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See all posts Frank GogolH4 to H1B Visa: How to Apply for a Change of Status
Updated on April 10, 2024
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At a Glance
- Not all H4 visa holders are eligible to change their visa to H1B; eligibility depends on being selected in the H1B visa lottery or being exempt from the cap.
- Exempt individuals include those previously selected in the lottery, those with a job offer from a cap-exempt employer, or those with a job offer from an H1B petitioning employer who is selected in the lottery.
- The change of status involves submitting necessary documents, including Form I-539 and employment verification documents.
- The application process is similar to applying for an H1B visa.
H4 visa status allows the immediate family members of H1B visa holders legal residence in the United States. However, the work authorization status of H4 visa holders is very much up in the air with the immigration policies of the Trump administration.
This leaves many H4 visa holders uncertain of their ability to work and seeking a change of visa status. Transitioning from an H4 to H1B visa can be difficult, but this article provides a thorough guide on how to apply for this change of status.
Who Is Eligible to Change Their Visa from H4 to H1B
Not all H4 visa holders are eligible to transition to an H1B visa. The H1B visa cap places a stark limit on the number of H1B visas that can be granted. Transitioning from an H4 to an H1B, then, requires that you are otherwise eligible for an H1B and win the lottery, or get exempted from the cap.
Thus, only the following individuals can apply for a visa status change from H4 to H1B:
- H4 visa holders who applied for an H1B visa in the past and were selected in the H1B visa lottery. This exempts the applicant from the H1B visa cap.
- H4 visa holders with a job offer from an employer who is exempt from the H1B cap. Cap-exempt employers include public educational institutions, nonprofits affiliated with educational institutions, and nonprofit or governmental research institutions.
- H4 visa holders who have a job offer from an H1B petitioning employer and are selected in the H1B visa lottery.
Why Would Someone Want to Change from an H4 to an H1B Visa?
The Employment Authorization for Certain H4 Dependent Spouses law, passed in May 2015, granted work authorization to many H4 visa holders. H4 visa holders could qualify for an Employment Authorization Document (EAD) if they had been approved for an I-140 (a petition for a Green Card or permanent residency), or if their spouse had held H1B visa status for over 6 years.
However, anti-immigrant factions quickly filed a lawsuit with the Department of Homeland Security (DHS) challenging the law. The lawsuit (still ongoing), combined with the Trump administration’s immigration policies, has left the status of the EAD in jeopardy. Recently, the Trump administration has indicated that H4 visa holders with EAD status will have their work permits revoked by the end of 2018.
This turn of events has given H4 visa holders considerable incentive to transition to H1B visa status. With an H1B, visa immigrants can retain resident status and work authorization.
What Documents are Required for a Change of Status?
Changing status from H4 to H1B can be complex, and requires that you submit all of the documentation required for an H1B visa application. In addition, you must submit the following documents:
- Form I-539 (Application to Extend/Change Nonimmigrant Status)
- Documents verifying legal employment status, including an employment letter, sponsor letter, and labor condition approval (LCA)
How to Apply for H1B from H4 Visa Status
The application process for an H4 to H1B change of status is nearly identical to applying for an H1B, with the only difference being the I-539 Form that denotes a change of nonimmigrant status. The employer sponsoring the H4 visa holder’s H1B application is responsible for supplying most of the documentation for the application process. In addition to an I-129, the employer must submit:
- A U.S. Department of Labor certified labor condition application (LCA)
- Evidence that the offered position of employment is a “specialty occupation”
- Copy of degree certificate and evidence of specialized training
- Copies of any requisite license, certification, or official permission from the relevant state for practicing the occupation
Read More
- Complete Guide to the H4 Visa in the U.S.
- Complete Guide to Working on an H4 Visa in the U.S.
- H4 Visa Extension for EAD
- DS 160 for H4 Visa: What You Should Know about It
- Complete Guide to H4 Visa Interview Questions
- How Can I Get a Driving License on an H4 Visa?
Conclusion
Noncitizens in America must insulate themselves as much as possible from the current political climate. Transitioning to an H1B visa is one of the most prudent moves an H4 visa holder can make since it will give them a more secure status for their work authorization.
However, obtaining an H1B visa is much more difficult than an H4 for most applicants. It requires substantive credentials, professional experience, and a dedicated sponsor. So any H4 visa holder who has a job opportunity with a cap exempted institution or has previously won the H1B lottery should seriously consider transferring to H1B status.
Frequently Asked Questions (FAQ)
What is the Process of Changing from H4 to H1B Visa?
To change from an H4 to an H1B visa, an employer must file an H1B petition on your behalf during the H1B visa cap window. If the petition is approved, your status changes from H4 to H1B.
Can H4 Visa Holders Apply for the H1B Visa Lottery?
Yes, H4 visa holders can apply for the H1B visa lottery. The employer must file an H1B petition, and if it is selected in the lottery and approved, the H4 visa holder can change to H1B status.
What are the Eligibility Requirements for an H1B Visa?
To be eligible for an H1B visa, you must have a bachelor’s degree or higher (or its equivalent) and a job offer from a U.S. employer in a specialty occupation that requires your degree.
Does the H4 to H1B Change Impact My Spouse or Dependents?
Changing from H4 to H1B status does not automatically impact your spouse or dependents. They may remain in the U.S. on H4 status, or the employer may need to file petitions for their status change.
How Long Does the H4 to H1B Transfer Take?
The processing time for an H4 to H1B change varies. Regular processing can take several months, while premium processing (if available) can expedite the process to 15 calendar days.
Is There a Cap on the Number of H1B Visas Issued Annually?
Yes, there is an annual cap on H1B visas. For the fiscal year 2023, the cap is set at 85,000 visas, with 20,000 reserved for applicants with a master’s degree or higher from a U.S. institution.
Can I Start Working Immediately After H1B Approval?
You can start working on the H1B visa from October 1st of the fiscal year for which the visa is granted or as soon as the status change is approved if it is past this date.
What Happens If My H1B Petition is Not Selected in the Lottery?
If your H1B petition is not selected in the lottery, you may remain in the U.S. on your current H4 status, and your employer can file the H1B petition again in the next fiscal year.
Can I Stay in the U.S. While Waiting for H1B Approval?
Yes, you can stay in the U.S. while waiting for H1B approval if your H4 status remains valid during the processing period.
Is Work Authorization on H4 Status Lost Upon Filing for H1B?
Filing for an H1B visa does not automatically revoke H4 work authorization (if applicable). However, H4 EAD is no longer valid once you change to H1B status.