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3 Ways to Change H4 to H1B Visa
by Abby on Apr 26, 2024 10:35:44 AM
What is H4 Visa?
The H4 visa is a non-immigrant visa status that allows the spouse and unmarried children under 21 of H1B visa holders to legally enter and remain in the United States. It is a dependent visa, meaning H4 visa holders are dependent on the principal H1B visa holder's valid immigration status.
What is H1B Visa?
The H1B visa is a non-immigrant visa granted to foreigners who work for U.S.-based employers in specialized occupations. These occupations, listed under the USCIS (U.S. Citizenship and Immigration Services) regulations, require that the foreign workers have at least a bachelor’s degree or equivalent work experience, along with proficient skills in their respective fields.
There are two types of H1B visas: the H1B cap and the H1B cap-exempt.
H1B Cap
The H1B cap is a numerical limit or quota set by the U.S. Citizenship and Immigration Services (USCIS) on the number of H1B visas that can be issued each fiscal year. The current annual cap for H1B visas is 85,000.
The H1B cap applies to new H1B petitions, which are subject to the annual quota. Once the cap is reached, no new H1B petitions can be approved until the next fiscal year, which begins on October 1st. Due to the high demand for H1B visas, the cap is typically reached within the first few days of the filing period, which begins on April 1st.
H1B Cap-Exempt
Certain types of organizations and petitions are exempt from the H1B cap. Cap-exempt H1B petitions can be filed at any time during the year without being subject to the annual quota. The most common cap-exempt categories include:
- Higher education institutions
- Non-profit organizations affiliated with higher education institutions
- Non-profit research organizations
- Government research organizations
Petitions filed by cap-exempt organizations or for cap-exempt beneficiaries are not subject to the annual H1B cap. This exemption allows these organizations to continue hiring H1B workers throughout the year, regardless of whether the cap has been reached.
Note: the “H1B visa” we mentioned in this blog primary refer to H1B Cap, we will specify “H1B Cap-Exempt” if we refer to H1Bs that are exempt from H1B lottery,
Reasons for Changing H4 to H1B Visa
Transitioning from an H4 visa to an H1B visa is a crucial step for many individuals seeking greater employment opportunities and independence in the United States.
One compelling reason is the limitations associated with the H4 Employment Authorization Document (EAD). H4 visa holders can only work if they obtain an EAD card, which can be a lengthy and uncertain process. H4 visa holders can only apply for an H4 EAD if their H1B spouse has an approved Form I-140. Conversely, the H1B visa provides direct work authorization, allowing beneficiaries to pursue their careers without the need for a separate employment permit.
Additionally, the H4 status is dependent on their spouse, the primary H1B visa holder. In the event of H1B layoff, job loss or divorce, the H4 visa holder's legal status in the U.S. becomes vulnerable. By obtaining an H1B visa, individuals gain greater independence and stability, ensuring their ability to remain and work in the country is not contingent upon their spouse's employment or marital status.
Who is Eligible for Changing H4 to H1B Visa?
Not all H4 visa holders are eligible to transition to an H1B visa status due to the H1B visa cap limits. The eligibility requirements for an H4 visa holder to change to an H1B visa are:
- H4 visa holders who were previously selected in the H1B visa lottery, this usually applies to the people who changed their visa from H1B to H4 before and wanted to change back to H1B visa. Those groups are exempt from the H1B visa cap.
- H4 visa holders who secure a job offer from an employer that is exempt from the H1B visa cap, such as public educational institutions, nonprofits affiliated with educational institutions, or nonprofit/governmental research institutions.
- H4 visa holders who land a job from employers who are willing to sponsor them H1B visa, and are luckily selected in the H1B visa lottery that takes place in March each year.
Therefore, only H4 visa holders who meet one of these criteria can apply for a change of status from H4 to H1B, as they would be exempt from the H1B visa cap or have been selected through the lottery process.
3 Ways for H4 to Change to H1B
Option 1: Find an employer who can sponsor your H1B Visa
To switch from an H4 to an H1B visa, the most crucial step is to find an employer who can sponsor your H1B. This requires actively job searching, networking, and understanding the H1B sponsorship policies of various companies.
To find out if a company offers H1B sponsorship, there are three ways:
- One direct method is to ask HR about their H1B sponsor policy during an interview. Some startups who have never provided sponsorship before might be more open to sponsor compared with big companies.
- Another way is to search on Google with "Company Name + H1B sponsor," which will show if the company has sponsored H1B visas in the past, which years they sponsored, and for which positions.
- Besides direct Google search, you can use H1B databases like MyVisaJobs and H1B Grader.
The H1B lottery takes place in March, but many companies finalize their H1B sponsor lists a month or two in advance. Missing the internal deadline means missing the lottery, so start your job search early, not begin the whole process in January or February.
Also, note that even if you get a job offer and win the H1B lottery, you cannot start working until your H1B takes effect in October. During interviews, you must negotiate with the employer that you do not have a work permit from March to October. Many employers may not accept a 7-month waiting period to start employment, so getting work authorization during this time is crucial. One option is to switch to an F1 visa and work under a Day 1 CPT, we’ll elaborate shortly.
Option 2: Change status from H4 to F1 and get H1B sponsor
Directly changing from an H4 visa to an H1B visa is quite ideal. However, in reality, the H1B has an annual quota of 85,000 slots, and the chances of being selected in recent years have not been high, so not everyone can get selected. Even if you are lucky enough to be selected, you still need to address the issue of not having a work authorization from March to October, during which you cannot work. Therefore, many H4 holders choose to change their status from H4 to F1 student status to gain more working opportunities.
As an F1 student, you can start working using CPT or OPT. But pay attention, most traditional schools require F1 students to complete one academic year before becoming eligible for CPT, and during semesters, they can only work up to 20 hours per week, with 40 hours allowed during school breaks. If you prefer to be able to work using CPT from the very first day of your studies, you can consider enrolling in a day 1 CPT university. Due to their unique program setup, day 1 CPT schools are approved by USCIS to use CPT for full-time or part-time employment, on-campus or off-campus jobs, starting from their very first day of studies. However, it's worth noting that not every school allows day 1 CPT, and some non-compliant schools claim to be day 1 CPT schools, but they actually haven't obtained the relevant accreditation. Therefore, it's crucial to choose a school that has the relevant accreditation. Contact us for the full list of eligible day 1 CPT universities.
After changing to F1 status, when you go for interviews, if the HR asks you "do you have work authorization in the US" and whether you need H1B sponsorship, you can tell the HR that you will need H1B sponsorship in the future, but you are currently eligible to work in the US. In situations where you can work for the employer for a period of time before needing them to sponsor your H1B, more employers are more open to providing H1B sponsorship.
Option 3: Cap exempt H1B employers
H4 holders may also consider finding cap-exempt H1B employers. Unlike the traditional cap-subject H1B visa, a cap-exempt H1B does not require you to wait until October to start working. Once your cap-exempt H1B visa is approved, you can immediately begin your employment. This is particularly advantageous as it allows you to bypass the usual H1B cap lottery system and the associated wait times, enabling a smoother and quicker transition into the workforce. Employers such as universities, nonprofit research organizations, and government research facilities typically qualify as cap-exempt, offering a viable pathway for H4 visa holders to change their visa status and start working right away.
Some H-1B Exempt Employers include:
- Universities/ Education Institutes: UCLA, Stanford University, UC Berkeley, etc.
- Non-profit research organizations like Rocky Mountain Institute (RMI), etc.
- Governmental research organizations like NASA’s Jet Propulsion Laboratory.
Pay attention, not all NGOs or NPOs are considered as H1B cap exempt employers, only the NGOs that are categorized as tax-exempt by the IRS under section 501(c)(3) are likely to be considered exempt, so be sure to double check with HR in the interview.
How to Change from H4 Visa to H1B Visa
Changing from an H4 visa to an H-1B visa involves several steps.
- As mentioned previously, you need to find an employer willing to sponsor you for an H1B visa and successfully get selected in the H1B lottery. After that, the employer must provide a job offer and obtain a certified Labor Condition Application (LCA) from the Department of Labor.
- Once the LCA is approved, the employer must file a petition for nonimmigrant workers (Form I-129) with USCIS on your behalf.
- Along with the petition, you'll need to provide supporting documentation, such as your educational credentials, evidence of your specialized skills, and proof that the position qualifies as a specialty occupation.
- If the USCIS approves your H-1B petition, you'll receive an I-797 approval notice.
- You can then apply for an H-1B visa stamp at a U.S. embassy or consulate abroad if you're outside the United States.
- If you're already in the U.S. on an H-4 visa, you may be eligible to change your status without leaving the country by filing Form I-539 (Application to Extend/Change Nonimmigrant Status) with the USCIS.
- Once your H-1B visa is approved, you can begin working for the sponsoring employer in the specified position.
It's important to note that the H-1B visa process can be complex, our team of visa experts and experienced immigration attorneys can help ensure compliance with all requirements and deadlines.
Conclusion
Changing from an H4 to an H1B visa opens up valuable career opportunities and independence for visa holders. While the process can be complex, H4 visa holders have several viable pathways, including the annual H1B lottery, securing a job with a cap-exempt employer, or changing status to an F1 visa with CPT/OPT work authorization. Proper planning, guidance from immigration experts, and adherence to requirements are crucial. Successfully obtaining an H1B visa unlocks greater employment prospects, stability, and the ability to pursue goals in the United States. Despite the challenges, the potential rewards make the effort worthwhile for those seeking to advance their careers and build a future in America.