It’s important to understand how the FY2024 H-1B Cap affects the dependents of prospective H-1B nonimmigrant status holders and their families. If the prospective H-1B holder and their family are already in the United States, it’s likely their employer filed a change of status application from their current status to H-1B. This change of status will occur if USCIS approves the case with a start date of October 1, 2023. It’s crucial to understand the significance of this change of status for the dependents of FY2024 H-1B cap season applicants, including spouses and children under 21 years old.

Each year, after the fiscal year begins (after October 1), clients whose H-1B petitions have been approved by USCIS, reach out to us realizing they forgot to file a change of status application for their spouse or children under 21. These clients assume that when their own change of status takes place, their family’s status automatically changes as well. However, dependent spouses and children in categories such as F-2 or L-2 need to file a change of status to H-4 before October 1. It’s important to file before October 1, even if the H-1B Cap petition for the principal applicant is still pending with USCIS past that date. This eliminates the possibility of the dependent spouse and children accruing unlawful presence when the principal applicant’s change of status occurs, which would invalidate their dependent status. For example, an employer submits an H-1B petition, and it’s approved for someone who has an F-1 student visa. On October 1 or the approval date thereafter, the F-1 holder’s status changes to H-1B. As a result, their dependents’ F-2 status becomes invalid because the principal no longer has the F-1 status. To prevent this from happening, we suggest submitting the change of status application along with the H-1B petition or shortly after you receive the receipt notice for the H-1B petition. If, for any reason, you miss the deadline to file the change of status for your dependent before October 1, it may still be possible to submit a request for a retroactive change of status known as a nun pro tunc (NPT) request. We will provide more information about NPT in our upcoming article. For now, be aware of the deadline and file for a change of status for your dependents in a timely manner. Timely submission is enough; you don’t need USCIS approval for your dependents to remain in the country.

If you have any questions or concerns about changing your family’s status from F-2 to H-4 or any other immigration-related issues, please contact us. Our team is here to assist you with all your immigration needs and will work with you every step of the way.