As an immigration specialist, I am well-versed in the intricacies of various visa categories and their respective eligibility criteria. Let's delve into the question of whether an H4 visa holder can apply for an H1B visa.

Firstly, it is essential to understand the nature of the H4 visa. The H4 visa is a dependent visa, granted to the spouse and children under the age of 21 of an H1B visa holder. The H1B visa, on the other hand, is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations.

Now, regarding the transition from H4 to H1B, there are specific conditions that must be met:


1. H1B Lottery Exemption: If an H4 visa holder has previously applied for an H1B visa and was selected in the H1B lottery, they are exempt from the H1B cap. This exemption allows them to apply for a change of status from H4 to H1B without being subject to the annual cap on new H1B visas.


2. Job Offer from Cap-Exempt Employer: An H4 visa holder can also apply for an H1B visa if they have a job offer from an employer that is exempt from the H1B cap. These employers typically include:

- **Not-for-Profit Institutions of Higher Education**: Universities and colleges that are non-profit in nature.
- Government Research Organizations: Entities that conduct research primarily for the government.
- **Non-Profit or Government-Affiliated Research Organizations**: These are organizations that are either non-profit or primarily funded by the government.


3. Filing Process: To apply for an H1B visa, the prospective employer must file a Labor Condition Application (LCA) with the Department of Labor (DOL). Once the LCA is approved, the employer can then file an H1B petition (Form I-129) with U.S. Citizenship and Immigration Services (USCIS).


4. Documentation: The H4 visa holder will need to provide documentation supporting their eligibility for the H1B visa, including proof of their H4 status, evidence of their qualifications for the specialty occupation, and any other relevant documentation.


5. Timing: It is crucial to note the timing of the application. The H1B visa season opens on April 1st each year, and the change of status can be filed concurrently with the H1B petition if the H4 visa holder is in the U.S.


6. Maintenance of Status: While the H1B petition is pending, the H4 visa holder must maintain their H4 status. If the H4 status is lost, it could jeopardize the H1B application.

7.
Approval and Impact on H4 Benefits: If the H1B petition is approved, the H4 visa holder will be able to work in the U.S. under the H1B visa, and their H4 dependent status will no longer apply. This means they will no longer be eligible for the same benefits that come with H4 status, such as the ability to study without additional authorization.

8.
Spouse's H1B Status: If the primary H1B visa holder is also on H4 (as a dependent of another H1B visa holder), they must consider the implications of changing their status. The new H1B visa holder will become the primary visa holder, and their spouse may now be eligible for H4 status.

9.
Children's Status: The children of the H4 visa holder will remain on H4 status unless they also qualify for H1B visas themselves.

10. **Consultation with an Immigration Attorney**: Given the complexity of immigration law and the potential for changes in policy, it is highly recommended that H4 visa holders consult with an immigration attorney before proceeding with an H1B application.

In conclusion, an H4 visa holder can indeed apply for an H1B visa, provided they meet the necessary conditions and follow the correct procedures. The process requires careful planning, documentation, and adherence to immigration regulations. It is always advisable to seek professional guidance to ensure a smooth transition from H4 to H1B status.

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An individual may apply for H4 to H1 change of status if: H4 visa holder had previously applied for H1B and was selected in the H1B lottery and is now therefore exempt from H1B cap. H4 visa holder has a job offer from an H1B cap exempt employer, such as: A not for profit institution of higher education.read more >>