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

If you've accompanied someone on a student visa to the U.S. and have been offered employment, you can apply for H-1B status and a visa.

By , Attorney

If you are in the United States on an F-2 visa—that is, as the family 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 allowing you to legally work here might be a good possibility. Read on to learn more about how to change from F-2 status to H-1B status in the United States.

Does the Job You've Been Offered Make You Eligible for H-1B Status?

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

  • be getting the visa to perform services in a specialty occupation and have a directly relevant 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 specific 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 application (LCA) with the U.S. Department of Labor (DOL).

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

Changing Immigration Status While in the U.S.

You should be able to change your immigration status without leaving the United States, so long as you have not violated the terms of your F-2 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 might 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 actual visas for U.S. reentry. Only the State Department can do that, through its overseas consulates and embassies. But you shouldn't have any trouble getting the physical visa from the consulate if your change of status was already approved by USCIS.

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 at all. Your employer will need to file the LCA, which DOL will endorse. Next, your employer must file a petition on USCIS Form I-129. Because you're presumably already in the U.S. in lawful status, your employer will request on the I-129 petition for your status to be changed to H-1B and extended for the duration of the petition, which typically is three years.

Be aware that only a limited number of H-1B visas (85,000) are made available each fiscal year. They run out fast. Under current USCIS policy, employers need to pre-register with USCIS in the first quarter of the calendar year. USCIS then notifies employers of the timing to submit their H-1B petitions. In years when more pre-registrations are submitted than the available visas, USCIS will conduct a random lottery to allocate them and notify employers accordingly.

Your employer likely will work with an attorney to help with this complicated process. If not, you might gently suggest that it do so, in order to ensure the case is handled correctly. If the paperwork is done wrong, and your application gets delayed, the supply of visas will likely run out for the year, leaving you waiting another year to try again.

Keep in mind that the DOL views all H-1B costs, including legal and filing fees, as the employer's obligation. Therefore, an attorney you hire yourself would have a limited role.

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