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H4 to H1B Visa: How to Apply for a Change of Status
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
- 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?
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.