How to obtain an H-1B visa?

In my column This week's Consulta Migratoria® explains what an H-1B visa is and how to obtain it.

Each case is different and the answers vary depending on each person's immigration history.

Here I provide general answers to your questions. Please consult with an immigration attorney to receive personalized legal advice before starting any procedure.

This is the column:

Wednesday, April 1, 2015 marks the beginning of the application period for H-1B visas with the U.S. Citizenship and Immigration Services (USCIS) for fiscal year 2016 (October 1, 2015 to September 30, 2016). USCIS will continue to accept petitions until the allotted visas for the fiscal year are exhausted.

The H-1B visa allows certain foreign professionals to live and work legally in the United States for an initial period of three years.

If you wish to apply for one of these visas, you should start preparing now. The U.S. economy continues to improve and there is a good chance that these visas will sell out within the first few weeks after the application period opens.

For example, last year USCIS received 172,500 applications within seven days. The agency conducted a lottery to select who would receive the visas.

Currently, there are 65,000 H-1B visas available, of which 6,800 are reserved for nationals of Chile and Singapore under the terms of free trade agreements with those countries. Another 20,000 visas are designated for workers with graduate degrees (masters and doctorates) obtained in the United States.

Applications filed by universities and government or non-profit research institutions do not count toward the 65,000 visa cap. Applications by individuals seeking an extension of their H-1B status in the U.S., either for the same employer or a new employer, are also not counted.

Since U.S. employers are the sponsors, only they can petition for the workers. The law does not allow the employees themselves to file or pay for the H-1B visa.

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.

An H-1B petition may not be filed more than six months prior to the date of commencement of employment.

Requirements to initiate the procedure

Evidence of the employee's university degree must be submitted for the application to be processed. If the employer indicates that the employee qualifies for this visa due to a combination of education and experience, evidence confirming this must be provided at the time the application is submitted.

The H-1B visa permits stay for no more than six consecutive years, with some exceptions. A new six-year stay is allowed once the foreign worker has spent one year outside the U.S. after initial entry into the country.

One of the advantages of the H-1B visa is that spouses and unmarried children under the age of 21 of the applicants can also obtain the benefit of admission to the country through an H-4 visa. Currently, spouses and children cannot work during their stay in the U.S., but are allowed to study.

However, as of May 26, 2015, certain H-4 visa spouses will be able to work in the U.S. if they meet the necessary requirements.

Another advantage of the H-1B visa is that it allows the non-immigrant to apply for permanent residence through a family-based immigrant visa or employment-based immigrant visa without jeopardizing his or her current immigration status. Please consult with an immigration attorney before beginning the process.

For more information and immigration tips, read my blog

Send your questions to Include detailed information about your situation to better answer your questions.

Nelson A. Castillo, Esq. is an immigration attorney and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a past President of the Hispanic National Bar Association and current President of the Westlake South Los Angeles Neighborhood Council. For information on how to contact Dr. Castillo, please click here. click here.

The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.