How to apply for an H-1B visa for fiscal year 2019?

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

Here is some general information about the H-1B visa. You should consult with an immigration attorney for personalized legal advice before beginning any proceedings.

This is the column:

The U.S. government has different programs and visa categories that allow foreigners to enter the United States to live and work legally in the country. One of them is the H-1B visa.

The H-1B visa is a temporary visa category that allows employers to apply for highly skilled foreign professionals to work in "specialty occupations". Generally, the foreign worker must work for a specific U.S. employer who is sponsoring him or her.

If they meet all requirements and are approved for an H-1B visa, foreign professionals will be authorized to live and work legally within the United States for a limited period of time.

Employers are the only ones who can petition for workers, because they are the sponsors. The law does not allow employees to file or pay for an H-1B visa.

H-1B visa application period for fiscal year 2019

The window to apply for an H-1B visa begins on Monday, April 2, 2018 until the allotted visas for fiscal year 2019 (October 1, 2018 to September 30, 2019) are exhausted.

These visas are in high demand and there are not many available, so they sell out quickly. It is advisable to apply as soon as the deadline opens.

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

Since it became effective in 1990, the H-1B visa program has had a limited number of 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.

New policy to prevent fraud

There have been some abuses of the H-1B visa program in the past, including certain companies soliciting foreign employees to work with other employers - what the government categorizes as a third-party location.

In order to prevent fraud, the U.S. Citizenship and Immigration Services (USCIS) announced that increased scrutiny will be given to H-1B visa applications and issued guidance that went into effect on February 22, 2018 clarifying the new policy on the requirements for H-1B applications filed for employees who will work at one or more third-party worksites.

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, he/she will have to provide evidence to confirm this at the time of submitting the application.

H-1B visa duration

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

With some exceptions, the H-1B visa authorizes stay for no more than six consecutive years.

A new six-year stay is allowed once the foreign worker has spent one year outside the United States after initial entry into the country.

Advantages of the H-1B visa

1. Spouses and unmarried children under the age of 21 of H-1B visa applicants may also obtain the benefit of admission to the country through an H-4 visa. Currently, spouses and children may study in the United States. In addition, certain H-4 visa spouses may work in the U.S. if they meet the necessary requirements.

2. Allows the non-immigrant to apply for permanent residence through a family-based immigrant visa or employment-based immigrant visa, without harming their current immigration status. But before beginning this process, they should consult with an immigration attorney.