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

[proberts]

I'll be here for the next 2.5 hours and then again at around 11:30 am PST for another 2.5 hours. As usual, there are lots of possible topics and I'll be guided by whatever you are concerned with. Please remember that I can't provide legal advice on specific cases for 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 we've done: https://news.ycombinator.com/submitted?id=proberts.

[throwaway-09221]

Hey Peter! Thank you tons for your contributions here!

I'm an Indian in the US on an H1B visa and working in software. I've also made a product for fun on weekends (which my company knows about and approves of).

I was thinking of opening access to it for the world, but as it'll involve substantial costs on (cloud) infrastructure, I'll have to ask people to pay for usage on it. I don't plan to profit from this in any way right now. People will mostly pay for their share of usage.

From some rough googling (oh, no!), it seems like this wouldn't work under the rules of the H1B as it'd be considered unauthorized work. Is there any legitimate way of giving people access to this without having to also just pay for all the infrastructure myself?

Also would it be fine to just release it for free?

[proberts]

It is a gray area but I don't see any issue if you release it for free. Getting paid, even if to cover your expenses, is more problematic, however. I wouldn't say it's a complete non-starter but it would have to be structured very carefully and properly to avoid crossing any lines.

[rsstack]

Would it be an option to let someone else operate the system and collect payments/donations, and then you'd cover the rest of the costs? You wouldn't be able to get any profits if those ever come in, but I wonder if this would qualify as "not working" when all you're doing is giving software & giving money.

[aeonik]

IANAL have you considered building a direct payment mechanism into the platform that allows your hosting provider to pass their costs directly to your clients? Cryptocurrencies might be well suited for such an automated micropayment passthrough service. I'd love to hear probert's take on such a system.

[satya71]

I'm no lawyer, but if your intention is to release the project but to cover the costs, it should be possible to set up a 501(c)3 (or partner with one). The organization can charge a fee to cover the costs, and you don't personally need to get paid.

[moneywoes]

Could you open up donations for the project instead?

[tt_dev]

Hi Peter!

TYVM for your time.

I've been in the US for about 4 years now and should acquire citizenship in the coming year or two - I'm a Greencard holder.

My grandmother is around 70 years and she's the only one in my home country. I really want her to immigrate over here so I can take care of her but she's not my "immediate" family (not mom, dad, kids).

Is there a route you'd recommend to help get her here and whats the success rate of an application?

I'm well off (thankfully) and would be more than able to accommodate here financial needs.

[proberts]

There is no direct path through you unfortunately and even your parent (her son/daughter) couldn't petition for her unless your parent was a US citizen. What's her country of citizenship and what's her educational and employment background?

[sunir]

Hi Peter, my startup is a US Corp (Delaware) with a US-based co-founder and US-based employees. I live in Canada and I'm a Canadian citizen and I have zero intention of moving to the US. I'm the CEO. I'm using an EOR (Remote.com) to pay me in Canada.

I believe I can fly into the US for short trips on a smile and wave B1, but I want to be sure I don't need something like an L1. I have easily got a TN1 in the past, but I don't think that works if I'm a major shareholder.

Basically, I'm the CEO of a US corporation that lives permanently outside the US, and I want to cross the border occasionally to meet with the team, do trade shows, board meetings, sales meetings, and then return to Canada shortly thereafter. What permits do I need?

Thank you for your input!

[proberts]

The answer is very fact specific but depending on how often you come and and how long you stay, almost certainly you will be able to enter the US as a visitor for a period of time. That being said, it might just be easier to get a work status so that you don't have to work how often you come and how long you stay. Do you have operations and employees in Canada as well?

[rsstack]

Thankfully I'm personally on the other side of this already (got my green card less than a year ago). With many jobs becoming fully remote, do you think it's still possible to offer relocation to employees through L-1s, O-1s and H-1Bs? On the one hand, it's hard to claim that they truly need to be in the States, but on the other hand, it could be important for the timezones to match (and it's an amazing employee benefit).

Obviously my question doesn't apply to in-office or hybrid positions, only to pure remote.

[proberts]

There's some variation depending on the visa classification but yes, an employee could qualify for a visa even if the job is fully remote. But the employer must be a US company with US operations.

[moneywoes]

How popular is Canada becoming as an alternative to the US for both YC companies and employees? For reference, I believe the US takes in approx 2 million immigrants a year whereas Canada's target is at 400k. Additionally, the USA's population is 330 million compared to Canada's 38 million.

[proberts]

Unbelievably popular. Based on my own limited experience, we've seen a lot of entrepreneurs return to Canada and operate their US business from Canada and come to the US as needed or simply decide in the first instance to base their company in Canada rather than the US. This all might change, however, as the pandemic continues to get under control.

[soneca]

What are the legal risks for a US company to hire a foreign contractor in a model that is more like of a full time employee?

I am the foreign contractor in this situation and I like it. I wish many more companies would hire this way, since a real FTE would require the company to establish a presence in my country (which will never happen).

I understand the risks of hiring as contractor with an employee-like agreement if I was in the US. But I am not. So what are the risks then?

[proberts]

So that I understand, do you mean being based outside the US but being employed by a US company as an employee or contractor?

[morpheuskafka]

It would ultimately be more of a question of the laws of your country. From the US's perspective, even if you were an employee, it would be foreign source income as long as you remain outside of the US so they aren't going to gain any taxes if you were considered an employee.

[munk-a]

As a technically skilled American I found it was far easier and cheaper to get into Canada on a spousal visa than the other way around (by the time we decided to move to be together we already had a lot of proof of relationship established so the overseas spontaneous union seemed unlikely to fly). Has it become any easier to bring in foreign spouses in the past twenty years or does it remain easier to go the other way?

[proberts]

For foreign national spouses already in the US, the green card process really isn't bad and seems to be getting better. The problems are with sponsoring a spouse who is outside the US. That process - the NVC/immigrant visa process - is a mess right now and very slow.

[onn_h1b1]

1. Is it possible to join a US startup or company and become an employee of it, if you stay overseas and you are not physically in the US?

2. How do you receive equity as remuneration from a US startup and register your ownership of the equity if you do not have H1B and:

2a. if you are an employee of US startup but working from overseas

2b. if you are employed by a US company that gave a visa but also do contractor stuff for a US startup as a side thing

3. Is there a way to start and incorporate a new US company under your name as a main shareholder, if you are currently employed on H1B or H1B1 by an existing company?

3b. Or do you have to start and incorporate a new US company under some other structure?

[anter]

Would a startup founder with a history of various fairly popular, but not huge projects have a chance applying for an O-1 visa, or do you have to be a celebrity of some sort (in business/science/etc) to get it?

[proberts]

Definitely possible. The O-1 standard isn't as high as the black letter language of the regulations suggests.

[botverse]

Hi Peter! I work for an American company and we have a distributed team of developers around the world (India, UK, US) and we don’t know if it’s legal for us to come together for a week or two in the states, to plan, bond but also work?

Thank you so much for your contributions.

[proberts]

Absolutely, it's done all the time. They would come here as business visitors with B-1 visas or with their passports if they are from a visa waiver country (such as the UK). But so there are no issues and no lines are crossed, when they are in the US, they shouldn't be compensated (paid their hourly rate, for example) although their expenses can be covered.

[yen223]

I have found that arranging an interview for the B1-2 visa (which is needed if you're not from an ESTA country, and India is not) is dang near impossible now.

[biztos]

I can’t comment on the legality, but when I was in a penny-pinching org in a big US company we just did these things outside the US because it was cheaper. COVID notwithstanding, UK might be a good option for you.

[satya71]

Interesting. My company is in the immigration space and we were considering a product to help distributed remote startups to organize group "off-sites". If you'd like, please reach out on the email in my profile.

[brodouevencode]

Out of curiosity (and I apologize if this has been asked before) - why do you do these?

[proberts]

I work all the time in my private practice and really don't do much charitable work or work for the community so this is a small way of doing something. As a firm, we're also starting to do some pro bono asylum work but really not enough yet.

[victorhn]

I am currently working on a TN2 visa (Mexican citizen), my company wants to sponsor me my H1B and then, if i got it, sponsor my GC. I heard that there is a route where you can go from TN2 visa directly to GC, but that the process is risky if not handled carefully. What is your view on this?

[proberts]

There's no issue with moving from a TN to a green card; the process just needs to be managed carefully and all this really means in the end is coordinating the timing of the filing after deciding on the green card path (that is, whether through USCIS or a US Consulate).

[annon2323]

Hello, can a H1-B holder work permanently in a fully remote US position? Are there any restrictions? Thanks

[gautamdivgi]

This is my experience (not legal advice, ymmv, etc, etc.). I have done this when I had an H1-B. I was classified as remote. There are two implications:

1. Prepare for USCIS to visit your home. They want to see if you're really working ;). I had someone come and showed her around. Make sure you have a designated "office space" in the house. This was in 2012 or 2013 so I'm not sure if they still do it.

2. Obviously, if you're applying for your green card, then recruitment happens country-wide as opposed to just being in your local zone. At least this is what my lawyers said (again around 2012-2013 :) ).

[proberts]

Yes. It just needs to be disclosed as part of the H-1B process.

[pvarangot]

I did this on H1-B. Your employer may or may not need to change the "statistical zone" where you are working if you move around, because salaries need to match it. A work location change is an easy H1-B amendment but you need to file it, and it may also reset your greencard application on some cases. You should really talk to your employer about it, they will need a lawyer.

[outPersona11]

I am a DACA recipient, and have not been able to renew my application due to a situation that I will not get to specific with. I am still working at a tech company and been extremely anxious this past few months about what my company might do to me since its been expired for almost a year. I've worked so hard for this and can't the fact that I might get fired due to this. Any suggestions or sources that can help on this? Sorry for being a bit generic but this means a lot to me.

[proberts]

I know what you're referring to because we've dealt with that issue for several employees of one of our clients. But it's really impossible to advise without knowing all the facts.

[onn_h1b1]

1. When talking to a US startup or US company, how do you ease in and tell the recruiter or the HR about the H1B1 which is easy and totally different from the onerous H1B?

Because most of them have never heard of the H1B1 and many of them get scared when they hear H1B1 because they mistakenly think it is H1B.

2. How cheap and quick is it to get a new H1B1? In dollars and in days.

You are overseas right now and not in the US.

3. What signs can you use to predict which YC companies can support visa?

By their employee count, funding amount, founder origin?

[xriddle]

Hi Peter,

Thanks for doing this again. Is a work authorization visa (TN H1B etc) required to be hired for a remote US position for a Canadian not looking to relocate just yet.

Thanks

[proberts]

No. US immigration only comes into play if one will be physically in the US.

[PeterisP]

In general, if someone is in USA on a visa that does not allow employment (e.g. the F-1 student visa, or perhaps J-1 exchange programs), can they do things like job interviews with USA startups (or perhaps starting a startup company registered in USA) with the expectation that the actual job would be started later, when it's permitted e.g. remotely when back outside of USA ?

[proberts]

They absolutely can interview for jobs. Starting a company is more complicated because they can do some things but there's a limit and that limit is grey - other than not getting paid by their company which is absolutely prohibited.

[proberts]

Thank you for all the questions and comments. I'm taking a short break and will be back soon.

[alanlammiman]

Do EB-5 investor visas work well in practice for those looking to start a business in the US? Looking at the rules it would appear to be straightforward as long as you have the capital -invest $1.8M and employ 10 people. It there a catch other than the amount of the investment that makes it hard in practice?

[proberts]

They do work well; there's just a significant backlog.

[godelmachine]

Hi Peter,

My father who is a naturalized US citizen since Oct 2018 (He got his GC in Oct 2013) filed for my GC. I am in F2B. I am born and raised in India, 32 yrs, unmarried, 5 years of exp in IT.

Priority date → Nov 2017 Petition approved → Nov 2020

My file should be with NVC now, probably in cold storage.

How severely has the pandemic slowed down application processing? I have been hearing there will be no change in Visa Bulletin till May 2022.

Meanwhile I have also applied for Canada PR under Express Entry and got nominated by Ontario province. I am expecting my Canadian PR application to be finalized in next 12 months.

Considering this -

1. When do you reckon I will get my GC?

2. I intend to be US + Canada citizen, both. Is there anything I need to know?

3. Will I be taxed by both countries? Is there a double taxation avoidance treaty?

Many thanks for taking questions, Peter :)

[proberts]

The NVC/immigrant visa process is a disaster unfortunately. Given how long you have been waiting, I definitely would recommend that you or your father contact a local Congressional office to make an inquiry on your behalf.