In my column This week's Consulta Migratoria® answers a question from a reader who wishes to apply for an H-1B visa while in the United States on a tourist 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.
This is the column:
I entered the United States in November 2016 on a tourist visa and my legal stay expires on May 27 of this year. I am a professional with a university degree in engineering and 5 years of experience in my home country. Can I apply for the H-1B visa within the United States? -Azucena M.
Azucena, you may be able to apply for an H-1B visa while visiting the United States if you meet all the requirements.
The H-1B visa is a nonimmigrant visa that allows for the temporary employment of foreign employees who have expertise in specialized fields, such as scientists, engineers or computer programmers. It also requires a college degree in the specialized profession and sponsorship by a U.S. employer.
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 (USCIS) approves your application, you will have to leave the country to claim your visa.
You cannot stay in the country, because your legal stay in the United States expires in May 2017 and H-1B visas for fiscal year 2018 are issued as of September 2017.
It is important that you comply with the terms of your tourist visa. For example, you cannot work illegally in the U.S. or overstay the time the customs agent authorized you to stay when you stamped your passport when you entered the country. Any of these actions could prevent you from obtaining an H-1B visa.
Consult with an immigration attorney as soon as possible and before initiating any proceedings.
H-1B Visa Availability
The application period for H-1B visas for fiscal year 2018 (October 1, 2017 to September 30, 2018) begins on Monday, April 3, 2017.
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.
Universities and government or non-profit research institutions may submit unlimited applications.
Applications from individuals seeking an extension of their H-1B status in the United States, either for the same employer or a new employer, do not count toward the annual quota limit.
In recent years, due to high demand, H-1B visas have sold out long before the end of the application period. That is why I always recommend that any professional immigrant who qualifies for the H-1B visa prepare all the necessary documentation and have everything ready to file as soon as the deadline opens.
Please note that only U.S. employers or companies 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.
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, the employer will need to provide evidence to confirm this at the time of application.
The H-1B visa allows a foreign worker to remain in the country for no more than six consecutive years, with some exceptions. At the end of the term, that person must leave the country for one year before a new six-year stay is authorized.
One of the advantages of the H-1B visa is that spouses and unmarried children under 21 years of age of the applicants can also obtain the benefit of admission to the country through an H-4 visa. Currently, spouses and children may study in the United States. Also, certain H-4 visa spouses may be able to work in the country if they meet the necessary requirements.
Another advantage of the H-1B visa is that it allows the nonimmigrant to apply for permanent residence through a family-based or employment-based immigrant visa without jeopardizing his or her current immigration status.
Consult with an immigration attorney before beginning any immigration proceedings.
English 
Español