H-4 Classification for Families of H1B Petitioners21 Jan 2011
The H-4 nonimmigrant classification is available for the spouse and minor children (often referred to as dependents or derivatives) of an H1B principal, all of whom may wish to accompany the principal H1B holder to the United States. The information here is offered as an overview of the many common situations and concerns important for MurthyDotCom and MurthyBulletin readers in H-4 status, and their H1B family members, to bear in mind.
How to Obtain H-4 Status: Apply at Consulate if Abroad
If the spouse or minor child/ren of an H1B holder is outside of the United States, s/he may apply for an H-4 visa at a U.S. consulate abroad. In this situation, the only step needed is the application for the H-4 visa at the U.S. consulate. There is no petition or application that needs to be filed with the U.S. Citizenship and Immigration Services (USCIS) for the potential H-4 family member. The H-4 applicant must submit a nonimmigrant visa application, demonstrate the familial relationship to the principal H1B holder, and provide evidence that the principal H1B holder is maintaining H1B status in the United States. This process, which historically was fairly straightforward, became more difficult for spouses of IT consultants in 2010. [See H1B and H-4 Visa Applications in India Plagued by 221(g) Refusals: Part 1 (Posted 14.Jan.2011).] The difficulties are beyond the scope of this article, but those weighing their options may wish to discuss the risks and available strategies with a Murthy Law Firm attorney.
Separate Application Needed to Change or Extend H-4 Status in U.S.
As MurthyDotCom and MurthyBulletin readers have been advised previously, H-4 status is not automatically extended to the family members when an H1B holder’s employer requests and obtains an extension of H1B status for the principal. A great many foreign nationals are confused by this procedural requirement. H-4 status is not extended in the United States automatically with the H1B filing, but requires a separate application and filing fee, submitted to the USCIS.
H-4 Must Maintain Valid Status in the U.S. and File Timely
Applications to extend H-4 status must be filed prior to the expiration date on the H-4 applicant’s I-94 card. H-4 applicants must demonstrate eligibility by providing evidence of their familial relationship to the H1B holder and proof that the H1B holder is maintaining H1B status. H-4 applications, filed on Form I-539, are generally submitted with the H1B employer’s petition to extend status. The H-4 application potentially could be filed while the H1B is pending or after approval, subject to the requirement that the H-4 applicant is still in status when the I-539 is filed.
Valid H-4 Need Not Extend When H1B Changes Employers
H-4 classification is not bound to a particular employer. H-4 dependents are not required, therefore, to submit applications for extension every time the principal H1B holder files for a change of employer. Nonetheless, it is often a good idea to submit an H-4 application when the H1B files for a change of employer H1B petition to provide the entire family with a single, consistent expiration date for all I-94 cards.
Failure to Extend H-4 Status: Significant Problems and Possible Solutions
H-4 dependents who fail to extend their status fall out of status and, in most situations, begin to accrue unlawful presence from the expiration dates on the earlier I-94 cards. If this is detected in time, it may be possible for the dependents to travel abroad, apply for new H-4 visas, and reenter the United States in H-4 status. However, there are bars on returning to the United States for those who have been unlawfully present for more than 180 days. In such situations, legal advice is necessary in order to appropriately weigh one’s options and evaluate the risks.
Nunc Pro Tunc – Possible Solution if Unlawful Presence is Triggered
Those who would trigger a three- or ten-year bar to reentry at the time of departure may be able to consider a nunc pro tunc filing as a possible remedy. A nunc pro tunc is used when requesting to be excused for submitting a late-filed extension, when one has not applied to extend status in a timely fashion. Nunc pro tunc requests are highly discretionary. The H-4 applicant must demonstrate to the satisfaction of the USCIS that the failure to timely file was due to extraordinary circumstances beyond his/her control. This option was covered in more detail in our news article, Nunc Pro Tunc H1B and H-4 Cases Approved (08.Sep.2006), available on MurthyDotCom.
Time in H-4 Status Not Counted Against H1B Status Eligibility Period
Time spent in H-4 status does not count against the six-year limit available to H1B status holders. Spouses who are qualified for H1B status, therefore, may spend time in H-4 status without jeopardizing their eligibility for a full six years in H1B status. This was covered in our news article, USCIS Memo on H and L Timing & H1B/H-4 Decoupling (07.Nov.2008).
Minor Children: H-4 Status Ends at Age 21
The principal H1B holder’s minor children (under age twenty-one) are eligible for H-4 classification. H-4 status automatically ends when a child turns twenty-one years of age. This holds true even if the H-4 was mistakenly approved for a period after the 21st birthday. It is important to consider this matter in immigration planning. It is often necessary for such dependents to file to change status to another nonimmigrant classification, such as F-1 or H1B, in order to remain in legally in the United States beyond age twenty-one.
No Employment Permitted: May Volunteer and Study
H-4 dependents are not permitted to work in the United States. H-4 dependents, however, may attend school on a full-time or part-time basis, without a new immigration application. They also are permitted to participate in volunteer work with nonprofit-type organizations, for which they receive no remuneration or benefit from the employer. If the work is simply an unpaid position with a for-profit type of employer, it may be considered unauthorized work and, thus, not permissible in H-4 status. This should be discussed with a qualified immigration attorney if questions arise.
The Murthy Law Firm can assist with the preparation and filing of applications for H-4 dependents to change or extend status. We can guide families with questions related to H-4 filings. When needed and appropriate, our attorneys provide representation in connection with nunc pro tunc requests for forgiveness in late-filed H-4 extension requests for dependents who have fallen out of status through no fault of their own. Individuals with questions or in need of help for themselves or their family members may contact the Murthy Law Firm for further assistance.
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