My wife is on an H-4 and has been working -- what will happen now?

What happens when family member of H-1B works without authorization.

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Question

I am working in the United States with an H-1B visa, and my wife is here on an H-4 visa. She just got a job last week and started working. What will happen now?

Answer

Unfortunately, your wife has violated her immigration "status," because dependent family members (spouse or child under age 21) who have H-4 status are not authorized to work in the United States. Rather, they are permitted to remain in the U.S. for only as long as you maintain your H-1B status by working for your sponsoring employer as outlined in your employer's H-1B petition. Neither traditional nor self-employment is allowed for H-4 dependents.

If your wife is working for a company or organization, her employment likely will come to an end in one of two ways. One way could be through the I-9, Employment Eligibility Verification form, which all employers must keep on file for current employees. The employee has until the third day of employment to provide documents showing proof of authorization to work in the United States.

If your wife has been working fewer than three days, and if her employer is complying with the I-9 laws, she won't be able to provide any documents to show that she has work authorization. The employer then must terminate her employment.

The other way that her employment could come to an end is if the employer asks for her Social Security Number (SSN) to pay her. H-4 dependents are not eligible for SSNs. Only persons in the U.S. who have authorization to work can get a SSN. Therefore, when your wife's employer asks for her SSN, and she does not have one, that should alert the employer to inquire further into her work authorization status by reviewing the I-9 form. And again, if the employer is complying with the I-9 laws, it will discover the problem and terminate her.

Even if your wife's employer does not inquire into her work authorization, or if she is self-employed, she could have other problems. If you are applying for permanent resident status (green cards), her failure to maintain lawful H-4 status could make her ineligible to adjust status in the United States, which most people do by submitting Form I-485. The length of time she worked will be critical. If it's less than 180 days, it may not be a problem. If it's more than 180 days, it for sure will be a problem.

Another problem your wife will have is that she now is ineligible to extend her H-4 status while staying here by submitting Form I-539. To be able to extend her stay from within the United States, she needs to have maintained lawful status. By working, she violated her status, so she does not meet this requirement.

The most likely solution to the above problems is for your wife to stop working, travel outside the United States, and return with a valid H-4 visa. Once she returns, she again will be in lawful H-4 status, eligible to adjust status, and also eligible to extend her stay.

But before she does anything, it will be best for her to talk to an immigration attorney who can review her particular situation and advise her on the best course of action.

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