I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA
A veteran U.S. immigration lawyer answers founders’ and tech workers’ questions on navigating visas, green cards, and work authorization, with a focus on startup-friendly categories like O‑1, EB‑1A, TN, E‑2, and H‑1B. The exchange highlights how the system works reasonably well for “stars” and AI/ML specialists but remains unpredictable and backlog‑ridden for many skilled engineers, founders, and families, especially from heavily backlogged countries. Participants also probe edge cases such as side projects on H‑1B, remote founders, long waits for marriage‑based and employment‑based green cards, and the limited impact of recent executive actions on AI and entrepreneurship.
Overall climate and system issues
- Participants largely agree US immigration is harder than a decade ago, but changes are uneven across visa types rather than universally stricter.
- System is seen as working “well enough” for stars (e.g., extraordinary ability) but failing many strong engineers who don’t fit “star” criteria.
- H‑1B is widely viewed as “broken” due to high demand and low annual caps; per‑country green card caps create multi‑year or decade‑long backlogs, especially for India and China.
Key work visa paths for tech and founders
- Common categories discussed: H‑1B (specialty workers), O‑1/EB‑1A (extraordinary ability), TN (for some Canadians/Mexicans), L‑1 (intra‑company transfer), E‑1/E‑2 (treaty trader/investor), J‑1 (interns/trainees), EB‑2 NIW, EB‑5 (investor).
- O‑1/EB‑1A are emphasized as increasingly viable for tech founders/engineers, including those with industry impact (open source, products, patents, revenue) rather than academic publications.
- TN can sometimes cover product‑type roles if framed as engineering; it’s stricter on degree requirements than H‑1B.
- E‑2 works for solo founders and existing businesses if investment and business plan are strong, but 50% ownership and later dilution are risks; contingency plans (O‑1/green card) are recommended.
- International Entrepreneur Parole / IER is viewed as immature and rarely used so far.
Side projects, remote work, and unauthorized employment
- Main risks to status: unauthorized employment, overstays, criminal issues, fraud.
- H‑1B is strict: paid work only for the petitioning employer; no paid freelancing, monetized side projects, or overseas paid work while in the US.
- Strategy suggested for H‑1B founders: treat startup as unpaid “hobby” while building an O‑1 portfolio, then switch status when ready to monetize.
- Remote work from the US for foreign clients/employers generally still requires US work authorization, though brief business trips while continuing foreign work are distinguished.
Green cards, backlogs, and processing
- Employment‑based green cards: PERM timelines have lengthened (around 11 months), but many I‑485s are reportedly approved within ~3–6 months once priority dates are current.
- Family‑based spousal cases are currently described as “super easy and fast” in many localities (often <6 months), though others report long waits and resort to service requests, congressional help, or mandamus lawsuits.
- Time spent in the US in valid status (L‑1, E‑2, etc.) does not by itself create a green card path.
Family, overstay, and special situations
- Marriage to a US citizen or permanent resident is generally the most straightforward path; location of the wedding usually doesn’t matter, but fiancé visas and in‑country status changes carry nuanced risks.
- Short overstays (<180 days) may still allow status adjustment; longer overstays can trigger multi‑year bars, sometimes waivable.
- DACA recipients and undocumented individuals face highly constrained employment options; some manage paths via advance parole plus marriage, but others are repeatedly advised they may need to leave for consular processing.