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Can an H4 change status to H1B if maximum time allowed on H4 is about to expire?

H-1B and H-4 maximum time period allowed

  • H-1B may be admitted for maximum of 6 years.
  • H-1B extensions are possible beyond 6 years under AC21 (American Competitiveness in the Twenty First Century Act), if H-1B’s Labor Certification (“LC”) or Greencard Petition (“I-140”) has been filed and is pending or approved.
  • The 6-year limit and AC21 regulations also apply to H-4 spouses and children. H-4 dependents would obtain extensions based on principal H1B’s extension status.
  • At the end of the maximum period, H-1B must either change to a different status (other than from H to L) or depart the United States.
  • If H-1B leaves the United States and stays outside for at least one year, The H1B clock will “reset” and would make him/her eligible for a new six-year period of admission in H-1B status. If the 6 year period has expired the new H-1B petition would fall under “H-1B statutory cap”.

H-1B and H-4 after six (6) years can switch positions with each obtaining a new six (6) years

  • An H-4 may change to H-1B because time spent in H-4 status is not counted toward the 6-year maximum.
  • An H-4 dependent can subsequently becomes an H-1B principal who would be entitled to the maximum period of stay applicable to the classification. At the same time the H-1B holder could become H-4 dependent since he/she has exhausted the maximum stay allowed. This promotes family unity by affording each qualified spouse the opportunity to spend six (6) years in H-1B status while allowing the other spouse to remain as an H-4 dependent and without undermining the Congressional intent to limit a principal alien’s ability to work in a specialty occupation for six (6) year maximum period. For example, a husband and wife who come to the United States as a principal H-1B and dependent H-4 spouse may maintain status for six years, and then change status to H-4 and H-1B respectively. However, upon the switch, the new “principal H-1B holder” would be subject to the H-1B cap if not independently exempt.

Switching statuses between H-4 and H-1B

The change of status application from H-4 to H-1B and H-1B to H-4 will have to show that until now:

  • H-4 complied with the requirements of accompanying or joining the H-1B
  • H-4 maintained valid nonimmigrant status (e.g. H-4 should not have been employed since not authorized to work)
  • Principal H-1B maintained his/her status for six (6) years by complying with all H-1B program guidelines