With immigration reform off the agenda, some in tech turn to plan B

http://www.washingtonpost.com/blogs/the-switch/wp/2014/07/25/with-immigration-reform-off-the-agenda-some-in-tech-turn-to-plan-b/

by haydenlee • 12 years ago

66 58 12 years ago

washingtonpost.com

colinsidoti2• 12 years ago

It's a bit sad that such big players are fighting for such a small, incremental step. The number of successful founders facing immigration problems sounds like it would be orders of magnitude smaller than the number of potential foreign employees. Is my intuition wrong there?

I also fear that a "win" here will allow legislators to push off further reform (e.g. "we just did something") instead of serve as a meaningful stepping stone.

SeoxyS4• 12 years ago

That may be true, but remember; founders are much important to YC's bottom line than the employees that those founders who become successful may or may not hire later.

colinsidoti2• 12 years ago

Ehhh, that's pretty cynical. I don't want to blindly support YC, but this seems fairly debatable. YC wants to give founders resources to succeed. One necessary resource to succeed is employees. Given the current tech hiring climate, I wouldn't be shocked if more foreign employees leads to a measurable and significant improvement in their bottom line. I think you will need to make a few too many assumptions to argue that one is definitively better for their bottom line.

Perhaps one appeal of this approach, though, is that this effort aligns better with legislator's "bottom line" - if you look at their bottom line as job creation.

HistoryInAction18• 12 years ago

Okay, lesson one here. There is a huge difference between legislation and executive action.

As a community, we will still need immigration reform legislation should the White House agree to push this change through at the regulatory level. Legislation is the only way we get a viable, sustainable solution. And the proposal in the comprehensive immigration bill was the best policy proposal yet, with their non-immigrant X visa and immigrant (green card) EB-6.

But to get this small, incremental step done through executive action doesn't involve legislators (except in the negative, aka the effort saw YC going around the Hill asking folks to not link any hypothetical change in this space to the much more politically controversial changes coming about deportations).

So while there is a large change Congress continues to do nothing on startup visa or larger immigration reform for the next several years, it won't be because a potential win here will give legislators an out.

Finally, yes, the whole point of startup visa is to avoid the increasingly contentious debate over H-1Bs and foreign employees. Founders are small in number but very clearly hire Americans and directly drive economic growth. Politically, it's a no-lose proposition.

So it was a feature, not a bug, that this push focused on founders rather than employees, was small and incremental, and was executive focused rather than legislative.

pclark• 12 years ago

good attorneys are actually doing all the things discussed in this article for the O1

HistoryInAction18• 12 years ago

Yep! But what attracted us to this change was that the prep time those good attorneys required has been highly variable. If you have a lot of old media coverage, it could be a 1 month prep time + 2 weeks DC adjudication. If not, it could be an 8 month prep time + 2 weeks DC adjudication.

The goal of expanding the criteria definitions to more broadly mesh up with the lifecycle of successful startups and linking in the investor signal parameter into the review process will be to change that curve to be much more bunched up against the 1 month bins.

And yes, part of our argument was that startup founders /are/ doing all of these things already. Just it takes time that kills startups, and startups are also doing a lot of extraneous work (e.g. chasing NYT coverage when more TC or re/code coverage is what's needed to get another wave of early adopters or investor interest for that next round's buzz) to qualify for the visa when they should instead be focusing on product and traction.

SeoxyS4• 12 years ago

The O1A visa is definitely the right visa for startup founders. I think that with a little hair-twisting and a good attorney, the current criteria for the visa can be twisted to cover most startup founders who have some kind of a track record.

I am by no means someone special in any way, compared to things that many other HNers have done. But I have now received an O1A visa successfully, twice.

I think the bigger problem with having that visa (or an H1B) is that it makes the prospect of quitting incredibly daunting. Each time you change your job, you have to leave the country, apply anew, risk being denied, and spend another 10k on legal & filing fees.

graeme2• 12 years ago

What was the average legal cost for filing for an O1? I think I could meet the criteria, but being in the US is only marginally useful for me.

I was under the impression O1 visas didn't require employment?

HistoryInAction18• 12 years ago

I have been under a mixed impression on the O-1 for a long time myself. Nikki seems to indicate that hers at least was a work-sponsorship. However, though I don't have a similar anecdote to point to, I understand you can do a self-sponsorship O-1 that isn't tied to an employer.

More research is needed here.

SeoxyS4• 12 years ago

The O1 is employer-sponsored. You need a sponsor.

The filing fees will run up about 2k including expedited processing (which is usually worth it). You're gonna have to go through a quite thorough process of building up a detailed dossier making your case for the government to review. This can easily cost 5-10k, depending on your attorney and the complexity of your case.

HistoryInAction18• 12 years ago

Re: that last point, you're exactly right. See Nikki's piece (search: O-1) https://medium.com/@nikkidurkin99/my-startup-failed-and-this...

Unfortunately, that's a feature, not a bug. The anti-fraud people prefer it that way, and they have a lot of influence within DC to block these proposed changes.

Luckily, the O-1A, in contrast with the H-1B visa, is that it is an analog to a green card, the EB-1A, so if you are able to get an O-1A and wish to get the professional stability that a green card offers, you should be able to quickly progress from O-1A to EB-1A, which doesn't have the badly backlogged lines (especially for Indians or Chinese) of the EB-2 or EB-3 work-based, academic-qualifications green cards.

SeoxyS4• 12 years ago

Yes, on paper the requirements are pretty much the same. But, O1s and EB-1s are processed by different offices within the USCIS. I've found that whomever processes the EB-1s tends to be much more strict than for O-1s. I've had an identical case get approved for O-1 and rejected for EB-1.

timtamboy63• 12 years ago

Any chance you could shoot me an email? I'm about to go through the same process - chintan@pennywhale.com

refurb2• 12 years ago

I like the idea of linking a work via to a person who has been able to raise money. I mean, why the hell would you not want that person to stay in the US?

One concern might be the ability to game the system, but I think with the right parameters that could be minimized.

codingdave• 12 years ago

I'm unclear on exactly what change Ohanian is proposing. Most of the changes mentioned can already be used to apply for the visa, can't they? So what is the actual legislative change being proposed?

Is the proposal really that YC acceptance becomes a singular criteria for getting the visa? So YC and their peers, in effect, would have full power to grant unlimited visas to people of their choice?

If that is what is being proposed, that sounds like a massive conflict of interest, with potential for serious abuse, even if the intent is positive.

jedberg• 12 years ago

If that is what is being proposed, that sounds like a massive conflict of interest, with potential for serious abuse, even if the intent is positive.

Let's say for a moment, for the sake of argument, that YC decided to be unethical and accept payment in exchange for "accepting" people to the program to get them a visa.

1) Would it be so terrible to have people who have enough money to afford such a bribe be in the US contributing to the economy?

2) Do you really think YC would stake their reputation on such an abuse?

3) O1A visas are often given to artists, actors and athletes. Do you think that there isn't at least a few theater and movie production houses (usually underfunded and desperate for cash) that are accepting the payments to list a rich foreigner as an "actor" in their show?

In other words, I don't think this is actually a huge concern.

walshemj• 12 years ago

Moral hazard you want people who pay bribes as immigrants?

HistoryInAction18• 12 years ago

Technically, that already exists on the EB-5 investor green card, which requires an investment of either $500k or $1M and the creation of ten jobs within two years. Except that the investment is intended to be from the applicant's personal capital, which doesn't really work for sweat equity founders.

Exactly. More importantly in the incentive structure I foresee, do you think YC's LPs would allow YC to stake their reputation on such an abuse?

No, actually, this is incorrect. Those are O-1B visas, for the arts, not O-1A, which is business and science.

potatolicious• 12 years ago

The problem isn't straight up payment in exchange for being "accepted" into YC. The same way people don't straight up pay employers for H1B visas.

The problem is that it still allows private individuals to profit by being gatekeepers to the country. Extracting unfavorable financing deals that wouldn't be tenable if the investor didn't also hold the founders' residency permits, extracting corporate governance concessions for the same reasons. The list goes on.

We've seen widespread abuse of the H1B visa when it comes to turning labor into near-indentured servitude, particularly around the green card process. There's no reason to believe that YC, or any of the high-profile players in the Silicon Valley Funding Party are above it.

"1) Would it be so terrible to have people who have enough money to afford such a bribe be in the US contributing to the economy?"

Yes. There is an investment track immigration option for people who simply want to buy their way into the country - this money goes to fund all manners of things, instead of into private pockets of a hypothetically corrupt YC.

http://www.uscis.gov/green-card/green-card-through-job/green...

"2) Do you really think YC would stake their reputation on such an abuse?"

Yes. Absolute power corrupts absolutely. If you give anyone the power to completely upend someone else's life at a whim, abuses will occur. Incentives are incredibly strong, and the slope is incredibly slippery. It will start with a gentle tilting of negotiations in favor of investors, and over years evolve into progressively more aggressive concessions.

At no point will anyone feel they are doing something overtly evil, just like how holding promotions back and lowering raises is just a matter of course when someone is in the midst of a green card application right now. It will all happen slowly enough that it won't feel like "abuse", it'll feel like "just the way things are".

"3) O1A visas are often given to artists, actors and athletes. Do you think that there isn't at least a few theater and movie production houses (usually underfunded and desperate for cash) that are accepting the payments to list a rich foreigner as an "actor" in their show?""

Are we really making this argument? This boils down to "there is abuse happening elsewhere so we'll tolerate abuse here". Abuse of a system is abuse of a system - that it's happening elsewhere (possibly happening elsewhere I might add) doesn't justify it in our own back yard.

Letting private individuals gate-keep the country's citizenship/residency is a terrible, awful, stupid idea. It is a good idea only when predicated upon the assumption that the leaders of our industry are incorruptible.

Look at the Bay Area. Really look at the Bay Area. Is there any convincing evidence of the tech industry's incorruptibility?

michaelt2• 12 years ago

  Do you really think YC would stake their reputation
  on such an abuse?

If they won't, Michaelt's Used Cars And Startup Incubator will accept any company with the application fee (2% preferred stock equity and $5000 per visa required).

Or will the government get into ranking and evaluating incubators?

HistoryInAction18• 12 years ago

There is no legislative change being proposed. Rather, it's a regulatory change that YC is requesting.

And the change was basically, here are the criteria as they currently stand. If we squint at the language, startup founders can successfully apply for this visa. But it's a torturous process, very variable in length of time, plenty of people don't apply.

Goal: regularize the preparatory process for founders so that it is repeatable and predictable.

Process: look at the existing criteria language, which is defined by statute and cannot be changed without passing a law. Suggest reinterpretations of that criteria language such that within existing law, founders whose startups are demonstrating metrics of success understood within our community can use those metrics to also successfully apply for a visa.

Right now, there are eight criteria to qualify for the O-1A, of which, an applicant needs to establish three of those criteria qualifications. About half are clearly directly intended for academics, aka "where has your research been published?"

One change proposed is that high signal accelerators be seen as prestigious associations, traditionally including late-career honors, e.g. IEEE lifetime achievement. Yet YC has an acceptance rate lower than Harvard (a gameable metric to be sure). It's incredibly competitive. Yet completely unknown within DC as such an honor. Or TechStars; or 500Startups. But the predictable question from DC is where to draw that line? And our response should be to figure out how to generalize investor/accelerator signal strength such that DC can use it for establishing visa qualifications.

But hopefully to assuage your concerns, no YC acceptance doesn't become a singular criterion for getting the visa. Though if accepted, the changes would see YC/500/TS/similar acceptance as one of three criteria needed to qualify for the O-1A.

And over time, I would certainly expect AngelList, Mattermark, Disruption, &c... to be valuable for establishing investor signal metrics to complement the "accelerator as educational institute" model that the regulatory proposal alludes to.

Finally, keep in mind that the startup visa legislative proposal involved funding levels (lower than YC or most other seed-level funding rounds) and jobs created (usually directly proportional to funding). So investors would still see a conflicts of interest there. It has been something I've grappled with in years of pushing startup visa. Do you have any proposed solutions or improvements over either the legislative model or this proposed regulatory change?

I've considered a semi-independent Self Regulating Organization (SRO), like the financial sector has with FINRA. But that's so anti-lean, there has never seemed to be much support within the investor community, leaving aside the massive turnover of startups. But theoretically, it'd be a group that removes YC or similar from the direct equation by recognizing prestigious investors or accelerator programs. You'd ask for folks like Naval Ravikant (or Kevin Laws) to serve on the board and recuse themselves where they're LP'd or do (significant?) along-side investment (or maybe simply investment at a similar level of startup development, i.e. seed, A, B, &c...).

dang• 12 years ago

The submitted title ("YC's Startup Visa Plan B") was editorialized. That's against the HN guidelines.

rmason• 12 years ago

We definitely need to get more creative with visas. Gov. Snyder here in Michigan has proposed in a meeting with President Obama that he help create 50,000 visas over five years for immigrants willing to live in Detroit. They would either have advanced degrees or exceptional ability in certain fields.

http://www.crainsdetroit.com/article/20140123/NEWS/140129933...

With 700,000 people living in a city that used to hold over two million there's plenty of room.

HistoryInAction18• 12 years ago

Actually, just to clarify some sloppy reporting in the Crain's piece, Gov. Snyder (@onetoughnerd) is requesting 50,000 immigrant visas, aka green cards. Big difference from non-immigrant visas.

The specific visa requested is the EB-2, which basically requires a Masters or PhD as the credential needed to establish exceptional ability in a specific field.

bilbo0s• 12 years ago

The main problem with that scheme is that it is designed to channel people to where he and the President WANT them...

as opposed to where the United States NEEDS them. I think we should give out visas to Masters and PhDs and allow those people to go where they please. That way... we would get the best people as well... not just the most desperate.

pbhjpbhj• 12 years ago

From a 'rate of employment in the population' perspective surely you don't want people immigrating who will replace native workers (or indeed any worker currently in post)?

What's the benefit to the country if a new worker from abroad replaces a current worker but at a lower wage if that means the person 'usurped' needs state assistance or becomes under-employed (and bumps someone else from work to benefit-reliance)? Sure business owners probably benefit but such benefit seems pretty localised.

How about if you let a lot of foreign workers come in who are well skilled and they flood a field in such a way that no students leaving college in that field can get a job. The incoming worker likely can accept lower wages which local [likely] debt-laden students can't. The field falls flat - the local population stop training in that field and you've either got a future skill crisis or a long-term reliance on immigrant workers.

If you want to preference native/endemic population over immigrants at all then I think you need to be very specific in the immigration you allow.

refurb2• 12 years ago

I like the creativity of the idea, but jesus, how would that work in reality?

Do you have to prove residency in Detroit? Do you have to work for a company in Detroit? What if you pick up and leave? Do you get deported? How would they even track that?

bubbleRefuge2• 12 years ago

How about re-purposing H1s issued to the sweatshop Indian firms ( which generally bring in the cheap labor) to tech companies and startups. That is probably tens of thousands of visas right there.

HistoryInAction18• 12 years ago

Definitely. Unfortunately, that would either require legislation (and something similar has been proposed for a bit by Sens. Grassley (R-IA) and Durbin (D-IL)) or a very contentious regulatory process.

Needless to say, the Infosys and Tatas of the world do have a highly developed lobbying arm. As one example of a supportive research group: http://www.offshoreinsights.com/

Startups don't have anything like this, and the tech companies don't want to rock the boat with their outsourcing partners.

To learn more, look at the Hatch amendment to S744 (comprehensive immigration reform): http://www.slate.com/blogs/moneybox/2013/05/22/hatch_amendme...

bubbleRefuge2• 12 years ago

Can't some form of executive action be taken ? Perhaps enforce the H1 rules closer to the vest. The body shops are so bad. They force many of the onshore resources to work full-time then another 3 hours on nights + weekends to feed work to their offshore cohorts so that they can bill out the offshore guys which is where they have even better margins.

supercanuck• 12 years ago

Why don't they just divert some of the 32,000 visas from Infosys to Startups?

I can't help but notice the inverse relationship between the number of H1-B's sponsored and the average salary by company.

http://www.myvisajobs.com/Reports/2014-H1B-Visa-Sponsor.aspx

HistoryInAction18• 12 years ago

It'd be nice. But likely unfeasible politically either from a legislative or regulatory perspective.

There are many problems using the H-1B even at a policy level:

-Lottery/application in April, don't become active until October

-Doesn't work well for founders despite Aug 2011 change allowing founders to arrange their board to serve as "employer": http://www.uscis.gov/news/public-releases-topic/business-imm...

-Difficult and long timeline to green card meaning startup failure often leads to a fast mandatory exit from the US, even if investors continue to believe in the founder

-Neufeld memo means that startup sponsors are treated at a high level of suspicion by USCIS bureaucrats, which results in an even longer, more time/money/effort intensive process compared to bigtech: http://www.legalactioncenter.org/sites/default/files/docs/la...

keerthiko3• 12 years ago

Infosys pretty much single-handedly ruined the opportunities for so many non-Americans to move onwards in their career. I really hope the US does something to shut down the Infosys US sweatshops.

nugget• 12 years ago

Have rank and file developers ever tried to form any sort of association to advocate for their own interests, which seem adverse to those of founder types? It would seem like there are a couple hundred thousand tech types in California alone who would prefer not to have compete with a new flood of H1B and other visa holders. I support the type of candidates that this story is about but my fear would be that it's a back end run by the entrenched interests to turn a small pathway into a large one, and a couple years later we awake to find thousands of ''exceptional'' cubical dwellers in Infosys' new offices.

HistoryInAction18• 12 years ago

That is the exact argument against the H-1B re: "highly skilled" requirement. Code monkeys (as distinct from devs) are a very different fish, but DC doesn't know the difference

The counter I'd offer is that you should look through the eight criteria as they currently stand: http://www.uscis.gov/working-united-states/temporary-workers...

If you see obvious hacks for the Infosys types that we can close off, that'd be helpful to discuss here.

EDIT: And of course anything resembling a union is verboten among the powers that be in Silicon Valley.

x0x06• 12 years ago

so maybe if you wanted support from devs you should advocate for those changes

nraynaud• 12 years ago

I was thinking along the same lines, a startup devop is a completely different person than the person who customizes Lotus Notes or SAP for a blue chip company.

I recently interviewed, and the guy was frightened when I told them I would probably not be at the same company in 5 years. Nope, I work night and day, but I'm burnt after 3 years on the same project, that's how it works. But in those 3 years, I bring the dev team from interns to a professional state, get a new UI out, and take some funding (well, at least I did it twice), and try to spread some values I deem good in the team.

GFK_of_xmaspast• 12 years ago

No of course not because whenever somebody whispers 'union' two-thirds of the workforce break out in hives.

rurban• 12 years ago

Indeed. I'm a H1-B visa holder, with exceptional wages, and my wife is not allowed to work here. Ok, so she finished her Ph.D in the 3 years here.

But with all this new visa drama going on, no updates in the visa extension process so far, and the broken promise that spouses will be able to work, I just told my company that I'll have to go back to Germany and work remote from there.

Plan B. But the benefit is that I will be able to live in a democratic country again, with a much better standard of living. It's only 7 hours and I worked remote for a couple of US companies before.

If companies need those foreigners why should the government on behalf of the unions intervene? Do they know better than the companies which is good for them?

HistoryInAction18• 12 years ago

It seems extremely likely that the H-4 spouse EAD (work authorization) change has just been enacted: http://www.regulations.gov/#!documentDetail;D=USCIS-2010-001...

It was proposed by the Department of Homeland Security in May, went through a 90 day public comment period, which is now closed. We're waiting for the official announcement.

pteredactyl• 12 years ago

What, like hiring and training Americans?

With immigration reform off the agenda, some in tech turn to plan B

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