When H-1B worker switches employers, what must H-4 family members do to maintain status?

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Question:

I'm working in the U.S. with an H-1B visa/status. My wife and children are here with me with H-4 visas/status. Another company just offered me a job and has requested copies of my H-1B visa documents. Is there anything I need to do for my family, or will their status be extended automatically when the new employer handles my H-1B petition?

Answer:

This is a very good question. Your family's H-4 status is dependent upon your H-1B status. This means that as long as you are maintaining your H-1B status (working and getting paid), your family's H-4 status remains valid, provided of course they do not work or do something else that would violate their status.

When your new employer files an H-1B petition for you, the employer also will request an extension of your H-1B status. Your family must file a separate application for their status (Form I-539 Application to Extend/Change Nonimmigrant Status, available at http://www.uscis.gov/i-539).

In most cases, your family can file their application (one application for the entire family) along with your H-1B petition. That way, their status will be extended for the same period as your new H-1B status. Just be sure to inform your new employer that you have H-4 dependent family members, to allow for your H-1B petition and their H-4 application to be filed concurrently.

A situation could occur in which your family would not need to file an application along with your new employer's H-1B petition. For example, if you and your family have H-1B and H-4 status valid for another two years, and your family plans to travel abroad in the next few months, they would not need to file an application to extend their status now, because they will depart the U.S. before their current status expires. As long as they still have valid H-4 visas, when they return, they would present a copy of your H-1B approval notice (Form I-797 Notice of Action) for your status and extension period with your new employer. The U.S. Customs and Border Protection Officer then can grant them a period of stay to match your new period of stay.

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