Posted by proberts 15 hours ago
I'm Peter Roberts, immigration attorney who does work for YC and startups. AMA
Previous threads we've done: https://news.ycombinator.com/submitted?id=proberts.
I'm supposed to put out a job advertisement (but the job isn't real) for my employer. If an applicant passes the interview process, I don't have to hire that person (I probably can't - I don't have budget or permission from the organization). But I do have to honestly say if they have all the required skills -- I'm not permitted to say "wouldn't be a culture fit."
Nor do I have to fire my employee. But maybe my employee won't get a green card six years down the road.
1) Do I have any details wrong here? The one time I talked to a law firm about this they more-or-less refused to state the above outright, but answered all questions in this direction. 2) Doesn't this seem disrespectful to, among others, the applicants to the fake job?
The "or" part in the last sentence is worth noting. At the place I've worked, the employer invokes the second clause (i.e. PERM process is canceled/suspended, and they try again 6-12 months later).
The way it worked there was: Employer publishes an open req. We get lots of resumes. Manager calls the few people who may be a match. Then the manager has to justify why the person doesn't have the skills and the process continues.
Sometimes (and this is likely a bit random), the government does an audit, where they get the details of all who applied. Then they call the manager and start grilling him on why a particular candidate was rejected. If the manager can convince them, the PERM process continues. If not, they fail the Department of Labor Certification and the PERM process is canceled.
The person doesn't lose his job. They're just ineligible and need to apply again after a certain window.
I do know folks applying for PERM who were rejected twice because of this. The insane thing was that their roles (EE with specific specialty) were legitimately hard to fill, whereas other people in the team doing trivial scripting easily got through PERM.
The process is messed up in many ways.
Personally, given the state of unemployment in the tech sector right now, I think it should be virtually impossible to fill a PERM right now because pretty much any position could be filled with a US LPR or citizen and the only reason it isn't is because the whole process is deliberately obfuscated or artificial barriers are put up purposefully to disqualify candidates.
I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years.
> I also think that doing layoffs in the US should disqualify you from doing any PERM or sponsoring any visa for 2-3 years.
This is a very SW mindset, and makes no sense in other circumstances.
If my company canceled a large SW project, and laid off a lot of SW folks, why should that prevent them from sponsoring someone to work on nanoelectronics?
Because companies should be held accountable when they make mistakes in hiring. The employees shouldn’t have to bear the burden of their employers mistakes.
If you need to hide your job postings on an internal physical caulk board in a basement and post them in only physical copies of The Columbus Dispatch then it should be pretty clear you're not following the spirit of the program. If, even after doing that, you then disqualify candidates for pretty fake reasons and you somehow still have qualified candidates so you pull the position and try again in 6-12 months then you should absolutely fail a USCIS audit and you should lose your privileges for hiring foreign workers and sponsoring people for residency, at least for a time.
Legitimate employers and jobs can't get a visa in the H1B lottery because of widespread visa abuse. People from certain countries (particularly India) have to wait 10-15+ years because of abuse of the system. Fake employers with H1B schemes, bodyshops that really pay below prevailing wage and can keep Indian-born people as effectively indentured servants, spamming the system with H1B applications because they don't really care how many they get.
We're in permanent layoff culture now where pretty much every sufficiently-sized employer will probably fire 5-10% of their staff every year while still hiring people. This is to suppress wages and make people do more work for free. There should be a cost to this.
If you're an immigrant, a completely arbitrary layoff can be devastating. You have a short period to find a new job and if you don't, you have to leave the country. Employers who will do that to immigrants shouldn't be alloweed to hire immigrants.
You can be both pro-immigration and anti-immigration abuse.
certain employers can use h1bs to fill specific employment needs really well, and have a ton of experience with both sourcing foreign labour and matching it to work that needs doing in the US.
its doing exactly what the program is looking for, filling a labour quantity at the price employers are looking for.
The US government is optimizing for being able to do some volume of technical work, and the the h1 is intended to make sure that the industry isnt limited by labour availability. its not particularly abusive to do that in an efficient way where the same h1b can serve many businesses
the alternative thats coming is going to be moving a lot of the work to india and instead having the local engineers be liasons for where the real work is happening
people in india havw to wait long periods because the green card system of country limits has no per capita normalization, not because of h1 visa abuse. its sheer volume of good people working for american companies in america, wanting to stay in america. Your anti-abuse metrics will bring it down from 15 years to 13 or 14. not a meaningful difference
If the customers for these bodyshops could save money by outsourcing directly to India, they would've already.
And beyond those big bodyshops you have any number of smaller H1B fraud schemes eg [1][2][3][4].
If you're Indian-born and are waiting 10-15+ years for your green card then you should be mad about these companies because they're making your life more difficult.
> The US government is optimizing for being able to do some volume of technical work, and the the h1 is intended to make sure that the industry isnt limited by labour availability
First, I disagree with this claim. The US government is optimizing to suppress wages.
Second, when there's significant unemployment in the sector then there is by definition availability. It further goes to my argument that the main purpose is to suppress wages.
[1]: https://www.justice.gov/usao-edca/pr/east-bay-men-plead-guil...
[2]: https://timesofindia.indiatimes.com/world/us/h-1b-visa-fraud...
[3]: https://www.justice.gov/usao-nj/pr/executives-staffing-compa...
[4]: https://www.kron4.com/news/bay-area/sunnyvale-man-to-serve-1...
Well, the abuse is mostly happening for the benefit of people from India.
But yes, it sucks that the "good" people from India have to wait a long time because of the system being abused to get the "not-so-good" Indians.
Keep in mind, though, that you're conflating H1-B with PERM. There isn't a 10-15 year wait for H1-B.
Since they are clearly violating the law, how can I report this?
Here's a problem I often see when technical people, particular engineers, try to analyze legal issues: they tend to look for technical compliance (or noncompliance) or use standards like absolute proof but the law simply doesn't work that way.
Legal decisions tend to come down to things like witness credibility, a holistic view of the facts and whatever evidence standard is being used (eg preponderence of the evidence, beyond a reasonable doubt, clear and convincing evidence).
An example I like to use is back when prosecutions for downloading something illegal were more in the news. A technical person might argue "an IP address doens't mean anything. It could've been anybody". But the law will look at the totality of the evidence (eg browser history, time when it happened, were you home at the time, whether such media was found on your PC, etc. And the way the Rules of Evidence work, you might not even be able to suggest certain alternative theories (eg "my Wifi was hacked") without evidence.
Another good example is sponsoring someone for a marriage-based green card. You need to be in a bona fide marriage and you'll get people who will look for technical compliance. Is having a joint bank account enough? Photos? A joint lease? Filing a joint tax return? Those are some of the factors USCIS uses but no single factor is sufficient. USCIS will look at the totality of the evidence in determining if a marriage is bona fide.
so back to PERM abuse, arguments like "we made an error with the email address" or "we accidentally lost some US citizen applications" or even "we complied with the technical requirements for advertising a position" may not carry the day because the totality of the evidence may still amount to immigration fraud.
Lastly, it should be noted that a lack of a prosecution (yet?) is not proof of legality or compliance either.
[1]: https://www.theregister.com/2026/04/28/cloudera_doj_employme...
[2]: https://www.justice.gov/archives/opa/pr/justice-labor-depart...
[3]: https://www.mondaq.com/unitedstates/employee-rights-labour-r...
What's an ask you'd make to startups in the legal AI space?
Not selling something, but have heard primarily negative sentiments from other lawyers due to hallucination risk.
Related, iirc H1-B has a 6-year limit. Under the current policy what's the path forward if the holder is not ready to adjust their status to PR within the timeframe or not qualified to EB category? O1? But there were a wave of news stories about O1 being abused and I wouldn't be surprised if that was a prelude to major changes to the category.
Just curious. Thanks for making this thread.
It's possible to extend H-1B status beyond the 6-year max-out period if the beneficiary is in the green card process. But if the beneficiary isn't in the green card process, then the most common option is the O-1 and while it's getting harder to get an O-1, it's still within reach of many talented professionals and founders.
https://www.courtlistener.com/docket/72095497/chamber-of-com...
https://www.courtlistener.com/docket/71541425/global-nurse-f...
Also: Try the green card lottery. You can Google to find info.
There's also the L1B Company transfer, if you work for a company with offices in the US and they would be able to transfer you after a year. Bit of a gamble to find a company that would be willing to do this though, and you gotta work for probably years to find out.
H-1B, if you're not already in the US has a 100k fee attached to it. Though AFAIK that was a proclamation that expires at some point, but probably won't. So it's really not an option for 99% of people.
I'm not a lawyer, so definitely verify what i say, but i'm pretty sure these are also valid options.
Thank you.
[0]: https://www.usimmigrationadvisor.com/active-e-2-treaty-count...
- How difficult has it become to get O1 for founders compared to say 5 years ago?
-What advice would you have for founders who think they should be able to get O1 once they have a bit of seed money (say YC, 500k) and press coverage?
Any thoughts there?
If those students are actually concerned about staying in status, simply saying they're volunteering might not be sufficient.
Our re-entry permits are coming up for renewal soon. We're considering giving up my wife's and kids' green cards, and keeping only mine. The reason for keeping mine is twofold: (1) most of my assets are in the US, and I want to take my time shifting to non-US-domiciled assets to avoid the non-resident estate tax; and (2) I still travel frequently to the US -- 3 or 4 times a year -- for work.
Do you foresee any problems with my family giving up their green cards now, and me holding on to it?