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

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

#321

Post by hexoctagonal »

Hey Peter! Really appreciate you doing this.

I used to work for a company in the US on OPT, and since I couldn't obtain an H1B, I moved to Canada as a permanent resident. Due to the nature of work I did at the company, I moved to a contracting role.

I have since been able to get the H1B via the same company, and they would like for me to move back. However, being born in India, even if I move back to the US, the path to permanent residency feels long and nearly unattainable. Is there any other alternatives for me for attaining a green card in a shorter span of time?

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

#322

Post by joshuamorton »

rayiner wrote: post #289
anigbrowl wrote: post #155

Earlier quoted context omitted.

I am not an immigration lawyer, but I am very interested in immigration law and the effort to overturn this precedent in particular, an interest whch goes back more than 15 years; so I have done a lot of reading on this argument. The whole phrase about 'subject to the jurisdiction thereof' refers to the fact that foreign diplomats (and often, their families) are not subject to the jurisdiction of their countries of r…

The contrary view is based on dicta in the Slaughterhouse Cases, decided less than a decade after the 14th amendment: https://supreme.justia.com/cases/federal/us/83/36/ > All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." > The first observation we have to make on this clause is that it puts at rest bo…

I'm (legitimately) curious: how does one square the concept of not being subject to US jurisdiction for citizenship purposes, with being subject to US jurisdiction for law enforcement purposes?

In all other exceptions to the 14th amendment, either you are dealing with an invading army, or you are dealing with people who have diplomatic immunity, all cases where they are not subject to American Civil law (and law enforcement). So how does the court thread the needle to allow law enforcement to interact with folks who it is claiming are not subject to US jurisdiction?

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

#323

Post by aggrieved »

tptacek wrote: post #313
rayiner wrote: post #293

Earlier quoted context omitted.

What does “subject to the jurisdiction of” mean? Everyone seems to be equating that with diplomatic immunity, but that seems to arise from the state department’s historical interpretation of the term in determining citizenship of children of foreign diplomats. Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to…

Wong Kim Ark cites, at length, Marshall's discourse on jurisdiction in Schooner Exchange v McFaddon, which turns entirely on this question. It also notes the language change between the Civil Rights Act and the 14th Amendment, where the revision clarified precisely this issue. It's a frivolous argument. Would you like to put some money on this? I'd give you favorable odds at 7-2, assuming the court composition remain…

[dead]

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

#324

Post by rayiner »

tptacek wrote: post #313
rayiner wrote: post #293

Earlier quoted context omitted.

What does “subject to the jurisdiction of” mean? Everyone seems to be equating that with diplomatic immunity, but that seems to arise from the state department’s historical interpretation of the term in determining citizenship of children of foreign diplomats. Wong Kim Ark doesn’t answer the question, because it doesn’t even try to interpret the term. Instead it assumes that the framers of the 14th amendment meant to…

Wong Kim Ark cites, at length, Marshall's discourse on jurisdiction in Schooner Exchange v McFaddon, which turns entirely on this question. It also notes the language change between the Civil Rights Act and the 14th Amendment, where the revision clarified precisely this issue. It's a frivolous argument. Would you like to put some money on this? I'd give you favorable odds at 7-2, assuming the court composition remain…

It’s not clear to me that “jurisdiction” is being used in the same context in the 14th amendment as in Schooner Exchange.

Regardless, I wouldn’t call an argument supported by clear dicta in one Supreme Court case and a solid dissent in another “frivolous.” But I’d put the odds of the Supreme Court ruling in Trump’s favor substantially below 10%. You lose 100% of the shots you don’t take, though.

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

#325

Post by yangikan »

fiduciarytemp wrote: post #29

I received notice of a successful i140 application (for eb1a) in September 2022 and have been waiting for the past 2.5 years for the dates to become current. The dates haven't moved past Feb 22 for the past 6 months or so. Any speculation on how these dates may move under the new administration?

If the current administration reduces the issuance of family based greencards (which happens mostly through the consulates), those unused greencards will flow through the EB category, allowing EB1 dates to move forward. Something like this happened during Covid.

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

#326

Post by tripletao »

pockmarked19 wrote: post #95
willmadden wrote: post #90

Earlier quoted context omitted.

I wouldn't. The wording of the 14th Amendment is ambiguous and was arguably misinterpreted by the courts. "All persons born or naturalized in the United States, AND (capitalized for emphasis) subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." If they can get the SCOTUS to reconsider United States v. Wong Kim Ark from 1898 it could go either way - the court is…

Are you saying aliens are not subject to US jurisdiction while here? Like "sovereign citizens"? That's what it seems like you're saying.

The distinction in the executive order is between "a United States citizen or lawful permanent resident" and everyone else, not just citizen vs. noncitizen or lawful vs. unlawful. As drafted, the children of other lawful immigrants (H-1, J-1, O-1, L-1, etc.) would also not receive birthright citizenship. I've quoted the exact language for the father. The language for the mother is different but seems almost equivalent, excluding "lawful but temporary" status.

I don't expect this to be upheld. Many tech workers will be affected if it somehow is, though.

https://www.whitehouse.gov/presidential-actions/2025/01/prot...

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

#327

Post by mjmsmith »

rayiner wrote: post #285
moshegramovsky wrote: post #268

Earlier quoted context omitted.

The original comment talked about anti-immigrant sentiment of the new administration. Trump said that immigrants are poisoning the blood of our country. How many citations of Trump and his aides would it take to make you believe that they're anti-immigrant? https://youtu.be/RKPFjAhd3KQ?si=xiHIFBUfsK6DgQos

> Trump said that immigrants are poisoning the blood of our country. You’re substituting a different word here for the word Trump actually used, in an effort to deceive as to the meaning of what he actually said.

https://www.youtube.com/watch?v=RKPFjAhd3KQ

The meaning of what he said is clear in the phrase "poisoning the blood of our country".

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

#329

Post by rayiner »

joshuamorton wrote: post #322
rayiner wrote: post #289

Earlier quoted context omitted.

The contrary view is based on dicta in the Slaughterhouse Cases, decided less than a decade after the 14th amendment: https://supreme.justia.com/cases/federal/us/83/36/ > All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." > The first observation we have to make on this clause is that it puts at rest bo…

I'm (legitimately) curious: how does one square the concept of not being subject to US jurisdiction for citizenship purposes, with being subject to US jurisdiction for law enforcement purposes? In all other exceptions to the 14th amendment, either you are dealing with an invading army, or you are dealing with people who have diplomatic immunity, all cases where they are not subject to American Civil law (and law enfo…

It’s not obvious to me that “jurisdiction” could only mean “law enforcement jurisdiction” in 1868.

Wong Kim Ark cited Schooner Exchange, which explained that nations have absolute jurisdiction over persons on their territory. It framed the cases you’re talking about, those having diplomatic immunity, as being a waiver of jurisdiction that was customary under international law.

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

#330

Post by rayiner »

deeg wrote: post #311
dragonwriter wrote: post #116

Earlier quoted context omitted.

> The wording of the 14th Amendment is ambiguous? It is only ambiguous read in a vacuum. Read in the comtext of the US legal tradition in which it was written and the way the prior English common law tradition was incorporated into that tradition, it is...rather unambiguous. (Most notably, its exactly how the Supreme Court had applied the principles of English common law involved in multiple citizenship cases before…

Before the bonkers immunity decision I would have agreed with this. Since then, though, I don't trust SCOTUS on any decision that involves conservative policy. This may come up sooner than expected; Trump has issued an EO attempting to nullify it: https://www.whitehouse.gov/presidential-actions/2025/01/prot...

The president is obviously immune for official acts! You think Georgia should now be able to prosecute Biden for recklessly causing the death of Laken Riley?

It’s not the Supreme Court’s fault that Jack Smith charged Trump based in part on his instructions to his own DOJ. A smart prosecutor would’ve written an indictment based purely on conduct that was obviously unofficial acts, which the Supreme Court held was not protected.

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