An H-1B employee’s spouse and children (under age 21) are normally eligible for H-4 dependent status.
There are various ways to obtain H-4 status:
- If the dependents are in the U.S., they may apply for a change or extension of their immigration status by completing Forms I-539 and I-539A and filing them with USCIS.
- Dependent I-539 forms can be filed concurrently with the H-1B petition, or separately. ISSS files H-1B petitions in paper form, so I-539 application and documents must also be filed through a paper application in order for them to be filed together.
- Dependent I-539 forms may be filed out online or through a paper application. (Application fees depend on the manner of filing; it is slightly less expensive to file an online application.)
- If the dependents are not in the U.S., the Forms I-539 and I-539A (and related filing fees) are not required. After the H-1B petition has been approved, dependents may apply for H-4 visas at a U.S. consulate using the primary H-1B applicant's I-797 Approval Notice. In addition to the items mentioned on the Travel page, dependents must present a marriage certificate (spouse), birth certificate (children), or other proof of relationship to the H-1B visa holder.
H-4 Employment and Study
H-4 visa holders are allowed to attend school/university on a part-time or full-time basis. In most cases, persons with H-4 status may not be employed in the U.S., except for certain H-4 spouses as explained here:
Limited H-4 Employment Eligibility
Spouses in H-4 status (but not dependent children) may be eligible for an Employment Authorization Document (EAD) when the primary H-1B spouse either:
- Is the beneficiary of an approved Form I-140 (Immigrant Petition), OR
- Has been granted an extension of their H-1B status beyond the standard six-year limit of H-1B eligibility based on a pending employment-based green card application.
How to Apply
To apply for an EAD, eligible spouses must file a Form I-765 and pay the USCIS filing fee. Refer to the USCIS website for detailed filing instructions. The eligibility category on the form I-765 is (c)(26).
When to Apply
An I-765 application may be filled concurrently with an I-539 extension application, or separately (if H-4 status has already been approved).
EAD Validity
An EAD issued in the H-4 (c26) category remains valid only as long as the dependent maintains their H-4 status, and the employee maintains their H-1B status. If the employee/dependent fails to maintain their immigration status, or changes to another immigration status, the H-4 EAD should no longer be used.
Certain applicants for H-4 EAD renewal may be eligible for an automatic extension of work authorization while the new EAD is pending, but only as long as the Form I-94 is still valid. See the USCIS website for more information.
