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?

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.

Every attorney I have spoken to in the past has said that something like this is a clear and obvious violation of H-1B visa terms, so I'm curious what the "gray area" you are referring to is.

IANAL. Can non-citizens run US-based companies? If yes, can't this be done through a company, then OP would just be forbidden from drawing a salary from this entity?

Yes . Non citizens can run us based companies as long as they do that from outside the US. If they want to come to the US to run their US based company, then they have to decide on a visa. There is E2 which is a business based visa but only for certain countries. H1-B is essentially a skilled worker visa and it is assumed that you would have a company and a boss who would file for that visa.

> If they want to come to the US to run their US based company, then they have to decide on a visa.

Only if they want to get paid in any way, right? Can a person run their company w/o drawing any profits (i.e. no W-2 needed) and not have to go through the visa process? If I were to look for a way out of the situation ("I want people to pay so that I have money to maintain the infrastructure"), this is how I'd try to approach it ("create an entity that is allowed to accept money from other sources and use that money only to run the infrastructure").

Run your work through companies in Canada and Us. You are employee of Canadian consultantcy which happens to own stock and pay you on the payroll. Your quarterly meetings are nothing other than paper work.

IANAL, but you can be a 100% owner of another U.S. company, that will be collecting the fees, paying the bills and dividends, but you cannot run it. I.e. on paper, somebody else with the work permit will have to be the CEO.

#444444 as opposed to #808080

Is there any documentation you'd be able to point to about how to structure this? Not the OP but in a similar boat.

Or would you recommend reaching out to an attorney to do this instead?

Really the latter because what's out there is just too general to be really helpful.

IANAL but could you not just base the business and get paid in the home country? Surely even if US taxes on worldwide income it's just that, tax, not any sort of 'unauthorised US work violation'?

No. They check your tax returns every year with some automated process. If you document any income that is not approved youll be in trouble. My college rounded up all the international kids doing business in their own countries and told them to stop immediately.

Weird, I just don't see why business-related (or even employment) income in other country X should be any different to investment income, rental income, etc. in other country X.

Not wanting to pick on the parent comment but this is were 'lay person opinion led forums' don't work for legal questions.

You may not see why, but that's you conveying your opinion based on common sense or your own reasoning vs the law.

The law says that your H1B via only covers you to receive income via your W2 employment with the company the visa is attached to.

If you are an H1B holder you can't be employed or contracted to work for another company in your home country/another country outside the USA because you would still be performing the work in the US and you are out of visa. Even if it's your own company.

If you put this income on your tax return you will be disclosing to the government you are working outside your visa. If you don't put this income on you tax return you are filing an incomplete tax return (and still working outside your visa).

The difference here from receiving investment or rental income from abroad (which you still have to include on your US tax return!) is that investment and rental income isn't 'work' covered by an employment visa.

A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway. But it's a corner case and the law isn't built around corner cases.

(IANAL)

Well I never answered anyone's question, tried to, or claimed to be able to. I said IANAL just as you did. I never claimed to have anything other than an opinion. I think I even made it pretty clear that I'm not in the US and don't know how its visas and taxes work.

> A work visa is a permission to take a job out of the US employment pool, and the flaw in the law is that if you are working on your own company (inc side project) abroad, you are not really taking a job out of the US market because you wouldn't have hired anyone anyway.

Exactly. Hence 'I don't see why'. Not legal advice. An opinion that it's (assuming true) dumb. I don't see what the problem is with expressing that opinion on these 'opinion led forums'.

It's way off topic. The Q-and-A here is are about getting actual legal expertise applied to questions, not opinions about how US immigration law is flawed. You're not wrong to say it, it's just that this isn't the place/time.

So Ctrl-F for proberts if your time's so valuable.

This is entirely gray area. The rules of thumb are following:

- Owning companies is totally fine. - Generating income from various sources is totally fine.

What is not allowed is: - You should not work in any capacity where an American citizen could have been gainfully employed. Lot of people mis-represent is that you can not get paid a salary, that is not true. Salary is just an evidence of you worked.

How many people structure this is the following. Partner with an American citizen and start the business. The American partner will hold 51% stake and you will be a passive investor with 49%. If you are married you can apply for H4EAD. You spouse has unconditional EAD and she can run the company.

Important note: This issue is only for people born in India. Everyone else can get their EAD/GC in an year or so.

I would love to know more if you have pointers as well. I always assumed it was a no-go and released a few apps for free over the years.

We would need to talk but I evaluate this question - what can I do on the side - by looking at the extremes first to set the parameters. So, for example, ideating or building a product in your garage is clearly fine and getting paid cash for selling something that you created is clearly not. But in between these two extremes there are gray areas. So, for example, is creating something and posting it publicly problematic if people start using and sharing it at no cost? That seems fine, right? What if there's a cost to using this product but the cost is simply to cover and only to cover administrative costs? And does it matter if this is all associated with an individual or with a company created by an individual? And what if this creation is only accessible and used by those outside the US? There definitely are grey areas and potential arguments to be made to allow for certain seeming work-related activities.

If it is software, Could he just set a company in his home country that purchases server space in the US?

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.

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.

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.

Could you open up donations for the project instead?

I still think problematic and would have to be carefully structured from both an immigration and tax perspective.

curious if there is a visa that allows more the entrepreneurial amongst us?

The visas most closely aligned with entrepreneurs are the E-1 and E-2, the L-1, the O-1, and the IEP (parole).

"Donations" in most contexts are just income with no expectation of a product in return. e.g. twitch donations, patreon donations

PayPal had to explicitly ban the use of the word "Donation" for non-tax-exempt companies for instance.

I don't think calling the contributions donations will change much and it may actually complicate the payments for tax reasons.

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.

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?

Thanks for your response. She's retired and collects a pension (71yo). No formal educational background.

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!

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?

Thank you for your insight! I'm the only Canadian right now. We're still a small startup. I don't have majority control of the company by myself any more as we have raised VC.

I only enter the States for very specific business purposes and short durations and the occasional short family vacation. Less than 8 weeks in any given year, and much less now that I have kids at home.

I am super qualified for a TN1 computer systems analyst. I could presumably make a case for an O1 but that's a lot of work to prepare.

You really should be fine coming in as a visitor with just your Canadian passport (although consul with an attorney if you're really concerned) and the strategy could be to do this until you get some pushback.

Thank you!

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.

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.

Brilliant, thank you!

I'm in Canada and will be relocating to the United States on an L1 visa next year.

I was worried that PERM cannot be filed for remote employees but that doesn't appear to be an issue.

https://www.lexology.com/library/detail.aspx?g=5bddb770-63de...

When you say remote, you mean remote in the US, right, such as working from home? You definitely can be PERM sponsored as a remote employee under these circumstances.

Correct. That's what I meant.

The US is diverse in terms of both culture and climate :) Many people I know want to live in the US for various reasons. And I can't offer relocation to any European country without having operations in Europe, for the same reason that people outside of the US can't offer relocation to the US.

> And I can't offer relocation to any European country without having operations in Europe

That's not entirely true - several European countries offer "Digital Nomad" visas that are specifically aimed at attracting people who won't take jobs in their host country, but will instead receive income from elsewhere and spend it in their host country, thus boosting their host country's economy.

See: https://www.etiasvisa.com/etias-news/digital-nomad-visas-eu-...

If you partnered with the right European law firms, you could totally offer a nice package of US based salary + assistance with "Digital Nomad" visa application.

It is difficult to meaningfully collaborate with a team that is working in US time zones if you are in Europe/Asia. You can make it work, sure, but saying that there is no benefit to being in the same place is disingenuous.

How does one go about doing that? I have been living in Spain and having a hard time getting remote work with U.S. companies despite having a PhD in computer science and being a U.S. national. Do you have any pointers?

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.

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.

Are there any tax implications with this type of setup? e.g. equity granted in the US, but then perhaps eventually vest and get exercised in Canada.

That I don't know. You would need to consult with a corporate/tax accountant or lawyer.

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?

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

If it is the same case that I want to be in them I think he/she means:

* He/she is employed by a US company as a contractor and works remotely

* He/she is not a US citizen and lives outside the US

* In the day to day work and team culture, there seems to be no difference between employees and contractors

Thanks. Then this isn't really a US immigration issue since this person will be working remotely/outside the US but more of an employment law/tax law question.

Exactly as mettamage said, so yes, more of an employment/tax law question. Anyone on YC to do a AMA on that? :)

The way I've done this in the past is by registering a company in my home country and billing through that. For the company procuring your services, it's no different than paying for a service like AWS. The company you registered is responsible for paying applicable service taxes for rendered services as well as payroll taxes and other contributions as required by law on behalf of the employee, aka your physical person.

Basically the benefit to the client company is that it lifts the burden of employment/taxation questions from them. The benefit for you is that since you now own a proper company, you have more tools to manage your finances, for example your company could conceivably pay for office expenses, effectively making those purchases pre-tax (as opposed to paying yourself the equivalent amount and being subject to income tax deductions).

You can also explore PEO's which are organizations set up specifically do this. For single or small number of impacted workers in a given country, a PEO might be the better route than establishing your own company.

https://en.wikipedia.org/wiki/Professional_employer_organiza...

Yep, that’s exactly what I am doing, for all the reasons you said.

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.

Thanks, makes sense. On my side is all good. I formed a company to export services. But that’s why I wonder why more companies don’t do this

What did paperwork did you have to do to form a company to export services?

Is it possible to just export services as a sole proprietor without forming a company?

I think it depends on your country. Also I am not sure how well legal terms translate. I am in Brazil, so I created what I would call a ”sole proprietor company” that can export services.

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?

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.

Thanks for the reply! Yes, my spouse has no prior immigration status (except being a former green card recipient). That's about how it was two decades ago as well.

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?

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?

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

Thank you!

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.

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.

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.

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.

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.

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

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.

Is it required by the law that you do some percentage of pro bono?

It isn't but it probably should be. We just don't do enough.

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?

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).

Something that's never been clear to me. Suppose you file the I485 and show immigrant intent but the application falls through; how long do you have to wait before you can reenter on a TN visa?

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

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 :) ).

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

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.

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.

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.

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?

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

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

From a legal/immigration standpoint, do you have a clue as to why many companies only mention that a remote position is US only?

Companies will have to setup a local entity in your country of residence to pay you.

As usual, you rock!

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 ?

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.

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

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?

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

thanks

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 :)

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.

OK, will do.

So I see there could be no guesstimates as to when I might get my GC?

Would you please comment on what I ought to know before I hold dual citizenship of US + Canada? Or is that even possible?

Thanks again for fielding these questions :)

It's really hard to say because there's such a massive backlog and bottleneck but there's no prohibition against holding both US and Canadian citizenship.

Thanks so much, Peter.

Honestly appreciate you doing this.

Hi Peter, thanks for taking the time to do this.

My question is similar to the one from @sunir. I'm a UK resident and am going through the process of starting up a US-based company with a US co-founder.

I plan to travel in to the US for periods of time to meet with my co-founder and attend trade shows (likely being in the country anywhere from a few days to a week or two).

Is there any reason why I shouldn't be able to do this under the normal Visa Waiver Program which the UK participates in? Is there a scenario where I should be planning for something like a B-1 Visa?

Finally, is there an online resource you'd recommend (other than the normal government websites) which outlines these options and things to consider regarding this type of travel?

Many thanks!

You really should be fine coming in as a visitor but because you are asking, I would recommend that you speak with an attorney before your first trip to the US so you understand clearly what you can and can't do in the US as a visitor.

Many thanks!

Hi Peter Roberts, I am henry from Nigeria with a wide fascination for building real world stuffs but do not how, for now I am about to learn Lisp since Paul graham recommend it for building things fast. Do you think my path is the right path

This isn't really a question for an immigration lawyer.

My opinion would be that no, it's probably not the right path. Lisp isn't used much in industry at all. You'd be much better served by learning something more mainstream like Python, Ruby, or Go. Depending on your interests, Java could be a good choice as well, if you think you'd enjoy working at a larger, more "enterprisey" company.

Do you mean the right path for getting a US work visa?

Peter,

Thanks for doing this!

As a Canadian permanent resident, does having a US based LLC with funding (~$125k) allow me any immigration options into the US? Or a Canada based corp, with a US subsidiary.

Considering the EB-1 green card as an option here as I would be the CEO.

Landed immigrant status in Canada doesn't really change the analysis/options other than that if and when it comes time to apply for a visa, you should have little problem getting an appointment in Canada. I suspect that your mention of EB1 probably is a reference to EB1C, the multinational manager option, and that requires significant and ongoing operations in the US and Canada as well as one year of employment with the Canadian company.

I’m a Canadian software engineer but my degree is in law (I’m a self-taught developer). Do people in my situation manage to get H1B or TN visas despite not having a technical degree?

Thanks a lot!

[Used to be in a similar situation as yours (have a LLB, became a software engineer), but not a lawyer in any capacity]

My understanding is that H1B rules allow 3 years of experience to count as one year of a relevant degree. So if you don't have any higher education in computing subjects, theoretically 12 years of relevant experience would meet the requirements.

That said even if you legally meet the requirements, non-typical cases often get mishandled due to administrative error. In my case, I applied for a L1 visa (which unlike H1B does not have degree requirements) but the officer somehow decided to apply H1B requirements anyway and rejected the application (he probably got confused). There was no feasible appeal process, so our lawyers advised me to go on a trip to another jurisdiction and re-apply. It worked out in the end, but the officer basically told me that we weren't supposed to shop around different consulates like that, but he did say he'd look up the law before deciding, presumably he wasn't able to find any legal basis for rejecting the application. (The process was pretty exciting!)

Was in similar situation, though Australian. I got a letter from an education/certification expertly that said my past experience as dev and education (also had a BA) was equivalent to a BS. Recommend you get an attorney/Peter to help you

A bachelor's degree in a related field based on an evaluation of education and experience can work in the H-1B context but is not acceptable in the TN context where a bachelor's degree is required.

Can a master in the field replace the bachelor? Eg. I have a bachelor in business, going through a master in CS, am I eligible for TN visa as Software Engineer or Computer Systems Analyst?

Not exactly startup related but perhaps you have some insight. My wife is from the Philippines and we are currently in the process of applying for her AOS (I-130 and I-485). We left the Philippines late last year and went to Mexico for around 6 months waiting for things there to normalize after all the covid lockdowns.

The Philippines hadn't fully opened to tourists so in July of this year we entered the USA with the intention of getting married and then applying for a marriage based visa to the Philippines for me so I could return with my wife. After we entered the USA the Philippines went back into stricter covid related lockdown and we found out there was a 9 month wait time for the visa I would need to be able to return.

Given these issues we decided to stay in the USA and go through the AOS process for my wife instead. My wife entered on a normal tourist visa, this was her third visit to the USA since we had visited my family here a few times while we lived in Manila prior to being married.

Based on my understanding we may have issues with immigration since they will assume my wife entered the USA on a non-immigrant visa with immigration intent. Especially since we go married within a month of entering the USA.

Is there anything we can do to mitigate the chance of a denial based on these circumstances?

Actually I think you'll be fine because it wasn't your wife's intent to apply for a green card when she entered most recently as a visitor. But I absolutely would speak with an attorney before you and your wife have your green card interview.

Appreciate the response, we are in the process of getting an attorney now.

I am a greencard holder who has moved back to Europe and will give up my GC. Can I open and operate stock trading accounts in US to manage the money I made in the US?

From an immigration perspective, yes.

Why give up the GC? That ought to be an interesting story.

Green cards come with residency and physical presence requirements. Leaving the US for more than 6 months gets complicated. Making frequent trips back to appear to be a resident will eventually be called out.

Not the OP, but you need to reside for at least 183 days a year to keep your immigration status.

Not OP. It gets tricky to hold on to it if you're not in the country for at least 6 months a year.

Hi Peter, I'm a Canadian on a TN visa (going on second renewal). My partner and I recently got engaged (She is a dual Canadian/USA citizen). We are thinking of staying in the US for the foreseeable future. What's the best way to go about this so that I can get permanent residency? Should I see if my current company is willing to go through the GC process for me or should we go through my partner? Thanks for doing these threads!

The US-based marriage green card process is really easy and straightforward and the processing time seems to be improving. It's easy enough that you really could handle on your own but because you are in TN status, I would recommend that you at least consult with an attorney before filing.

Does the parent commenter need to be considering 'dual intent' issues if they are applying for their non-resident alien TN renewal while now engaged to a US citizen and potentially on a path to applying for a green card (resident alien)? More specifically, if the DHS officer asks during the TN renewal if he intends to apply for a green card or stay in the US once he is married, does he need to be thoughtful here?

(former TN holder now on GC)

That's a separate issue. If applying for a green card while in TN status, the timing of the green card application needs to be managed carefully if the applicant is applying through USCIS in the US and international travel needs to be managed carefully if the applicant is applying through a US Consulate.

Hi Peter, I'm an Australian citizen in the US on an H1B, second round.

The re-entry stamp on my passport expired Sep 2020, and I therefore cannot leave the country till I head to a consulate overseas to get the stamp re-issued.

I have 2 questions: 1 - Given the pandemic, is there any way I can get the stamp locally without leaving US soil? 2 - If not, would you recommend I start the process to book an appointment overseas now, or is it wiser to wait?

Thank you so much in advance!

There is an option to renew by mail which many Australians took advantage of during the pandemic.

Is this option unique to Australia, or apply globally?

The E-3 visa is the easiest visa to renew by mail by far.

So if I'm a programmer, with basically no funding, is it possible to meet someone online and get them here? What's the minimum to get a foreign hire?

To employ a foreign national in the US? For the company, it needs to be incorporated, have an FEIN, and have physical commercially zoned office space and the ability - but that doesn't necessarily need to be demonstrated now - to operate and pay the FN a salary. For the FN, he or she needs to qualify for a specific visa, which is probably the tougher issue.

Hi, Peter.

I applied for N400 in April and had the interview and passed the civics test in October. But in the end, the officer asked if I owe any money to IRS. In the paper, IRS thinks we owe them $12K but in fact, we don’t. We’re still working with IRS to resolve the issue, it’s been in process since January 2020 and I don’t think it will be resolved any soon. IRS is shorthanded because of Covid.

The officer gave me a deadline until 22nd November and requested to mail them “A signed agreement from the IRS, state or local tax office showing that you have filed a tax return and have arranged to pay the taxes you owe; and documentation from the IRS, state or local tax office showing the current status of your repayment program.”

I’ve scheduled an appointment for 29th November with a local IRS office, that’s the best we could do. And tried to call USCIS to extend the deadline but it’s not possible to talk to any human being over the phone. Is it possible to go local USCIS and get an extension? Is it possible to get an extension in general? I don’t want to pay another N400 fee and redo the interview. Is there any way to resolve this with USCIS?

How different are standards for O1 and EB1?

For context: I have an O1 and I am applying for EB2 now. I tried to convince my attorneys to try for EB1 since I have additional accomplishments since I got the O1 but they are hesitant. I seem to fulfill the required conditions but they say it might still be rejected. I'm from India and EB2 seems prohibitory slow

Unrelated but if you don't mind, I am curious to know what you did to get an O1?

Publications, high salary, prestigious/selective employer

Thanks for responding.

Would you mind if I ask a link to your website/ publications/ LinkedIn, so as to get going?

Hi Peter

Are you able to see these comments with questions or are they not visible for your account?

https://news.ycombinator.com/item?id=29203081

https://news.ycombinator.com/item?id=29203269

https://news.ycombinator.com/item?id=29203387

https://news.ycombinator.com/item?id=29203454

https://news.ycombinator.com/item?id=29203998

Because this is a new account and it looks like comments from this account need to be approved first by someone in hn before the comments can appear.

I can see your comment(s).

I don't think there is an approval process for new accounts.

As a self-employed Canadian I recently interviewed with a startup based in the U.S and received an offer. I'd be invoicing them, and they'd be paying a fixed monthly rate into my corporate account. They rescinded their offer, citing what I think is just a scapegoat, which was they they spike to their lawyer and concluded that the nature of the relationship was too close to employment, and would leave them liable under Canadian employment law. I say this was probably a scapegoat, because they were inflexible on arranging any other form of agreement, and it came suspiciously after I asked about how to bill for time off. Have you ever encountered anything like this, and is it really a concern I should consider in the future? They also didn't have an entity in Canada, and it would have purely been a contractual arrangement at the outset.

I haven't seen that and I've seen very close contractual relationships between Canadian contractors and US companies but unfortunately because this concerns Canadian law, I can't comment.

Hi, thanks for doing this. Does having a special international tier status visa like a tier1 visa in the UK followed by a British Citizenship, help with getting an O1 visa in the US? Tier1 visa is pretty much the the UK equivalent of the O1 with a pretty comprehensive proof process.

There's no connection between the two - that is, no deference is given to those with a Tier 1 visa - but often those who qualify for a Tier 1 visa also qualify for an O-1 visa and - most importantly from my perspective - the Tier 1 paperwork can be reused to support an O-1 petition.

Why are universities allowed to have an unlimited amount of students in the F1/OPT phase when there are obviously limits to the h1b lottery and yearly spots available?

Should universities be limited to the number of international students that aligns closer to visas availability each year?

Those are interesting questions which I don't know the answers to but I suspect that if there were OPT quotas, a drastic reduction in the number of international students would result.

I'm Europe based at the moment, but I'm curious about how to validate your degrees from an European country to be recognised in the USA as a valid diploma and search for a job. Maybe is not your area of expertise, so I'm sorry for the question if is not.

Not the OP. The validation probably comes in the background check stage (not the hiring stage) and the background check companies should have the expertise to check degrees in Europe.

All in all, this should definitely be manageable.

And from a US immigration perspective, you can get an education evaluation service to evaluate your education in terms of its US education equivalency. These evaluations aren't expensive at all.

Cool thanks!

nice, maybe USA is the next stop in my carreer

My friend and I, we are on H1B working for big tech. We want to do a startup in US but it would take us 3-4 months to raise funding. In the meantime, can we register the company on our name, pull our H1Bs under it, and start working full-time for the startup?

Possibly. The issue is going to be your ownership and control of the entity which almost certainly will result in a request for evidence. But you can structure the company in a certain way - independent board of directors, etc. - to minimize the chance of an RFE or even a denial.

For the same situation, what if the visa is H1B1 and not the H1B?

It looks like H1B1 is non-transferrable to a different company and needs a new application from the beginning.

That's right, there's no "portability" for an H-1B1 (or premium processing) so if one is in the US and wants to move from one H-1B1 employer to another, he or she needs to leave and apply for a new H-1B1 visa at a US Consulate abroad through the new employer or the new employer needs to file an H-1B1 petition with USCIS. But since premium processing isn't available, the latter process would take months.

Thanks for taking questions Peter.

I'm a Canadian Founder of a startup in Canada and I'm looking to move to the US. We have a subsidiary (100% owned by the Canadian corp) that is incorporated in Delaware for a year now. What's the best visa for me to look into?

You likely will have multiple options but the E-2, L-1, and O-1 might all be options.

Hi!

I'm currently in the US (Bay area) on a L1B visa. I have been working (coding) on a side project since 2 year and it is almost enough mature to become a startup.

Is there some option to start a company in the US as a L1B? Or will I have to relocate in my home country to do it?

You can only go so far with your startup before you need to get some type of work authorization or need to leave the US as you suggest. The challenge is knowing when you need to make this change. For many of our startup clients, it comes down to hours in the day; there's just not enough time to do their day job and also work on their side project.

Do folks in your circles talk about the meta of US immigration? Is there any expectation that as the US workforce ages and the tax base declines, that worker immigrants will be allowed in more freely over the next decade or so?

That's an interesting question which I haven't really thought about but as the US possibly moves to a more market driven immigration system, the aging of the US workforce could have a major impact on US immigration policy and practice.

Stay with b1b2 visa was extended by US government and total stay in US is 8 months. When person leaves to home country after how much time he can return to US with same visa?

Yes but he or she needs to be very careful because he or she likely will be scrutinized and questioned aggressively by CBP when traveling back to the US.

Hi Peter. Thanks as always for the valuable info you provide in these AMAs. I'm an engineer on a TN visa who's building a hobby project on the side with the eventual goal of turning it into a startup. To what degree can I continue working on this project without violating the terms of my visa? My understanding is that I cannot be self-employed while on the TN, so am I basically free to do what I want with the project as long as I don't incorporate?

The lines are grey but really as long as you don't get compensated in any way you should be fine. It's less about incorporating the entity and more about getting compensated. Just make sure to consult with someone before you incorporate or make any move to leave your TN employment.

Great, thank you so much!

With the new ruling [0] on L2 visa holders no longer requiring work authorization, will spouses be able to work immediately upon landing in the United States?

[0] - https://www.forbes.com/sites/stuartanderson/2021/11/11/uscis...

Eventually yes thankfully but USCIS needs to issue guidance first and amend the I-94.

Are you seeing the backlog for prevailing wage determination / documentation as 9+ months, as indicated by the DOL (https://flag.dol.gov/processingtimes)? For some visas there are other sources of documentation that are acceptable, but without a safe harbor provision. Curious whether you've seen things speeding up at all lately.

Thank you for taking questions!

I'm still seeing about 6 months for both the PW determination and the PERM review but the processing times seem to be increasing slowly.

I would like to immigrate to San Francisco. I'm currently working on a startup in France (I'm a french citizen). I didn't create the company yet. Should I go with Stripe Atlas and create an American company or a french company? I would like to be able to receive funds from the US and from France, not sure who will fund my startup.

If I have let's say $100k of funds, am I able to immigrate to the US?

Thanks a lot

In the end, you will need a US company to act as the employer/sponsor but there can be benefits to creating a foreign company as well. And with money (such as $100k) comes options particularly if this money is invested in your US company. You will need to consult with an attorney to understand your options, however.

thanks a lot, I will

Thanks for doing this Peter! I am on an H1B and recently got an EAD/AP card valid for 2 years. Unfortunately in the November bulletin, the final action date retrogressed and my AoS application is not current any more. Can I quit my job and be jobless for a few months to work on my own or take classes at a university, until my final action date becomes current again?

I know. The retrogression was worse than expected. Possibly, to answer your question, but the facts matter so definitely consult with someone before taking any action.

Hi,

My questions are about L-1 visa. My employer is an American LLC, but I work as a freelancer on a projects basis and locate in Belarus. Is it possible to transfer me through L-1 visa? What documents do I need to confirm my previous employer-employee relationship if I acted as an individual entrepreneur during last 2 years?

Does L visa allow my wife to work in the US legally?

Thank you Mr. Roberts in advance

Unfortunately you need to be an employee of the foreign company (for at least one year) not a contractor/freelancer to qualify for an L-1 visa.

Hey Peter! I'm a co-founder of a US C-Corp, and recently, we had been asked if we sponsor / can help re: H1B. This is something we'd love to do but we have no idea where to look to figure out what the process is, what the costs are, or if we can even do it as a small company. Do you have any recommendations re: helpful reading?

The short answer is almost certainly yes, you should be able to sponsor someone for H-1B status. Certain things need to be in place but these are minimal.

Hi Peter. I believe the regs around the H1B require workers to be paid close to their US counterparts. Based on what you've seen and heard, to what extent does this actually hold true in the real world?

The general consensus in tech is that H1Bs are underpaid vs their US coworkers, but that many companies in the bay area (FAANG, etc) do pay fairly.

All I can comment on is my clients and most of them are in high wage areas where there's serious competition for talent and looking for highly skilled workers and they pay their FN employees as much as they pay their US workers because they have to or their FN candidates will just go elsewhere. But I've heard of abuse of FNs.

Hi Peter. Thank you very much for your help.

I am a Canadian field technician hired on paper by a Canadian company. I live in Canada. Though, in fact, I work and I am entirely managed by a French company owning part of the Canadian company. They often make me travel to the US with no visa. So far I have had no problem. Could I have issues in the US?

My company has been struggling to process visas through their immigration vendor, based on my experience I don't trust the vendor they use, as they won't even check the spelling of your name. Am I overstepping if I hire an attorney to triple check the paperwork on my side and make me some recommendations?

Generally speaking, getting another attorney involved doesn't help because the company likely won't be open to outside advice/involvement.

Hi Peter, thank you for doing this! I am currently on an F-1 visa, waiting to switch to H-1B in January. I have a previous J-1 visa so I'm currently in the process of waiving the two-year-rule. When the waiver is approved, can I file a change of status, or do I have to leave the country to apply for the visa?

How is it possible to get a H1B in January?

Because H1B is only granted in October about 6 months after you apply for it before the April deadline.

Yes, my petition was approved starting October. But I'm finishing up my F-1 this semester, and will be starting the job in Jan.

It depends on how the H-1B petition was filed. I suspect that it was filed not with a request for change of status but with a request for consular notification which means that after you get the waiver you will need to leave the US and apply for an H-1B visa at a US Consulate abroad.

Thank you so much! Yes, it is consular notification. Will try to get an appointment asap then.

unsure of this poster's situation, generally if your h1 is filed by not-for-profit orgs or academia,the h1s are not subject to the cap/lottery system and can be applied for anytime a legitimate job offer exists.

My company wants to bring me over to the US from France under an L1-B visa. The pandemic makes getting interviewed at an embassy very difficult, and the process has stalled because of this. Do you have any idea when visa processing will resume, and is there anything my employer or I can do to speed things up?

It's already resumed although there are delays in getting appointments. And Paris has been very receptive recently to requests for expedited appointments. Also, appointments become available all the time so it's worthwhile to check the system regularly. For example, London just released a bunch of appointments today.

Hi Peter, I am starting a company as the CTO, and my likely co-founder is on H-1B visa. I have 2 questions regarding this scenario:

1. What is the current prevailing wage for a SaaS CEO? 2. Will it be a problem if we want to be fully remote, given that USCIS might visit our office for auditing purposes?

1. This will depend on where he will be living/working since the PW is location-specific. 2. He can work remote but the company still needs to have physical commercially zoned office space even if it rarely used.

Thanks! What is the prevailing wage for a SaaS CEO in Bay Area? Is there a website I can check for prevailing wages in general?

Yes, go to https://www.flcdatacenter.com/oeswizardstart.aspx.

Thanks for doing this AMA! I am a US citizen who would like to start a company with someone in US on H1B. What is the best approach to try and go about this? I know this is a complex topic where details matter. Would really appreciate a general framework for going about this. Thanks!

It's complicated because of the general prohibition against H-1B self-sponsorship/self-employment so I would recommend that you both consult an attorney before establishing the entity.

Hi Peter! I currently have work authorization through DACA and I also have a legal entry. I'm curious if you recommend trying to get h1b or stick with my current status. I do want to find a path to secure a green card but unsure if staying with DACA is my best option.

If you gained legal entry in the first place, how did you get DACA after the legal entry?

No it's the other way around. First I was granted DACA then I did advance parole and obtained a legal entry.

Ok that makes sense now.

How did you obtain legal entry after the advanced parole?

Which countries are eligible for DACA or is it totally open for people from any country in the world?

So with advanced parole you are given a permit to leave the country and come back legally thus making a "legal entry". DACA from my knowledge is available to any nationality as long as the requirements are met which I think include being present in the country before 18 birthday. So you should definitely research DACA if you think you're eligible but I'm also not sure if they are still accepting applications...

Hey Robert I’m a Canadian new grad who received an offer in the US. Last summer I interned at the same company but under their Canadian corporation. If I work for a specific amount of time under their Canadian corp, can I qualify for a L1 when I want to move to the US?

Possibly. That will depend on whether the position is clearly professional or managerial in nature. But L-1s for Canadians usually work.

As a US citizen, what is the easiest (or few) country to establish residence as a remote worker in?

Unfortunately, my expertise is limited to US immigration but for what it's worth, I know a lot of US citizens who moved to Portugal during the pandemic.

Do you forsee the government doing anything able slow wait times for Visa/green cards?

The green card process through USCIS seems to be speeding up significantly.

Hey Peter, in one of the other comments you mentioned that NVC/ immigration process is a disaster, whereas here I see GC through USCIS is speeding up.

As I understand, once USCIS approves a petition, it goes to NVC where paperwork is checked to be documentary qualified and then consular interviews are scheduled.

Is there a difference between the 2? Asking because ultimately both are responsible for issuing GC’s.

I was referring to the final stage of the GC process (not the penultimate I-140 stage), an I-485 application filed with USCIS and an immigrant visa application filed with a US Consulate abroad via the NVC. The former is speeding up and the latter is a slow mess.

Thanks Peter :)

That explains it.

Hi Peter, thank you for doing this.

Friend is waiting on employment based GC to arrive. I was wondering if there are any legal limitations of leaving right after the GC arrives. Is there a period for which it is recommended to stay with the company that filed?

Really with AC21 allowing those in the green card process to change jobs and "port" their green card applications to a new company, there's just no issue with changing jobs soon after getting a green card.

As a machine learning engineer, what's the minimum criteria for me to apply and get an O1 visa? General consensus seems to be geared at having great accomplishments but I saw people without exceptional accomplishments also get it.

A lot of people in AI/ML obtain O-1s and the standard isn't as high as the black letter regulations suggest. And it isn't so much about demonstrating great achievement as checking 3 of the O-1 boxes. So, for example, a publication in a second tier journal is really no different from a publication in Nature; they both check the publication box.

I'm currently waiting for my EAD (Applied for a GC via marriage to a citizen). What's your opinion on expedite requests with the reason being financial loss (I have a pending job offer from startup)? Is it worth trying?

It's definitely worth trying - there's no downside - but the chance of success is low because there are so many people in the same situation. The limited success I've seen is where someone has a family and is the sole wage earner or someone is working in a field where there are real timing issues/deadlines, such as education, or where someone is working in a national interest field, such as healthcare.

Thank you for the reply!

Why is the process constructed in such a way that a person is unlikely to be successful at immigration on their own? It seems like a form of gatekeeping that is kept out of the law but still applies in real-world scenarios.

Good question. Some processes are easy but the temporary work visas are confusing.

Hi Peter. Thanks for your prior help in our email dialog years ago about an e2.

If I’ve received my O-1 but I haven’t started working at the company yet, can I still travel to the US on my O-1 while working remotely for a canadian company?

Yes but when you are in the US, you only can work for the US company pursuant to the O-1.

Hi Peter,

I am a co-founder of a startup in the crypto sphere. I want E-2 visa. Is it going to be a problem to confirm the source of my investments if I made them in the crypto market? How to prove the source of investments?

I don't think so, you just need to document that the money is yours; we've had other clients rely on similar funds without issue.

What is the shortest period of time possible legally to become permanent US citizen? Lets say if a Nobel prize winner decides to become permanent citizen of US. How quickly this would be possible?

Hey Peter! I am currently in the process of searching for jobs in USA that sponsor visa. Do you have any tips or sites where I can find jobs? Is it hard for an UE citizen? Thank you.

What options are available for current E-2 visa holders to get a green card?

I thought it wasn't possible but I saw you mention here that it can be done.

I've had an E2 for the past 7 years if that helps any

Again, there's no connection between one's underlying status - whether E-2 or H-1B or L-1 - and one's green card options. Someone in E-2 status can apply for a green card. There's even an immigration form specific to those in E-2 status that must be filed with I-485 applications. The process for those who are not on a dual intent visa - that is, an H-1B or an L-1 - just needs to be thought through a bit more, that's all.

I'm a New Zealand citizen. Is it possible to pursue American residency if I don't want to give up my solo business? (As I understand it this means I can't do H1B)

Yes, there are paths to working in the US (and ultimately getting a green card) through your own business. Depending on the facts, the typical visa options are the E-1, E-2, and the L-1 and the typical green card options are EB1 extraordinary ability and EB2 national interest waiver.

1/ Do you what countries are allowing third country nationals to get an H1B visa stamp?

2/ When will Canada and Mexico allow that?

PS: It seems impossible to get an appointment in my home country.

That's the $64,000 question because it changes all the time and so is incredibly challenging and frustrating. That being said, the trend is definitely toward the opening up of consulates in general and to third-country nationals in particular. Many of the US Consulates in Europe, for example, have opened up. We're also seeing a positive change as a result of the lifting of the travel ban on November 8th. Regarding Canada and Mexico, there's been no announcement but I suspect soon - and Mexico is accepting TCN applications but only on an emergency basis.

Asking for a friend - Is it possible to start a startup/side biz (while keep doing his full-time job)by an H1B visa holder with his wife if the wife is on H4 EAD?

There is but there are limits on what he can do and unfortunately other than not getting paid by the side business the limits aren't very clear. If he's interested, he should speak with someone so that he doesn't cross any lines.

I'll pass your note to him. Thanks so much for your contributions to HN and advise. Appreciate it.

Why is the Lincoln Processing Center moving so slowly in processing I-485s? It's issuing roughly 80 GCs a day whereas MSC is issuing in the order of 1000s.

I know that USCIS is looking to fix this by staffing up the NSC and reallocating cases.

Thank you. Any thoughts on when that'll happen? Weeks, months or years?

If I am indicted in a criminal case, but not convicted, will it affect my ability to renew my green card? (I'm here legally on a 10 year green card)

The facts definitely matter and it will need to be disclosed when you renew your green card but generally - very generally - an arrest without a conviction doesn't impact a renewal (although it could impact an application for citizenship).

Can you be arrested, to assist in further investigation, but not indicted?

If you are arrested but not indicted, how does it affect immigration?

Because the ultimate legal issue is not whether one was convicted but whether one committed acts that would be considered criminal and so one could be arrested and not convicted or not even arrested at all but the record shows - or they inadvertently admitted - that they committed the elements of a crime. While it's rare that USCIS goes behind an arrest that didn't lead to a conviction, it can and sometimes does.

What is the fastest possible time from OPT to EB3 based visa to greencard? (for non-backlogged country)? both incl. and excl. audit, premium processing

From the submission of the PW request and commencement of recruitment, 18-24 months.

Law firm filed for the wrong category perm and it will be 1 1/2 years before I could get AoS based on new visa. Any way to expedite the process?

It's extremely tough to expedite. Sometimes, if the work is clearly serving an important national interest, the process can be expedited.

If you could wave a magic wand and make three procedural (i.e. politically nonreactive) changes to immigration statute, what would they be?

Interesting question. I'll give that some thought and get back to you. What would you do?

> What would you do?

[EDIT: Ignore old answer!]

Long-term visas with work authorisation for college graduates and a tinkerer exemption of some sort for all work visas.

Sounds like you answered "what do you do" and not "what would you do"?

:P. Thanks!

Hi Peter, what's the easiest way to set up a profit-sharing agreement with people working with me? Is there a standard contract?

Hello, I want to know about E2 visa, Is there a website to go look for businesses for sale that are also E2 compatible.

Thank you for doing these!

There isn't a website but the E-2 visa is really a great option for those seeking to establish a business in and move to the US.

As I understand there’s no pathway from E2 to Green Card. E2 visa holder will need to get extensions every two years. It is a great option, but there are a few downsides.

Actually, that's not correct. There's no connection between underlying status and green card options. The connection is coincidental, not causal. An E-2 can apply for a green card. He or she just will be grounded for a period of time while the green card application is pending.