If you are in the U.S. with nonimmigrant status as the spouse or child of someone on a temporary, “nonimmigrant” work visa, you have the same right to be here as that person does—yet your activities here might be very different. While your husband, wife, or parent goes to work, perhaps as an L, H, or TN worker, you might wish to take separate trips home once in a while. The question is, how do you make sure you follow the proper procedures for international travel? Your spouse or parent might be miles away as you try to convince an officer of U.S. Customs and Border Protection (CBP) to let you back into the United States.
Fortunately, the rules for dependent visa holders (on a TD, H-4, or L-2, visa for example), are quite similar to the rules for the primary workers, with a few differences as noted below.
The first thing to know is that there is no restriction as to how long your trips can be, so long as you follow the proper procedures for reentering the U.S. described below.
As for how many trips a spouse or child of a U.S. work visa holder can safely take while in dependent status, there is no bright-line rule. However, it’s advisable to minimize frequent lengthy trips, so as to avoid scrutiny and extended questioning from CBP.
Before traveling internationally, determine whether your status will be valid for the duration of your trip and through the date you want to reenter the United States.
Your status validity dates can probably be found on what’s called an I-797 approval notice, which you would have received from U.S. Citizenship and Immigration Services (USCIS) if you submitted an I-539 Application to Extend/Change Nonimmigrant Status and it was approved.
Or, if you applied for your status at a consulate abroad, look at your visa stamp itself, found inside your passport.
When traveling internationally in all the scenarios described below, you will need to carry:
To be on the safe side, you might also opt to bring proof of the primary visa holder’s residence in the U.S., such as a copy of an ID showing U.S. residency or a piece of mail delivered to the address where you’re all living.
Let’s say, for example, that your spouse’s company goes out of business and he or she thus loses status, or the status simply expires at its planned end time. In either case, your dependent status will be lost at the same time.
What if your status will expire before you plan to return to the U.S., but your spouse’s or parent’s status extends longer than that? This could occur if you initially filed for your visa after your spouse or parent got work visa status, and they’ve extended status but you haven’t yet. You may apply to extend your dependent visa at a consulate abroad before reentering the United States, up to the expiration date indicated on your spouse’s or parent’s I-797 extension approval notice.
Also consider the possibility that you’ve done something to cancel your right to be in the U.S. in this particular status. If, for example, you have worked in the U.S. without authorization, or been arrested for breaking U.S. law, your status could be lost, even if your spouse or parent is allowed to remain in the United States. You might then be blocked from returning to the U.S. after foreign travel.
At the end of the primary visa holder’s stay, a renewal might be possible. As usual, dependents’ status can be extended at the same time. The time it takes for USCIS to make a decision on the renewal can, however, create issues for traveling.
The most cautious route is to avoid traveling internationally while you have a case pending with USCIS. If you do opt to travel internationally, you will want to carry the documents listed above, with the addition of the USCIS receipt notice from your I-539 Application to Extend/Change Nonimmigrant Status to present upon reentering the United States.
Recall that you will also need a valid entry visa upon return. By now, yours might have expired. This could mean that you need to attend an appointment at a U.S. consulate abroad to obtain an extended visa stamp, using the documents listed in the previous section.
Also realize that traveling during a status extension could result in a mismatch in your I-94 dates. Customs and Border Patrol (CBP) will use the documents you present upon reentry to determine your I-94 validity date. If you have an extension petition pending, you might receive a different I-94 date on your extension approval notice from USCIS. This would not present any unauthorized stay issues, but it could pose an inconvenience during certain bureaucratic processes, such as obtaining a driver’s license from the state DMV. Each situation should be handled according to its individual circumstances, but typically leaving the U.S. and reentering with the extension approval notice can solve the mismatch.
If you leave the U.S. while your petition to change from one status to another (for example, from H-4 to L-2), USCIS will consider your change of status petition to be abandoned once you leave the country. However, you may ordinarily apply for dependent status at a U.S. consulate abroad using the documents previously listed.
Another possibility if timing is a concern is to pay USCIS for "premium processing" (using Form I-907). This became available to family dependents in many work visa categories in October of 2020. For a high fee, this all but guarantees a USCIS decision within 30 days.
Some dependent categories allow for work authorization, such as the L-2 and H-4 categories. International travel while awaiting a USCIS decision on an I-765 Application for Employment Authorization (an “EAD”) could cause delays. For example, USCIS might issue a Request for Evidence (“RFE”), which you might not receive or be able to answer until you return to the United States.
But watch out that you’re awaiting only an EAD. USCIS has stated that if someone files an I-765 petition concurrently with an I-539 change of status petition and then leaves the U.S. while the I-539 is pending, it will deny both the change of status and employment authorization.
If you have additional questions about your situation, seek an attorney’s advice prior to leaving the country while you have a case pending with USCIS.