How To Change My US Visa Status From F-2 To H-1b
By Amar Ali, Immigration Solicitor
It is common for migrants in the United States to change their immigration status after a period of time living in the country. A person may come to the US as a spouse of a US citizen but later divorce and apply for a visa in their own right. It may be they are a student who wishes to switch to a work visa or a migrant worker who wants to study. In this article, we will take a look at whether it is possible for a migrant in the US on an F-2 visa to switch their immigration status to H1b.
Can I Switch From An F-2 To An H1-b Visa In The US?
An F-2 visa is granted by the US Citizenship and Immigration Service (USCIS) to family dependants of F1 international student visa holders who are undertaking a degree level course. Technically, the F-2 visa is classed as a nonimmigrant temporary permit that provides the right to reside. As a nonimmigrant permit, the F-2 visa cannot be used as a stepping stone to permanent residency, and it does not automatically allow holders to take up employment in the US. It is possible, however, to change status, including to H1-b visa, in order to work legally.
An H1-b visa allows migrants to work in speciality occupations in the US. The H1-b is described by USCIS as a nonimmigrant classification which "applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability".
As H1-b is a nonimmigrant immigration status, it is possible to switch from other classifications of the same type, including the F-2 visa. It is important to note, however, that there are only a limited number of H1-b visas issued by USCIS each year, and those are only available for employers who have registered for the scheme. At the time of writing, this cap is set at 65,000 per year, with an additional 20,000 made available for those with master or higher level qualifications.
What Are The Eligibility Criteria For The H1-b Visa?
To switch from an F-2 visa to an H1-b visa, you must meet the following criteria:
- Be in an occupation that requires the theoretical and practical application of a body of highly specialised knowledge; and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.
- Have a role where one of the following applies:
- Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the particular position
- The degree requirement is common to the industry in parallel positions among similar organisations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
- The employer normally requires a degree or its equivalent for the position
- The nature of the specific duties is so specialised and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
- You have:
- A US bachelor's or higher degree required by the specialty occupation from an accredited college or university, or;
- A foreign degree that is the equivalent to a US bachelor's or higher degree required by the specialty occupation from an accredited college or university, or;
- An unrestricted state license, registration, or certification that authorises you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
The eligibility rules also state that applicants can have "education, specialised training, and/or progressively responsible experience that is equivalent to the completion of a US bachelor's or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty".
How Can I Switch From An F-2 Visa To An H1-b Visa In The US?
The first step in switching from an F-2 visa to an H1-b visa is to find suitable employment which fits the above eligibility criteria. Your employer will then submit a Labour Condition Application (LCA) to the Department of Labour to request permission to hire a nonimmigrant person on a temporary basis in a speciality occupation. The LCA requires the employer to confirm they will meet the following obligations:
- They will pay the H-1B worker a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the H-1B worker will be working.
- The employer/agent will provide working conditions that will not adversely affect other similarly employed workers.
- At the time of the labour condition application, there is no strike or lockout at the place of employment.
- Notice of the filing of the labour condition application with the DOL has been given to the union bargaining representative or has been posted at the place of employment.
Your employer will then submit an application to USCIS using form I-129 to request that your immigration status be changed from F-2 to H1-b. If the USCIS require any additional information and/or documents from you to support your application, they will advise you.
Final Words
The process of switching from an F-2 visa to an H1-b visa is not particularly straightforward. Not only must applicants have high levels of qualifications and skills, but the process can also be onerous for the employer. Also, given the cap on the number of H1-b visas available, it is also necessary for employers to act proactively to secure their ability to hire under this scheme. That said, with the aid of an experienced immigration lawyer, this process can be handled from start to finish on your behalf (and that of your employer).
