Can H1B Visa Dependants Work In The US? - NNU Immigration

Can H1B visa dependents work?

The H-4 visa allows H-1B spouses and dependant children to join the H-1B visa holder in the US.

Only certain H-4 visa holders are permitted to work while in the US during their visa period, provided they have secured employment authorization.

In this guide, we explain what is meant by employment authorization, who is eligible and how to apply.

Can H1B dependents work in the USA?

Under the H4 visa, dependent children are not allowed to work in the USA, and only those H4 spouses who meet the eligibility requirements and have secured an Employment Authorization Document (EAD) are permitted to work.

What is an Employment Authorization Document (EAD)?

As an H-4 visa holder, you are required to hold an Employment Authorization Document (EAD) to undertake paid work in the US. This includes employment, starting business, self-employment and freelance work.

With an EAD, you may work on a part-time, full-time or short-term basis for any US employer. Your EAD will be valid for as long as you hold H-4 status, which in turn will rely on your spouse’s H1B status. H1B status lasts for an initial 3 years, with the option, where eligible, to extend to a total of 6 years. If your spouse is required to renew their H1B visa, you will also be required to renew your H-4 visa and EAD.

While you are permitted to look for employment while your EAD application is being processed, you may not start work in the US until USCIS approve and send to you your EAD.

You may work for multiple employers at any one time and you are also allowed to take up an internship, whether paid or unpaid. There is no restriction on the kind of position you may work in or the related field or industry.

With an EAD, you may also start your own business and are allowed to hire employees.

Eligibility to work in the US as an H1B dependant

To be eligible for employment authorization as an H1B dependant:

• You must be the spouse of an H1B non-immigrant worker.
• You must have applied for and been granted H-4 visa status.
• The H1B worker must be on track to attain a Green Card, that is they hold an approved Immigrant Petition for Alien Worker form I-140, or have been granted an extension to their H1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act (AC21).
• As an H-4 visa holder, you must reside in the US at the time of your EAD application.

Note that H-4 status unmarried children under 21 years of age are not eligible for an EAD.

How to apply for H1B dependant work authorization

If you meet the eligibility criteria, you then need to complete an Application for Employment Authorisation form I-765. The application contains the following sections:

• Part 1: Reason for Applying (to accept employment, replace a lost EAD or renew one)
• Part 2: Information About You (full name – current and past, address in the US, alien registration number, USCIS online account number, gender, marital status, whether you have previously applied for an EAD, whether you have ever been issued a US social security card, US social security number, information on your parents, your country of nationality or citizenship, place of birth, your last arrival in the US, your eligibility category)
• Part 3: Applicant’s Statement, Contact Information, Declaration, Certification and Signature
• Part 4: Interpreter’s Contact Information, Certification, and Signature (where applicable)
• Part 5: Contact Information, Declaration, and Signature of the Person Preparing This Application (where a third party has helped you to complete your application form)
• Part 6: Additional Information (where applicable)

File your I-765 form, along with your supporting documents and filing fee. An $85 biometric services fee must also be paid.

The USCIS processing time for I-765 applications is a minimum of 90 days, however this may be extended should you apply during a busy period of the year or where USCIS request further documents and information to process your application.

There is no premium processing service available, although USCIS may offer an accelerated processing time under certain ‘extreme’ circumstances.

Supporting documents

Along with the I-765 form, you will need to provide documents to support your application. The exact nature of the documents will depend on your individual circumstances, but in most cases should include:

Proof of H-4 status

Provide a copy of your Arrival/Departure Record form I-94.

Government issued photo identification document

This could be a copy of the biometric page of your passport, your birth certificate with photo ID, a foreign consulate issued visa, or a national identity document with a photo.

Proof of your relationship to the H1B worker

Provide a copy of your marriage certificate to demonstrate your relationship to the H1B worker.

Basis of your eligibility

Where the H1B worker has been granted an approved Immigrant Petition for Alien Worker form I-140, provide a copy of the approval notice form I-797 for the I-140.

Where the H1B worker has been granted an extension to their H1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act (AC21), provide:

• a copy of the H1B worker’s passport
• previous I-94 forms
• current and previous I-797 forms
• evidence of the reason that the H1B worker’s period of stay was extended, for instance, communications from the Department of Labour
• where you cannot present any evidence to support the basis of your eligibility, USCIS may consider secondary evidence such as the receipt number of the most recent I-129 extension of stay request form or the receipt number of the approved I-140 petition form.

Photographs

You should provide 2 identical, passport style, colour photographs of yourself.

Leaving the US during the petition process

Once you have submitted your application, you may travel outside the US however you should consider the potential impact on your application if USCIS is not able to contact you. Your absence could cause delays in the processing of your EAD should further information be required, and any delay in forwarding the requested information to USCIS could lead to your application being rejected. Additionally, should your EAD application be denied, you will lose the opportunity to respond to this decision if you cannot be contacted in time.

Alternatives to the H-4 EAD for work authorization

As an H-4 visa holder, your immigration status and permission to work will be dependent on your H1B visa holder’s status. Depending on your circumstances, you may wish to consider alternative visa options to provide you with employment authorization. For example, you may consider applying for a work visa in your own right. Your options will be determined by factors such as your skills, education and the nature of your occupation.

Your spouse may also look to change their status by transferring from H1B status to a different visa that allows spouses to work. These include O (Persons with extraordinary ability in science, the arts, education, business, athletics, or film or TV production) and E (Treaty Trader, Treaty Investor or related qualified employees) category visas.

Volunteering

H-4 visa holders are permitted to volunteer and undertake unpaid work for non-profit organizations while in the US without an EAD. The volunteering position should be offered to US citizens and green card holders and the H-4 visa holder must not receive any financial benefit for their volunteering work.

Studying under the H-4 visa

H4 visa holders are also allowed to undertake study while in the US. There are no restrictions on the type of study.

Need assistance?

Specialist legal advice can assist in advising on the various visa options open to you, arriving at the best option to take, and should you decide to apply for an H-4 EAD, assist in the application process.

NNU Immigration are dedicated US immigration attorneys. If you are considering applying for the H-4 visa or employment authorization, we can guide you through the application process. For advice about your US visa application, contact us.

Can H1B dependents work in the USA FAQs

Can H-1B Dependant work in US?

H4 visa spouses are not permitted to work in the USA, unless they have secured an Employment Authorization Document (EAD).

Can my wife work if I have H-1B visa?

Spouses of H1B visa holders with a valid H4 visa can only work if they have been granted an Employment Authorization Document.

Can H1B dependents study in the US?

H1B dependents are allowed to study in the US, provided they and the principal H1B holder have valid status.

This article does not constitute direct legal advice and is for informational purposes only.

Author

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Nita Upadhye

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.

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