Who qualifies for an H-1B visa?

In my Immigration Consultation® column this week I explain what it is, who is eligible and how to obtain an H-1B visa.

This is the column:

One of the ways to legally enter the United States on a temporary basis is through the H-1B visa, which is extended to professional foreign workers in specialty occupations.

Beginning Tuesday, April 1, 2014, U.S. Citizenship and Immigration Services (USCIS) will be accepting applications for these visas for fiscal year 2015 (October 1, 2014 through September 30, 2015). Petitions will continue to be accepted until the allotted visas for the fiscal year are exhausted.

If you wish to apply for one of these visas, you should start preparing now. The U.S. economy is improving 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 approximately 124,000 applications within four days. The agency conducted a lottery to select those who received visas.

There are currently 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.

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

Employers in the U.S. are the petitioners of workers, not the employees themselves. In other words, employers are the sponsors.

The H-1B is a nonimmigrant visa and once granted only allows for the temporary hiring of foreign employees who have theoretical or technical 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. To file, evidence of the employee's college degree must be submitted. If the employer indicates that the worker qualifies for this visa due to a combination of education and experience, evidence confirming this must be provided at the time the petition is filed.

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.

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. Spouses and children may not work during their stay in the U.S., but are allowed to study.

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 inmigracionhoy.com.

Send your questions to preguntas@consultamigratoria.com. 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 Los Angeles Westlake South Neighborhood Council. To contact Mr. Castillo's office, please call (213) 537-VISA (8472).

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