H-4 Family Members
What action, if any, is required on the part of an H-4 nonimmigrant (a family member of a H-1B principal) if the H-1B principal changes employers? This question will be answered after a brief overview of the H-4 category.
Family members of the H-1B worker are admitted to the United States in the H-4 category. Qualifying family members include only the spouse and unmarried children under 21 years old. Family members are admitted for the same period for which the principal family member is admitted.
Family members may alternatively be admitted in other nonimmigrant categories for which they qualify, such as the F-1 category for children or spouses who will be students or the H-1B category for a spouse whose employer has also obtained approval of an H-1B petition to employ the spouse.
H-4 family members may undertake studies while remaining in the H-4 category. Family members cannot engage in any form of employment in the H-4 category, however, unless issued EAD's (employment authorization documents). Effective May 26, 2015, an H-4 spouse (children in H-4 status are not eligible) will qualify for an EAD if the H-1B spouse is either (1) the beneficiary of an approved I-140 immigrant petition, or (2) has extended H-1B status beyond six years based on the American Competitiveness in the Twenty-First Century Act (AC21). The applicable AC21 regulations allow an H-1B nonimmigrant to extend status beyond the usual six-year limit in one-year increments if the H-1B spouse is the beneficiary of either a PERM labor certification (PERM) application, or an I-140 immigrant petition that was filed at least 365 days prior to the end of the sixth year of H-1B status.
Change of Employer
The following question by a fellow American Immigration Lawyers Association (AILA) member was recently put to Ms. Yvonne M. LaFleur, Chief, Nonimmigrant Branch, INS [USCIS]: "Whether the H-4 visa holders maintain their status as long as the principal alien maintains his/her status, or are they also required to re-file to maintain their status in change of employer situations?"
The following facts were furnished to Chief LaFleur: "The principal alien is the beneficiary of an H-1B visa petition by 'Company A'. The visa is valid for a period of three years. The accompanying family member receives an H-4 visa for the same period reflecting the principal alien's employment with 'Company A'. One year later, the principal alien changes employers. A new H-1B visa is petitioned for by 'Company B', and all procedures are followed so that the principal alien is never out of status. The validity dates on the H-4 accompanying family member's visa has two years remaining, but still shows 'Company A' as the H-1B petitioner and not 'Company B'.
Chief LaFleur's response to the AILA member's query acknowledged that an H-4 family member's authorized stay in the United States is contingent on the continued validity of the principal H-1B family member's status. The H-4 nonimmigrant family member continues to remain in valid nonimmigrant status as long as the H-1B principal remains in a valid nonimmigrant status.
"[S]ince the H-4 nonimmigrant classification is not specific to an employer, the H-4 nonimmigrant alien remains in valid status even if the principal alien changes H-1B employers. No action is required on the part of the H-4 nonimmigrant alien when the principal H-1B alien changes employers within the same classification."
It is important to remember, however, that family members extend their I-94 prior to expiration. This form determines eligibility to remain legally in the U.S. and is issued at either the port-of-entry when entering the U.S., or is attached to an approval notice granting change or extension of nonimmigrant status by the USCIS. The “last action rule” applies, so that the latest issued I-94 is dispositive in determining when an individual’s I-94 expires if there are multiple I-94’s in possession.