Now that the H-1B Cap filing period is over, it is important to be aware of the implication of filing a change of status for prospective H-1B nonimmigrant status holders and their families. If the prospective H-1B holder and their family are in the United States, most likely their employer filed a change of status from their status to that of H-1B. That change of status will take place if USCIS approves the case with a start date of October 1, 2023. It is important to understand the implication of that change of status for dependents of FY2024 H-1B cap season, the derivative family members of the prospective H-1B employee, including spouses and children under 21 years of age.

Every year after the beginning of the fiscal year (past October 1) clients contact us realizing they did not file a change of status application for their spouse or children under 21 years of age and USCIS has approved their H-1B petition. Clients assume when their change of status takes place, their family’s change of status also simultaneously changes as well. Dependent spouses and children under the age of 21 and younger, such as those admitted in F-2 or L-2 status, need to file a change of status to H-4 before October 1. It is important to file before October 1 even if the H-1B Cap petition for the principal applicant is pending with USCIS past October 1. This ensures the dependent spouse and children do not accrue unlawful presence when the principal applicant’s change of status occurs, which invalidates their dependent status. For example, an employer files an H-1B petition and USCIS approves the petition on behalf of an F-1 student visa holder. On October 1 or the approval date then after, that F1 holder’s status changes to H-1B, invalidating their dependents’ F-2 status since the principal no longer holds the corresponding F-1 status. In order to avoid this scenario, we recommend filing the change of status application either with the H-1B petition or shortly after receiving the receipt notice of the H-1B petition. If for whatever reason you miss filing the change of status for your dependent before October 1, it may be possible to still file for a change of status by filing a nun pro tunc (NPT) request. We will cover NPT in our upcoming article. For now, be aware and file for a change of status for your dependents in a timely manner. Applying timely is enough, USCIS approval of the application is not required for your dependents to continue to stay here.

If you have any questions or concerns about your family’s change in status from F-2 to H-4, or any other immigration-related issue, please contact us at ILBSG. Our team is available to guide you through all your immigration needs and ensure you get the right legal advice.

F-2 FY2024 H-1B h-1b H-4