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BASICS OF APPLYING FOR H-4 AND H-4 EAD

BASICS OF APPLYING FOR H-4 AND H-4 EAD

Every year, the United States allows for up to 65,000 H-1B applications for new beneficiaries seeking temporary employment in America under what is known as the H-1B cap. In addition to the 65,000 that is already earmarked, an additional 20,000 are available to individuals who have earned a U.S. master’s degree or higher. It is a given that many of the individuals coming into the country are not coming alone, bringing spouses and children alike with them as they embark on acquiring the American dream. However, how are these individuals coming in? It has already been stated that individuals seeking temporary employment may come in under an H-1b visa if they qualify but what about their loved ones? The answer lies in a separate visa that can only be obtained by being the dependent of an H-1b holder. This visa is known as an H-4 Visa. This article will cover what an H-4 visa is and how to go about obtaining it.

What Is an H-4 Visa?

            The H-4 Visa is a visa type is that is used for the spouses and dependents of qualifying H visa recipients. For the purposes of this article, we will only be addressing the dependents of the recipients of H-1B visas. A party may be eligible to receive an H-4 Visa if their spouse is the principle beneficiary of approved H-1b status. Additionally, if the dependent of an H-1B recipient is a child, they too may qualify under their parent so long as they have not yet obtained the age of twenty-one years old (21). H-4 status expires when a child reaches the age of twenty-one. The overall status of an H-4 recipient is directly connected to the status of their spouse or parent as, if the H-1B recipient ends up out of status, the H-4 recipient will also be considered to be out of status. Likewise, if the H-1B holder manages to obtain permanent residence, their spouse or dependent may also extend their status until a green card is issued.

In addition to simply being granted status to stay in the United States alongside of their H-1B spouse, recipients of H-4 may also apply for authorization to work in the United States. This authorization is referred to as H-4 EAD.

What is H-4 EAD?

H-4 EAD allows H-4 visa holders to legally work in the United States. Much like the H-4, a party may be eligible to receive an H-4 Visa if their spouse or parent is the principle beneficiary of an approved Form I-140 Immigrant Petition for Alien Workers or if they have been granted H-1b status and are seeking to go beyond the six-year time frame. The process for applying for H-4 EAD differs from that of H-4.

            If you have an individual who is eligible to apply for H-4 status then the next step is to fill out a petition.

How to Apply for H4 and H4 EAD

  1. How To Apply for H-4 Outside of the US

To apply for an H-4 visa, the applicant must begin the H4 visa process and fill out a DS-160 form online. The DS-160 Online Non-Immigrant Visa Application is for temporary travel to the United States and is submitted online. The information sent will be used by the consular officers to help determine whether the applicant is eligible to receive the visa. In addition to submitting the DS-160, the applicant must also schedule and attend a visa interview at a US consulate. Any applicants should try and apply at a US consulate or embassy having jurisdiction over their place of residence but they may also apply at U.S. embassies or consulates that permit third-country national applications.

At the interview, an applicant will be requested to bring a number of items and documents to help prove their marital status and/or dependency on their H-1 spouse or parent. These documents may include but not be limited to:

  • US visa interview appointment letter (emailed to you when applying for the interview)
  • A valid passport
  • Copy of the primary visa holder’s passport
  • Photograph of the primary visa holder and applicant together
  • Passport-sized photograph of the applicant
  • Confirmation page of the online DS-160 form
  • Visa fees receipt from the relevant bank
  • A copy of the primary visa holder’s form I-797
  • A letter from the primary visa holder’s employer stating the nature of the relationship between the primary visa holder and employer
  • Pay stubs from the primary visa holder’s current place of work
  • Original marriage certificate
  • Original birth certificates of children
  • Often requested but not always needed: a wedding album, wedding invitations, video of marriage proceedings, etc.

This list is not exhaustive and any additional documentation that could be used to help prove status may also be used.

Once all of this is accomplished, the individual may then apply for H-4 admission at a U.S. port of entry. Applicants should bring evidence of their H-B spouse or parent’s status, a valid H-4 visa in the passport, a valid passport that lasts for at least six months beyond the H-1b authorized end date, marriage certificates, birth certificates, and other authenticating documents in case they are asked for more information.

  1. How To Apply For H-4 In The US

While this is generally how things work, an applicant, who is already in the U.S. on a qualifying status, may also file a Form I-539 Application to Extend/Change Nonimmigrant Status to apply for H-4 status while in the country. This form must be completed for the spouse and a form I-539A Supplemental Information for Application to Extend/Change Nonimmigrant Status must be filled out for each additional child.

  1. How to Apply for H-4 EAD

The H-4 EAD has slightly different requirements for obtaining it. First, instead of filing a DS-160, a potential applicant must first file a Form I-765 Application for Employment Authorization. Form I-765 authorizes a non-resident immigrant dependent spouse or child to be able to work in the United States and must be obtained before they begin to work. It is important to note that USCIS will reject any application that is not accompanied by the proper filing fees or signatures so it is imperative to double-check that all signatures are in place and that the fees are correct.

In addition to the filing of the Form I-765 application, applicants must also submit supporting evidence like they would with their H-4 application. The documents required may have some cross-over but are generally a bit different. USCIS requires applicants to provide documentation of:

  • The H-4 Status
  • Government Issued Identification
  • Evidence of Relationship to H-1B Non-Immigrant
  • The Basis of their Eligibility
  • Proof of identity via two identical two-inch passport-style photographs of the applicant

Each of the requested document types may be proven through a variety of means but, generally require:

  • Their H-4 Status
    • A copy of your current Form I-797 approval notice for Form I-539, Application to Extend/Change Nonimmigrant Status; or
    • A copy of Form I-94, Arrival/Departure Record, showing your admission as an H-4 nonimmigrant or your most recent approved extension of stay 
  • Government-issued identification
    • A copy of their last EAD (if any);
    • A copy of the biometric page of their passport;
    • A birth certificate with photo ID;
    • A visa issued by a foreign consulate; or
    • A national identity document with a photo 
  • Evidence of relationship to H-1B Nonimmigrant
    • Copy of Their Marriage License 
  • The Basis of Their Eligibility
    • Evidence that sponsoring spouse is either the primary beneficiary of an I-140 such as Form I-797, Notice of Receipt for the I-140 or
    • That the sponsoring spouse is the primary beneficiary of an H-1B Application such as Form I-797, Notice of Receipt for Form I-129 Petition for Non-Immigrant Worker and a copy of the H-1B nonimmigrant’s passports, and prior Forms I-94 (Arrival/Departure Record) in addition to a copy of the H-1B holder’s Labor Certification Application

It must be noted, however, that the H-4 EAD can only be applied for while in the U.S. It cannot be applied for while outside of the country.

This is a very general overview of the process that is involved in applying for H-4 and H-4 EAD.  There are many potential issues that you may run into as you attempt to file for yourself or your employee. Thus, we believe that it is important to speak to a qualified business immigration attorney to assist you in the preparation and filing of your paperwork to help reduce the chance of denial. If you have any questions regarding this process or are in need of guidance in how to best comply with USCIS regulations, you can set up a consultation with any of our Reddy & Neumann, P.C. attorneys.

By: Kristina M. Hernandez & Avery Krushall