Spouses and unmarried minor children (under 21 years of age) of an H-1B alien are eligible for H-4 status.
The H-1B petition and the H-4 Application/EAD Application should be adjudicated at the same time if the H-4 application/EAD application was filed with the H-1B petition.
Although an H-4 nonimmigrant is admitted to the United States for a fixed period of stay, the H-4's status is contingent upon the continued validity of the H-1B principal's status. Unlike H-1B status, however, H-4 status is not specific to an employer. As long as the period of authorized stay has not expired on the H-4's I-94, the H-4 nonimmigrant remains in valid status as long as the H-1B principal continues to maintain status, even if the H-1B principal changes employers. No action is required on the part of the H-4 nonimmigrant when the principal H-1B changes employers within the H-1B classification, unless the H-4's I-94 will be expiring, in which case an extension of stay application must be filed by the H-4 before the I-94 expiration date.
Dependents outside the US: All dependents who plan to enter the US in H-4 status must apply for an H-4 visa stamp at a US Consulate outside the US. Please visit the Consulate’s website at http://usembassy.state.gov/ for items needed to apply for the H4 visa. Do not complete a Form I-539 for Dependents who are not currently holding a non-immigrant status (i.e.H-4, J-2, F-2) in the US.
Dependents holding Valid H-4 status or another Valid Non-Immigrant status in the US:
Be aware of the I-539 Edition Date. You can find the edition date at the bottom of the page on the form and instructions. Dates are listed in mm/dd/yy format.
- Check for $370 made payable to US Department of Homeland Security
- Form I-539 completed and signed by dependent, not H-1B Applicant https://www.uscis.gov/i-539
- Form I-539A: Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
- Copy of Marriage Certificate
- Copy of Birth Certificates for Children
All dependents of the applicant who are already in the US and need to extend H-4 status or change status to H4 must complete and sign a Form I-539.The application fee for the I-539 is $370, regardless of the number of applicants.
Use the following guidelines when you prepare your checks or money orders for the Form I-539 filing fee:
- The checks or money orders must be drawn on a bank or other financial institution located in the United States and must be payable in U.S. currency; and
- Make the checks or money orders payable to U.S. Department of Homeland Security.
NOTE: Spell out U.S. Department of Homeland Security; do not use the initials “USDHS” or “DHS.”
If more than one Dependent of the H-1B applicant is applying for H-4 status, the eldest dependent (usually the spouse) should complete and sign the application and the additional dependents should be listed on Supplement-1. If all Dependents applying for H-4 status are minors (under the age of 18 years), the oldest child should sign the I-539 in Part 5 if s/he is 14 years old or older. If the dependent filing the form is younger than 14 years old, the applicant should sign Part 5 AND Part 7, Signature of person preparing form, if other than above, indicating “Parent of Minor”.
Dependent family members in H-4 status are NOT eligible to work but may study full or part time. Children who are 21 years of age and older are NOT eligible for H-4 status.
Action taken to extend or change the H-1B nonimmigrant's status does not automatically cover H-4 dependents! Processing either a change of status or an extension of stay for H-4 dependents must be done by filing Form I-539. When a Form I-539 for the principal's dependent spouse or child is filed concurrently with Form I-129, the entire I-129/I-539 package is filed with the Service Center that handles the Form I-129. The H-1B petition and the H-4 Application/EAD Application should be adjudicated at the same time if the H-4 application/EAD application was filed with the H-1B petition. https://www.forbes.com/sites/stuartanderson/2023/01/21/uscis-settles-lawsuit-that-should-help-h-1b-and-l-1-visa-spouses/?sh=3e8112cb216a
If the principal's Form I-129 has already been filed without the I-539, and is currently pending or approved, the Form I-539 for the dependents should be filed with the Dallas Lockbox facility.
An H-4 nonimmigrant may reenter the United States with a valid H-4 visa, provided the H-1B principal continues to maintain his or her status. Traveling with proof of the H-1B's maintenance of status (e.g., copy of I-797 approval notice, proof of continued employment, etc.) is recommended, particularly if the dependent needs to obtain a new H-4 visa before reentering.
An H-4 nonimmigrant who has applied for adjustment of status as a derivative of an H-1B's application for adjustment can also take advantage of the special rules relating to travel and reentry in H status while an adjustment of status application is pending. Please speak with the attorney handling the H-1B’s green card application.
Certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status will be permitted to apply to USCIS for an Employment Authorization Document (EAD) that will allow them to work in the United States. The H-1B should speak with the attorney assisting with her/his green card application for instructions on filing for an EAD.
H-4 dependent spouses of H-1B nonimmigrants will be eligible to apply for an EAD under the new rule if their H-1B spouse:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended (That Act permits certain H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status).
Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, s/he may begin working in the US.
The application consists of the following:
- Form I-765;
- Form I-765 fee;
- 2 EAD photos
- Copies of all H-4's Immigration Documents (passport, visa stamps, I-94s, Approval Notices);
- Copies of all H-1B's Immigration Documents (passport, visa stamps, I-94s, Approval Notices);
- Copy of H-1B's PERM Approval (if applicable);
- Copies of H-1B's Form I-140 Receipt and Approval Notices;
- Copies of H-1B's 3 most recent paystubs to verify employment
If permission for employment is granted, an Employment Authorization Document (EAD) is issued and is valid for any kind of full-time or part-time employment for the period of time stated on the EAD.
The employment authorization is valid only if the H-1B Worker is maintaining status.
An H-4 spouse must file Form I-765 with all supporting documentation each time an extension of employment authorization is necessary. Since the EAD will generally not be issued for longer than the validity of the H-1B's Approval Notice, any necessary extension of stay of the H-1B must be processed prior to the application for extension of H-1B employment authorization.
In order to avoid interruptions in H-4 employment authorization, file the Form I-765 for extension of employment authorization prior to the EAD expiration date (no more than 180 days in advance) so that the extension application is approved before the expiration of the current grant of authorization. H-4 employment authorization expires with the expiration of the EAD, and the mere filing of an application for new authorization does not permit employment during the adjudication process. If the current EAD expires, the H-4 must cease employment until receiving the new EAD.
H-4 dependents are subject to Social Security taxes. They are also subject to federal income taxes, and where applicable, state income taxes.
An H-4 dependent will not be able to obtain a Social Security number unless in possession of an Employment Authorization Document (EAD).
H-4 dependents may study in the U.S., full- or part-time, but the duration of their stay is dependent on the H-1B's period of stay. Dependents should weigh the benefits of changing their status to F-1 versus remaining in H-4 status. H-4 dependents are not subject to the F-1 requirement to pursue a full course of study, but they are not eligible for F-1 benefits such as on-campus employment and practical training.
When H-4 dependent children turn 21, they are no longer considered "children" under the I.N.A., and are thus no longer eligible for H-4 status. In order to remain in the United States, they must change to another nonimmigrant status.
The USCIS Adjudicator's Field Manual (AFM) contains the following guidance on H dependents:
USCIS Adjudicator's Field Manual § 31.2(d)(2)
(2) Spouse and Dependents. Limitations on the duration of time spent in H-1B nonimmigrant status refer only to the principal alien worker in H-1B status and do not apply independently to the principal worker's spouse and children. Normal rules for maintenance of derivative status still apply such that the spouse or dependent may remain in the United States only for the purpose of unity with the principal worker.
Time spent as an H-4 dependent does not count against the maximum allowable period of stay available to principals in H-1B status. Thus, an alien who was previously an H-4 and subsequently becomes an H-1B principal will be entitled to a maximum period of stay. Conversely, an H-1B principal who subsequently converts H-4 status may remain in the derivative status for as long as the principal alien spouse maintains that principal status.
USCIS may limit, deny or revoke on notice any stay for an H-4 dependent that is not primarily intended for the purpose of being with the principal worker in the United States, and a spouse or child may be required to show that his requested stay is not intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.
USCIS (as well as port inspectors and consular officers) may adjudicate applications for dependent stays in order to prevent an H-1B alien from using only occasional work visits to the United States in order to "park" the family members in the United States for extended periods while the principal alien is normally absent.