One of the most common questions H-1B workers ask is “Can my family come to the U.S.with me?” Fortunately, the answer is yes. Under U.S. immigration law, an H-1B worker’s spouse and children can accompany the worker to the U.S. by obtaining H-4 visas. (Each family member must obtain his or her own H-4 visa.)
For the purposes of the H-4 visa, a “child” is an H-1B worker’s son or daughter who is both unmarried and under the age of 21.
If your family is outside of the U.S., they can apply for their H-4 visas at the U.S. consulate in their home country. They apply for their visas after U.S. Citizenship and Immigration Services (USCIS) approves the H-1B petition your employer filed on your behalf. Your family can obtain their H-4 visas at the same time you obtain your H-1B visa, or they can obtain their H-4 visas after you obtain your H-1B visa—they just cannot obtain their visas before you obtain yours.
Each of your family members must provide the following documents to the U.S. consulate:
Please note the consulate may ask your family for additional documents, but in general these are the basic materials that are required.
Processing times for issuing the H-4 visa vary by consulate, so be sure to ask the consular officer for a timeframe within which your family can expect to receive their visas.
The process for obtaining H-4 status is different if the H-1B worker and family are already in the United States (in which case, technically speaking, they cannot seek a "visa," which is first and foremost an entry document). In this situation, the family must file an I-539 application to change their status with USCIS. All family members can be included in one I-539 form. We are presuming they are in the U.S. legally and maintaining lawful status—undocumented persons including those who have, for example, overstayed a visa, cannot file for a change of status.
For example, let’s say you are in the U.S. with an F-1 student visa and your wife and son are in the U.S. with F-2 visas. You find an employer who sponsors you for an H-1B visa by filing an H-1B petition (Form I-129) with USCIS. Your family can file their I-539 application either at the same time as your I-129 petition, or anytime afterward. Once USCIS approves the I-129, it will then approve the I-539 and change your family’s status to H-4.
It is VERY important to remember to file an I-539 application to make sure your family maintains legal status in the United Status. Remember, your family’s status is dependent upon yours—they are allowed to be in the U.S. because they are your dependents. In the example above, as soon as your F-1 status ends, your family’s F-2 status also terminates. Therefore, if you forgot to file an I-539 to change their status from F-2 to H-4, your family could be in the U.S. without lawful status, which can lead to very serious consequences and jeopardize their future opportunities to live in the United States.
One more thing to remember: Because a change of status does not provide an actual visa, your family members will, if they travel outside the U.S. with H-4 status, need to make a stop at a U.S. consulate in order to get an H-4 visa for return to the United States. This shouldn't present a big hurdle, given that USCIS already approved the change of status—but it is an important step to remember, nonetheless.
As a condition of H-4 status, H-4 visa holders are permitted to study at any U.S. university. They are not required to obtain F-1 student visas before beginning a study program. However, H-4 visa holders are NOT permitted to work in the United States—with one potential exception.
In cases where an H-1B principal worker who is applying for lawful permanent resident status (a green card), and is accordingly the beneficiary of an approved I-140 Immigrant Petition or has received an extension of H-1B status beyond the six-year limit under the so-called AC21 statute, the H-4 dependent spouse is, as of 2015, eligible to apply for work authorization. This type of work permit is unrestricted—the holder may work for any employer, or start a business.
But there's a catch: The Trump administration is opposed to this new law, has been stalling on implementing it, and appears to be taking steps to have it reversed entirely. See a lawyer before considering applying for a work permit under this statute.
If an H-4 visa holder begins working without permission, that person is violating the conditions of his or her status and may lose status and be subject to other serious penalties.
H-4 visa holders are also entitled to travel in and out of the United States. There is no requirement that the H-1B worker accompany them.
H-4 visa holders are permitted to change their immigration status while in the United States. Many H-4 visa holders who wish to work in the U.S. find an employer to sponsor them for an H-1B visa. The employer simply files the I-129 petition and asks USCIS to change the person’s status from H-4 to H-1B.
Importantly, any time spent in H-4 status does NOT count towards the six-year maximum period of time that workers are allowed to be in H-1B status. For instance, let’s say a foreign national is in the U.S. in H-4 status for three years and then changes status to H-1B. The foreign national may remain in H-1B status for the full six-year period, since the H-4 time did not count towards the maximum.
For more information on H-1B visas, see H-1B Visas for Temporary Specialty Workers.