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Spouse Visa for H1B Holder

H-4 Visa – Spouse Visa for H1B Holders

As a spouse of an H1B visa holder, you must apply for your own visa to join your spouse in the US.

The H-4 visa is for eligible H1B spouses to come to the US to live, work and study.

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 where the visa holder remains eligible.

‘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 is the H-4 visa?

The H-4 visa is the spouse visa for an H1B visa holder, allowing you to join your spouse in the US for the same length of time as your spouse’s H1B visa is valid.

If you have unmarried children under 21 years of age, they can also apply for the H-4 visa.

What does the H-4 visa allow?

Spouses of H-1B visa holders can work or start a business in the US provided their spouse’s H1B visa is valid. 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.

The EAD allows you to work full-time or part-time in any field, in any position. It is also possible for you to start your own business.

To be eligible, you must hold a valid H-4 visa and your H1-B spouse must have applied for lawful permanent residence.

The EAD will be issued for the duration of your spouse’s H1-B permission. If you are eligible to apply and are granted this right, you will also be issued with a social security number.

H-4 visa holders are also 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.

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, although there are commonalities:

Step 1: File the form DS-160 online

Step 2: Following your online application, you will be required to schedule an interview at the local 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.

Applying for H-4 Employment Authorization

To apply, 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. You will also need to pay the relevant filing fee.

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

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.

Your work permit will be valid for as long as your spouse’s H-1B visa is valid, and this validity can be extended if your spouse’s visa is extended.

Can you 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. Given ongoing changes in travel and entry restrictions, 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.

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

By Nita Nicole Upadhye

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