Spouse Visa For H1B Holder - NNU Immigration

H-4 Visa – Spouse Visa for H1B Holders

Spouses of H1B visa holders have to apply for their own visa to be able to accompany or join their husband or wife in the USA. The H-4 visa is specifically for spouses of H1B visa holders to live, work and study in the USA.

H1B spouses

The H1B program allows businesses to contract overseas employees to work in the US on a short-term basis for roles that require highly specialized knowledge and a relevant bachelor’s degree or higher.

Science, engineering and information technology are all areas covered by the H-1B program, as are occupations related to certain projects undertaken by the Department of Defense. Additionally, the H-1B program also applies to certain occupations in the area of fashion modelling.

H1B visa holders are allowed to stay in the US for up to three years, with the option to apply to extend the visa for up to a maximum stay of six years, provided the visa holder remains eligible.

What is the H-4 visa?

The H-4 visa is for dependents of H-1B visa holders, including spouses and unmarried children who are under 21 years of age.  The H4 visa allows qualifying dependents to join their spouse or parent in the US for the same length of time as the principal H1B visa is valid.

‘Spouse’ in this context refers to a husband or wife in a legally recognized marriage. Common-law relationships are not recognized under US visa law. If you are not married, you are not eligible to apply for an H-4 visa.

What does the H-4 visa allow?

Under the H4 visa, spouses of H-1B visa holders are permitted to live in the US with their H1B spouse. H-4 visa holders are allowed to study in the US either on a part-time or full-time basis in any field, and can volunteer for non-profit organizations in positions that are unpaid. They can also start their own business in the US, provided their spouse’s H1B visa is valid.

However, H-4 visa holders looking to take up paid employment must first apply for an employment authorization document (EAD) to allow them to work in the US.

How to apply for an H-4 Visa

Provided you are eligible, you can apply for an H-4 visa either at a US consulate office if you are applying from outside the US, or by filing a change of status form if you are already in the US.

Applying from outside the US

If you are not yet in the US, your application should be made at the US Embassy where your spouse applied for their H1-B visa, or in your home country if you and your spouse are of different nationalities.

The specific visa application procedure is dependent on the country from which you are applying, but in general you will need to follow these steps:

Step 1: Complete and file form DS-160 online

Step 2: Following your online application submission, you will be required to schedule an interview at the relevant US consulate. You will need to bring the following documentation with you, including but not limited to:

• Your passport
• Your spouse’s passport
• Evidence of your relationship with your spouse, such as photographs and your wedding album.
• Proof of confirmation and payment of the DS-160 form
• Proof of your spouse’s employment
• Original marriage certificate

Applying from within the US

If you are already in the United States, you can still apply for an H-4 visa by filing a change of status form. This application must be made before your current authorized stay expires, and it is recommended to apply at least 45 days prior to this expiry date.

If you have unmarried children under the age of 21, it is possible to list them as co-applicants as long as they have the same visa status, or are in the same derivative status.

How much does the H4 visa cost?

You will also need to pay the relevant filing fees. It costs $185 to file the DS-160 from outside the US, or the I-539 costs $370 to file from within the States. Applicants may also need to pay the $85 biometrics fee.

How long does H4 visa processing take?

H4 visa processing varies by factors such as the caseload of the consulate or center that is processing the application, and the complexity of the application. In general, you should expect consular processing to take around 6 months, or if adjusting status within the USA, processing can take between 4 and 9 months.

H4 visa Employment Authorization Document (EAD) requirements

In order to work in the US with an H4 visa, you will need to apply for an EAD. This will allow you to work full-time or part-time in any field, in any position. You are not permitted to begin work until you receive the EAD, however, you can start looking for employment as soon as your application is approved.

To be eligible for the EAD, you must hold a valid H-4 visa and either:

• your H1-B spouse has applied for US lawful permanent residence; specifically, the H1B spouse must have an approved Form I-140. You will be allowed to apply for the EAD as soon as the I-140 is approved and you do not have to wait for your spouse to get their Green Card, or
• your spouse has been granted status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act (AC21).

The EAD will be issued for the duration of the spouse’s H1-B permission.

Those who are granted an EAD will also be issued with a US social security number.

Note that if the H1B spouse’s I-140 is revoked, the H4 EAD application will also be revoked.

How to apply for H-4 Employment Authorization

To apply for an H4 EAD, you must complete and file Form I-765, Application for Employment Authorization. The application should be made from within the US under a valid H-4 visa.

You will be required to submit supporting evidence, including proof of your current H-4 visa status and proof of your spouse’s H-1B visa status.

How long does the H4 EAD take?

Applications can take upwards of 90 days to process. There is no option for premium processing.

Can H1B spouses apply for a Green Card after the H-4 visa?

H-4 visa holders can apply for a US Green Card. It would be a matter of waiting for your priority dates to become current, which in practice could take several years.

The alternative would be for you to apply for a change of status. For example, if you find qualifying employment with a US sponsor, you may be able to apply, for an H1-B visa. In this instance, the route to permanent residency is six years.

Need assistance?

US visa application processes can be complex and with so much at stake, you will want to ensure your application meets the required criteria and standards.

Taking legal advice can help ensure you are compliant with eligibility criteria and are providing all the required information to enable your application to be processed without delay.

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.

H-1B spouse visa FAQs

Can my spouse work if I have an H1B visa?

Your spouse will only be allowed to work in the US if they have permission. THis could mean applying for their own US work visa, or applying for an H-4 visa as the spouse of an H-1B worker and then obtaining an Employment Authorization Document.

Can my wife work on H-4 visa?

H4 visa holders can work provided they have been issued an Employment Authorization Document.

What is H1B visa status for spouse?

H1B spouses can apply for the H4 visa to accompany their partner to the USA.

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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