H4 Visa FAQ: Most Commonly Asked Questions Answered

 

The H4 visa is the dependent visa that attaches to the H1B visa. H1Bs are the most common nonimmigrant work visa available to professionals.

 

All types of US corporations and organizations use H1B visas, regardless of industry or job duties. As a result, foreign nationals from all over the world bring along their families under the H4 visa.

 

In my practice, I have had H1B families pose similar questions about the nuances of the H4. I wanted to collect these most “commonly asked questions” and compile the answers for you.

 

In this guide, I will explain almost everything you need to know about the H4 visa. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.

 

Introduction:

 

1. What is an H4 Visa?

 

• Privileges of the H4 Visa: Dual Intent

 

• Single Intent Visa Burden

 

2. How Long Can I be in H4 Status For?

 

3. H4 Change of Status and Extensions

 

• How to file an H4 Extension or Change of Status

 

• If I am in a different status, such as an F-1, L-1, can I change to an H4?

 

• Rule: How USCIS Will Determine if a Change of Status is Needed or Permitted

 

• Are You Eligible to Change Status in the United States?

 

4. H4 Visas: Traveling into the United States in H4 Status from Abroad

 

• Difference between Visa and Status

 

5. Conclusion

 

1. What is the H4 Visa?

 

The H4 visa is for immediate family members of H1B visa holders. H4 visa holders can enter the United States with their specialty occupation spouse or parent. To get an H4 visa, you need to either:

 

(1) apply for a change of status inside the United States (with USCIS) or

 

(2) through the Department of State (US consulate abroad).

 

Privileges of the H4 Visa: Dual Intent

 

The INA grants H4 nonimmigrants the privilege of a ‘‘dual intent” visa. This means that H4 holders can be the beneficiary of an I-140 (immigrant petition) filed under section 204 of the INA. Meaning, they can seek and apply for legal permanent residency. This is not true for “single intent visas” (such as the B-1/B-2, popularly known as a “tourist visa” or an F-1 “student visa”).

 

Single Intent Visa Burdens

 

With single intent visas, the applicant must show the consulate he/she has no intent to abandon his/her foreign residence. Again, this is not true for purposes of obtaining or maintaining H– 1B status. See INA 214(h); see also 8 CFR 214.2(h)(16), 9 FAM 402.10.

 

2. How long can I be in H4 status for?

 

H4 visa holders can keep their status as long as the principal (the H1B visa holder). Thus, because H1Bs have a six-year limit, H4s are held to the same amount. Fortunately, Congress created extra privileges for H1B and H4 visa holders with approved I-140s. H1B visa holders, who are the beneficiaries of certain pending or approved employment-based immigrant visa petitions or labor certification (PERM) applications, can stay inside the US beyond the six-year period of stay. This promotes H1B holder’s ability to immigrate to the United States.

 

Congress has not extended these benefits to other H nonimmigrants. Such as the H–1B1 (Free Trade Agreement: Chile and Singapore), H–2A (temp. agricultural workers), H–2B (temporary nonagricultural work).

 

3. H4 Change of Status and Extensions

 

If your spouse obtains an H1B visa number, remember that the H1B extension or change of status, does not automatically apply to you. To get H4 status, you must file your own application as a dependent. Here, you submit proof of the principal H1B holder's valid status and evidence of your family relationship. Note that you can also file your extension or change of status application at the along with the principle H1B application.

 

How to file an H4 Extension or Change of Status

 

When the principal H1B holder files an extension or change of status, the employer will submit a form I-129. The H1B holder’s dependents are not included in this I-129 petition.

 

As a dependent you will need to submit your own affirmative application with form I-539. This form allows you to “extend or change status.” Here, you will extend your status if you are already in H4 status and you need an extension. You will change status if you are in a different status, other than H4, at the time of submitting your I-539. Fortunately, you can use the same form (I-539) to either a change or extend of status.

 

The first dependent will submit an I-539 and any additional dependents must submit an I-539A. For example, the dependent spouse will fill out the I-539 and each of the two children will do an I-539A. Each applicant will also need to submit a check for the filing and biometric fee. Please check USCIS' website for their current fees as these are regularly updated. Note that you can submit the I-539 jointly with the I-129.

 

Can I change to an H4 If I am in a different status, such as an F1 or L1?

 

Generally, you can move from a different visa status to an H4 visa inside the United States. You need not leave the US to put this change into effect. Keep in mind that there are some limitations to this rule. You should speak with our office assure you are eligible to change status. For example, if you have a home residency requirement on your visa (these are often attached to J-1s), you may not be eligible to change status inside the United States.

 

Keep in mind that if you are inside the United States, whatever your status is, you must engage in activities that are consistent with that status. So, if you come in as an F-1 student you must maintain full-time academic studies. Alternatively, if you arrive with H1B status, then you must maintain employment with your H1B petitioner. Here, this employment must meet the terms outlined in the Labor Certificate Application (LCA) and I-129 application. If you switch to an H4, you must follow the rules of that visa status. The terms of an H4 include restrictions on employment without valid authorization.

 

Rule: How USCIS Will Determine if a Change of Status is Needed or Permitted

 

For the most part, USCIS will judge the primary purpose of your stay by how you spend the majority of your time.

 

Thus, if you are no longer pursuing L-1 or F-1 activities, you will need to file a change of status. If you choose to change status to an H4, make sure your activities are consistent with that status.

 

Here, you’d have two options:

 

(1) leave the US and apply for readmission in your new visa H4 classification. If necessary, apply for the appropriate visa. You will need to get the necessary stamping at an American consulate abroad; or

 

(2) apply for a change of status (COS) while you are inside the US, (note, not everyone is eligible for COS). Keep in mind changing status does not give you a visa stamp in your passport under this category. It only changes your status.

 

Are You Eligible to Change Status in the United States?

 

To determine whether you are eligible to change status - consider the following factors:

(1) your COS application’s timing;

(2) whether you’ve been maintaining valid status;

(3) whether your current status permits a change of status; and

(4) analyze the status you wish to change to.

Any of these four factors may render you ineligible to apply for a change of status. Alternatively, it may make it inadvisable to apply for one. Thus, it is important you do a careful analysis and consider all the facts surrounding your case.

 

4. H4 Visas: Traveling into the United States in H4 Status from Abroad

 

To enter the United States on an H4, you will need to fill out a DS-160. You must then pay your visa fee and schedule a visa stamping appointment at your nearby US Consulate. Once you have a valid visa you can freely travel in and out of the US in H4 Status. Even if your H4 is about to expire, you can enter the United States and remain for the duration of the I-797 approval of the H1B principal. Remember, there is a distinct difference between a visa and status.

 

Difference between Visa and Status

 

Visas

 

All nonimmigrants must have a visa. Visas are issue by the Dept. of State and international consulates. A visa allows you to apply for admission to the United States. Visas give you permission to approach the border. At the border, you can then ask the Customs and Border Patrol (CBP) for admission.

 

In some situations, an expired visa stamp may also be revalidated by CBP at an America border. Keep in mind, CBP does not issue visas. Again, this is only attainable at the consulate abroad.

 

Most foreign nationals seeking admission to the US, as nonimmigrants, need a visa. There are some exceptions. For example, some travelers may enter on what was known as the ‘visa waiver program’ (ESTA). Others, such as Canadian nationals, are predominantly visa exempt.

 

Status

 

“Status” and the word “visa” are often conflated. Status is designated by CBP and the Form I-94. Form I-94 sets the terms and conditions of your presence in America.

 

Thus, even though your visa may expire, you could be granted status that extends the duration of your visa.

 

6. Conclusion

 

Remember, the H4 visa does not need to be a complicated process. The process may seem daunting at first. Yet, I am happy to break down legal complexities to work with you and your family. If you have any questions or need help evaluating your case, please feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.