H-4 Visas For Family Of H-1B Visa Holders - Nolo

One of the most common questions H-1B workers ask is "Can my family come to the United States with me?" Fortunately, the answer is in most cases 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 a separate H-4 visa.) We'll discuss the details here, including:

• which family members can accompany the H-1B worker
• how the H-4 application process works if they're overseas
• how the H-4 application process works if they're already in the United States
• what activities H-4 family members can engage in while in the United States
• how certain H-4 spouses can apply for U.S. work permits
• H-4 visa holders travel rights, and
• when and how H-4 visa holders can change to another immigration status in the United States.

In This Article

• What Are the Limitations on Family Accompanying a Primary H-1B Visa Holder?
• How Does My Family Obtain H-4 Visas?
• Can H-4 Visa Holders Work or Study in the United States?
• Can H-4 Visa Holders Leave the U.S. and Return?
• Can H-4 Dependents Change Status in the U.S.?
• For More Information

What Are the Limitations on Family Accompanying a Primary H-1B Visa Holder?

For the purposes of the H-4 visa, a "spouse" is a husband or wife in a legally valid and recognized marriage. A "child" is an H-1B worker's son or daughter who is both unmarried and under the age of 21.

If you are from a culture where polygamy is common, you might also want to read, How Marriage to Multiple Spouses Affects Immigrants' Eligibility for a U.S. Visa, Green Card, or Citizenship.

How Does My Family Obtain H-4 Visas?

If your family is outside of the U.S., they can apply for H-4 visas at the U.S. consulate. They do so after U.S. Citizenship and Immigration Services (USCIS) approves the H-1B petition the employer filed on your behalf (Form I-129). Your family can obtain their H-4 visas at the same time you obtain your H-1B visa, or they can do so 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:

1. A copy of your (the H-1B worker's) H-1B Approval Notice (Form I-797).
2. Marriage certificate or birth certificate showing the family relationship between the applicant and the H-1B worker.
3. A passport that is valid for at least six months past the application date.
4. A completed and signed Form DS-160, Nonimmigrant Visa Application.
5. One color, passport-style photograph.

Please note the consulate may ask your family for additional documents, but in general those listed above are the basic materials that will be 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 a U.S. 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 application.

The primary applicant, typically the spouse, prepares and submits the basic Form I-539. Each child submits a Form I-539A. For H-4 applications, the I-539 filing fee is $470, or $420 if filed online (2024 figures) and includes the entire family.

We are presuming the family members 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 spouse and child 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 approve the I-539 and change your family's status to H-4. Be aware, however, that sometimes USCIS takes many more months to process the I-539 application as compared to the I-129 petition. Your family can remain in the U.S. while awaiting the I-539 approval.

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 serious consequences and jeopardize their future opportunities to visit or live in the United States.

One more thing to remember: Because a change of status does not provide an actual entry visa, your family members will, if they travel outside the U.S. after changing to 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, but it is an important step to remember, nonetheless.

Can H-4 Visa Holders Work or Study in the United States?

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 exception.

Spouses of H-1B workers may obtain work permits in cases where the primary H-1B worker is applying for lawful permanent resident status (a green card) and the employer has received an approved Form I-140, Immigrant Petition for Alien Workers on their behalf or has received an extension of H-1B status beyond the six-year limit under the so-called AC21 statute. This type of work permit is unrestricted—the holder may work for any employer, or start a business. (See application instructions just below.)

If H-4 visa holders begin working without permission, they are violating the conditions of status and may lose status and be subject to other serious penalties.

Steps to Preparing an H-4 EAD Application

The H-4 spouse must prepare Form I-765, Application for Employment Authorization and file it with all required evidence to the appropriate USCIS ("United States Citizenship and Immigration Services") office.

For more guidance, see Filling Out Form I-765, Application for Employment Authorization. The Form I-765 page of the USCIS website includes the form itself, instructions, and further guidance, such as filing addresses. Answer the questions on the form as completely as possible, and if you are not completing it electronically, use black ink to fill it out.

In Part 2, Question 27, your EAD eligibility category is "(c)(26)." (For more about EAD categories, check out What Is Form I-765, Application for Employment Authorization.)

Documents to Accompany the I-765 Form

After completing the form, gather these documents:

• a copy of the H-1B spouse's approved I-140
• copies of the family member's current I-94 and visa stamp showing valid H-4 status, and
• a copy of your marriage certificate or other legal evidence of your marriage.

Send these to USCIS with the completed Form I-765 and filing fees ($520; 2024 figure).

The filing fees can be paid by money order, personal check, or cashier's check made out to the "U.S. Department of Homeland Security." You may also pay by credit card by using Form G-1450.

Make a copy of all items for yourself and mail them to the appropriate USCIS address.

Renewing an H-4 EAD

Assuming the H-1B visa holder remains in valid status in the U.S., the spouse may stay on as well, and renew the permission to work.

EAD renewal applications may ordinarily be submitted to USCIS up to six months before the EAD's expiration date. You can find the expiration date on your physical EAD document.

Unfortunately USCIS sometimes can be quite slow to act on these renewals, and you might find that your work permit expires before your new one has been approved. To deal with this, USCIS will allow certain H-4 spouses to receive automatic extensions of their work permit for up to 180 days.

Can H-4 Visa Holders Leave the U.S. and Return?

Yes, H-4 visa holders are entitled to travel in and out of the United States. There is no requirement that the H-1B worker accompany them. They should, however, take a copy of the H-1B worker's most recent approval notice, if it's been extended since their last entry. That way, the Customs and Border Protection (CBP) officer at the port of entry will know to also extend their I-94 (containing their date of required departure) to match the latest H1B extension.

Can H-4 Dependents Change Status in the U.S.?

H-4 visa holders are permitted to change 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

For more information on H-1B visas, see H-1B Visas for Temporary Specialty Workers or consult an experienced immigration attorney.

Further Reading How Taking an Approved Leave Affects Your H-1B Employment Updated May 26, 2023 Working in the U.S. on an H-1B: Can I Also Start on Online Business Based Overseas? Updated September 22, 2023 H-1B Employers: What Wage Must You Pay? Updated September 22, 2023