General Nonimmigrant Visa

Switching from B-2 to H-4 Status

Question details

An applicant's spouse entered the US on a B-2 (visitor) visa while the applicant was on F-1 STEM OPT. The applicant was recently selected for the H-1B lottery and wants to know if the spouse should apply for a change of status to H-4 in the US or get a visa stamping abroad. 

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FAQ Transcript

Getting an H-4 visa stamping abroad is much cleaner. Applying for a change of status carries the risk that the government might claim she had "preconceived intent" to stay long-term while entering on a tourist visa. 

Employer Obligations Upon Termination: The "Home Ticket" Rule

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If an employer terminates an H-1B worker, are they legally required to pay for the worker's flight back to their home country?

Yes. Under federal regulations, if an employer terminates an H-1B employee before the end of their period of authorized stay, the employer is liable for the reasonable costs of return transportation to the worker's last place of foreign residence. This does not apply if the worker resigns voluntarily. If an employer refuses to provide this, the worker may file a complaint with the Department of Labor (DOL) Wage and Hour Division.

Status of Derivatives when the Primary Applicant Receives a Green Card

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My spouse was the primary applicant for our Adjustment of Status, and they just received their Green Card. I am a derivative on the same application, but my case is still pending. What is my legal status, and can I continue to work?

You remain in I-485 Pending status. Your status does not automatically convert to a Lawful Permanent Resident (LPR) just because the primary applicant was approved; each individual application must be adjudicated. As long as you have a valid Employment Authorization Document (EAD), you can continue to work legally in the United States. You are no longer in your previous non-immigrant status (like H-4) once you begin relying on the I-485 pending status or the EAD.