Can an undocumented person apply for an H-1B visa?

In my column This week's Consulta Migratoria® answers the question of an undocumented reader in the United States who wishes to apply for an H-1B visa.

Each case is different and the answers vary depending on the immigration history of each person. Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before beginning any process.

I came to the United States in October 2009 with a B1 visa and stayed in the country illegally. I am a professional with a university degree in Systems and 8 years of experience in my country of origin. Can I apply for the H-1B visa in the United States? -Antonio V.

Antonio, although you have a college degree and work experience, having remained undocumented in the United States complicates any attempt to try to obtain an H-1B visa within the country.

In addition to meeting the H-1B visa requirements, you must prove that you did not violate immigration laws. Remaining undocumented in the country does not allow you to obtain an H-1B visa within the country.

If you get an employer to sponsor you for an H-1B visa, meet all the necessary requirements, and the U.S. Citizenship and Immigration Services approves your application, you will have to leave the country to claim your visa.

Since you were living in the United States illegally, you will have to apply for a pardon in order to return to the country and you may be denied.

Consult with an immigration attorney as soon as possible and before initiating any proceedings.

Please note that the application period for H-1B visas for the next fiscal year (October 1, 2016 to September 30, 2017) begins on Friday, April 1, 2016.

Only 85,000 of these visas are available, of which 20,000 are designated for workers with graduate degrees (masters and doctorates) obtained in the United States.

In recent years, H-1B visas have sold out well before the end of the application period, so I always recommend that any professional immigrant who qualifies for the H-1B visa begin preparing all the necessary documentation and have everything ready to file as soon as the deadline opens.

It is important to remember that only U.S. employers or businesses may sponsor workers who qualify for an H-1B visa. The law does not allow employees to perform or pay for the processing of the H-1B visa petition.

The H-1B is a nonimmigrant visa and once granted only allows for the temporary hiring of foreign employees who have expertise in specialized fields, such as scientists, engineers or computer programmers. It also requires that they have a college degree in the specialized profession.

Generally, the H-1B visa allows stay of no more than six consecutive years, although there are some exceptions.

You can find more details on the requirements and other derivative benefits for family members of an H-1B visa beneficiary by going to the article on who qualifies for the H-1B visa at

Consult with an immigration attorney before beginning any immigration proceedings.