applying for F2 to H4 change of status vs H4 visa at a US embassy

UPDATED: Sep 30, 2022

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applying for F2 to H4 change of status vs H4 visa at a US embassy

I am currently on OPT and found a job at a university. The university does not
accept my OPT and want to apply for H1B visa. However, they do not apply
for H4 visa for my wife and we should do it ourselves. She is on F2 visa now.
My wife is also plan to travel to her home country for a visit. My question is, Is
it better that she applies for change of status in US, and then travel outside
of the US and apply for H4 visa, or can she just leave and apply for H4 visa at
a US embassy?
Thank you for answering

Asked on July 10, 2016 under Immigration Law, Indiana


SB Member California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If traveling outside the US, she does not need to apply for anything before she leaves.  If you already have the H-1B visa or approval, when she is at the Embassy, she can simply present proof of your H-1B status and proof of your marriage (marriage certificate) and she will be eligible for a H-4 visa.  If you are not yet in H-1B status at that time, then she will not be eligible.  If she returns to the US in F-2 status and you later get the H-1B, she can apply for a change of status within the US.
As far as you applying for the H-1B on your own, you cannot.  It is not a self-petition.  The petitioning employer has to be the one to apply for the H-1B on your behalf.  They need to be the ones signing and submitting the petition; otherwise it will not be approved.

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