How to Change an F-2 Visa to an H-1B Visa

If you've accompanied someone on a Student visa to the U.S., can you then apply for an H-1B?

If you are in the United States on an F-2 visa -- that is, as the dependent of an academic student on an F-1 visa -- then you might be getting bored. Your current visa status does not allow you to work in the United States.

So, if an employer offers you a job, getting an H-1B visa might be a good possibility. Read on to learn more about how to change from F-2 status to H-1B status.

Are You Eligible for an H-1B Visa?

To qualify for an H-1B, you must:

  • be getting the visa to perform services in a specialty occupation and have a college degree or its equivalent in work experience, or be a distinguished fashion model
  • have a job offer from a qualified U.S. employer for work to be performed within the U.S., and have been offered at least the prevailing page for your geographic area
  • be taking a job that ordinarily requires a bachelor's degree or higher (or its equivalent) due to the specialized and complex nature of your duties
  • have the correct background for the job, and
  • wait until your prospective employer has filed what's called a labor condition attestation (LCA) with the U.S. Department of Labor (DOL).

Typical H-1B applicants include accountants, architects, computer systems analysts, engineers, dietitians, physical therapists, chemists, hotel managers (of large hotels), upper-level business managers, and similarly skilled workers.

Changing Your Status While In the U.S.

You should be able to change your status without leaving the United States, so long as you have not violated the terms of your visa, for example by working without authorization or staying beyond the expiration date of your permitted stay.

If you do in fact leave the United States before applying for the H-1B visa, you can apply for an H-1B visa from overseas. However, receiving it may take several weeks or months.

If you leave the U.S. after having changed to H-1B status, realize that you'll have to stop by a U.S. consulate to pick up an actual entry visa for use when you return to the United States. The agency that grants you the H-1B change of status is USCIS and it does not have the authority to issue you an actual visa for reentry. But you shouldn't have any trouble getting the physical visa, if your change of status was already approved.

How to Apply for a Change of Status to H-1B

The first step in the process of applying for H-1B status doesn't involve you -- your employer will need to file the LCA, which DOL will endorse. Next, your employer must file a visa petition on USCIS Form I-129. Because you're already in the U.S. in lawful status, you won't need to wait for this to be approved before proceeding. Instead, you can apply for a change of status at the same time, by adding an application for a change of status on USCIS Form I-539 to the packet of forms and materials that your employer submits. You can download this form and instructions from the I-539 page of the USCIS website.

Be aware that only a limited number of H-1B visas (65,000) are made available each fiscal year. They run out fast. It's best to file your change of status application as soon as possible after April 1, the beginning of the fiscal year (which runs out in October).

Your employer may provide you with an attorney to help you through this complicated process. If not, it may be worth paying for one yourself. If you do the paperwork wrong, and your application gets delayed, the supply of visas may run out for the year, leaving you with a long wait.

Talk to a Lawyer

Need a lawyer? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NOLODRUPAL-web2:DRU1.6.12.2.20161011.41205