An H-1B employee’s spouse and children (under age 21) are normally eligible for H-4 dependent status.
There are two ways to obtain H-4 status:
- If the dependents are in the U.S., they may apply for a change or extension of status by completing Forms I-539 and I-539A.These forms can be filed concurrently with the H-1B petition.
- If the dependents are outside the U.S., the Forms I-539 and I-539A are not required. After the H-1B petition has been approved, dependents may apply for H-4 visas at a U.S. consulate. In addition to the items mentioned on the Travel page, dependents should present a marriage certificate (spouse) or birth certificate (children).
H-4 Employment and Study
H-4 visa holders are allowed to attend school/university. 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
On February 24, 2015, USCIS announced that it will extend eligibility for employment authorization to certain H-4 dependent spouses. Effective May 26, 2015, spouses in H-4 status (but not dependent children) will become 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).Â
When to Apply
Spouses in H-4 status who currently meet the eligibility criteria described above may file the Form I-765 as early as May 26, 2015 (UPDATE). Spouses who will become eligible for an EAD based on condition 2 listed above may file the Form I-765 together with their request for an H-4 extension (Form I-539). USCIS has indicated that it will only approve the I-765 once the I-539 has been approved.
EAD Extensions
The expiration date of the EAD will coincide with the validity of one’s approved H-4 status. When filing Form I-539 to request an extension of H-4 status, a new I-765 may be filed at the same time.
USCIS will accept H-1B extension requests up to six months prior to the requested start date. Note that individuals in H-1B status who are the beneficiaries of a pending H-1B extension petition may continue to work for a period of 240 days while their extension petition is pending with USCIS. This rule is not affected by this change. However, H-4 spouses who are employed on the basis of an EAD do not have this benefit and must stop working when their EAD expires. Therefore, it is strongly recommended that H-1B extensions be initiated with ISSS five to six months prior to the requested extension start date so that EAD requests for H-4 spouses can be adjudicated in time.
