hi Peter,

These days, will getting an MS from a US university help in any way in expediting Green Card?

I have not begun applying to MS yet


Forget this path if you were born in India. Just an MS is not enough. Unless you qualify for GC under EB-1 or O-1 visa, high skilled India/China born immigrants, are basically well paid bonded laborers in the US.


Depending on the green card path, an advanced degree definitely can help.


If you are from backlogged countries (India or China), your best bet is one of the following options,

1. Marry a USC. 2. EB1A / B 3. EB1C


Hi Peter, Thanks a lot for this initiative :)

I am a 28 yr old Software Engineer working in India (Citizenship - India, unmarried). Have around 3 years of experience in IT. My father is a GC holder & he has filed a family based petition for me. My priority date is Nov 7, 2017. Actually, my father was going to wait till he was a naturalized US citizen & then file for my petition, but Trump's activities (cutting off legal immigration by > 50% - RAISE Act) alarmed him and he got in touch with his attorney over my case the very next day.

So, my question here is - 1) Should I go for Masters from USA? Will it help me in getting GC early? If yes, how early? (I am really keen on completing my Masters from USA, since I would like to be exposed to US way of education - mostly in Artifical Intelligence)

2) Will Trump do something that may deter the petition my father has filed for me? What are the chances, in your opinion?

3) I am going to initiate Canada PR process next year. Would Canada PR brighten my US immigration chances in any way imaginable?

4) I fared quite dismally (7 yrs for a 4 yr course) in my bachelor of engineering course, but final year marks are good and gradually got a job and am doing well now. Would Bachelor of Engineer academic grades hamper my US GCpetition in any way imaginable?

I really appreciate you answering so many questions here. Would be much obliged if you answer mine too.

Sincerely,


1) An advanced degree would help your chances of getting an H-1B and GC eventually under current law. 2) I really don't know. I never thought he'd get elected. 3) No. 4) No.


Zillion thanks for your revert, Peter :)


Hi Peter,

Can person have two h1b filed by twi companies at same time? Is there any legal problem other then ethical trust issue?

Thanks


Yes but one would need to be a part-time H-1B.


Hi Peter, How can non-US founders obtain visas to run startups in the US? What are the requirements?


The answer will depend on a host of factors including the founder's country of citizenship, the strength of the founder's background, the amount and source of investments in the company, etc. but most founders get E, L, and O visas.


Have current polictics influenced your work, or nothing really has significantly changed?


Dramatically. It's just much tougher to get petitions approved by USCIS and visas issued by Consulates. Although oftentimes for no good/valid reason.


Hey Peter, thanks for doing this

What changes would you propose to the current immigration system?


There's a lot I would change but the short answer is don't kill DACA, don't kill the IER - or create a visa for entrepreneurs/founders - and adjudicate fairly rather than with the intent and purpose of denying regardless of the merits.


Is there a way not to go to secondary when we have an advance parole? Thanks


Can a college dropout get a visa to go through YC program for 3 months?


As a general rule, a degree isn't required for many visas, including a B-1 business visitor visa.


Thanks


Hi Peter,

Thanks for doing this.

What are the chances of RAISE act sailing through Congress?


I think unlikely but less unlikely than some of the other immigration proposals.


> then again at around 1 pm for another 2 hours

What timezone is that?


I think PDT.


If a founder is a dual-citizen of the US and a EU country, and anticipates having a HQ and/or major sales in both regions, where would you recommend incorporating initially?


That's really less of an immigration question and more a corporate and tax question. But if the company is incorporated abroad, it positions itself to transfer employees to the US over time.


Has Trump's crackdown on H1Bs made it harder for H1B holders to transfer jobs, or made H1B candidates less desirable? I've heard anecdotes of USCIS cracking down on companies with > 15% H1B workers.


I can't answer the second question but I would assume that it follows from the first - and the answer is yes, absolutely; USCIS is giving no deference to prior approvals and, it seems to me, looking to find reasons to deny H-1B petitions rather than adjudicate them on the merits.


How have the changes by the Trump administration made it more difficult, if at all, for tech companies to hire and get visas for foreigners?

What are the biggest takeaways founders should know?

Thank you.


Along those lines, is there a tipping point where things get bad enough that you start simply working in another country or countries to sidestep some of those issues? Are we anywhere near it? Doesn't seem like it right now - but what might be some of the triggers for it?


Consistent escalation of tariffs and/or other changes in economic policy is a very strong indicator for detrimental future political action.


There just seems to be a concerted effort to look for reasons to deny applications rather than adjudicate them on the merits so it's just getting tougher and taking longer to get applications approved and this has to have a chilling effect.


1) Thanks again for doing these threads, so helpful in a sea of so much uncertainty.

2) I’m currently on a O1 (that you actually helped get), do you know if in post-Trump era re-petitioning to change employers (or extending at the same employer) has got much stricter?

3) As I understand it, O1 can’t lead tho a green card, if I’m interested in that is there anything else I can do currently?

Thanks again so much!


Even though little if any deference is given to previous approvals now, in the O-1 context, it's still easier to get the second O-1 approved through a new company. And while an O-1 isn't a path to a green card - no status is - those in O-1 status often qualify for an EB1A green card.


Thanks so much!


Hi Peter,

My father has applied for my GC and the processing may begin after several years. He’s a GC holder, and may have his oath of citizenship done soon, his lawyer expects the oath to happen this year. I believe I fall into EB2 category.

Meanwhile, are there any chances that Trump may try to kill those GC aspirants who are coming via family route?

Thank you


I think he will but this would require Congressional action which I think is unlikely even with this Congress.


Gracie :)


Hi Peter,

My father has applied for my GC and the processing may begin after several years. He’s a GC holder, and may have his oath of citizenship done soon, his lawyer expects the oath to happen this year. I believe I fall into EB2 category.

Meanwhile, are there any chances that Trump may try to kill those GC aspirants who are coming via family route?

Thanks :)


I hope not but I really don't know. That would be a legislative change and that's much tougher than a regulatory change or executive order.


Merci beaucoup :D


Hi


Hi Peter, thanks for doing this! Have you started noticing any problems with naturalization applications since Trump took over?


No, not yet, just long delays in some cities.


What’s the political climate for getting a ~4 year entrepreneur visa passed and a better investor visa? I know about 10 people whom are business badasses but put off/ineligible without creating a reason to get a J-1.


How much of the visa process do you view as an attempt by corporations to suppress wages?


In my practice, I don't see that at all. I just see an effort to find and retain talent.


Hi Peter,

Would you kindly reply to my question?


Sorry about that. It's impossible to say unfortunately because clearly the application went off the rails given how long it has been pending. I would press the Senator's office since this is the best chance of getting the application unstuck and approved.


Does separating families at the border amount to a crime against humanity? What can be done? Or, less specifically, may it be a crime against humanity?

Edit-This isn’t a political question. HN may not be for political discussions, but discussing immigration issues is the topic of this discussion.


It does to me.


Thank you.




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