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

Preamble: As I understand it, it is permissible for a European who works for a US company to visit the US as a "business visitor" on an ESTA in order to visit the company, as long as the visit is not for "work". Various sources list activities that are deemed to be "business" and not "work", such as attending business meetings or attending a trade show, and entering on an ESTA for these purposes is thus acceptable.

Question: What I'm not clear on is whether the business-but-not-work restriction... 1. merely means that the purpose of your visit has to be business-but-not-work, or 2. requires that the visitor refrain from all "work" activities while in the US, even if they weren't the reason for visiting and would have happened anyway.

Concretely: suppose I am a programmer who works remotely from Europe for a US company. I visit the US to meet my colleagues face to face and attend a trade show with them (business, not work), but these activities don't take up 100% of my time. Rather than sit around idly during the downtime between "business" activities, I do some of my ordinary programming work, of the sort I would do back in Europe. Have I broken the law?

proberts · a year ago

That still would cross the line even if that wasn't your plan when you entered.

DragonStrength · a year ago

We all know startups are crossing that line all the time with their "off-sites," hanging out in Airbnbs and coding together for a week or so at a time around conferences.

XCabbage · a year ago

Interesting. I know for certain from experience that some ESTA visitors and their employers assume the law does NOT work like this, and that as long as you're visiting for a legit "business" purpose you are not required to suspend your ordinary work activities while in the US. Good to have confirmation that this is wrong and that you DO have to suspend your ordinary work duties for the duration of the visit.

Thomashuet · a year ago

Could you expand on this? Where is the line? What's work and what's business?

proberts · a year ago

That people get away with working while in B-1 or B-2 doesn't mean that the law allows it; simply put, some CBP officers know the law and others don't. The confusion is that years ago, the B-1 rules allowed for short term work in the U.S. while on the payroll of a foreign company but that absolutely isn't allowed anymore and if an applicant for a B-1 visa or admission in B-1 status says this, then there is a high probability that their visa application will be denied or they will be denied admission and possibly even banned. The grey area is the definition of "work" here. I use a couple of guidelines: clearly compensation from a U.S. source while in the U.S. is prohibited although reimbursement for reasonable travel expenses is allowed and activities the primary purpose of which is to benefit a U.S. entity or person almost certainly aren't allowed.

throw123123123 · a year ago

Sorry, but this can't be right. Companies fly in people on B2 visas all the time to do onboarding, work on specific projects for a short period, and participate in offsites.

I've done this 10+ times in my career, for big and small companies, and it was never an issue even when explicitly saying these things with border patrol/immigration.

What gets you in trouble at the border is the risk of permanently staying, and the risk of drugs&money.

YZF · a year ago

I am not a lawyer but I'm pretty certain you are supposed to refrain from any "work" activity. So yes, you have broken the law.

I can also tell you nobody abides by this interpretation and it's virtually impossible to enforce. But your entry will be denied if you tell the immigration officer that you're going to be doing "work" that is not permissible under the specifics of the visa you're entering with. There are some other situations that are covered by a normal business visa and are work-like.

lolinder · a year ago

In case anyone misses it—there's a reply from the actual lawyer who started this AMA below this one.

paxys · a year ago

Disclaimer - I'm not a lawyer

"Have I broken the law?" is a tricky question. You have, by the strictest letter of the law, engaged in an activity that could be deemed grounds for deportation and/or future denials of the visa. But by the same interpretation ~100% of visitors in the country are breaking the law and violating the terms of their visas in some way. So unless you yourself go to an immigration officer and say "I intend to engage in an illegal activity please deny me entry" you will be fine.

samus · a year ago

Immigration officers will ask your purpose of stay, and if your answer is not clear and they start questioning in more detail and you blurt out you're gonna do something which is technically not allowed by your visa, then you have a problem. Comparing yourself with others who also do illegal things during their stay won't help you then.

cynicalsecurity · a year ago

This is the most European question I would have ever imagined.

skybrian · a year ago

It's US law. Are there similar European laws?

cgh · a year ago

I worked for a large Silicon Valley company as a foreign national (Canadian) and I flew down at least once a quarter. When I said I was going for “unpaid business”, I was questioned enough that it led me to ask my employer to get me the proper visa so I could legally work because it felt like I could get denied entry on the whim of the immigration agent. It felt uncertain and was kind of stressful.

My advice is, don’t risk it. Get the visa to allow you to work for at least the time you are there. I ended up getting a full TN visa but I believe there are short-term work visas for this circumstance as well.

YZF · a year ago

Same here, also got a TN because the questioning becomes very uncomfortable as both sides of the conversation usually are not stupid. Some friends in a similar situation were turned around at the border which can also lead to getting barred from ever entering the US again.

djs55 · a year ago

I believe even with the visa it’s still up to the immigration agent. I came close to trouble once when asked for my H1B visa petition document (not the visa in the passport). I had a photocopy and was told that wasn’t enough and although they’d let me in this time they expected to see the original in future. I also travelled with a letter from my employer explaining where I worked, job title etc as extra documentation just in case to derisk further.

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bzmrgonz · a year ago

what you do is, crank up your vpn, choose an European end-point and connect back to the US to do your work... lol... lol. I tell you.. american law is ridiculous... IT has gone global and they still have that ridiculous provision in the books. They are perfectly fine for us to milk the american IT cow from afar.. but don't you dare come spend that cheese in the contiguous USA... I think once an IT professional clearly shows ability to work remotely, they should be allowed free access to spend that cheese back in the economy which employs them.

bzmrgonz · a year ago

Maybe what could help is if you operate under an LLC. (myself inc.), that way when you visit, you visit as a company... but I am not a lawyer.

tmountain · a year ago

Not a lawyer, but it seems unlikely that anyone would scrutinize your visit closely enough to care.

cgh · a year ago

No, US immigration are notorious for exactly the opposite. See my other comment in this thread.

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Dear Peter, really appreciate your AMAs.

I'm from Europe and recently lost my ESTA due to the TSA searching my phone and making me admit I smoked a joint in California (not legal on a state level).

I'm over 50% owner of a C-Corp in Wyoming with a 200k investment and I have another full employment job that would sponsor me.

What visa should I approach? H1B lottery didn't work for the second time.

jayceedenton · a year ago

> making me admit I smoked a joint in California (not legal on a state level)

Wait, so weed is not actually legal in California?

I see big billboards around the valley and SF, advertising gummies as if it is a normal part of life. Is it inadvisable for any visitor to partake? This is useful information. It seems to be so normalised amongst tech folks in California these days that I could well imagine being offered a joint (or similar) if socialising in the evening whilst on a business trip.

proberts · a year ago

Depending on a number of factors, the likely visa options are the E-1 and the O-1 but because of the incident, you likely will need a waiver when you apply for a visa and the waiver process can take anywhere from 3 to 6+ months.

hoerzu · a year ago

Wow this is super helpful. Very grateful for your time. There's a lot misinformation floating around.

And since I only verbally admitted to the TSA agents smoking a joint in New York and was kind of coerced into it no other way to dispute it then the waiver? I didn't have anything on me nor do I really use marijuana

willsmith72 · a year ago

They can search your phone? Do they need cause?

dmurray · a year ago

Yes. Yes, they need cause, but not in the Fourth Amendment definition. The cause is you've requested to enter the US or you've been found hanging round the vicinity of an airport, land border or navigable waterway.

miohtama · a year ago

My phone has been also searched.

The kindly asked me to hand over my unlocked phone after they asked me to show that I have booked accommodation which I did on a phone. They asked who are these people on emails, then handed the phone back.

They only quickly browsed through my emails though.

My recommendation is that everyone prints on the evidence of the purpose of their trips beforehand: booked hotels and a list of conference they plan to attend (plans may change, however).

billofprivilege · a year ago

In the US the Bill of Rights and most other things only apply to citizens (and maybe lawful residents).

CBP agents have broader authority to conduct searches of non-citizens and their belongings at ports of entry without a warrant, including devices like laptops and phones, to determine admissibility to the United States. Searches of citizens generally require a higher standard of suspicion or a warrant.

In the past, someone has taken a flight between Canada and Mexico while under suspicion of the US authorities, and the plane was forced to land and the person forcefully detained, just because they entered US airspace.

Just losing your ESTA over weed (federally a schedule 1 narcotic) is a fairly small punishment considering the CBP enforces federal law.

timenova · a year ago

My co-founder and I are working on a cloud startup (we have a registered LLP in India), and after launch, we want to register in the US through Stripe Atlas/Clerky. It seems easy enough (as non-residents) to open a company bank account in the US too.

In the future, we plan to apply for the EB-1 (based on your suggestions in previous threads to others) to live in the US.

Is it okay to register and operate a US company from India for now, when we plan to apply for an EB-1 in the future? Or could it be detrimental for future visa applications or any other reasons?

From a an immigration standpoint, it's allowed and there's really no downside to it and if it helps to grow the business, then it will help support your EB1A or EB1C applications later.

Thanks for the reply! Really appreciate the advice.

divyekapoor · a year ago

The US law is very expensive to comply with. Probably the most expensive in the world. Incorporate a subsidiary only and only if there’s a check in your hand. Then too, consider an LLC.

ramraj07 · a year ago

What exact advice was given that you can do an EB1 from India with a “cloud startup”?

debuggerpk · a year ago

this is a good question

pcl · a year ago

A friend is an ESTA holder. At a point of entry, an immigration officer verbally told her that she needs to leave the US within 1 month, even though her ESTA status allowed for a 3-month stay. (She had a return ticket 2 months from the date of entry.)

The immigration officer did not write any date (at all) on the stamp in her passport. The ESTA website lists her required departure as 2 months out.

Are there any other records where the immigration officer might have recorded his 1-month assertion?

Unless the I-94 admission period is limited to less than 90 days, then an applicant for admission under ESTA can stay the full 90 days (assuming the activities stay within the B-1/B-2 lines) regardless of what the admitting CBP officer says or even writes down. In other words, if a CBP officer believes that an applicant for admission should be admitted for less than 90 days, then the officer must limit the I-94 admission period.

morpheuskafka · a year ago

I believe you are referring to the I-94 website, not the ESTA one... that (digital) form is the legal limit of her admission so she cannot be accused of overstaying if she follows that.

That said... they obviously have all sorts of classified places to put notes that you can't request, and there was clearly something in her file that made them suspicious in the first place, so staying the full three months is almost certainly not going to improve that.

telesilla · a year ago

Yes, they record conversations had at the border as notes. I've had previous conversations come up as questions: do I still do X, did I travel to Y. Consistency seems to be important. Maybe they are verifying also one's identity.

santiagobasulto · a year ago

Have you felt there are a lot less requests for founders to fully immigrate into the US? Maybe given the increased simplicity in working remotely, the services and new mindset have genuinely reduce the importance of location (although it’s still important, just reduced).

I personally don’t feel the need/desire to immigrate into the US anymore. I used to be all over it. But since I sold my startup and relocated to Europe and I live an amazing life while working on my second startup. I wouldn’t live in the US even if I was invited (nothing personal, EU is just too good).

Anyways, is it all still the same or you feel a change in people’s interest.

maeil · a year ago

Out of curiosity, which part of the EU do you find so good?

abaymado · a year ago

Hi Peter, Thanks for taking question. I am currently seeking Asylum in the US, came here when I was 13 in 2011, I have yet to receive a court date. What are some option for me in terms of acquiring green card, if I was to withdraw my asylum and to apply to YC?

That's a complicated questions. With limited exceptions, you would need to leave the U.S. to complete the processing of your green card application and almost certainly need to obtain a waiver of inadmissibility. Again with limited exceptions, you also would need to leave if you wanted a temporary work visa status, such as an O-1, although the required waiver would be easier to get.

sparrow98 · a year ago

It's regarding my recent I-485 filing and my spouse's green card eligibility. Due to unforeseen family circumstances, my spouse and I are considering divorcing, but I want to ensure that my spouse's green card application is not jeopardized in the process. As the primary applicant, I am committed to supporting my spouse through the green card process before finalizing our divorce. To navigate this complex situation effectively, I would greatly appreciate your expert guidance on the following questions:

1. What are the potential risks to my spouse's green card eligibility if we proceed with the divorce after the application is approved?

2. What are the potential risks to my spouse's green card eligibility if we initialize the divorce before the application is approved?

3. What steps can I take to demonstrate the bona fide nature of our marriage and minimize any suspicions from USCIS regarding the timing of our divorce?

4. In the worst-case scenario, could my own green card application be jeopardized by this situation, and if so, what precautions can I take to protect my own immigration status?

This is extremely nuanced and delicate; you absolutely should consult with an attorney before taking any green card steps.

klntsky · a year ago

Do a postnuptial agreement with conditions exactly like if you divorced today to stop worrying about legal consequences of not divorcing now.

sfilmeyer · a year ago

> postnuptial agreement with conditions exactly like if you divorced today

There's no such thing as a postnuptial agreement fully legally equivalent to divorce, though. A trivial example is your legal ability to marry someone else, but there are plenty of other differences.

killa_kyle · a year ago

A green card through marriage comes initially as a “conditional” / 2 year card, and then your husband would have to apply to remove the conditions (ie show he’s still married) after that two year period. If you get divorced before the green card is even processed it might not make it that far…

BlandDuck · a year ago

My impression is that over the past 20 years or so, the visa process has become a lot more bureaucratic, involved, and time consuming.

Is that your impression as well? What has changed, and why? Are any of the changes for the better?

I agree. From an outcome standpoint, the changes are for the worse. But some of them are understandable to the extent that in certain contexts USCIS is paying more attention to the letter of the law and not just accepting representations on face value but requiring evidence. From my standpoint, the biggest negative changes are the delays in the processing of green card applications (partly statutory and partly administrative) and the lack of access to USCIS officers.

Thanks, that's sounds very reasonable.

Unfortunately, it also sounds like there is not much push at this point to reverse these changes and streamline the process.

ashconnor · a year ago

My PERM was certified yesterday after 12 months and 2 weeks. That used to take 6 months.

I'm now backlogged until October which never used to happen at all to ROW (rest of world excluding India and China) applicants.

swalberg · a year ago

My PERM was certified in August. Took a little over 16 months because it went to audit. Timelines on PERM shot up around the same time as I applied and have been steadily getting worse.

Filed I-485 in November, approved in 4 months and a week. So once your date comes up, they seem to be moving quickly.

refurb · a year ago

It changes over time. My spouses PERM took 4 years.