My spouse has been approved for an H-1B visa; How can I and our children join them?

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Question: My spouse has been approved for an H-1B visa; How can I and our children join them?

Answer: If your spouse is approved for an H-1B visa, then you and your children will be eligible for an H-4 visa. If you are applying from outside the country, then you can apply for the H-4 visa with your spouse at the H-1B visa interview. You, and each person seeking H-4 status will each need to file a DS-160 online, bring your valid passports, two passport-style photos, and proof of your relationship to the H-1B beneficiary. Generally, this means your marriage certificate, and birth certificates for your children. Please remember that any document that is not in English, must be translated by a certified translator in its entirety.

If you are residing in the United States, then you can file a Form I-539 to change yours and your children’s statuses to H-4. You will need to submit the following:

  • A completed I-539 with appropriate supplements for each person included on the application with correct signatures;
  • $370 filing fee;
  • A valid passport for each person on the application;
  • The most recently issued I-94 for each applicant;
  • Proof of the relationship to the H-1B beneficiary, with certified English translations;
  • Your spouse’s most recent, valid H-1B approval notice;
  • Your spouse’s passport; and
  • Evidence that your spouse is maintaining H-1B status, usually their most recent paystubs.

Am I able to work in H-4 status?

Your may qualify for work authorization by filing a Form I-765 once you are in the United States, or with your I-539 if applying within the United States. If the Form I-765 is approved, you will be issued an Employment Authorization Document or EAD card. This document grants work authorization for any employer. The card can be valid for up to the expiration of your H-4 status and can be extended each time your H-4 status is extended. 

To file Form I-765, you will need to submit the following:

  • A completed I-765 with the correct signatures;
  • $410 filing fee;
  • Two passport style photographs;
  • A valid passport;
  • Your most recently issued I-94;
  • Proof of your relationship to the H-1B holder with English translations; typically, your marriage certificate;
  • Your spouse’s most recent, valid H-1B approval notice; 
  • Your spouse’s passport; and
  • Evidence that your spouse is maintaining H-1B status, usually their most recent paystubs.

When can I extend my EAD card?

You can file to extend your EAD card 180 days before it expires, but it cannot be extended unless your spouse’s H-1B status has also been extended. Please keep in mind that your work authorization expires when your EAD card expires, and you cannot request premium processing for form I-539 or I-765. Your work authorization will end unless your have a new EAD card approved. As such, it is important for you and your spouse to file to extend your statuses as soon as possible.

Can I travel while the H-4 and EAD extensions are pending?

Since the H-1B can be processed faster than the H-4 and EAD extensions, sometimes the H-1B holder has their status extended before their spouse and children. You and your family may travel while your extensions are pending, but you may be issued a different I-94 number upon your entry than the I-94 number issued on the new approval notice. This can cause a mismatch in the SAVE databases, which would require you and your children to travel outside the country and re-enter with the newest approval notices to correct the mismatch. If you and your children do not have valid H-4 visa stamps, then you will need to apply for new stamps before your entry. Your H-4 statuses are extended with a new I-94 upon re-entry, but if you had an I-765 pending before your travel, it can be considered abandoned and denied. You then re-file the I-765.

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