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

[proberts]

I’ll be here for the next 2 hours and then again at around noon 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!

[sethx]

I am a US citizen, and was born abroad, and live in the EU. I've never lived in the US, nor worked there for a single day of my life. As such, I've never filed income in the states. I never got asked to do so, either. Due to IRS regulation i currently am in tax noncompliance and on the potential hook for what i guess something like 200K in penalties. I work in IT and my dream is to work in the bay area eventually, but I do not see the point of spending ~2k in paperwork to go through the "streamlined procedure" to bring myself into compliance, and then to be liable to report all my income a lifelong and potentially pay taxes in the US as well as i make more than 100k gross/yr. I don't want to move to the US forever, but maybe a few months here and there would be nice. The opportunity cost of doing that is astronomical, though, if i factor in a lifetime of added accounting costs and additional taxes, just for a few months of time spent in an area. Is there anything I can do to make this happen, but not have to hemorrage money? How can i legally work in the US without having to oblige myself to a lifetime of IRS bullshit? I already pay 52% taxes in my country of residence. Any non-US resident who was born abroad is pretty much in my same boat.

[ictoan]

Have you looked into Foreign Earned Income Exclusion?

https://www.irs.gov/individuals/international-taxpayers/fore...

"If you are a U.S. citizen or a resident alien of the United States and you live abroad, you are taxed on your worldwide income. However, you may qualify to exclude from income up to an amount of your foreign earnings that is adjusted annually for inflation ($92,900 for 2011, $95,100 for 2012, $97,600 for 2013, $99,200 for 2014 and $100,800 for 2015). In addition, you can exclude or deduct certain foreign housing amounts."

[JohnStrange]

Are you sure about your noncompliance status?

IANAL, but aren't there treaties between the US and all EU countries that avoid any double taxation? You have to pay income tax wherever you live most of the time and conduct your business. You never have to pay income tax twice, in two countries. Unless you obtain your income mainly in the US, you should be exempt from paying US taxes. This is independent of citizenship.

Sorry if I'm missing something, I thought (and have been told) that this is how it works, so I'd be happy if someone else with more knowledge could clarify this.

[yhn4433]

If you are making 100k+ a year, why aren't you willing to cough up 2k to get some sound tax advice and realize your "dream?" You may be covered by a tax treaty and owe nothing. It's just paperwork.

[redux13]

Is there any possibility that the Fairness for High-Skilled Immigrants Act of 2017 (https://www.congress.gov/bill/115th-congress/house-bill/392/...) would see the light of day anytime soon? This act would eliminate the per-country numerical limitation for employment-based green card petitions.

Also, what would be the implications if this bill does become law?

[proberts]

There is a chance although any major overhaul of immigration laws almost always requires the support of both parties so I think the chance is still low. It would have a profound impact, I think, both repressing and encouraging immigration to the U.S. but the exact parameters of this are hard to say.

[xtreme]

Although this bill has large number of co-sponsors from both sides (D-163, R-139), I'm not very hopeful. The same bill (HR 3012) passed house in 2011 (Y-389, N-15) but died quietly in the Senate subcommittee. Despite all the rhetoric and name-calling, neither party seems genuinely interested in immigration reform.

[proberts]

I am going to sign off now but I'll be back on again this weekend to respond to any final questions and comments. As always, it's been a pleasure conversing with everyone. I always learn something. Thanks.

[jonhmchan]

I'm curious what you think about remote work and whether it's overall a net positive for companies that are struggling to find talent in their own country.

There seem to be some obvious benefits: no need to worry about getting people visas, expanding your talent pool to beyond your geographic region, and so on. There's also legal tradeoffs: dealing with complicated laws with taxes, benefits, and so on.

In your experience, is opting for remote a net benefit? Or perhaps more fittingly, in what situations do you think it's appropriate for a company to consider building a remote workforce, wholly or partially?

[proberts]

I'm not aware of the costs of remote employment, which will vary from country to country, so it's hard to say but as immigration policies get more restrictive, I suspect that more companies will go this route. That being said, we still get a lot of requests from companies to bring their remote employees and contractors to the U.S. so that they're working as part of the main team even though the cost of employing them is probably higher.

[cvaidya1986]

Thank you so much for doing this!

As someone on H1 and I 140 approved and in the long wait for green card, is it ok to release a free iOS app under one’s own name and if it takes off, show that as evidence for extraordinary accomplishment?

Does membership of exclusive well known invite only Silicon Valley network for tech founders count as membership of reputed organization?

What if the app is for a non profit, should it be released under the non profits name?

Is it legal to be a minority owner of a company and not draw salary from it?

Is your firm available for direct hire for one person or you only help YC and startups?

[proberts]

These are all excellent questions and yes we help individuals as well as companies and accelerators. My answers to your questions, in order, are as follows: possibly but this can't be considered work, that is, receiving a financial benefit for performing a service or providing a product; possibly; the analysis is the same as your first question; yes, if you provide no service to the company.

[rokhinip]

Can someone on a H1B visa (as a software engineer) be engaged in setting up a small business that is completely unrelated to the work that they do professionally? Eg. Selling of fine art or digital prints?

Preliminary research suggests that this isn't allowed but if I am allowed to take photographs in my free time, and I am allowed to sell belongings on eBay, then it seems that by transitivity, I should be allowed to sell works that I do in my free time.

[proberts]

Unfortunately, the answer to your first question is no and further you're not necessarily allowed to sell anything on eBay, particularly if it's something that you created or if the sale of things on eBay is your business.

[lars_francke]

Hi Peter, thanks for doing this.

We're a small consulting company based in Germany and we have a couple of customers in the US. We'd love to work on-site but so far haven't done so because we couldn't sort out the visa issues.

Customers in the US would pay our German company which would then pay us (the founders/employees). Our contracts are usually short (1-2 weeks max).

We've actually talked to two different lawyers (US & German based) and have received two different answers.

- One told us L1 would be the best option but that'd mean investing in the US which we can't meaningful do (for our consulting we really only need a laptop and no office) - Another one told us a normal ESTA/B1 visa would work as well.

We always worked under the assumption that a B1 visa is not for paid work. So we're confused. Customers also don't want to go through the hassle of sponsoring a H1 visa for a two week contract.

Can you give us any hint which visa category would be most appropriate for this kind of work and whether the B1 statement is correct or not. Thank you!

We'd also be more than happy to pay for someone to help us with this but our trust has eroded a bit because of the different answers we've received in the past.

[proberts]

Unless the onsite work is pursuant to a contract for the purchase of equipment that provides for onsite installation and support, a work visa, such as an L-1, would be required.

[lucascarvalho]

I'm currently holding an H1B visa and my friend started a business where he currently owns 100% of the company. Before moving forward with any additional share issuances (to myself and potential investors), we wanted to fully understand my eligibility and any complications that could arise as a result.

Given my current visa status, am I permitted to receive shares without any legal implications?

I'm also really close to getting the EAD, should I wait for it? And once I have it, how can I proceed to issue the shares from a legal perspective? Can I only issue the shares once I have the green card without any legal implication?

[proberts]

There is no issue with your receiving shares as long as you are not providing services to this entity.

[Jayakumark]

Whether the plan for revoking EAD for H4 Spouse of an H1 I-140 holder can be blocked by court ? Also will there be any economic implications on 100,000 plus going out of workforce ?

[proberts]

I can't answer the latter question but I think there will be a major battle that will cross party lines if the administrations attempts to do away with this benefit.

[sudhirj]

Is there an immigration path for people who incorporate in the US (LegalZoom Delaware LLC / Stripe Atlas C Corp) and do reasonably well, pay taxes, etc? If yes, what would be the route and what would be a reasonable bar?

[proberts]

Oftentimes founders/entrepreneurs qualify for green cards through the extraordinary ability or national interest waiver route.

[michaeloblak]

Did anyone go this path? With success, or not.

Is there any other path for an immigrant with a company incorporated in the US - paying taxes, books are right, etc.

[jnnnthnn]

Have you observed any change in practices with respect both visa application processes and admission at the border processes since the Trump administration came into office (e.g. longer delays, higher rate of refusals, extra scrutiny, etc)? I'm thinking about "field practices" rather than material changes to existing regulations. Thanks!

[proberts]

Not really other than applications for admission in TN status seem to have become more difficult and irrational.

[genericname]

Hi Peter,

Graduating STEM master's student going into tech firm.

You mentioned in another comment how the H1B lottery leads to ~30% chance of getting selected each year. Do you have an estimate for candidates with advanced degrees (master's, specifically)?

Also, there seem to be a lot of potential changes to the whole OPT -> H1B -> ... path. Some comments, like this one [1] from an immigration attorney, suggest the STEM extension might disappear (so fewer shots at the lottery), but also suggest petitions for highly paid workers might be given priority. Do you feel positive about the chances of highly paid workers to obtain H1Bs in the coming years?

[1] https://www.linkedin.com/pulse/potential-changes-high-skille...

[proberts]

For those with advanced degrees from U.S. schools, the odds could be 80% or higher. And the trend is definitely favoring higher skilled, higher paid workers.

[arunpn123]

What are things I could do to improve my resume for EB1 category Greencard in the next year or so? I am currently on H1B working as a SWE at a top Silicon valley company (think Google/FB). I have a Master's degree in CS from a top US university and have a couple of years work experience. According to the company attorney, I qualify only for the EB2 category. Unfortunately, the EB2 queue is extremely long since I am from India. I am asking this since you mentioned in your past AMAs that it is possible for strong EB2 candidates to move to EB1.

[proberts]

I would need to explore your background further but some options are to do journal/conference review work (this is more available than many people realize) or try to obtain a higher level of membership at IEEE, for example, or other similar organizations.

[godelmachine]

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 legislation by 50%) 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,

[dandroidguy]

Canada PR doesn't further yor chances for US Immigration. US Immigration depends on your country of birth and not your country of citizenship.

[godelmachine]

Correction - (cutting off legal immigration by 50%) - in the above question

[nawgszy]

As a Canadian citizen who is working in California under a TN visa, I am interested in starting my own Canadian company and working on contracting / consulting work via said company.

All the money I make through said company would be paid to me in CAD and stay in my Canadian accounts, which I doubt really matters. I do not see why there would be legal issues with this, but this seems like a good opportunity to ask someone who might have a better picture.

[proberts]

That could be viewed as self-employment which is prohibited and regarding how you get paid, you should contact a U.S. tax accountant because my understanding is that you still would be subject to the payment of U.S. taxes.

[silentsea90]

Hi Peter! I hold an H1B visa and am currently employed at a startup, but got an RFE. 1) Does the increased scrutiny in h1b applications bias towards approving applications only for well known companies? 2) Unrelated question, what are the requirements if I want to open my own startup as an H1b holder? Would I need to move to another visa, does my company need to have a US citizen as a cofounder etc.

[proberts]

All things being equal, H-1B RFEs are triggered more by the offered wage now (Level 1 or not) than by the size or prestige of the company. The key requirement for an H-1B through a company you found is that there be an employer/employee relationship between the company and you, meaning that there's a board of directors that can fire you.

[EternalData]

Do you have any insight on the recent change to the TN Economist class? https://www.uscis.gov/news/news-releases/uscis-issues-clarif...

It looks like a hanging threat of deportation for maybe 10,000 people +

[dmorden]

Hi Peter,

My co-founder is a Canadian PhD on a J-1 visa. he has been in the country on the J-1 for 8 years. We incorporated as a C-Corp in June. He plans on switching to a TN eventually. I assume I cannot issue an RSPA (with vesting) or Consulting agreement without violating his J-1, but the TN I think I can. Will this work? What other issues should I be worried about?

Thanks.

[proberts]

You should send me his CV but I would probably switch him to O-1 instead because founders/owners can have problems getting TNs now.

[dev_throw]

Hi Peter, thanks for doing this AMA. Is it true that your place of birth affects how long it takes to get a Green Card?

I am a naturalized Canadian (on a TN Visa in the US), born in India, and entertaining thoughts of applying for a GC here. Since TN Visas have a limit of 3 years, I would want to get my GC before then, but the queue for India is gargantuan.

[proberts]

That's correct, what governs the wait times is country of nationality (which typically means country of birth), not citizenship so in your case your Indian nationality will govern.

[gcdvl]

Recent permanent resident (since September, green card holder).

I stayed in the USA until December to get the actual green card (virtual mailboxes work despite what people say online), open a resident bank account, get a state ID, renew my social security card, get a credit card, basically take care of bureaucracy.

I've since returned to the EU with one objective: to sell my house.

My question is: If I stay more than 6 months abroad but less than one year, will I face issues going back for good?

I'll be able to show that I sold the house with intent to live in the USA permanently. I also plan on filling taxes for 2017 even though I barely have income. I'll also keep my bank account, state id card and plan on trying to get a remote work arrangement.

I take it anything under 6 months will by default not be problematic, right?

Thank you again for this service you regularly provide.